Version 1.02 – October 16, 2019
When you subscribe to the Service, you must provide us with certain information, and we consider your subscription and subsequent continued use of the Service as your approval of the Agreement and that you understand and acknowledge the content of the Agreement. If you cannot accept the conditions in the Agreement, you are not entitled to use the Service. Any future use will no longer be permitted.
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 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 Vognmagergade 7, 5th, 1120 Copenhagen K, Denmark.
2. The Service
We offer our users a subscription-based music-streaming service through Moodagent’s Applications (“the Service"), and we offer a 14-day free trial period of the Service (see the more detailed conditions for this under Clause 14) and up to one month 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. Furthermore, (from spring 2020) temporary conditional download of Music Content for offline listening will also be offered. Access to the Music Content requires that you subscribe to the Service, accept the Agreement and choose an appropriate type of subscription (see Clause 15).
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 a subscription-based streaming service of the Music Content, the Service includes our website and Application. "Application" means the software and/or computer program we have released in order to run the Service on a proper Device.
In addition to streaming Music Content, the Service contains social features, including 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. Note that your use 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 is available.
For information about what features we offer in the Service, go to our website www.moodagent.com.
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 13 years old and have permission from your parents to accept the Agreement, (iii) that you have read and understood the Agreement, and (iv) 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 a country in which the Service is accessible (your “Home Country”). 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 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 phone, as well as tablets (together referred to as “Devices” and separately referred to as a ”Device”).
When creating a User Account, you have to state your email address, a username, birthday, Home Country and Password. The Password protects against unauthorized access to your User Account. You are responsible for confidently and safely storing your Password, and you are responsible for any use of your User Account, including unauthorized use, that occurs through access to the Service with your email address and Password. If your email and/or Password is unlawfully taken from you so that others can access your User Account, you should immediately notify us here at email@example.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. THIS MEANS THAT YOU MAY RECEIVE INFORMATION IN ENGLISH, INCLUDING PAYMENT INFORMATION, INSTRUCTIONS AND OTHER INFORMATION WHICH WE ARE OBLIGATED TO PROVIDE YOU WITH.
6. Rules of Conduct
You can interact with other users, people, etc. when you use the Service. 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 and write in a derogatory, improper, offensive, libelous or threatening manner, nor in any other way taunt and ridicule others,
- share pornographic images or write using explicit pornographic language,
- incite to violence, theft, IP infringement or other unlawful actions,
- bully or incite to bullying,
- share or copy personal data,
- upload or link to malware, virus-infected software and content that infringes the rights of others, including personal rights, copyrights, design rights and trademark rights,
- non-contractually mimic or pretend to be another person, enterprise, artist or author,
- transmit “spam”, i.e. send irrelevant or unsolicited messages to other users of the Service,
- carry out any commercial or marketing-related activities on the Service, including linking to commercial and marketing-related websites,
- 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, User-Generated Content 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 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, or
- 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 are entitled to block your access to the Service with immediate effect. Read more under Clause 18.
Always be aware that what you put up and share on the Service can be shared by other users and can be accessed on the internet. We take no responsibility for what you or others share or for whether someone uses publicly available User Content without authorization.
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 firstname.lastname@example.org. We make every effort to respond to all enquiries as soon as possible, but unfortunately, we cannot guarantee any specific response time.
If you wish to complain about the Service, please contact our support service or write to email@example.com. You can complain to the Center for Klageløsning (part of the Danish official consumer complaints system) via www.forbrug.dk if your complaint complies with their conditions. You can also use the European Commission's online complaints portal to submit a complaint. This is particularly relevant if you are a consumer resident in another EU country. You can submit your complaint to http://ec.europa.eu/odr/.
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 cancelled by us.
WHEN YOU OPEN YOUR USER ACCOUNT, 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.
