Terms of Use | Moodagent

TERMS OF USE FOR THE MOODAGENT SERVICE

Download the Moodagent App (e.g. App Store or Google Play Store) and get access to Moodagent Music Service.

1. INTRODUCTION

Moodagent is a subscription-based music service. When you use the Service, you are covered by our terms and conditions, and you must comply with these to ensure that we can supply the best possible music service. These terms and conditions (“Terms"), as well as agreements which are referred to in the Terms and which later will be entered into, including the Privacy Policy and Cookies Policy, together comprise the agreement (together referred to as the "Agreement”) between you and Moodagent “Moodagent”, “we”, “us”, “our”), and this Agreement will govern your use of Moodagent’s services.

It is important that you review the Terms closely as they stipulate your legal rights and obligations in the Service. Note that the Agreement includes disclaimers, and provisions about the choice of law, communication language, venue, profile generation, our pricing and automatic renewal of your subscription, 

When you subscribe to the Service, you must provide us with certain information and accept the Terms and the Privacy Policy as stipulated in Clause 3.

In order to use the Service, it is important that your device meets certain technical requirements and that you have compatible software, including the latest recommended and required version of the operating system as well as internet access. More information about this is available at the digital store or the location from where you download our Application. Note that the relationship between these factors affects the performance of the Service.

When entering into the Agreement, the Agreement is between you and Moodagent A/S, a Danish registered limited company with business registration no. (CVR) 29421773, having its office at Havnegade 27, 1058 Copenhagen K, Denmark.

2. THE SERVICE

We offer our users a subscription-based music-streaming service through Moodagent’s mobile -and desktop application (collectively “the Service"), and we offer a 14-day free trial period of the Service (see the more detailed conditions for this under Clause 12) and 30 days further free premium access to the Service subject to submission of additional information.

Streaming in this context means a possibility to access music (at track level), graphics, images, albums, compilations, etc. that have been released by the rights holders with whom we have entered into agreements (together referred to as “Music Content”), as well as other content, at an individually chosen place and date. Access to the Music Content requires that you subscribe to the Service, through the mobile application, accept the Agreement and choose an appropriate type of subscription (see Clause 13).

We cannot guarantee that Music Content previously available will remain available in the Service. Moreover, if the Service is used offline, the Music Content will be restricted to a shorter period of time and to the content you have downloaded to your device.

In addition to streaming Music Content, the Service in the mobile application contains options to create and share playlists and moodagents (playlist created with our patented algorithmic, recommendation engine), “Like” buttons, music sharing and an option to follow other users. Please note that the Service available on the desktop application is currently limited to creating moodagents and liking songs.  

Your use of the Service must always be in accordance with our Rules of Conduct.

The Service offers customized and automated music recommendations, as well as other content recommendations. Music recommendations may also come from other users, influencers, publishers, businesses, and commercial partners.

Music Content, playlists, content and features may vary from country to country. If there are terms in the Agreement that apply to elements that are not available in your Home Country, the terms will not apply to you until the feature the term concerns are available.

3. ACCESS TO USE THE SERVICE

As part of creating a User Account, you confirm that (i) you are at least 18 years old and not subject to guardianship or other deprivation of legal capacity or (ii) you are at least 14 years old and you have permission from your parents to accept the Agreement, and (iii) that you are entitled to accept the Agreement and transfer the rights stated in the Agreement. You also confirm that you have a permanent address in Australia. If you are younger than 18 years of age, you confirm that your parents or guardian will accept the Agreement on your behalf.

You declare and agree that you will comply with our Rules of Conduct (Clause 6).

Use of the Service requires an internet connection with good download speed, either wireless, cable, or using mobile technology (at least 3G). The Service can be used on a number of types of mobile phones, tablets, or desktop computers (together referred to as “Devices” and separately referred to as a “Device”).

You can access the Service 24 hours a day, 365 days a year in Australia subject to the terms of this Agreement. If you are temporarily outside Australia, the Service will also be available, provided you continue to meet the conditions for being temporarily present. 

If you are traveling outside Australia, you will be asked to disclose if you are visiting or moving. Moodagent reserves the right to shut off the Service if the Service is used outside your home country for longer than would otherwise be considered as temporary. Subsequently, if you still consider that you are temporarily outside, you will have to verify this to Moodagent. You will automatically get access back after a return to Australia. 

