The Service and the Purpose of These Terms
This Agreement pertains to your access to digimusic.com.my (“the Website”). These Terms include the policy for acceptable use of the Service and content posted on and downloaded from the Service and set forth your rights, obligations and restrictions regarding use of the Service.
We have attempted to lay out in this document all terms and conditions for the safe and fruitful interaction of the members of our varied community. If a matter or dispute arises that is not covered by these terms, it will be resolved at Digi's sole discretion, but in conversation with the affected parties and within the governing law. If a member disagrees with the resolution, their recourse will be to terminate their membership to the Service and/or the account.
Your Agreement
A. The Service, is provided by Digi Telecommunications Sdn Bhd. (Company No: 201283-M) doing business as Digi Music ("Digi"). You may use the Service as a "Visitor" (meaning that you browse a webpage with the Service) or a "Member" (meaning you subscribe for the Service, including clicking on the "I Accept" button or checking the "I Accept" box). The word "User" in these Terms refers to both Visitors and Members. These Terms and Conditions ("Terms" or "Agreement") form the legal agreement between you and Digi.
By using the Service as a Visitor or Member, you: (a) agree to be bound by the Terms, (b) represent and warrant that you are authorized to bind yourself or any entity (your band, broadcast, and/or your company) on whose behalf the Terms are entered into and (c) represent and warrant that any such entity agrees to be bound by these Terms. Please read these Terms carefully and save them. If you do not agree with them, you should exit the digimusic.com.my website and should not register for the Service.
1. General
1.1. For the purposes herein, the following definitions shall apply:
1.1.1. "Audio Hosting" shall mean the upload, storage, web serving, and streaming of a single unit of Digital audio media and associated metadata that belong to you.
1.1.2. “Content” shall mean any content provided by Digi under the Digi Music and includes CallerTunes.
1.1.3. “Digi Music” shall mean an offering to the Users that enable inter alia the downloading of Content to mobile phones, the Website or any other devices as implemented by Digi.
1.1.4. "Gig Listing" shall mean text information announcing the details of a musical performance. This information may be but is not obligated to be displayed in a variety of ways including but limited to websites, newsletters, and XML documents.
1.1.5. "Podcasts" (Playlist and Blog Programming) shall mean a sequential series of posts containing text, audio, and other media, and a corresponding multimedia XML file conforming to the RSS specification.
1.1.6. “Service” shall mean the provision of any benefits and services under the Digi Music which enables the Member to preview, download and/ or subscribe for Content products and services such as full song track, video, ringtone, CallerTunes, wallpaper and screen saver provided by Digi and subscribed to by the Member and the provision of other benefits under the Digi Music.
1.1.7. “UGC” shall mean user generated content (including, but not limited to, any songs, band information, audio, sounds, video, data, images, graphics, photos, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS, HTML and links) or any reference thereto howsoever and in whatever form that the User uploads onto the Website.
1.2. Music/CallerTunes Subscription, Download and Sharing
1.2.1. CallerTunes. In consideration of the payment of either Ringgit Malaysia One, Three or Five (RM1.00, RM3.00 or RM5.00) only per month, per Member, the Member shall receive :
a thirty (30) day subscription to the selected CallerTunes from Digi Music CallerTunes library via WEB, WAP or Application. RM2.00 will be posed for monthly charging, RM0.50 will be posed for renewal weekly charging, RM0.10 or RM0.20 will be posed for renewal daily charging of Ala Carte, DJ and Compilation.
subject to the following conditions:
(c) that such Caller Tunes subscription is only available for Members on selected mobile phone as determined by Digi;
(d) available only for selected mobile phone and computers only as determined by Digi;
(e) that any such Caller Tunes download is not transferable to other devices other than as approved by Digi;
(f) that Members shall be required to pay for each monthly subscription fee in order to continue to download new Caller Tunes and to enjoy the existing downloaded Caller Tunes ;
(g) that there shall be no refund of any such subscription fees paid in the event that the Service is terminated at any time after subscription.
1.2.2. Sharing of Downloaded Music/Caller Tunes. A Member may share the downloaded Music (“Shared Music”) with any party, whether a Digi subscriber or otherwise (“Sharing Party”). As such, the Member shall not be charged for the sharing of the Shared Music. The Sharing Party is entitled to play the Shared Music for a maximum of three (3) times only. The Shared Music can only be downloaded through computers having sufficient memory and necessary requirements.
All Caller Tunes downloaded are neither transferable nor capable of sharing.
1.3. In consideration for your use of the Service, you represent and warrant:
1.3.1. Authority To Enter Into This Agreement. You have all necessary right, power and authority to enter into and perform as required under this Agreement. You are not barred from receiving the Service under the laws of the Malaysia or other applicable jurisdiction.