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 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. Consent to receive information
AS PART OF OUR PROVISION OF THE SERVICE, WE WILL SEND INFORMATION ABOUT THE SERVICE, MOODAGENT, NEW INITIATIVES AND FEATURES, NEW MUSIC, RECOMMENDATIONS, TIPS AND TRICKS AND OFFERS FOR SIMILAR SERVICES FROM MOODAGENT TO THE EMAIL ADDRESS YOU GAVE US WHEN YOU CREATED YOUR USER ACCOUNT. THE INFORMATION MAY BE CONSIDERED MARKETING, SO YOU WILL ALWAYS HAVE THE OPTION TO CANCEL THE RECEPTION OF SUCH INFORMATION. HOWEVER, YOU DO NOT HAVE THE OPTION TO CANCEL RECEIPT OF INFORMATION ABOUT YOUR USER ACCOUNT AND PAYMENTS.
10. Sponsored Content
As part of the provision of the Service, you agree that 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.
11. 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.
12. Territories covered
The Service is accessible for individuals with their Home Country in the following countries (together referred to as the “Territory”): Denmark.
Unilaterally, and with appropriate notice, we may remove or add countries to the Territory, with no liability or obligations on our side. If we remove a country from the Territory, use of the Service will no longer be possible in the relevant country.
When you create a User Account, 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.
13. 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 and any other related services (Facebook, Instagram, etc.) if you have given permission to share information with these services (together referred to as ”User Data"). User Data is used to improve your experience of the Service.
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.
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.
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 or created a User Account for the Service.
14.1 Free Access Period
As a new user of Moodagent, you will be granted up to 14 days’ free access to the Service when you create a User Account (“Free Trial Period”). You don’t even have to choose a Subscription. The 14 days of free access run from the date you create your User Account.
You can receive one month further Premium access to the Service free of charge in return for subscribing and submitting Payment Information (Clause 15) within expiry of the Free Trial Period (“Free Premium Access”). The Free Trial Period and the Free Premium Access is 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 expiry of the Free Trial Period, you will not be entitled to and will not be granted the one month 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. YOUR COOLING-OFF PERIOD RUNS FROM THE START OF THE FREE ACCESS PERIOD.
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.
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.
The price of a Premium subscription is 99,00 Danish Kroner á month.
Payment for a Premium subscription is automatic and paid monthly in advance.
15. Payment and automatic renewal
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. 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 relative to the price at the time you created your User Account. Any change of price will take effect from payment for the next Subscription Period. If you do not cancel your Subscription by the end of the Subscription Period at the latest, we will assume that by continuing to use the Service, you accept the price change notified.
Subscription Payment can either be directly to Moodagent or through a third-party payment service, including through Apple Store or Google Play.
On Subscription Payment, an invoice will be sent to the email address you have disclosed.
15.2 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 BEFORHAND. WE WILL AUTOMATICALLY CHARGE THE SUBSCRIPTION PAYMENT TO THE RELEVANT PAYMENT CARD OR AGREED METHOD OF PAYMENT
15.3 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"). If you buy the Subscription through Apple App Store or Google Play, this method of payment will be used.
When you enter your Payment Information, you also accept that we or our payment gateway partner store your Payment Information. If your payment card has expired or you change your card, you can always change your payment information at within the Application.
15.4 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.
16. Changes in Terms
We are entitled unilaterally to change, revise and expand the Agreement. If we change the Agreement, we will inform you by email or through a notification in the Application, such that the effect of the change enters into force 30 days after notification.Changes due to new features or changes that, for legal reasons, have to be implemented immediately will take effect from the date of notification. Your continued use of the Service will be considered as active consent to the changes notified. If you do not accept the changes, you will no longer be entitled to use the Service from the date they take effect, and you must therefore terminate your Subscription immediately after notification of the change. If the change takes effect immediately, and you cannot accept the change, you must contact Moodagent at firstname.lastname@example.org and request that your Subscription be terminated immediately.
17. Cooling-off period
When you create or reactivate a User Account, you have a right of cancellation for 14 days (“Cooling-off Period"), and we will refund what you have paid within the Cooling-off Period, although with the following conditions (exemptions):
If you create a User Account with a Free Access Period, the Cooling-Off Period will run from the date you provide us with payment information and choose your subscription. You invoke your right of cancellation by cancelling the selected Subscription before expiry of the Free Access Period.
If you activate or reactivate a Subscription without a Free Access Period, the Cooling-off Period will run from the date of activation or reactivation of the Subscription, however your right of cancellation will lapse if you start to use the Service within the Cooling-off Period. You invoke your right of cancellation by cancelling the selected Subscription before expiry of the Cooling-off Period.