In case you have moved outside Australia, you will lose access to the Service as your subscription will be terminated. We do not refund for non-access days in the month where you are moving. Please contact Customer Support for a subscription in the new Territory.

If you are outside for more than 15 days, we consider this as non-temporary, and your access will be blocked until you come back. Please note that we in this case do not refund non-access day.

In accordance with our Privacy Policy, we register the country in which the Service is being used. We will validate your Home Country. Validation will be carried out on the basis of one or more of the following identification factors: Your input, IP address, App Store, Play Store, and payment information.

When creating a User Account, you have to state your email address, username, birthday, Home Country and Password. The Password protects against unauthorized access to your User Account. You are responsible for confidentially and safely storing your Password, and you are responsible for any use of your User Account, including unauthorized use, which occurs through access to the Service with your email address and Password. If your email and/or Password are unlawfully taken from you so that others can access your User Account, you should immediately notify us here at support@moodagent.com. If you lose your Password, you should immediately request a new Password within the Application.


4. COMMUNICATION LANGUAGE

We will use either English or the language of your Home Country in our communication with you.

WHEN YOU ACCEPT THE TERMS, YOU ACCEPT THAT WE CAN COMMUNICATE WITH YOU IN ENGLISH, NOTWITHSTANDING THAT OUR MARKETING AND THE AGREEMENT ARE WORDED IN THE LANGUAGE OF YOUR HOME COUNTRY. 

5. PRIVACY AND COOKIES

Our Privacy Policy applies to your use of the Service. It can be found on the website https://moodagent.com/au/privacy or mobile application MOODAGENT APPLICATION > SETTINGS > LEGAL.

The information of how we use cookies is available at https://moodagent.com/au/cookies.

6. RULES OF CONDUCT

Your actions influence your own and others’ experience of the Service, as well as how the Service operates. You and other users also use a large number of intellectual property rights when you use the Service. Your use and interaction in the Service overall entail a need to protect your own, others’, and our interests. Therefore, we have drawn up these Rules of Conduct to provide information about how we do not want you to act so that all stakeholders get the best experience from the Service. Overall, we respect your free will and your freedom of expression, provided this is with respect for other people's interests.

Therefore, you must comply with these rules and we hope you will encourage others to do so as well.

When using the Service, you may not:
  • Speak or write in a derogatory, improper, offensive, libellous or threatening manner, nor in any other way taunt and ridicule others;
  • Share pornographic images or write using explicit pornographic language;
  • Share anything that is grossly harmful, blasphemous defamatory, obscene, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner;
  • Threaten the unity, integrity, defence, security or sovereignty of your Home Territory, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation in any manner;
  • Harm minors in any manner;
  • Incite to violence, theft, IP infringement or other unlawful actions;
  • Bully or incite to bullying;
  • Deceive or mislead the addressee about the origin of any messages or communicates any information which is grossly offensive or menacing in nature;
  • Share or copy personal data, or any other information that belongs to another person and to which the user does not have any right to;
  • Upload or link to malware, virus-infected software, and content that infringes the rights of others, including personal rights, copyrights, design rights, patent right and trademark rights or any other proprietary;
  • Non-contractually mimic or pretend to be another person, enterprise, artist or author,
  • Carry out any commercial or marketing-related activities on the Service, including linking to commercial and marketing-related websites, and
  • In any way, prevent the Service from working or disrupt the Service, including by exploiting possible flaws, security gaps, access or other unauthorized methods to gain access to the underlying systems in the Service, including scanning or testing the Service’s network, source codes, servers, systems, etc. to find such flaws or security gaps.
  • When you use the Service, you may at no time rip, record, or in some other way copy Music Content, playlists, or other content on the Service. Similarly, you are not entitled to distribute, transmit, broadcast or in any other way make Music Content or other parts of the Service available to the public. You are only entitled to use the Service in accordance with the Agreement, and unless a specific use is explicitly stated in the Agreement, such use will be considered as being in violation with the Agreement.

