Subject to these Terms, FirstListen grants you a limited, non-exclusive, nontransferable personal license to access and use the Site and Services. In addition to the representations and warranties contained hereinbelow, by accessing the Site and using the Services, you represent and warrant that you are over eighteen (18) years of age, and that you are the registered User, or the authorized agent of the User. Your use of the Site and the Services as an authorized agent shall not relieve you of personal responsibility for your use of the Site and the Services. The limited rights granted to you by these Terms may be revoked by FirstListen at any time, in its sole discretion.
II. Description of the Services.
In sum, FirstListen places your Features for exposure with the Linked Providers, as further defined herein. The Features placed on the Linked Providers are strategically placed – chosen by you – to assist in growing your exposure and fan base. Furthermore, the Features are only a maximum one (1) minute (i.e., sixty (60) seconds) in length of time. The Feature will be preceded by the name of FirstListen, the disclaimer that the Feature is an advertisement, your musical trade name (i.e., your stage name), and the name of the song that the Feature is taken from. The Feature will be followed by your social media handles, if any, and where to find the full-length song. In addition, your full-length Features will be publicly displayed on the Site, if applicable based on your subscription package. All services that FirstListen provides, now or in the future, shall be clearly set forth on the Site prior to you registering and/or switching types of services. A full and complete description of the Services and pricing tiers therefor is also available here: https://firstlisten.fm/how-it-works/
a. Using FirstListen.
FirstListen allows you to share Feature’s (alternatively referred to herein as “User Content” or “Content”) with FirstListen and Third Parties by uploading your chosen User Content to the FirstListen Site and Service. Uploaded Features will be stored on FirstListen’s servers for the duration of your Subscription, and thereafter FirstListen hereby reserves the right to continue use of the Feature in perpetuity. Use of the Site and Services requires a Subscription registration and payment.
b. Linked Providers Acknowledgment.
You hereby acknowledge and agree that once your Content is distributed to any Linked Providers, FirstListen is not obligated to delete your Content from any servers or systems operated by the operators of any Linked Provider, or to require that any user of the Linked Provider deletes any item of your Content from the Linked Provider.
III. Subscription For Use of the Site and Services.
In order to use certain features of the Site and Services, you will be required to register and pay for a subscription package (“Subscription”) with FirstListen and provide certain information about yourself as prompted by the applicable form(s), the tiers and pricing of which are subject to change in FirstListen’s sole discretion. In addition to the representations and warranties contained herein, you represent and warrant that all required information you submit is truthful and accurate, and that you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Subscription login information and are fully responsible for all activities that occur under your Subscription. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Subscription or any other breach of security. You agree that FirstListen shall not be liable for any loss or damage arising from unauthorized access to your Subscription or your failure to comply with the above requirements.
IV. Prices and Payment.
FirstListen currently offers the following Subscription packages that require payment from the User to FirstListen: Bronze, Silver, Gold, Platinum, and Diamond. All fees shall be clearly set forth on the Site prior to you registering and/or switching types of subscriptions, or purchasing any upgrade. For recurring fees, payments are required at the start of each period (e.g. at the start of each month). A description of the fees for each Subscription is available here: https://firstlisten.fm/order/
YOU HEREBY AGREE AND ACKNOWLEDGE THAT THE FEES FOR EACH SUBSCRIPTION WILL VARY BASED UPON THE FOLLOWING FACTORS YOU WILL CHOOSE: (i) PACKAGE TYPE, (ii) GEOGRAPHIC MARKET, AND (iii) TARGET DEMOGRAPHIC.
b. Changes to Fees.
FirstListen reserves the right, in our sole discretion, to modify the prices, payment, and fees for use of the Site and Services. In such a case, FirstListen will notify you of the changes and you will not be charged without your prior consent.
c. Credit Card Payment.