18. Duration, cancellation and termination
The Agreement will remain in force and run as long as neither you nor we cancel or terminate the Agreement. This means that we are entitled to charge the Subscription Fee from the selected payment method for as long as the Agreement is in force.
You can cancel the Agreement and your Subscription at any time and the cancellation will take effect by no later than the expiry of the current Subscription Period. When you cancel after expiry of the Cooling-off Period, you will receive no refund for any remaining Subscription Period. When you cancel, you will lose access to use the Service after expiry of the Subscription Period.
In accordance with applicable law, we may, at any time, terminate the Agreement in the event of your substantial breach of the Agreement.
18.4 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, 19, 20, 21, 22, 23 and 25 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.
19. 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 tm and/or design patent.
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.
20. User Content
When using the Service, you can write comments and generate and share playlists, upload profile pictures and text, send messages, share and post content on the Service and submit feedback and ideas (“User Content"). When using the Service, you give us a free, transferable, irrevocable, global, indefinite, non-exclusive and perpetual (although no less than 20 years after expiry of the Agreement) license to use, copy, modify, transcribe, translate and distribute User Content and make this available to the public in any way, through any technology and platform, known or later invented, alone or together with user content created by other users when this takes place as part of the Service. This also includes that Moodagent can use User Content in marketing contexts.
We are entitled, but not obligated, at our own discretion, to moderate, remove, monitor and edit User Content if it does not comply with our Rules of Conduct. In this context, we are entitled to block your access to the Service without notice if you repeatedly, and in our opinion, share/post User Content that conflicts with our Rules of Conduct.
You declare that all posts and sharing of User Content are in accordance with the Rules of Conduct, and that this User Content will not contravene applicable law or the Agreement, and will not infringe the personal rights, intellectual property rights or inherent rights of Moodagent or any third party, including other persons, enterprises and rights holders with whom we have agreements. Unless you have a direct agreement with us or a third party, you may not associate yourself with, or purport yourself to be, one of the rights holders with whom we have agreements, including artists, public personalities, music companies, management organizations, composers and authors, or other enterprises and persons.
You are responsible for User Content which is posted through your User Account, and Moodagent can in no way be made liable for your own or others’ User Content, and Moodagent will at no time perform approval procedures on User Content.
As stated in the Terms, we respect your rights and the rights of others. If you are of the opinion that others have unlawfully made use of your rights, please contact us immediately on email@example.com and review our Copyright Policy. If we obtain information that a user has unlawfully violated another user’s rights, on the basis of a reasonable assessment made only by Moodagent, we can remove User Content without any form of notice. If your User Content is removed as a consequence of our assessment, you are entitled to submit information to change this assessment. However, in all situations the decision will be ours.
You have stated that you will not claim any form of intellectual property rights to User Content, and that you will refrain from claiming any “moral” and inherent (droit moral) rights, including the right to be credited in connection with the use of User Content.
We are entitled to transfer all our rights, in full or in part, that we have according to the Agreement, and we are correspondingly entitled to transfer your obligations, in full or in part.
Reservations, Disclaimer and Limitation of Liability.
THE SERVICE IS SUPPLIED “AS IS” AND “AS AVAILABLE” WITHOUT GUARANTEES OF ANY KIND. YOUR USE OF THE SERVICE IS SOLELY YOUR OWN RESPONSIBILITY AND AT YOUR OWN RISK. MOODAGENT, MOODAGENT’S PARTNERS AND OWNERS OF MUSIC CONTENT GIVE NO GUARANTEE, EXPRESSLY, IMPLIED OR IN ANY OTHER WAY, REGARDING THE ACCESSIBILITY, QUALITY, SUITABILITY FOR A SPECIFIC PURPOSE, SUITABILITY GENERALLY OR ACCURACY OF THE SERVICE, INCLUDING MOODAGENT’S WEBSITE, APPLICATION, THE FORMAT OF THE MUSIC CONTENT, ACCESSIBILITY, QUALITY ETC. MOODAGENT, MOODAGENT’S PARTNERS AND OWNERS OF MUSIC CONTENT DO NOT GUARANTEE THAT INFRINGEMENT OF RIGHTS WILL NOT TAKE PLACE, INCLUDING INTELLECTUAL PROPERTY RIGHTS, PERSONAL RIGHTS AND INHERENT RIGHTS, AND NEITHER MOODAGENT NOR OWNERS OF MUSIC CONTENT GUARANTEE OR WARRANT THAT THE SERVICE AND MUSIC CONTENT IS FREE OF VIRUS, MALWARE OR OTHER HARMFUL COMPONENTS.