1.3.2. Age. You must be at least 12 years old (with a valid identification card) to purchase and register for the line and the Service.
1.3.3. Accuracy. All information provided by you to Digi is true, accurate, valid, current and complete. Your e-mail address is regularly checked. If you do not provide such information, or Digi reasonably suspects that you have not, Digi has the right to suspend or terminate your membership to the Digi Music and/or account and refuse any and all use or access to the Service, including forfeiture of any prizes or awards won in any contest.
2. Additional Terms And Modification Of Terms
2.1. Additional Terms. To use the Service, you may be required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions, they are hereby incorporated into these Terms.
2.2. Third Party Terms. The Service may integrate with other services provided by third parties. If you access or use the Service through a third party website or other interface, or use a software or other product in connection with the Service, you may be subject to additional terms and conditions.
2.3. Modification of Terms. Digi may modify these Terms from time to time. You agree that such modification shall be effective upon posting on the Websites and you will be bound to any changes when you use the Service after such modification is posted. It is therefore important that you review these Terms on the Websites regularly to ensure you are updated regarding any changes. Notice will be considered to have been delivered once sent or posted. Any use of the Service after alteration of the Terms will constitute acceptance by you of such changes. Your sole remedy should you not agree with the altered Terms shall be the termination your account and to cease use of the Service.
3. Your Conduct And Activities During Use Of The Service
3.1. Personal Non-Commercial Use. You agree that: (a) your account is for your sole, personal use (or the entity on whose behalf you are entering into this Agreement); (b) you will not authorize others to make any use of any kind of your account or profile; (c) except as expressly authorized by this Agreement, you will not make any use (of any kind) of the Service, the Website, the UGC or its Contents for any commercial purposes, nor will you authorize others to do so.
3.2. Password, Account And Security. You agree to keep your password secure and confidential and not to disclose it to anyone and will not permit any third party to access your account. You agree to notify Digi immediately of any actual or suspected unauthorized use of your password or account or other breach of security.
3.3. Unauthorized Conduct. You agree that you will not engage in any illegal or prohibited conduct, on or through the Service or its Websites, including but not limited to the following:
3.3.1. Illegal Activity. You agree not to: (i) use the Website or the Service in any way for any: criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, or sending of viruses or other harmful files; copyright infringement, patent infringement, or theft of trade secrets; or violation of export control laws or any and all applicable local, state, national and international laws and regulations in connection with your use of the Service or to include or download or provide a link for the same in the Website; or (ii) use the Service for any illegal or unauthorized purpose. International Users must comply with all local laws regarding online conduct and acceptable content.
3.3.2. Advertising Or Solicitation. You agree not to: (i) create, upload, post, e-mail, transmit, submit or otherwise make available unsolicited commercial messages to any Users except in areas designated for such purpose; (ii) engage in advertising to, or solicitation of, any User to buy or sell any products or services; (iii) collect usernames and/or email addresses for the purpose of sending unsolicited email; (iv) use any information obtained from the Service, the UGC or its Websites in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. In order to protect our Users from such advertising or solicitation, Digi reserves the right to restrict the number of messages which a User may send to other Users in any 24-hour period to a number which Digi deems appropriate in its sole discretion. You agree that commercial advertisements, affiliate links, and other forms of solicitation or UGC may be removed by Digi without notice and may result in termination of your account and/or the Service;
3.3.3. Obscuring Advertisements. You agree not to cover or obscure the banner advertisements on your personal profile page, or any of the Services web pages via HTML/CSS or any other means;
3.3.4. Scripting, Hacking Or Interfering. You agree not to: (i) make any automated use of the system, (such as through scripts, data mining, robots, screen-scraping, or similar data gathering and extraction tools); (ii) make available any material that contains software viruses, worms, any other code, files or programs of a destructive nature (or designed to interrupt, destroy or limit the functionality of the Service or user software or hardware); (iii) interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service; or (iv) act in a manner that negatively affects the ability of other Users to use the Service or engage in real-time dialogue via the Service's messaging services;
3.3.5. Impersonation And Use Of Another's Account. You agree not to (i) attempt to or actually impersonate another User or person; (ii) use any information obtained from the Service in order to impersonate another User or person or (iii) use the account, username, or password of another User at any time;
3.3.6. Harassment. You agree not to abuse, harass, threaten, intimidate or harm Users or another persons or use any information or UGC obtained from the Service in order to do so;
3.3.7. False Association And Attribution. You agree not to (i) engage in any conduct or statement which states or implies any false association between Digi or its Service and yourself or another entity, (ii) forge or manipulate headers or identifiers in order to disguise the origin of any content transmitted through the Service; or (iii) misattribute or otherwise claim as your own the copyrighted works of another party.