    It is not permitted in the Service to:

  • decompile, break up source code, modify, reverse-engineer or build further on the intellectual property rights made available to you in the Service;
  • circumvent any technical obstacle integrated into the Service, including the territorial restrictions to which Moodagent is subject;
  • sell or transfer onwards illegal copies of Music Content;
  • sell or transfer onwards your access to all or parts of the Service;
  • use technical measures or automated solutions, including bots, scripts and similar, to modify and manipulate the number of plays, the number of “likes”, sharing of content;
  • “crawl”, harvest, text mine and data mine or use similar technical measures to obtain information from the Service, including playlists and User-Generated Content, unless you have a license to do so issued by Moodagent;
  • remove trademarks or other brand symbols from the Service or Music Content;
  • prevent our technical information messages from being displayed;
  • disclose your Password to any person or organization;
  • use the email and Password of others to gain access to the Service, and
  • conduct automated marketing of your User Account and Music Content.
  • Note that, if you do not follow the Rules of Conduct and the Agreement in general, we will inform you and ask you to stop the respective behaviour, which violates the Rules of Conduct and the Agreement in general. If you do not comply with this, are entitled to block your access to the Service with immediate effect. Read more under Clause 15.

    7. SUPPORT AND ONLINE DISPUTE RESOLUTION

    We offer all our users personal support with regard to User Accounts and payment-related issues. You are always welcome to contact our customer support at support@moodagent.com. We acknowledge receipt of a complaint within 48 hours and redress the complaint within one month of receipt of the complaint.

    If you wish to complain about the Service, please contact our support service or write to support@moodagent.com.

    8. USER LICENSE FOR THE SERVICE AND APPLICATIONS

    We give you a limited, non-transferable, non-exclusive, revocable right to use the Service in the Territory, as well as a limited, non-transferable, non-exclusive, revocable, personal, non-commercial right to use the Music Content on the Service in the Territory (together referred to as the “User License”). Your User License is valid for the entire Trial and Subscription Period unless the Agreement is terminated or canceled by us.

    WHEN YOU ACCEPT THE TERMS, YOU DECLARE THAT YOU WILL ONLY USE THE SERVICE AND MUSIC CONTENT IN A PERSONAL, NON-COMMERCIAL MANNER AND THAT YOU WILL NOT TRANSFER YOUR USER LICENSE TO OTHERS.

    In the event that third-party software is used as part of our supply of the Service, you will also have a license to use this software in accordance with the terms and conditions of the third party. You can find an overview of the third-party software or source codes used in the Service in the Application under Settings/LEGAL/ThirdPartySoftware.

    The User License provides you no ownership of the Music Content, Service, Application, and third-party software, regardless of whether you have installed the Service on your Device. You are in no way entitled to use the Music Content, Service, or other intellectual property rights included in the User License, in a marketing context. The User License entails no waiver of rights in any respect other than those specifically stated in the Agreement. Unless otherwise specifically stated in the Agreement, Moodagent transfers no rights or title to the Service, Music Content, Application, and third-party software to you.

    Use of the Service on your Device entails the use of processor power, memory, storage capacity, and data connection, and this may be associated with additional costs. These costs are not covered by your Subscription Payments and payment will be demanded separately by, for example, your internet operator.

    9. SPONSORED CONTENT

    As part of the provision of the Service, Moodagent, our partners, labels, artists, and other persons and enterprises relevant for the Service, may deliver information to the Service that may appear in the area of the Service in which you regularly see information (our “Feed”). This information may be playlists, information about music, artists and composers, products, etc. Note that the location of the content, display of playlists, and other content may be influenced by commercial interests, including agreements we have entered into with a third party. The content may be regarded as marketing material, and we do not necessarily moderate this content.

    10. CONTENT OF AN OFFENSIVE NATURE

    The Service contains several million tracks (sound recordings) and other Music Content, and we allow users to share and post User Content. This means that there may be content that you or others find offensive, or that may be considered offensive/inappropriate for persons under 18 years. This may include lyrics, cover art, speech, images, or other media content containing offensive language, descriptions of sex, violence, and hateful statements (“Offensive Content"). Therefore, we recommend that all use of the Service by persons under 18 years be under the supervision of an adult.

    11. BEHAVIOR AND ACTIVITY PROFILING

    As part of our Service and in order to give you the best personal recommendations of Music Content, we register your music preferences, including your playlists, your moodagents, and settings, what you play, the music you like and skip activation, your actions in the Service, the users you follow, location (based on IP-address) and device information (together referred to as “User Data"). User Data is used to improve your experience of the Service and in order to meet our contractual and other legal obligations (as described further below).

    As the collection and processing of User Data is essential for the functionality of the Service, it is not possible to opt out of this processing. If you do not want the Service to collect User Data, you should terminate the Agreement and stop using the Service. For more information about how we handle User Data, please see our Privacy Policy.