MOODAGENT PROVIDES NO GUARANTEE FOR, NOR DOES WE WARRANT OR IN ANY WAY SUPPORT THIRD-PARTY SOFTWARE ON WHICH THE SERVICE IS USED OR IS PART OF, USER CONTENT, DEVICES OR OTHER PRODUCTS, SERVICES, ETC. THAT ARE OR MAY BE MENTIONED ON THE SERVICE OR THAT ARE MARKETED BY THIRD PARTIES. MOODAGENT DISCLAIMS ANY RESPONSIBILITY FOR ANY USER-GENERATED HYPERLINKS OR THE CONTENT OF THE DESTINATION OF SUCH HYPERLINKS.
NOTHING IN MOODAGENT’S MARKETING AND INFORMATION SHOULD BE CONSIDERED AS GUARANTEES OR WARRANTIES, UNLESS THIS IS STATED UNEQUIVOCALLY AND EXPLICITLY IN THE WRITTEN MATERIAL.
MOODAGENT DISCLAIMS ANY RESPONSIBILITY FOR MUSIC CONTENT OF OFFENSIVE NATURE. PLEASE NOTE THAT SUCH CONTENT IS MARKED WITH AN E, AND IRRESPECTIVE OF WHETHER YOU HAVE BLOCKED OFFENSIVE MUSIC CONTENT, MOODAGENT CANNOT GUARANTEE THAT SUCH MUSIC CONTENT CANNOT BE USED ON YOUR USER PROFILE.
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.
WITHOUT LIMITING IN ANY WAY MOODAGENT’S DISCLAIMER, MOODAGENT IS OF COURSE OBLIGATED IN ACCORDANCE WITH THE AGREEMENT, AND IS LIABLE FOR FULL OR PARTIAL BREACH OF THE MOST IMPORTANT PARTS OF THE AGREEMENT IN ACCORDANCE WITH APPLICABLE LAW.
NOTHING IN THE AGREEMENT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
22. Limitation of liability
WHERE PERMITTED UNDER THE APPLICABLE LAW, MOODAGENT, OUR EMPLOYEES, OWNERS, AGENTS, COOPERATION PARTNERS, SUPPLIERS, MUSIC LABELS, AFFILIATED PERSONS AND OTHERS RELATED TO MOODAGENT ACCEPT NO RESPONSIBILITY WITH REGARD TO YOU OR A THIRD PARTY IN RELATION TO DIRECT AND INDIRECT LOSSES AS WELL AS OTHER DAMAGE OF ANY TYPE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF DATA, BUSINESS DISRUPTIONS, DAMAGE TO DEVICES, DAMAGE TO OTHER EQUIPMENT, DAMAGE TO SOFTWARE AND LOSS OF GOODWILL, DUE TO OR ARISING IN CONNECTION WITH THIS AGREEMENT OR LACK OF POSSIBILITY TO USE THE SERVICE. WE HAVE NO RESPONSIBILITY TOWARDS YOU IN RELATION TO ANY CLAIM FROM A THIRD PARTY WHICH MAY BE RAISED AGAINST YOU. OUR OVERALL RESPONSIBILITY TOWARDS YOU IN CONNECTION WITH THE SERVICE FOR ANY DAMAGE, LOSSES AND LEGAL PROCEEDINGS MAY UNDER NO CIRCUMSTANCES EXCEED THE SUBSCRIPTION FEE FOR 12 MONTHS. THE ONLY REMEDY YOU MAY CLAIM IN CONNECTION WITH DISSATISFACTION OF THE SERVICE, MOODAGENT OR MUSIC CONTENT, OR THEIR EFFECT ON OTHER SERVICES, SOFTWARE, APPLICATIONS OR DEVICES IS TO CANCEL YOUR SUBSCRIPTION TO THE SERVICE AND REMOVE THE SERVICE FROM YOUR DEVICES, OR TO CANCEL SUCH OTHER SERVICES AND/OR REMOVE OTHER SOFTWARE AND APPLICATIONS.