3.4. Unauthorized UGC. The following prohibitions are applicable to all UGC or information that you upload to or through the Service. You agree that you will not post or transmit any prohibited UGC, including but not limited to the following:
3.4.1. Inappropriate Material. You agree not post on the Website, or transmit to other Users any UGC or material which: (i) is illegal, inaccurate, false, misleading, defamatory, abusive, obscene, profane, vulgar, tortious, libelous, patently offensive; (ii) promotes illegal activities or furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (iii) is sexually oriented or sexually explicit, or which contains nudity or obscene or lewd subject matter, exploits people in a sexual manner, contains a link to an adult website, or uses sexually suggestive imagery; (iv) solicits personal information from anyone under 18; (v) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; (vi) provides any telephone numbers, street addresses, last names, URLs or email addresses of any other person; (vii) includes a photograph of another person that you have posted without that person's consent; (viii) is excessively violent or exploits people in a violent manner; (ix) is threatening, harassing or abusive, or which advocates threats against, harassment of or abuse of another person; (x) is hateful, harmful or racially offensive, or which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (xi) infringes or violates another party's rights (including, but not limited to, copyrights, licenses, other intellectual property rights, contractual or fiduciary rights and obligations, and rights of privacy and publicity); (xii) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music or links to pirated music files; (xiii) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming"; (xiv) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (xv) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); (xvi) contains unfair, misleading or deceptive Content intended to draw traffic to the profile or other page; or (xvii) otherwise offensive or objectionable.
3.4.2. Personal Information. Publicly available profiles posted by a User or other publicly accessible information made available by the User may not include their telephone number, street address or last name ;
3.4.3. UGC Of Other Users. The Service contains UGC of Users and Content of other licensors. Except for UGC posted by you or as expressly authorized by this Agreement or the Service, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content of UGC appearing on or through the Service or its Websites.
3.5. Linking. When you post or link an outside website to the UGC hosted on Digi's servers, you must provide a link back to the corresponding display page on the Service's Website for each item of the UGC. However, you must not embed MP3 UGC hosted on the Service's Websites on outside websites that cause such UGC to "autoplay" unless using features and services provided by Digi created expressly for this purpose.
3.6. Maintenance. You agree to (a) maintain and promptly update your account information to keep it true, accurate, current and complete; (b) maintain an accurate, up to date, valid, and regularly checked email address for the purposes of receiving notification of changes to these Terms, and (c) ensure that messages from Digi are not being filtered, altered, or blocked by your email software or service.
3.7. You Are Responsible For Your Conduct And Your UGC. With respect to the Service, you are fully and solely responsible for (a) any activity that occurs under your screen name, password or account, including any violation of this Agreement, (b) your own conduct and your interactions with other Users, and (c) any UGC, material or information that you upload, create, post, display, publish, e-mail, communicate, transmit or otherwise make available, or which you transmit to other Users.
3.8. Digi's Rights Regarding Conduct, UGC And Content. Digi reserves the right to investigate and take appropriate action against anyone who, in Digi's sole discretion, (a) violates the foregoing provisions regarding prohibited conduct, UGC and Content, (b) violates or is alleged to violate any applicable law or the letter or spirit of this Agreement, (c) engages in conduct which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. Digi's action may include, without limitation, reporting you to law enforcement authorities, terminating your membership to Digi Music and/or account, removing, refusing or moving offending UGC from the Service or Websites. If a dispute or claim arises from Content or the UGC, Digi reserves the right to remove the Content or UGC until a bona fide resolution has been reached.. There are no assurances whatsoever that any UGC you submit shall actually be utilized on the Website or, if so utilized, continue to be available for any particular time.
3.9. Disclaimer Regarding Conduct, UGC And Content. Despite the prohibitions on inappropriate conduct stipulated herein and UGC, information provided by Users and conduct of Users may violate some or all of the foregoing prohibitions. Digi does not endorse and has no control over the conduct or UGC of its Users. User conduct and UGC is not necessarily reviewed by Digi and shall not be considered to reflect the opinions or policies of Digi. Digi assumes no responsibility or liability for this conduct or Content or UGC and makes no warranties, express or implied, as to User conduct or Content or UGC, including its accuracy or reliability, or of any material or information that you or other Users transmit by or through the Website. Digi assumes no responsibility for monitoring the Service or Websites for inappropriate conduct or UGC. If at any time Digi chooses, in its sole discretion, to monitor the Service or Websites, Digi nonetheless assumes no responsibility to modify or remove any inappropriate Content or UGC, and no responsibility for the conduct of any User.