    Your User Data will be anonymized when you delete your account and therefore the User Data is not deleted. However, we do delete any and all links between User Data and your User Account when you delete your account as a part of the anonymizing process. This is described in more detail in our Privacy Policy (https://moodagent.com/au/privacy).

    User Data is also registered in order to ensure that we can meet our contractual obligation to pay royalties to artists, music companies and other rights holders for use of their intellectual property rights.

    12. SUBSCRIPTIONS

    You have to create a User Account and choose a suitable subscription in order to gain access to the Service. At the moment we offer one type of subscription: (i) Premium (referred to as the “Subscription”). Furthermore, we offer new users a time limited free access, please see below. “New user” means that, as an individual, you have not previously have had access to or created a User Account for the Service in your Territory.

    12.1. Free Access Period

    As a new user of Moodagent, you will be granted up to 14 days of free access to the Service when you create a User Account (“Free Trial Period”). You do not even have to choose a Subscription. The 14 days of free access run from the date you create your User Account.

    You can receive 30 days further Premium access to the Service free of charge in return for subscribing and submitting Payment Information (Clause 13) before the expiry of the Free Trial Period (“Free Premium Access”). The Free Trial Period and the Free Premium Access are collectively referred to as the “Free Access Period”. We require your Payment Information as part of our efforts to give you the best possible and uninterrupted experience of the Service when the Free Trial expires. Failure to submit Payment Information within the expiry of the Free Trial Period means that you will no longer be able to access the Service. The length of the Free Trial Period depends on when you submit your Payment Information. We always inform you how many days of Free Trial Period and/or Free Premium Access you have when you submit your Payment Information. If you submit your Payment Information after the expiry of the Free Trial Period, you will not be entitled to and will not be granted the 30 days of Free Premium Access.

    WHEN YOU SUBMIT PAYMENT INFORMATION, YOU AGREE THAT, ON THE DAY AFTER THE FREE ACCESS PERIOD EXPIRES, WE WILL AUTOMATICALLY CHARGE THE SUBSCRIPTION FEE TO THE RELEVANT PAYMENT CARD OR AGREED METHOD OF PAYMENT. IF YOU WANT TO DISCONTINUE YOUR SUBSCRIPTION AND WANT US TO STOP AUTOMATICALLY CHARGING THE SUBSCRIPTION FEE, YOU MUST TERMINATE THE AGREEMENT BEFORE THE FREE ACCESS PERIOD EXPIRES. IF YOU PROVIDE YOUR PAYMENT INFORMATION AFTER EXPIRY OF THE FREE TRIAL PERIOD YOU, WILL BE CHARGED THE SUBSCRIPTION FEE IMMEDIATELY. 

    12.2. Premium

    A Premium subscription allows you unlimited access to Music Content within the Territory for the term of the Premium subscription. The Subscription is renewed automatically, and during the term of the Subscription, you have full access to all the features offered by the Service in your Territory.

    You have access to one (1) simultaneous transmission of Music Content on up to five (5) Devices. If you need to re-designate one Device you can do so once every six months.

    Payment for a Premium subscription is automatic and paid monthly in advance.

    13. PAYMENT AND AUTOMATIC RENEWAL

    13.1. Payment

    When you activate or reactivate a Subscription, you buy access to the Service and you agree that we will demand payment in advance (“Subscription Payment") and for one month at a time (“Subscription Period"). Subscription Payment will be charged to the relevant payment card or the agreed method of payment. We offer the following payment methods: Visa, MasterCard, PayPal, Apple in-app. You are responsible for payment and become liable for this when you enter your Payment Information.

    The price of the Service is listed on our website and may vary over time; we will give you reasonable notice of any price changes and ask for your consent. If you do not give your consent your Subscription will end at the end of the Subscription Period.

    Subscription Payment can either be directly to Moodagent by credit card or through a third-party payment service, including through Apple App Store or Google Play.

    On Subscription Payment, an invoice will be sent to the email address you have disclosed.

    13.2. Automatic renewal

    YOUR SUBSCRIPTION WILL BE RENEWED AND PAID AUTOMATICALLY ON THE DAY AFTER THE EXPIRY OF THE SUBSCRIPTION PERIOD UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION BEFOREHAND. WE WILL AUTOMATICALLY CHARGE THE SUBSCRIPTION PAYMENT TO THE RELEVANT PAYMENT CARD OR AGREED METHOD OF PAYMENT.

