1 General Provision
1.1 These Specific Terms of Use form part of the Agreement, as defined in the General Terms of Use. They are complementary to the General Terms of Use. In case of contradiction, the Specific Terms of Use prevail over General Terms of Use.All terms written with a capital letter have the meaning described in Winamp’s General Terms of Use.
1.2 As a Creator, by uploading any Music and Artworks to the Site through one of the Service listed below:
· you represent and warrant, and can demonstrate to Winamp’s full satisfaction upon request, that (i) you own or otherwise control all rights to your Music and Artworks (or that such Music and Artworks are in the public domain or have otherwise been directly licensed to you in writing with a grant of rights sufficient to permit you to enter into this Agreement and to grant all of the rights with respect to your Music and Artworks as set forth in this Agreement (hereinafter “Direct Licensed”); (ii) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any Music and Artworks you upload to the Service; (iii) you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Music and/or Artworks, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Music and/or Artworks) as contemplated by these Specific Terms of Use, and (iv) you are authorized to grant all of the aforementioned rights to the Music and/or Artworks to Winamp and all users of the Service
· you represent and warrant that the use or other exploitation of your Music and/or Artworks by Winamp and its authorized sublicensees and distributors and/or by users of the Site as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights;
· you represent and warrant that, to the extent you are the songwriter of any or all of the Musical Works embodied in your Sound Recordings or Music Videos, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any Performing Rights Organization (“PRO”) or other Collective Management Organization (“CMO”), whether based in Belgium or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO, CMO or music publisher of the rights you grant under this Agreement, notably the rights granted to Winamp for the reproduction, public performances and communications to the public of your Musical Works, and that no fees or payments of any kind whatsoever shall be due to any music publisher for the use or re-use of your Musical Works as authorized under this Agreement. If on the contrary such fees or payments happen to be due, you shall be solely responsible for their payment;
· you represent and warrant that no fees of any kind shall be due to any union, guild, non-featured vocalist or musician, engineer, producer, label, or any similar third party, for the use or re-use of your Music as authorized under this Agreement. If on the contrary such fees or payments happen to be due, you shall be solely responsible for their payment;
· in the event that the Musical Works were written and/or composed and/or performed by various writers and/or performers, you shall be responsible for sharing with these rights holders, pursuant to the agreements entered into with them, the sums stemming from your Revenue Share.
In case it appears, or it is suspected that the Music and/or Artwork infringes third parties’ copyright or other intellectual property rights and/or violates intellectual property laws, Winamp reserves the right to refuse or remove said Music and/or Artwork from the Service.
2. Fanzone Service
2.1 Fanzone Service
Winamp enables Users to purchase access to Music from Creators through the Service “Fanzone” by subscribing to a Creator tier (“Tier Subscription”). The Music is afterwards available for the User in the section “My Fanzone” of the Winamp Player.
The Service may also include specific recommendations to the Creator to improve his/her use of the Service (e.g. type of social post, pricing tiers, better audience targeting, …)
2.2 Fees and Payments
Each such purchase involving Tier Subscription is a “Digital Transaction”. Digital Transactions under this Agreement are facilitated by Winamp and our third-party payment processors.
If we are required by law to deny access through the Service to previously accessed Music, then the User who subscribe to access to that Music will not get the Tier Subscription fee refunded, except as required by applicable law.
You warrant that if you enter into a Digital Transaction, then you shall be able to make full and immediate payment for the requested Service.
To the extent permitted by law and this Agreement and in the form, nature, and quantity as authorized by Winamp at any given time, Creators may sell products and/or services to a User through a Tier Subscription available in the Fanzone on the Site. As a Creator, subject to the minimum determined by Winamp you will set the prices for the products and services that are charged through Digital Transactions (the “Prices”) through the Site, and you may change the Prices at your sole discretion subject to the aforementioned minimum.
In order to participate in Digital Transactions, you may be required to open an account with a designated third-party payment processor, and you agree to be bound by the terms and conditions of such third-party payment processor for purposes of participating in the Digital Transactions. To the extent necessary you the Creator, as applicable (i) designate us as your agent for the sole and exclusive purpose of processing Digital Transactions on your behalf; and (ii) authorize us or our designated third-party payment processor to collect payments for Digital Transactions on your behalf.