IN COUNTRIES WHERE THESE EXEMPTIONS ARE NOT PERMITTED, WE ARE ONLY LIABLE FOR LOSSES AND DAMAGE THAT ARE A REASONABLY PREDICTABLE RESULT OF OUR BREACH OF THE AGREEMENT.
THESE LIMITATIONS SHALL APPLY IRRESPECTIVE OF WHETHER WE OR A THIRD PARTY HAVE BEEN WARNED ABOUT THE RISK OF THE RELEVANT DAMAGE.
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, AS STATED IN THE TERMS AND CONDITIONS, 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.
YOU ARE RESPONSIBLE FOR ANY DAMAGE INCURRED BY US OR A THIRD PARTY AS A CONSEQUENCE OF YOUR FAILURE TO COMPLY WITH THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, INCORRECT USE OF THE SERVICE, OUR WEBSITE AND THE APPLICATION. FURTHERMORE, YOU ALSO AGREE TO INDEMNIFY US FOR ALL CLAIMS, COSTS, INCLUDING REASONABLE LEGAL FEES, DAMAGE, COMPENSATION, EXPENSES AND LOSSES WHICH WE MAY INCUR AS A CONSEQUENCE OF YOUR FAILURE TO COMPLY WITH THE AGREEMENT OR APPLICABLE LAW IN GENERAL.
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 AND INDEMNIFY US IN RELATION TO ALL CLAIMS, EXPENSES AND COSTS THAT WE INCUR AS A CONSEQUENCE OF THE INFRINGEMENT.
IF A CLAIM IS RAISED AGAINST MOODAGENT IN RESPECT OF USER CONTENT YOU HAVE POSTED, YOU DECLARE THAT YOU WILL INDEMNIFY MOODAGENT, TO THE EXTENT THAT CURRENT LEGISLATION ALLOWS, FOR ANY LOSSES INCURRED BY MOODAGENT IN THIS RESPECT, INCLUDING REASONABLE LEGAL FEES AND DISBURSEMENTS OF ANY TYPE THAT MAY BE ASSOCIATED WITH SUCH CLAIM.
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 12 HOURS.
23. 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.
23.1 Apple's App Store clause
If you have downloaded the Application from Apple, Inc. ("Apple") App Store or if, in any other way, you use the Application on an iOS device, we are obligated to inform you of the following:
- 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.
24. 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 regulate 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.
25. Choice of law and jurisdiction
25.1 Choice of law
WHERE PERMITTED UNDER THE APPLICABLE LAW, THE AGREEMENT AND ANY DISPUTES WHICH MAY ARISE HEREFROM ARE REGULATED BY DANISH LAW, WITH THE EXCEPTION OF CHOICE-OF-LAW REGULATIONS AND INTERNATIONAL PRIVATE-LAW REGULATIONS WHICH MAY LEAD TO APPLICATION OF OTHER LEGISLATION. FURTHERMORE, THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) SHALL NOT APPLY FOR THE AGREEMENT.
YOU ACKNOWLEDGE AND AGREE THAT THE COPENHAGEN MARITIME AND COMMERCIAL COURT, DENMARK IS THE ONLY LEGAL VENUE FOR DISPUTES ARISING FROM THE AGREEMENT, AND THAT THIS COURT IS COMPETENT TO DECIDE ANY DISPUTES ARISING FROM THE AGREEMENT.
25.3 Waiver of the right to class action
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM YOU WISH TO BRING AGAINST MOODAGENT IS A MATTER BETWEEN YOU AND MOODAGENT, AND THAT A MATTER MAY ONLY BE BROUGHT BY YOU AS THE CLAIMANT AGAINST MOODAGENT AS THE DEFENDANT. YOU WAIVE ANY RIGHT TO TAKE PART IN OR BRING A CLASS ACTION AGAINST MOODAGENT
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