    13.3. Payment information

    As a user, you have to submit correct payment information, i.e. name, country, and email address as well as payment card information (card number, expiry date, and CVV number) (“Payment Information").

    When you enter your Payment Information, you also accept that we or our payment gateway partner store your Payment Information in order to facilitate your payment. If your payment card has expired or you change your card, you can always change your payment information within the Application.

    13.4. Missing or incorrect payment information

    If the Payment Information you have given us is deleted or changes (irrespective of the reason), so that we cannot charge your Subscription Payment to the payment card or the agreed payment method, your access to the Service will be discontinued immediately at the end of the Subscription or Free Access Period. We have no responsibility to update your Payment Information and you are obligated yourself to provide correct and complete Payment Information.

    14. CHANGES IN TERMS

    We may change, revise and expand the Agreement. In that case, we will inform you by email or through a notification in the Application and will ask you for your consent. Your consent will not be required if we add new functions to our Services and only add provisions in regard to these new functions. If you do not accept the changes, you will no longer be entitled to use the Service from the date they take effect, and we must therefore terminate your Subscription to the end of the respective term. 

    15. DURATION, CANCELLATION AND TERMINATION

    15.1. Duration

    The Agreement will remain in force and run as long as neither you nor we cancel or terminate the Agreement.

    15.2. Cancellation

    You or us can cancel your Subscription at any time and the cancellation will take effect by no later than the expiry of the current Subscription Period.

    In accordance with applicable law, we may, at any time with immediate effect, terminate the Agreement in the event of your substantial breach of the Agreement.

    When you cancel, you will lose access to use the Service after expiry of the Subscription Period.

    To cancel your subscription, see below: 


    Credit Card Payments (via Adyen) SubscriptionApple Subscription (payed with Appel ID)

    1.     Log in to Moodagent on your device.

    2.     Go to `Settings-Manage my account`.

    3.     See status (Free Trial, Premium User, No Subscription).

    4.     If you are a Premium User tap `Cancel`.

    1.     Log in to Moodagent on your device.

    2.     Go to `Settings-Manage my account`.

    3.     See status (Free Trial, Premium User, No Subscription).

    4.     If you are a Premium User tap `Manage`. See and follow the instructions from Apple here: https://support.apple.com/en-us/HT202039

    5.     When you’re done with the instructions, the subscription is cancelled.


    Please note that when you cancel your subscription or if you have not subscribed after a Free Access Period you still have an account at Moodagent, which you are able to activate within five years. After five (5) years, your account will be deleted automatically.

    We will store your user ID, email address, and payment references for up to five (5) years in order to establish whether you have previously had a Free Access Period (see our Privacy Policy https://moodagent.com/au/privacy) as only New Users gets a Free Trial period (14 days) and additional 30 days (Premium user for the first time.

    If you want to delete your account at an earlier point, you will need to reach out to support@moodagent.com or create a ticket by following these instructions:

    1.     Log in to Moodagent on your device.

    2.     Go to `Settings->Help->Moodagent Support`.

    3.     You will be redirected to: https://moodagent.zendesk.com/

    4.     Click on ‘Deleting your Moodagent account`.

    5.     Our support team will process the deletion request and inform you when it's done.


    When you delete your account all your Personal Data will deleted, and you will not be able to restore or reactivate your User Account. 

    15.3. Provisions remaining valid

    Certain provisions in the Agreement will remain in force between you and Moodagent irrespective of whether you or we cancel or terminate the Agreement, and you acknowledge and agree that the perpetual license granted by you in relation to User Content, is irrevocable and will therefore continue after expiry or termination of the Agreements. These provisions will continue to apply and are irrevocable. The provisions in Clauses 5, 8, 16, 17, 18, 19, 20, and 22 will remain valid after cancellation/termination of the Agreement, as well as the provisions that, by their nature, have been drawn up with a view to regulating the legal position between you and us after cancellation/termination of the Agreement.

    16. INTELLECTUAL PROPERTY RIGHTS

    All rights, including copyrights, trademarks, trade secrets, design rights, patents, domain names and any other rights to the Service, including our software, source and object codes and APIs are our exclusive property, and any Music Content is the property of us or rights holders with whom we have agreements, including labels, artists, composers, etc.

