Terms and conditions

ONLINE TERMS AND CONDITIONS

 

  • ACCEPTANCE

 

      1. These Terms and Conditions (Terms) are between D-Tune Me Pty Ltd ACN 608 245 932, its successors and assignees (referred to as “we”, “us” or “our”) and the person, organisation or entity who uses or purchases any services (Services) or Digital Content from us (referred to as “you” or “your”), and collectively the Parties.
      2. Our Services and related products including purchase of Digital Content made through the Services and these Terms are available at www.dtune.me (Website).
      3. You agree that these Terms form the agreement under which we will supply Services and Digital Content to you. Please read these Terms carefully.  By making a purchase from us, ticking an online acceptance box or accessing or using the Website and Services on any computer, mobile, phone, tablet, console or other device (Device), you acknowledge you have read, understand and agree to be bound by this Agreement, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of legal guardian who is 18 years or older. You must not order Services or related products including Digital Content from us if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to the Terms, please do not use or purchase our Services or related products including Digital Contents. Please contact us if you have any questions. Our contact details are at the end of these Terms.
      4. Our Terms of Use set out the terms and conditions for using the Website. Our Privacy Policy sets out how we collect, use and protect your personal information. Separate terms govern the terms and conditions of service between us and artists and/or the copyright owners of the Digital Content. These are available on the Website.

 

  • REGISTRATION AND SERVICES

 

      1. The Website and Services provides a platform for you to stream or download Digital Content and view related content as set out on the Site.
      2. In order to access our Services or to download Digital Content, you will be required to register for an account (Account) and pay the relevant fees. It is your responsibility to keep the details of your Account, including user name and password, confidential. You are liable for all activity on your Account, including any purchases made using your Account details.
      3. We agree to perform the Services with due care and skill.
      4. We reserve the right to refuse any request for Services that we deem inappropriate, unreasonable or illegal.
      5. We may provide the Services to you using our employees, contractors and third party providers, and they are included in these Terms.
      6. Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.
    1. DIGITAL CONTENT AND ORDERS
      1. You may order Digital Content from us as set out on the Website. We may at our discretion accept or reject an order depending on factors including the availability of the Digital Content, our licence rights and our ability to validate payment for the Digital Content.
      2. It is your responsibility to check the order details, including the Digital Content and pricing before you complete your order on the Website.
      3. We will provide you with order details, which may include an order number, an order ID, the billing addresses and a description of what was ordered, when you order and pay on the Website and your payment has been validated.
      4. A binding agreement in respect of the sale of a Digital Content comes into existence between you and us once we have given you an order number in respect of that Digital Content. No changes to these Terms will be effective for that order unless we both agree to the changes in writing.
      5. You cannot cancel your order once you have made payment.
      6. Please be aware that some of the Digital Content sold through the Website may not be suitable for children under 18 years of age without the supervision of their parent or guardian, so please take extra care when purchasing products for children under 18 years of age.

 

  • PRICE AND PAYMENT

 

      1. Currently, the Services are free of charge. You may make a donation to the artist of the Digital Content. Purchasing the Digital Content may incur a fee. Where applicable, you agree to pay us the purchase price specified on the Website at the time that you place your order for the purchase of a Digital Content (Fee). All amounts are stated in Australian dollars. All amounts include Australian GST (where applicable).
      2. Where applicable, you will be required to make payment by way of Bitcoin, credit card, PayPal or other payment options as set out on the Website, and you must provide the required Bitcoin, your credit card, PayPal or other payment details (Payment Details) to us when making a purchase for the Digital Content and/or Services.
      3. For Digital Content, full payment of the Fees in respect of the applicable Digital Content will be processed upon receipt of your order in respect of that Digital Content.
      4. You must not pay, or attempt to pay, any Fees through any fraudulent or unlawful means. If a payment is not able to be successfully processed then your order may be cancelled.
      5. If you pay by credit card, you warrant that the credit card information you provide to us is true and complete, that you are authorised to use the credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Fees.
      6. Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for Services and/or Digital Content provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on our Site or are provided to you, whichever is earlier.

 

  • AVAILABILITY AND CANCELLATION

 

      1. All purchases made with us are subject to availability. We do our best to make available most products that are advertised by us, and to keep the Website up to date with availability of products.
      2. If there is considerable delay in processing your order, or if for any reason we cannot supply the Digital Content you have ordered, we will contact you using the contact details provided by you when you placed the order. You can choose a refund or a store credit.
      3. If certain Digital Contents are discontinued or no longer available through our Site and Services, we will obtain your permission to substitute the item or offer you a refund.