3.10. Reporting. If you become aware of misuse of the Service or the Websites by any person, including any inappropriate conduct or Content or UGC, please contact Digi at Digimusic.com.my.
4. Subscription to the Content
4.1. Downloading of Content. Upon receipt of your request for the mobile Content, Digi will send the requested mobile Content to the given mobile number. The Member needs to download the mobile Content within twenty four (24) hours after such Member confirms the purchase. The Members are given a maximum of one additional chance to re-download the mobile content if for any reason whatsoever, the Members fail to download it the first time. If the Members download request is incomplete or incorrect or if for any reason whatsoever Digi is unable to provide or deliver the mobile Content requested, Digi has the right to decline to send the mobile Content without further notice to such Member and as such, the Member will not be charged for the mobile Content.
4.2. Benefits. Upon subscription to the Digi Music/ Caller Tunes service, the Members are able to:
4.2.1. download full song track and music video via WEB and WAP. However, to download the mobile content via WEB, such Members must first be registered in the Online Customer Service (OCS). The Members are not allowed to transfer the full song track and music video to any other devices; and
4.2.2.send the mobile Content earlier downloaded to another person and the Member shall be charged the same value of mobile Content PROVIDED ALWAYS THAT no refund shall be made to the Member in the event :
(i) the Member inadvertently send the mobile Content to non-Digi subscriber;
(ii) the recipient’s phone is not compatible with the mobile Content; or
(iii) the recipient fails to download the mobile Content within 24hours.
4.3. Charges. For Digi Music Service, the Members shall be charged data charges for the cost of browsing, subscription, download and/or viewing of the mobile Content onto the Members’ mobile phone at the prices specified for the mobile Content; and where applicable, traffic charges (e.g. SMS and GPRS charges for the transmission / delivery of the mobile Content). The Members are advised to check against the specific details of the mobile download so as to ascertain the exact charges that are applicable.
4.4. Downloading By Third Party. Members will be charged for the mobile Content even if the mobile Content was used, subscribed, downloaded and/or viewed by a third party using the Members’ mobile phone and/or the SIM card registered to the Members and/or the Members’ details registered to the Members' SIM card. If the mobile phone does not belong to the Members or if someone else is paying the mobile phone bill please obtain that person's consent prior to using the same.
4.5. Delivery of Content. Digi shall not be liable in any way for failures, defects or delays in the delivery of the mobile Content for any reason whatsoever. The Members are responsible for all charges incurred if the Members inadvertently erase, replace or delete one of the mobile Content by receiving another mobile Content or otherwise.
4.6. Specific Conditions Related To Content. The Members will abide by all specific conditions and all notifications issued by Digi in relation to the mobile Content. Where it is expressly stated that the Members are restricted or prohibited from storing, editing, transferring, downloading, modifying and/or forwarding the mobile Content to any other medium, device or to any other user or subscriber, you agree to abide by the conditions. If Digi is of the view that there has been a contravention of these conditions, Digi reserves the right to terminate and/or suspend the Members access and usage of the mobile Content.
4.7. Monthly Fees Upon Termination. A Member may terminate any of the Services or a combination thereof. In doing so, the Member agrees and acknowledges that the Member shall be wholly liable for all the monthly fees applicable in respect of the said Services terminated up to the date of such termination, wherein for the month of termination, the said monthly fee(s) applicable shall be pro-rated. In addition, the Member also agrees to be liable for any other charge, which Digi may, at its sole discretion, levy upon the Member for the same.
4.8. Withdrawal of Service. Digi reserves the sole and exclusive right to withdraw the Services at any time without notice.
5. Proprietary Rights In UGC That You Provide To The Service
5.1.You Have All Necessary Rights. For all the UGC that you upload to the Website, you represent and warrant that (a) you own or otherwise have all rights, approvals, licenses and/or consents necessary to submit the UGC and (b) that use of the UGC on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademarks, contract rights or any other rights of any person. You agree to pay all royalties, fees, and any other monies owing any person by reason of any UGC posted by you to or through the Website. You further guarantee that the compositions, recordings, lyrics, text and other materials contained in the UGC are original, created only by you or the entity on whose behalf you are entering into this Agreement for and do not contain any "samples" or excerpts that would infringe on the copyrights of others and do not otherwise infringe on the rights of any other individuals or companies.
5.2. Your Ownership Of Proprietary Rights In UGC. Digi does not claim ownership of any intellectual property rights over the UGC (including text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials) that you upload to the Website. Any intellectual property rights, including the copyright, in uploaded UGC belongs solely to you, subject to the non-exclusive license granted herein. After uploading your UGC to the Website, you continue to retain all ownership rights in such UGC, and you continue to have the right to use your UGC in any way you choose.