    “Moodagent®”, “Music is Ours®”, “Music is…®” and the Moodagent logo are all registered ® trademarks and are the exclusive property of Moodagent. The visual platform (Graphical User Interface) of the Service is similarly protected as a trademark and/or a registered design.

    Besides our intellectual property rights, the Service also includes third-party rights, including trademarks, logos, names, and other legally protected elements that are similarly protected.

    You are obligated to ensure that your use of the Service does not lead to any unauthorized copying or use of our or third-party rights. All rights reserved.

    17. USER-GENERATED CONTENT

    Moodagent users may name their playlists, create a username, creating and naming own Moodagents and uploading picture, messages and/or other types of content (“User Content”). For the avoidance of doubt. “User Content” includes any such content posted to the Moodagent Support Community as well as any other part of the Moodagent Service.

    By submitting any User Content on or through the Service, you grant to Moodagent the right to (and to permit Moodagent’s subcontractors to) store, display, stream, reproduce, promote, publicly perform, create and use derivative works of, distribute and otherwise exploit the User Content on or through the Services via any and all devices are known or devices in the future (“License”). The License is solely limited to the operation of the Services for the Users.

    The License is non-exclusive (meaning you are free to permit others to use your User Content), fully-paid and royalty-free (meaning that we are not required to pay you for the use on the Services of the User Content that you post), sublicensable (so that we are able to use our affiliates, subcontractors and other vendors such as internet content delivery networks and wireless carriers to provide the services related to the Services, limited to the scope the License), worldwide and limited to the duration of the Agreement and an additional period of five (5) years after termination of the Agreement with the respective User. If we are obliged to delete any User Content on the basis of applicable data protection law, the License shall terminate accordingly. You agree that the License shall not lapse nor the rights transferred therein revert to you, even if we do not exercise the rights under the license within a period of one year from the date of the License. You hereby waive any right to and shall not raise any objection or claims to the License.

    You promise that with respect to any User Content you post on Moodagent, (1) you own or have the right to post such User Content, and (2) such User Content, or its use by Moodagent as contemplated by the Agreements, does not violate the Agreements or any other rights set forth within the User guidelines, applicable law, or the intellectual property, publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Moodagent or any artist, band, label, entity or individual without the express written consent from Moodagent or such individual or entity.

    Moodagent may, but has no obligation to, monitor, review, or edit User Content. In all cases, Moodagent reserves the right to remove or disable access to any User Content for any or no reason, including User Content that, in Moodagent’s sole discretion, violates the Agreements. Moodagent may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion or if we have received a governmental or court order under applicable laws, and we do not promise to remove or disable access to any specific User Content.

    You are solely responsible for all User Content that you post. Moodagent is not responsible for User Content nor does it endorse any opinion contained in any User Content. You acknowledge that Moodagent is merely an intermediary in relation to User Content as per applicable laws.

    PLEASE NOTE THAT IF ANYONE BRINGS A CLAIM AGAINST MOODAGENT RELATED TO USER CONTENT THAT YOU POST, THEN, YOU MIGHT BE LIABLE FOR THE RESULTS OF YOUR CULPABLE BREACH OF THE TERMS AND/OR APPLICABLE LAW VIS-À-VIS MOODAGENT AND/OR THIS THIRD PARTY. THIS LIABILITY COULD INCLUDE INTER ALIA ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS ARISING OUT OF SUCH CLAIM.

    18. DISCLAIMER

    THE SERVICE AND THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE”.

    NOTHING IN MOODAGENT’S MARKETING AND INFORMATION SHOULD BE CONSIDERED AS GUARANTEES UNLESS THIS IS STATED UNEQUIVOCALLY AND EXPLICITLY IN THE WRITTEN MATERIAL.

    WE WILL DO ALL WE CAN TO SUPPLY A SMOOTH USER EXPERIENCE. HOWEVER, NOTE THAT THERE MAY BE SITUATIONS IN WHICH THE SERVICE WILL NOT BE AVAILABLE, FOR EXAMPLE IN CONNECTION WITH MAINTENANCE OF THE SERVICE AND UNDER CIRCUMSTANCES OUTSIDE OUR CONTROL.

    NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY GUARANTEE, WARRANTY, TERM OR CONDITION, RIGHT OR REMEDY IMPLIED OR IMPOSED BY ANY APPLICABLE LAW WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.