If you elect to register for a Subscription, you agree to pay to us the displayed rate in exchange for receiving the Services for the elected type of subscription. You agree that all fees or charges (including any taxes and late fees, as applicable) associated with your subscription shall be made via credit card. You hereby authorize FirstListen to charge and/or place a hold on your credit card with respect to any charges for the Site and Services. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that these charges are to be accepted as authorization to the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that these charges are to be accepted as authorization to the issuer of the credit card to pay all such amounts. You authorize FirstListen and/or any other company who bills products or services, or acts as billing agent for FirstListen to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your credit card until such amounts are paid in full. You agree to provide FirstListen with updated credit card information upon FirstListen request and/or any time the information you previously provided is no longer valid. You acknowledge and agree that neither FirstListen nor any FirstListen affiliated company will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on, your credit card. If you mistakenly provide a debit card number, instead of a credit card number, you authorize all charges described herein to be applied to such debit card number unless and until you provide a credit card number. When payment is made by credit card or debit card, payment will also be subject to the terms and conditions established by the credit or debit card issuer. Your credit card information will be stored in your Subscription with FirstListen.
You are responsible for all taxes or other government fees and charges, if any, which are assessed based on the use of the Site and Services.
You hereby agree that you shall not: (i) rent, transfer, assign, resell or sublicense access to the Site or Services to any third-party; (ii) combine or integrate the Site or Services with hardware, software or other technology or materials not provided by FirstListen; (iii) modify or create any derivative product based on the Site or Services; or (iv) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site and Services are compiled or interpreted. Nothing in these Terms should be interpreted as granting you any right to obtain or use source code.
Furthermore, you hereby agree that, except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.
You hereby further agree that you shall not use the Site or Services to: (i) violate any local, state, national or international law; (ii) stalk, harass or harm another individual; (iii) collect or store personal data about other users; (iv) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (v) interfere with or disrupt the Site, Services or servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services.
You hereby agree you shall not: (i) use any high volume, automated, or electronic means to access the Site or Services (including, without limitation, robots, spiders or scripts); or (ii) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages, without our prior written consent.
If any agreement you have entered into with any Third Party, including, but not limited to a PRO (as defined herein), music publisher, union or guild, whether by law or contract, prohibits you from granting us the rights and licenses set forth in this Agreement and making the representations and warranties set forth hereinbelow, then you are prohibited from uploading your Content to the Site or Services.
You hereby agree that FirstListen retains all right, title and interest in and to the Site and the Services, and all related intellectual property rights. “Intellectual Property Rights” shall be defined as, and refer to all copyrights, patents, utility innovations, trademarks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
All rights in and to the Site and the Services not expressly granted herein are reserved by FirstListen. With the exception of the Content you submit to the Site, you hereby agree that you shall not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the Site or the Services. All trademarks, logos and service marks (“Marks”) displayed on the Site or Services are either FirstListen’s property, or the property of Third Parties. You are not permitted to use these Marks without FirstListen’s prior written consent, or the consent of such third-party owner of the Mark(s) if not owned by FirstListen.
You retain ownership of all Content that you Submit through use of the Site and Services except as granted to us herein.
VI. Information You Will Provide.
Some areas of the Site and Services may allow users to submit, upload, store and/or share reviews, comments, questions, content, images, and other information or materials directly on the Site. You shall be solely responsible for the Content you submit through the Site and Services. You shall hereby agree that FirstListen is only acting as a conduit for the distribution, storage, and/or publication of your Content. “Information” as used herein shall be comprised of “Personal Subscription Information,” “Feature Information,” and “Social Information” as defined hereinbelow.
In addition to any other restrictions contains in these Terms, you hereby agree that you shall not submit Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or other Third Party; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, otherwise objectionable or content that may be deemed to constitute “hate speech”; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another parties trade secrets); or (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
You shall be solely responsible for the Content you choose to upload. FirstListen shall not be responsible for the Content you upload to the Site or Services. FirstListen shall not be responsible for the quality of the Content as it appears on the Linked Providers. You are solely responsible for all Content that you submit on or through the Site or Services. FirstListen neither endorses nor assumes any responsibility for your Content.
a. Personal Subscription Information
When the User sets up their Subscription package, you hereby agree to provide any and all applicable, accurate, legal, and truthful information that FirstListen requires, including but not limited to, your full legal name, birth date, residence address, billing address, and phone number (“Personal Subscription Information”). You hereby agree that the information provided shall not contain any information or content that you know is not correct and current. It shall be your obligation to keep this information current and confidential. You hereby agree that FirstListen may need to share your Personal Subscription Information with Third Parties in pursuance of the Services and/or FirstListen’s business operations.