 

  • DELIVERY AND DOWNLOADING PURCHASES

 

      1. After processing payment of the Fees, we will use all reasonable endeavours to deliver your Digital Content via the Website in electronic format using a download link accessible via your Account.
      2. You agree that delivery of the product shall be deemed to have occurred when (i) you first acquire the Digital Content; (ii) we transmit the Digital Content to you via the Website; or (iii) when you receive notification via email or in your Account from us that the product is available for download (Electronic Notification).
      3. Your purchased product will be available to download from your Account from the date of Electronic Notification. Subject to the availability of the purchased Digital Content, you may subsequently download previously acquired Digital Content from an Account. We do not warrant that the Digital Content you purchase will be available perpetually. We encourage you to promptly download any Digital Content you purchase through the Website and Services.
      4. Digital Content may vary in file size. It is your responsibility to ensure you have sufficient data and data connection to download the Digital Content.
      5. Although we do not restrict the number of downloads for each purchase, you may only download a reasonable number of Digital Content for your own personal use.

 

  • DISCOUNT CODES AND PROMOTIONS

 

      1. We may from time to time offer promotional discount codes, which may be applicable to our Services or Digital Content on the Website, and must be entered at the time of ordering the Digital Content or Services (where applicable). The conditions of use relating to any discount code will be specified at the time that it is issued.

 

  • OUR INTELLECTUAL PROPERTY

 

    1. The work and materials (including but not limited to Digital Content) that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials).  We own the Intellectual Property Rights in, or hold the relevant licences to the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
    2. You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
    3. Your use of our Materials does not grant you a licence, or act as a right to use any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
    4. You must not breach our Intellectual Property rights by, including but not limited to:
  1. altering or modifying any of the Materials;
  2. creating derivative works from the Materials; or
  3. using our Materials for commercial purposes such as onsale to third parties.
      1. Unless authorized by the appropriate copyright owner, you must not reproduce, distribute, publicly perform, publicly display, create derivative works or otherwise exploit the Materials including but not limited to the Digital Content.
      2. Any Digital Content supplied to you upon receipt of full payment by you are provided only for your personal, non-commercial use only.

 

  • YOUR OBLIGATIONS AND WARRANTIES

 

    1. You warrant that throughout the term of these Terms that:
  1. there are no legal restrictions preventing you from agreeing to these Terms;
  2. you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
  3. the information you provide to us is true, correct and complete;
  4. you will not infringe any third party rights in working with us and receiving the Services;
  5. you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
  6. you will not use any Materials including but not limited to Digital Content in a manner that infringes our Intellectual Property and Moral rights or the rights of third parties;
  7. you will not rent, sell or lease access to the Services, Website or Materials including but not limited to Digital Content;
  8. you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
  9. you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
  10. if applicable, you hold a valid ABN which has been advised to us; and
  11. if applicable, you are registered for GST purposes.

 

  • CONFIDENTIAL INFORMATION

 

    1. We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary, Third Party Suppliers); to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
    2. These obligations do not apply to Confidential Information that:
  1. is authorised to be disclosed;
  2. is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
  3. is received from a third party, except where there has been a breach of confidence; or
  4. must be disclosed by law or by a regulatory authority including under subpoena.
      1. The obligations under this clause will survive termination of these Terms.

 

  • FEEDBACK AND DISPUTE RESOLUTION

 

    1. Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services and/or Digital Content, please contact us.
    2. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
  1. The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
  2. If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator.  The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
      1. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

 

  • TERMINATION OF SERVICES

 

    1. The Parties may terminate these Terms or Services by mutual agreement, by notice per the Notice Period in writing including by email.
    2. Either Party may terminate these Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
    3. We may terminate these Terms and Services immediately, at our sole discretion, if:
  1. we discover that you are sharing our Materials or your Account details with third parties;
  2. we consider that a request for the Service is inappropriate, improper or unlawful;
  3. you fail to provide us with clear or timely instructions to enable us to provide the Services;
  4. we consider that our working relationship has broken down including a loss of confidence and trust;
  5. you post any disparaging or disrespectful comments about us or any other users on our Website or social media;
  6. you act in a way which we reasonably believe will bring us or our Website or its users into disrepute;
  7. you provide us with incorrect Payment Details or any other incorrect information; or
  8. for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
      1. On termination of these Terms you agree that any Fees, and any other payments made are not refundable to you.  
      2. If you terminate these Terms early, you must pay for all Services provided prior to termination, including any Services which have been performed and have not yet been invoiced to you.
      3. On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
      4. On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
      5. On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
      6. The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.