    19. LIMITATION OF LIABILITY

    TO THE MAXIMUM EXTENT PERMITTED BY LAW, MOODAGENT:

    1. IS ONLY LIABLE FOR LOSSES AND DAMAGE THAT ARE A DIRECT RESULT OF OUR BREACH OF THE AGREEMENT; AND

    2. IS NOT LIABLE TO YOU FOR: 

    a. ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR PUNITIVE LOSS OR DAMAGE; OR

    b. LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL OR BARGAIN 

    NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS, OR MODIFIES ANY RIGHT OR REMEDY IMPLIED OR IMPOSED BY ANY APPLICABLE LAW WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.

    THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 21 APPLY REGARDLESS OF THE BASIS ON WHICH SUCH LIABILITY ARISES, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), IN EQUITY, UNDER STATUTE, OR UNDER AN INDEMNITY, EVEN IF MOODAGENT HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

    19.1. Reservations

    WE RESERVE THE RIGHT, WITHOUT PRIOR NOTICE, TEMPORARILY TO INTERRUPT ACCESS TO THE SERVICE IN CONNECTION WITH UPDATING, MAINTAINING, AND CHANGING THE SERVICE, IRRESPECTIVE OF THE REASON FOR THIS. 

    FURTHERMORE, MOODAGENT RESERVES THE RIGHT TO CHANGE, MODIFY, ADD, AND REMOVE FEATURES AND PROPERTIES, IN FULL OR IN PART, TEMPORARILY OR PERMANENTLY, FROM THE SERVICE, ALTHOUGH, WE WILL MAKE EVERY EFFORT TO INFORM YOU BEFOREHAND. NO COMPENSATION WILL BE PAID IN THIS RESPECT. MOODAGENT DISCLAIMS ANY RESPONSIBILITY AND YOU RENOUNCE THE RIGHT TO CLAIM COMPENSATION OR INSTITUTE LEGAL PROCEEDINGS AGAINST MOODAGENT FOR INTERRUPTED ACCESS TO THE SERVICE.

    MOODAGENT RESERVES THE RIGHT, WITHOUT REASON AND AT REASONABLE NOTICE, PERMANENTLY TO CEASE OPERATION OF THE SERVICE AND THUS CLOSE THE SERVICE DOWN SUCH THAT YOUR ACCESS TO THE SERVICE DISAPPEARS. IF YOU HAVE PAID FOR A SUBSCRIPTION PERIOD RUNNING FOR LONGER THAN THE DATE WHEN WE CLOSE THE SERVICE, WE WILL REFUND A PROPORTIONATE SHARE OF THE SUBSCRIPTION FEE. IN THIS RESPECT, MOODAGENT DISCLAIMS ANY RESPONSIBILITY AND YOU RENOUNCE THE RIGHT TO CLAIM COMPENSATION OR INSTITUTE LEGAL PROCEEDINGS AGAINST MOODAGENT FOR INTERRUPTED ACCESS TO THE SERVICE.

    PROVISION OF THE SERVICE DEPENDS ON THE SERVICE INTERACTING WITH DEVICES AND SOFTWARE ON THESE DEVICES THAT HAVE NOT BEEN SUPPLIED BY MOODAGENT OR ASSOCIATED WITH MOODAGENT. THESE DEVICES AND THE ASSOCIATED SOFTWARE HAVE THEIR OWN TERMS AND CONDITIONS FOR USE AND PRIVACY POLICIES, AND YOUR USE OF THE DEVICES IS THEREFORE SUBJECT TO THESE TERMS AND CONDITIONS FOR USE AND PRIVACY POLICIES. YOU DECLARE THAT MOODAGENT CAN IN NO WAY BE HELD LIABLE FOR ANY VIOLATIONS, ACTIONS, AND TECHNICAL AND ACTUAL LACK OF FUNCTIONALITY OR CONTENT ON THESE DEVICES RESULTING FROM YOUR USE OF THE SERVICE.

    FURTHERMORE, MOODAGENT CAN IN NO WAY BE HELD LIABLE FOR THE COMPATIBILITY OF THE SERVICE WITH THESE DEVICES, AND MOODAGENT IN NO WAY WARRANTS SUCH COMPATIBILITY.