b. Feature Information
When using the FirstListen Site and Services, the User will be asked to upload “Feature Information” which shall mean, including but not limited to, audio files and data, and video files and data. The Feature Information will be used by FirstListen in performance of the herein described Services. You hereby acknowledge and agree that there is no expectation of privacy with regard to the Feature Information that you provide.
c. Social Information
In order for FirstListen to provide Services to the User in the best possible way, the User shall provide FirstListen with “Social Information” which shall mean the user names (or handles) of the User’s social media sites (including but not limited to, YouTube, Twitter, Instagram, Tik Tok, and Facebook) or websites, for use on the Site and within the Services. You hereby agree that the information provided shall not contain any information or content that you know is not correct. You shall hereby agree to keep the Social Information current and accurate. You hereby acknowledge and agree that there is no expectation of privacy with regard to the Social Information that you provide.
VII. Licenses Granted to FirstListen.
By submitting your Information and Content through to FirstListen, you hereby grant us a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to access, use, reproduce, distribute, publicly display, publicly perform, adapt, synchronize, prepare derivative works of, compile, make available and otherwise communicate Your Content to the public, in connection with the Site and Services and our (and our successors’ and Related Entities’) business, including the distribution of advertising or other promotional material through the Services. “Related Entities” shall mean any holding company of FirstListen, subsidiary of FirstListen, or subsidiary of the holding company of FirstListen. You also hereby grant to us the worldwide, non-exclusive, royalty-free, sublicensable, and transferable right to use, distribute, reproduce, copy, and display your trademarks, service marks, slogans, logos or similar proprietary rights (collectively, the “Trademarks”) solely in connection with the Services or in the marketing, promotion or advertising of the Services, including in all forms of marketing, promotion, and advertising materials now known or hereafter created.
You shall hereby agree that any Information and Content that you submit through the Site and Services does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined herein), rights of publicity and privacy. “Rights of Publicity” shall mean the name, image, and likeness of the User, which can be used by FirstListen in any publicity materials prepared by FirstListen and in presentations to Linked Providers, current or prospective clients, investors, and others. By uploading, publishing, modifying or displaying your Content to any part of the Site or Services, you hereby grant, and you represent and warrant that you have the right to grant, to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), transmit, and distribute such Content for any purpose on or in connection with the Services. FirstListen reserves the right, but is not obligated, to reject and/or remove any User Content that FirstListen believes, in its sole discretion, violates these Terms.
YOU HEREBY AGREE THAT YOU SHALL NOT BE PAID ANY MONIES FROM THE USE OF ANY AND ALL OF YOUR CONTENT ON AND IN CONNECTION WITH THE USE OF THE SITE OR SERVICES. THE SITE AND SERVICES ARE SOLELY FOR MARKETING AND ADVERTISING PURPOSES, AND USE OF YOUR CONTENT WILL NOT COUNT TOWARDS ANY ROYALTY PAYMENTS, INCLUDING BY WAY OF “BDS SPINS” (AS DEFINED BY THE NIELSEN CORPORATION).
YOU HEREBY AGREE TO DISCLAIM ANY AND ALL RIGHTS, TITLE, AND INTEREST TO ANY RENUMERATION EARNED BY FIRSTLISTEN, ANY LINKED PROVIDERS, OR THIRD PARTY PURSUANT TO YOUR USE OF THE SERVICES.
a. No Cause Termination.
While FirstListen has no obligation to and does not monitor or review Content submitted by Users, we reserve the right to remove Content, suspend or terminate your access to the Services and/or pursue all legal remedies if we believe that any such Content breaches any of the foregoing representations or warranties, or otherwise infringes a Third Party’s rights, including Intellectual Property Rights, or violates any law, rule or regulation. Further, FirstListen reserves the right to terminate these Terms, your Subscription, and your access to the Site and Services at any time without notice.
b. Termination For Breach, Violation of These Terms, and/or Violation of the Representations and Warranties.
Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms.
c. Termination by the User.