5.3. License In The UGC. By displaying or publishing any UGC on or through the Service or its Websites, you hereby grant to Digi a limited license to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display, reproduce, and distribute such UGC (in whole or in part) or prepare derivative works, in any format or medium now known or later developed, and synchronize such UGC with photo slideshows or video solely on and through the Service, its Websites or its affiliates. The license is non-exclusive (meaning you are free to license your UGC to anyone else in addition to Digi), fully-paid and royalty-free (meaning that Digi is not required to pay you for the use on the Service or its Websites of the UGC that you upload), sublicensable (so that Digi is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Service and Websites and to permit Users to view, hear, read, stream, download and link to your UGC), and worldwide (because the Internet, the Service and the Websites are global in reach). Except as otherwise provided herein, Digi may not transfer or sell the UGC license to others. You represent and warrant that you have sufficient ownership rights to grant this license.
5.4. License For Syndication. You also grant Digi the right to use and sublicense the UGC, such as songs, Gig Listings and Band Information (including, but not limited to, names, likenesses, biographical material, logos, marks or trade names of you or any individuals performing or otherwise represented in the UGC or the artist or band included or referred to in the UGC) for the purposes of syndication of Digi's products and services, including, without limitation, by syndicating and embedding widgets and band pages on third party websites, at Digi's discretion, without any payment to you or any other persons or companies. Digi may sublicense its right to display your Band Information and Gig Listings to anyone.
5.5. License For Promotional Purposes. If you register your band via the Digimusic.com.my interface, you grant Digi the right to use the UGC, such as songs, Gig Listings, and Band Information for the purpose of promotion of Digi's products and services without any payment to you or any other persons or companies.
5.6. Waiver of Performance Royalties. You grant Digi a waiver of any performance royalties on the UGC when performed by Digi in a broadcast format such as internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the UGC to grant Digi such waiver.
5.7. Sub-waiver of Performance Royalties. If you register your band via the Digimusic.com.my interface, you grant Digi the right to waive, on your behalf, any performance royalties on the UGC when performed by a third party in a broadcast format such as internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the UGC to grant Digi such waiver.
5.8. UGC Removal. You can remove your UGC at any time by deleting your account. Deletion of your account will not terminate any UGC licenses granted prior to deletion of your account.
6. Proprietary Rights In Digi's And Third-Party Content And Technology
6.1. Ownership Of Proprietary Rights. The Service contains Content and technology of Digi and third party that is protected by copyright, trademark, patent, trade secret and other laws.
6.2. Created Content. Any Content and content created using or from the Service shall be owned by Digi or the respective third party. For example, all copyrights in reviews, ratings, rankings, charts, playlists, podcasts, blogs, newsletters, broadcasts, XML, and RSS shall be owned by Digi or the respective party and licensed to you and other users of the Service pursuant to the terms hereof.
6.3. Service. You acknowledge that the Service contains copyrighted material, trademarks, and other proprietary information of Digi and its licensors and you agree that except for the limited license granted hereunder, all right, title and interest to the Service and the Contents therein remains with Digi or third parties.
6.4. Websites. The compilation of Content comprising the Service and its Websites are the exclusive property of Digi and protected by the relevant copyright laws.
6.5. Software. All software used on this Website is the property of Digi or its software licensors and is protected by the relevant copyright laws. You agree not to translate, reverse engineer, decompile, disassemble, modify or create derivative works based on any of the software constituting or provided through the Service. You agree not to circumvent any technology used by Digi or its licensors to protect content accessible via the Service.
6.6. Trademarks. Digi, Digi.com.my, Digi Music and Digimusic.com.my trademarks and servicemarks are the property of Digi Telecommunications Sdn Bhd ("the Marks"). Without prior permission from Digi, you agree not to display or use the Marks in any manner.
6.7. Limited License In Content To User. Subject to the terms and conditions hereof, Digi hereby grants you a limited, revocable, nonsublicensable license to download the Content (excluding any software code) solely for your personal use and in connection with viewing the Websites. No other rights are granted to a Member in the Content other than those rights granted explicitly herein. You agree to comply with any distribution controls and terms applicable to the Content made available through the Service. You further agree to comply with all other restrictions on copying and distribution of content stated in these Terms.
7. Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Digi to terminate all privileges of any User who infringes the copyright of others upon receipt of prompt notification by Digi from the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service or the Websites in a way that constitutes copyright infringement, please provide us with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Service or the Websites; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. For notice of claims of copyright infringement, Digi can be reached as follows:
D'House,
Lot 10, Jalan Delima 1/1, Subang Hi-Tech Industrial Park,
40000 Shah Alam, Selangor.
Attention : Head of Legal Department
8. Privacy Policy. You are aware of our Privacy Policy located at http://www.Digimusic.com.my/privacy. Use of the Service is governed by the Privacy Policy, which is incorporated into this Agreement by this reference. In the event of an inconsistency between these Terms and the Privacy Policy, these Terms shall take precedence.