 

  • TERMINATION OF SALE OF DIGITAL CONTENT

 

      1. If you purchase Digital Content, we reserve the right to refuse supply of the Digital Content ordered by you, terminate our contract with you, and remove or edit content on the Website at our sole discretion, without incurring any liability to you.

 

  • CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS

 

    1. ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services or Digital Content by us to you which cannot be excluded, restricted or modified (Statutory Rights).   Our liability is governed solely by the ACL and these Terms.
    2. If you are a consumer as defined in the ACL, the following applies to you: Our products and services come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other loss or damage. You are also entitled to have services remedied if they fail to be of acceptable quality and the failure does not amount to a major failure.
    3. Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in the period set out in the Proposal where it is affected by your delay in response, or supply of incomplete or incorrect information.
    4. Referral: On request by you, we may provide you with contact details of third party specialists.  This is not a recommendation by us for you to seek their advice or to use their services.  We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
    5. Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    6. Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services, the Digital Content and these Terms, except those set out in these Terms, including but not limited to:
  1. implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
  2. the Services, the Digital Content and the Website being unavailable; and
  3. any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise suffered by you or claims made against you, arising out of or in connection with the Website, Digital Content, the Services or your inability to access or use the Website, Digital Content or Services, and the late supply of Services or Digital Content, even if we were expressly advised of the likelihood of such loss or damage.
    1. Information: While the information and material on the Website, in the Materials and otherwise provided to you is believed to be accurate and current, it is provided by us in good faith on an “as is” basis, and we and our directors officers and employees accept no responsibility for and make no representations or warranties to you or completeness of such information and materials. Any reliance you place on the information and materials is at your own risk.
    2. Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
    3. Disclaimer: You acknowledge and agree that
  1. we will provide you the product including but not limited to the Digital Content in the file formats as set out on the Website accessible on a compatible Device that supports such format; and
  2. You are solely responsible for determining the suitability of our Services and products, including but not limited to the Digital Content for your use.
      1. This clause will survive termination of these Terms.

 

  • RETURN, REFUND AND EXCHANGE

 

      1. We do not provide a refund for purchased Digital Content if you change your mind. We will offer a refund if a product becomes unavailable following your purchase but prior to download. If technical problems prevent or unreasonably delay delivery of your product, we will offer you a store credit or refund of the Fees paid.

 

  • INDEMNITY

 

    1. You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
  1. any information that is not accurate, up to date or complete or is misleading or a misrepresentation;  
  2. any breach of these Terms; and
  3. any misuse of the Digital Content, Services or the Website from or by you, your employees, contractors or agents.
      1. You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services or Digital Content including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
      2. The obligations under this clause will survive termination of these Terms.

 

  • GENERAL

 

      1. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
      2. Accuracy: While we endeavour to keep the information up to date and correct, we make no representations, warranties or guarantees, expressed or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services or related graphics contained on the Website for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
      3. Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
      4. Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
      5. GST: If and when applicable, GST payable on the Services or Digital Content will be set out on our Invoices.  By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
      6. Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
      7. Assignment: These Terms are personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
      8. Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
      9. Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
      10. Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address in the Proposal.  Our address is set out in the Proposal. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
      11. Jurisdiction & Applicable Law: These terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria. The Website may be accessed throughout Australia and overseas. We make no representation that the Website complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Website from outside Australia you do so at your own risk and are responsible for complying with the laws in the place where you access the Website.
      12. Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.

 

  • DEFINITIONS

 

    1. Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
    2. Digital Content means the music, sound recordings, the musical works embodied within such sound recordings and associated copyrightable works or metadata (including but not limited to album cover artwork, graphics and descriptive texts) in the form of an electronic file.
    3. GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
    4. Intellectual Property means all intellectual and industrial proprietary rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions, patents, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and confidential information, know how, trade secrets, business names and internet domain names and Digital Content but does not include Moral Rights that are not transferable.
    5. Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship as defined in the Copyright Act 1968 (Cth).

 

Contact details:

D-Tune Me Pty Ltd ACN 608 245 932

Canterbury VIC 3126

Australia

 

Email: [email protected]

 

Last update: 23 November 2015