You may cancel your Subscription at any time, for any reason, provided thirty (30) days’ notice is given to FirstListen. Please send your cancellation notice in writing to: (a) email@example.com from the email address associated with your account; or (b) FirstListen at [physical address]. However, as long as you continue to use the Site or Services, the Subscription fees will continue to apply to you.
Once your payment has been processed at the beginning of the billing cycle, even if you terminate your Subscription, you will have access to the Site and Services until the following billing cycle begins. If you cancel your Subscription prior to its expiration, you agree to and acknowledge the refund policy hereinbelow.
IX. REPRESENTATIONS AND WARRANTIES.
The User hereby represents and warrants to FirstListen the following:
You have obtained any and all necessary consents, permissions and/or releases from any and all persons appearing in your Content in order to include their name, voice, performance or likeness in your Content and to publish the same on the Site, Services, Linked Providers, or Third Parties.
X. Links to Third-Party Websites or Services.
You may be able to access websites, content, products or services provided by Third Parties through links that are made available on the Site (“Third Party Services”). If you elect to use such Third Party Services, you understand that your use of them will be subject to any terms and conditions required by the applicable Third Parties. You understand that FirstListen is not the provider of, and (to the maximum extent legally permitted) is not responsible for, any such Third Party Services or any transactions or use thereof. Where the Site includes any links to Third Party Services, this does not imply any endorsement by us of the goods, services or materials available on such Third Party Services.
XI. Hold Harmless and Limited Liability.
You agree to use the Site and Services at your own sole risk, and agree to hold harmless FirstListen, Linked Providers, and its licensors and/or any of our or their respective successors and assigns from any and all liability, harm, damages, costs (including attorneys’ fees and legal and court costs), expenses, allegations, claims and legal action of any kind at any time or of any sort that may arise from your use of the Site or Services and/or any violation of these Terms or of applicable law. Your agreement to these Terms shall permanently and wholly bar you from any legal action of any sort towards FirstListen for the use of the Site and/or Services or any resultant effects of any sort, shape, kind or type, including any statutory and/or tort actions, specifically inclusive of any legal, action of any type, kind, or sort.
ALL INFORMATION, CONTENT AND MATERIALS PROVIDED VIA THE SITE OR SERVICES ARE PROVIDED “AS IS.” WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, INCLUDING BUT NOT LIMITED TO THE ACCURACY, TIMELINESS OR USEFULNESS OF ANY INFORMATION OR MATERIALS PROVIDED VIA THE SITE OR SERVICE. WE CANNOT GUARANTEE THAT ACCESS TO OR USE OF THE SITE AND SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, ERROR-FREE OR SECURE. WE EXPRESSLY DISCLAIM ALL WARRANTIES TO THE FULLEST EXTENT OF THE LAW.
NEITHER FIRSTLISTEN NOR ANY OF OUR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, REPRESENTATIVES, AGENTS, PREDECESSORS, SUCCESSORS, LICENSORS OR ASSIGNS SHALL BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES INCURRED IN CONNECTION WITH USE OF, OR INABILITY TO USE, THE SITE OR SERVICES OR ANY OF THE INFORMATION OR MATERIALS PROVIDED ON THE SITE OR SERVICES, OR ANY DAMAGE OR LOSS, INTERRUPTIONS, ERRORS, DEFECTS, OR DELAYS IN PERFORMANCE, REGARDLESS OF THE CLAIM AS TO THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. OUR AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF OUR LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100. THE FOREGOING IS APPLICABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Services, is solely your responsibility. FirstListen is not responsible for any public display or misuse of your User Content. You agree that FirstListen shall not be liable for any and all damages you may incur as a result of such User Content.
XII. Copyright Claims; Digital Millennium Copyright Act.
a. Digital Millennium Copyright Act Policy.
FirstListen respects the intellectual property rights of others, just as we expect others to respect our rights. Pursuant to Digital Millennium Copyright Act (“DCMA”), 17 U.S.C.A. § 512(c), a copyright owner or their agent may submit a takedown notice to us via our Copyright Agent listed below. As an online service provider, FirstListen is entitled to claim immunity from any and all infringement claims pursuant to the “safe harbor” provisions of the DMCA.