9. Service Terms
9.1. General. Digi reserves the right, but has no obligation, to take any of the following actions in its sole discretion at any time and for any reason, and you agree that we will not be liable to you or any third party and shall be kept harmless for taking any of these actions.
9.2. Digi's Right To Control Service. Digi reserves the right, in its sole discretion, to reject, refuse to post or remove any Content or UGC (including private messages) by you, or to restrict, suspend, or terminate any license granted hereunder and/or your access to all or any part of the Content, Service or its Websites at any time, for any or no reason, with or without prior notice, and without liability.
9.3. Fees. You acknowledge that Digi reserves the right to charge for the Service and the Websites and to change its fees from time to time at its discretion. If Digi terminates your membership to the Service because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.
9.4. Monitoring. Digi may monitor the UGC and the Content available on the Service and the Website.
9.5. Availability. Digi may change, suspend, or discontinue all or any part of the Service at any time, with or without reason. You acknowledge that the operation of our Website may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Digi shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. Digi has no obligation to continue producing or releasing new versions of the Service or any associated software and/or Content.
9.6. Account Access. Digi may restrict, suspend, or terminate your access to all or any part of the Service or the Website, deactivate your account and/or membership to Digi Music, or delete your account and/or membership to Digi Music and all related information and files in your account and/or membership to Digi Music. You acknowledge, consent and agree that Digi may access, preserve, disclose or delete your account information, UGC and Content if required to do so by law or in a good faith belief that such act is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that UGC or Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Digi, its users and the public. After a period of inactivity, Digi reserves the right to continue, disable or terminate a user's account and/or his membership to Digi Music. If an account has been suspended or inactive for more than ninety (90) days, Digi shall have the right to delete all information relating to your account and/or membership to Digi Music without liability to you.
Additional Specific Service Conditions
10.1. Payment. If by reason of death or disability you are unable to receive the Service for which you contracted, you and your estate may elect to be relieved of payment obligations for the Service except for those received before death or onset of disability.
10.2. Album Art and Music Samples On Digimusic.com.my. You acknowledge that album art and music samples made available by Digi at Digimusic.com.my or any of its affiliate websites or services are the copyrighted, trademark and proprietary information of Digi or any third-parties and, with respect to such material, any reproduction, publication, further distribution or public exhibition of materials provided at this Website, in whole or in part, is strictly prohibited.
10.3. Dependencies. The ability of the Member to access and use additional functionalities, network services, information, data, content, interactive applications and/or Services is dependent on the features and functionality of a Member's mobile telephone; terms of usage stipulated by Digi, and/or the nature or quality of the information being accessed. You agree that Digi does not represent, warrant or guarantee the extent to which Member's mobile telephone will be able to access the Content on the internet or elsewhere. You agree that Digi shall not be responsible or liable for any loss caused or damage incurred or suffered by the User or any other person by reason of or arising from or as a consequence of using the Website, the Content, or the User's inability to access or use, the Website or the Content arising out of any action taken in response to or as a result of any information available via the Website.
10.4. User's Responsibilities and Obligations. The User agrees that the User:
10.4.1. is responsible to install plug-in, system and applications necessary to run and enjoy the Service;
10.4.2. is responsible for all equipment and software necessary to use the Services as well as for the security and the integrity of such User's data and information;
10.4.3. uses the information, UGC, Content and the Services accepting full risk and responsibility in doing so;
10.4.4. acknowledges that Digi does not check the content, the UGC or information available from the Services or the Website and that Digi is not liable for loss or damaged suffered by the User or any other person as a result of using the Content or the UGC obtained using the Services or the Website, including, but not limited to, any damage to, or loss of, data caused by a virus or similar program;
10.4.5. shall not use the Services, Content or UGC or the information for activities which breach any law, infringe a third party's right, or breach any statement, content requirement or code promulgated by any relevant authority including activities which will require Digi to take remedial action under any applicable industry code or in a way which interferes with other users or defames, harasses, menaces, restricts or inhibits any other user from using or enjoying the Services, Content, UGC or the information or the Website;
10.4.6. is responsible for obtaining advise about whether the User's use of the Services, the Content, the UGC or the Website involves activities which breach any law, infringe a third party's right, or breach any standard, content requirement or code promulgated by any relevant authority.