    19.2. Indemnification

    YOU ARE RESPONSIBLE FOR ANY DAMAGE INCURRED BY US OR A THIRD PARTY AS A CONSEQUENCE OF YOUR CULPABLE BREACH OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, INCORRECT USE OF THE SERVICE AND ANY USER CONTENT. FURTHERMORE, YOU ALSO AGREE TO INDEMNIFY US FOR THIRD PARTIES COSTS AND DAMAGES WHICH WE MAY INCUR AS A CONSEQUENCE OF YOUR CULPABLE BREACH OF THE AGREEMENT OR APPLICABLE LAW IN GENERAL OR VIOLATION OF ANY THIRD PARTY RIGHTS OR ANY OTHER CONDUCT THAT IS ATTRIBUTABLE TO YOU.

    IF THE USER CONTENT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, YOU AGREE TO IMMEDIATELY REMOVE THE PARTS OF THE USER CONTENT THAT INFRINGE SUCH RIGHTS AFTER NOTIFICATION BY US AND INDEMNIFY US IN RELATION TO ALL CLAIMS, EXPENSES AND COSTS THAT WE INCUR AS A CONSEQUENCE OF YOUR CULPABLE INFRINGEMENT

    IF YOU BECOME AWARE THAT YOUR ACCESS TO THE SERVICE CAUSES OR HAS CAUSED A SECURITY BREACH OR IN THE EVENT OF UNAUTHORIZED ACCESS TO THE SERVICE, YOU ARE OBLIGATED TO CONTACT US WITHIN REASONABLE TIME.

    20. THIRD-PARTY RIGHTS

    In order to provide the Service, we cooperate with owners of the Music Content delivered directly to you via the Service. As a consequence of their rights to the Music Content, they can invoke their rights directly towards you, for example if you, without authorization, copy Music Content or perform Music Content in public. Similarly, the distributors that make it possible for you to access the Service have certain rights that can be invoked directly towards you.

    20.1. Apple's App Store clause
  • You and Moodagent are the only parties to this Agreement, and, with the limitations mentioned in the Agreement, Moodagent is responsible for the Service, Application and all content therein. Moodagent is responsible for all maintenance, support and service of the Application, including all technical equipment used to facilitate the provision of the Service. Claims arising from this may only be brought against Moodagent and not against third parties.
  • All claims, either directly or indirectly due to use of the Service and which may potentially be brought against Moodagent, shall always be brought against Moodagent. Apple has no liability and is not obligated to react to such a claim, regardless of whether you bring a claim against Apple. Apple has no responsibility to provide services or instructions on your use of the Service. Apple is exempt from liability and gives no guarantees, to the extent that applicable legislation allows for this, in relation to any claim you may bring against Apple as a consequence of the Service or Application, including product liability. However, you are, at any time, entitled to a refund of the purchase price of the Application if it does not work on your iOS Device.
  • Moodagent is responsible for examining your claim and is solely entitled to enter into a settlement regarding a claim you may raise as a consequence of your use of the Service and the Application.
  • You confirm that your Home Country is not a country on which the US authorities have imposed an embargo, or which the US authorities have designated as a “state sponsor of terrorism”, and that you are not on the US Specially Designated Nationals and Blocked Persons List.
  • The Terms give Apple rights that can be invoked directly towards you.
  • 21. ENTIRETY AND EXISTENCE OF THE AGREEMENT

    The Agreement comprises the full agreement between you and us, unless otherwise specified elsewhere. If any previous agreement has been entered into between you and us, the Agreement shall take precedence.

    In the event that there are further agreements to the Agreement that regulates the relationship between you and us, you will be informed about these when you create your User Account. In the event that there are specific separate agreements for your access and use of the Service, these shall have priority.

    Notwithstanding individual provisions in the Agreement may not be invoked or are declared invalid, such invalidity or non-applicability shall only apply to these provisions and not the Agreement in its entirety or other provisions of the Agreement. The Agreement shall then be read and understood without these provisions and completed with ordinary legal principles.

    Failure by Moodagent or a third party to react to a breach of the Agreement, any part of the Agreement, or infringement of our or a third party’s intellectual property rights shall at no time be considered as a waiver of such rights.

    22. CHOICE OF LAW AND JURISDICTION

    THIS AGREEMENT IS GOVERNED BY THE LAWS OF NEW SOUTH WALES, AUSTRALIA. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF NEW SOUTH WALES AND THE COMMONWEALTH OF AUSTRALIA.

    September, 2021

    Moodagent ©