• To submit a good faith infringement claim to FirstListen, you must submit a notice that sets forth the following information:
i) An electronic or physical signature of the copyright owner of the exclusive right that is allegedly infringed (or someone authorized to act on behalf of the owner);
ii) Identification of the copyrighted work claimed to have been infringed;
iii) A description of where the material that you claim is infringing is located on the Site. (Please submit the URL of the page in question to assist us in identifying the allegedly offending work);
iv) Your address, telephone number, and e-mail address so we may contact you if necessary;
v) A statement by you that you have a good faith belief that the use of the material is unauthorized by the copyright owner, its agent, or the law; and
vi) A statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
17 U.S.C.A § 512(f) provides civil damage penalties, including costs and attorney fees, against any person who knowingly and materially misrepresents certain information in a notification of infringement under 17 U.S.C. § 512(c)(3).
Send all takedown notices to our Copyright Agent listed hereinbelow.
Please note that we may share the identity and information in any copyright infringement claim we receive with the alleged infringer. In submitting a claim, you understand accept and agree that your identity and claim may be communicated to the alleged infringer.
• If you have received a notice of material being takedown because of a copyright infringement claim, you may provide us with a counter notification in an effort to have the material in question restored to the Site. Said notification must be given in writing to our Copyright Agent and must contain the following elements pursuant to 17 U.S.C.A § 512(g)(3):
i) Your physical or electronic signature;
ii) A description of the material that has been taken down and the original location of the material before it was taken down;
iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
iv) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal district court for the judicial district in which the address is located (or if you are outside of the United States, that you consent to jurisdiction of any judicial district in which the service provider may be found), and that the you will accept service of process from the person or company who provided the original infringement notification;
v) Send your counter notice through our Contact page here: https://firstlisten.fm/contact/, or email here: firstname.lastname@example.org. Email is highly recommended.
• Repeat Infringer Policy.
FirstListen takes copyright infringement very seriously. Pursuant to the repeat infringer policy requirements of the DMCA, we maintain a list of DMCA notices from copyright holders and make a good faith effort to identify any repeat infringers. Those that violate our internal repeat infringer policy will have their Subscriptions terminated.
• FirstListen Copyright Agent.
FirstListen’s designated Copyright Agent for notice of claims of copyright infringement is:
XIII. Third Party Linked Providers’ Websites and Services.
The Site and Services may provide you with access to websites, applications and/or platforms which are owned and/or operated by Third Party Linked Providers (as defined herein).
You hereby acknowledge and agree that FirstListen does not have or maintain any control over those Third Party Linked Providers, and that FirstListen shall not be responsible for that content, operation or use, or the potential consequences of your accessing of any such Third Party Linked Providers websites, applications and/or platforms.
We may change these Terms from time to time, and expect to do so as we evolve and expand the Site and Services. Any such changes will become effective immediately upon your assent thereto. Continuing use of the Site and the Services after changes to the Terms have been posted shall be deemed assent to the changes. If you object to any such changes, your sole recourse will be to cease using the Site and the Services. Continued use of the Site or the Services following posting of any such changes will indicate your acknowledgement of such changes and your agreement to be bound by the revised Terms, inclusive of such changes.
XV. Renewal Policy.
You agree and acknowledge that your Subscription will automatically renew for the same period Services in such Subscription, unless (a) notified otherwise by you prior to that renewal, or (b) if all the Services are cancelled, terminated, or discontinued by us. Your Subscription will automatically be charged (or you will be billed, as applicable) at the rates in effect at the time of renewal.
XVI. Refund Policy.
All payments to FirstListen for use of the Site and Services are nonrefundable.
You shall hereby agree to indemnify FirstListen and hold us harmless from and against any and all claims arising from the exploitation of your Feature on the Site and Services as permitted hereunder, including all applicable legal costs and fees.
XVIII. Dispute Resolution.
No waiver of any provision by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provisions hereof are deemed invalid or unenforceable, they will be severed or construed to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect.
The section titles in these Terms are for convenience only and have no legal or contractual effect.
The Site and Services are hosted and operated in the United States of America and we make no representation that any Content is appropriate for access outside of the United States. Those who choose to access the Site and Service from outside the United States do so on their own initiative and are responsible for compliance with local laws.