10.5. Condition Precedent. It is a condition of access to such Website, Services, UGC or Content that such User:
10.5.1. acknowledge that Digi is not under any obligation to monitor or censor the material generated by users of the Services, the UGC or the information, however it reserves the right to do so;
10.5.2. acknowledge that Digi is not responsible for the UGC or Content (even if co-branded and/or promoted by Digi);
10.5.3. acknowledge that any view expressed are not necessarily those of Digi;
10.5.4. agrees not to make lewd, obscene, threatening, abusive or defamatory remarks or incite hatred to any other person or group;
10.5.5. agrees not to abuse, harass, threaten or embarrass any other person or interfere with the operation of the Services or the Website or interfere with the enjoyment of the Services by other people;
10.5.6. agrees not to post or transmit any material of any kind which contains a virus or other harmful components;
10.5.7. must not delete any author acknowledgement, legal notice or proprietary designation or label in any file that is uploaded;
10.5.8. must not download any UGC or file posted by any other User if such User knows, or reasonably ought to know, that the file cannot legally be distributed in such manner;
10.5.9. grants to Digi an irrevocable, world-wide, royalty fee license to copy and adapt any material the User generates or uploads through use of the Services or the UGC to the extent necessary to provide the Services, or to promote the Services; and
10.5.10. release Digi from any and all liability in connection with the Services, the Content or UGC, including for any failure to provide the Services.
11 Disputes Between Users. You are solely responsible for your interactions with other Users of the Service or its Websites. Digi reserves the right, but has no obligation, to monitor disputes between you and other Users.
12 Term And Termination
12.1. Term. This Agreement shall become effective upon your acceptance of the Terms by your use of the Service and shall remain in effect in perpetuity unless terminated hereunder.
12.2. Termination. Either you or Digi may terminate your account and/or your membership to Music Digi or subscripton to Caller Tunes at any time, for any reason or no reason, without explanation. You agree that Digi may, without prior notice, immediately terminate your account and/or your membership to Music Digi or subscription to Caller Tunes, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to: (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account and/or your membership to Music Digi deletions), (d) discontinuance to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity beyond a continuous ninety (90) days, (g) you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Digi shall not be liable to you or any third-party for any termination of your account and/or your membership to Music Digi, made in Digi's sole discretion.
12.3. Public Content. Digi's license to display, sublicense, and syndicate UGC also survives deletion of your accounts.
12.4. Audio Hosting. You may cancel the Audio Hosting agreement by deleting your Audio Content from your account and/or your membership to Music Digi at any time and if you cancel within thirty (30) days of purchase, you are entitled to a no-questions-asked refund (if any fees are paid). Deleting songs means those songs are no longer subject to this agreement, but the rest of these Terms are not cancelled. You are free to cancel your Audio Hosting at any time; however, if you submit your song to enter the contest, processing your request will wait until it has completed its current round of reviews. We are obviously not responsible for any copies of your song or other materials that may have been downloaded from our Website before we removed your material.
12.5. Performance Royalty Waiver. Any performance royalty waiver granted to the Digi before you deleted your Audio Content survives the deletion. It is solely your responsibility to identify, contact and cancel the performance waiver from those parties for whom we had waived the rights on your behalf.
12.6. Breach. In the event your access to the Service is suspended due to the breach of this Agreement, you agree that all fees then paid to Digi by you shall be nonrefundable. In the event of termination by Digi, your account and/or your membership to Music Digi or subscription to Caller Tunes will be disabled and you may not be granted access to your account and/or your membership to Music Digi or subscription to Caller Tunes or any files or other UGC contained in the Website.
13 Disclaimers, Warranties And Limitations On Liability
13.1. Disclaimers. Digi is not responsible for any incorrect or inaccurate UGC, Content posted on or through the Service or its Websites, whether caused by Users or by any of the equipment or programming associated with or utilized in the Service or its Websites. Profiles created and posted by Users may contain links to other websites. Digi is not responsible for the UGC, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by Digi. Inclusion of any linked website on or through the Service or the Websites does not imply approval or endorsement of the linked website by Digi. When you access these third-party sites, you do so at your own risk. Digi takes no responsibility for third party advertisements which are posted on or through the Service or its Websites, nor does it take any responsibility for the goods or services provided by its advertisers. Digi is not responsible for the conduct, whether online or offline, of any User of the Service or its Websites. Digi assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. Digi is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Digi Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Service or the Website or any link posted on the Website. Under no circumstances shall Digi be responsible for any loss or damage, including personal injury or death, resulting from use of the Service or the Websites, attendance at a Digi event or benefit acquired under the Services, from any UGC or Content posted on or through the Service or the Websites, or from the conduct of any Users of the Service or the Websites, whether online or offline.
13.2. Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Digi PROVIDES THE SERVICE AND THE WEBSITE ON AN "AS IS" AND "AS AVAILABLE" BASIS. Digi MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OR INFORMATION COLLECTED FOR OR PROVIDED TO USERS UNDER THIS AGREEMENT, THE CONTENT, UGC OR THE WEBSITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, Digi DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE OR ANY SERVICES PROVIDED TO THE REGISTERED USER UNDER THIS AGREEMENT, THE CONTENT OR THE UGC. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, Digi SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED SERVICE. IN THE EVENT OF Digi'S BREACH OF WARRANTY, THE SOLE AND EXCLUSIVE REMEDY SHALL BE A REFUND OF THE AMOUNTS PAID FOR THE SERVICE BY THE REGISTERED USER FOR A MAXIMUM PERIOD OF SIX (6) CONSECUTIVE MONTHS FROM THE TIME THE TERMINATION IS EFFECTED . IN NO EVENT SHALL Digi BE LIABLE TO ANY PERSONS WHO ARE NOT USERS OF THE SERVICES.
13.3. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Digi BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICE, THE CONTENT AND THE UGC, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF Digi KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL Digi'S AGGREGATE LIABILITY, ON ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICE FOR A MAXIMUM PERIOD OF SIX (6) CONSECUTIVE MONTHS FROM THE TIME THE TERMINATION IS EFFECTED . IN NO EVENT SHALL Digi BE LIABLE TO ANY PERSONS WHO ARE NOT USERS OF THE SERVICES.
13.4. Exclusions. CERTAIN JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OF THE ABOVE LIMITATIONS IN SECTION 13.2 and 13.3 MAY NOT APPLY TO YOU.
13.5. U.S. Export Controls. Software available in connection with the Service (the "Software") is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
13.6. Accuracy. Opinions, advice, statements, offers, information or other Content made available through the Service or the UGC are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such Content or UGC. Digi does not: (i) guarantee the accuracy, completeness or usefulness of any information on the Service, or (ii) adopt, endorse nor accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party other than Digi. Under no circumstances will Digi be responsible for any loss or damage resulting from anyone's reliance on information or UGC or the Content s posted on the Service, or transmitted to or by any users or persons.
13.7. Advertisements. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service or the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Digi shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service or the Website.
14 Indemnity. You agree to indemnify and hold Digi , its officers, directors, employees, agents and third parties, harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your connection to or use of the Service, UGC and the Content , including any breach by you of the terms of this Agreement and any claims arising from the UGC you submit, post, transmit or make available through the Service or the Websites, or your use of the Service or the Websites or the Content. You specifically indemnify Digi for any claims that may arise from the infringement of and third party rights in the Service, Website, the UGC and the Content.
15. General Provisions
15.1. Rights Reserved. Digi and user retain all rights and licenses not explicitly granted hereunder.
15.2. Binding agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
15.3. Choice of law and forum. These Terms, the relationship between you and Digi, and any dispute involving the Service, the Websites, the Content, UGC or these Terms, shall be governed by (and construed and interpreted in accordance with) the relevant laws (for infringement of the Content) and the laws of Malaysia, without regard to its conflict of law provisions or your actual state or country of residence. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of Malaya in the event of any dispute arising out of or relating to this Agreement.
15.4. Severability and Waiver. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. The failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.
15.5. Survival. Unless otherwise explicitly stated, these Terms will survive the expiration or deletion of your account and/or your membership to Digi Music for any reason. Digi may assign any or all of its rights hereunder in the event of a merger or acquisition of all or substantially all of the assets to which this Agreement relates.
15.6. No Partnership. The parties bear the relationship to each other of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, joint venture, or agency relationship between them, nor shall either party have the power or authority by virtue of this Agreement to bind the other.
15.7. Entire Agreement. This Agreement contains the entire agreement between you and Digi regarding the use of this Service, the Website, the UGC and the Content and it supersedes all prior and contemporaneous agreements, promises, representations, warranties, and understandings of the parties regarding the same subject matter. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Digi services, affiliate services, third-party Content, or third-party software, but unless explicitly noted otherwise, this Agreement shall govern in the event of any inconsistency between this Agreement and any such additional terms and conditions.
15.8. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms that you bring must be brought within one (1) year after such claim or cause of action arose or be forever barred.
15.9. Third Party Rights. Nothing in this agreement shall confer any rights or benefits to third parties.
15.10. Counsel. Although we have attempted to outline above the terms on which you may use the Service in straightforward English, please be aware that these terms, if accepted by you, create a binding legal agreement between you and Digi. We strongly urge that before accepting these terms you print out a copy and review it with your attorney, manager and other representatives and if you have no such representatives that you seek other independent qualified guidance.