For Tiers Subscriptions, Winamp shall pay you as Creator your “Revenue Share” which is composed of payments received from Users minus the applicable Fees, taxes (if we are liable for paying the relevant tax on sales to Users), and any other applicable fees which shall be directed to Winamp at the time of each payment, as well as any fees or other amounts which may happen to be due and payable to third parties relating to the Music and Artworks including, without limitation: (a) mechanical license fees; (b) performing rights fees; (c) guild fees; and (d) any other fees attributable to the Music and Artwork.
When you receive a payment for a Digital Transaction, you may be liable to Winamp or the applicable third-party payment processor for the full transaction amount, plus any processing fees if the payment is later invalidated for any reason including but not limited to chargeback or dispute. You agree to allow Winamp to recover any amounts due to Winamp by debiting your account or by instructing our third-party payment processors to direct such amounts to us. If there are insufficient funds to cover your liability, you agree to reimburse Winamp through other means.
Winamp shall be entitled to a share of the revenue received from Digital Transactions (the “Fees”), which shall be calculated on your gross revenue from Digital Transactions, not including any Digital Transactions for which you or we provide a refund, in accordance with the rate schedule set forth in the Pricing document. You shall be solely responsible and liable for, and Winamp shall have no responsibility or liability for, any third-party payment processor fees, bad debts (such as credit card returns or fraud), disputed payments, and refunds, except as provided in this Agreement.
2.3 Restrictions
Winamp retains the right, but does not have the obligation, to immediately halt the offering or sale of any goods or services, prevent or restrict access to the Site or the Services or take any other action in case of technical problems, objectionable material, inaccurate listings, or actions otherwise prohibited by the procedures and guidelines contained on the Site, or for any other reason in the sole and absolute discretion of Winamp, and to correct any inaccurate listing or technical problems on the Site. Winamp may immediately halt the offering or sale of any goods or services upon receipt of notifications of claimed infringement, upon acquiring knowledge of actual infringement, or becoming aware of facts or circumstances from which infringing material is apparent with respect to any goods or services.
2.4 Intellectual Property Rights and Licenses
The Service provides Creators with the ability to upload Music and Artworks owned or controlled by such Creators to the Site.
Winamp will not have any ownership rights in any elements of a Creator’s Music and Artworks, however, Winamp needs the following license to perform the Service. Each Creator uploading Music and Artworks to the Service grants Winamp and its authorized sublicensees and distributors, if any, the worldwide, non-exclusive, royalty-free (subject to any agreement with a CMO, as applicable), right and license to:
(i) reproduce, distribute, publicly perform (including on a through-to-the-audience basis and by means of a digital audio transmission), publicly display, create derivate works of, communicate to the public, synchronize and otherwise exploit (collectively, “Exploit”)
· The Creator’s Music and perform the Service on the Creator’s behalf (e.g., reproduce, transcode, copy and store the Creator’s Music on computer servers owned and/or operated by or on behalf of Winamp or its authorized sublicensees and distributors, and publicly perform, transmit, synchronize, stream, distribute, and playback the Creator’s Music) using any technologies or methodologies now known or hereafter developed, and
· Exploit all associated Artworks in connection with the Service.
(ii) allow Users of the Service to receive public performances and public displays of the Creator’s Music and Artworks and to reproduce the Creator’s Music and Artworks on any and all devices owned or controlled by the User for non-commercial purposes and receive performances and displays of same; and
(iii) reproduce, use, and publish, and to permit others to reproduce, use and publish, the name(s), trademarks, likenesses, and personal and biographical materials of the Creator, in connection with the provision of the Service.
To enable Winamp to Exploit your Music pursuant to the above provisions, you hereby grant to Winamp 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 “Creator Trademarks”) solely in connection with the Service or in the marketing, promotion or advertising of the Service, including in all forms of marketing, promotion, and advertising materials now known or hereafter created.
3. Service of Distribution
PLEASE UNDERSTAND THAT YOU MUST OWN OR OTHERWISE HAVE THE LEGAL RIGHT TO REPRODUCE AND DISTRIBUTE 100% OF THE RECORDINGS, MUSICAL COMPOSITIONS, LITERARY WORKS, DRAMATIC WORKS, SPOKEN WORD CONTENT, ARTWORK AND ANY OTHER MATERIAL THAT YOU INTEND TO UPLOAD AND DISTRIBUTE VIA THE WINAMP SERVICE, INCLUDING THE RIGHT TO MAKE AND DISTRIBUTE DIGITAL DOWNLOADS EMBODYING THE MUSICAL COMPOSITIONS THEREIN, AND ELECTRONIC TRANSMISSIONS OF SUCH MUSICAL COMPOSITIONS (INCLUDING, WITHOUT LIMITATION, VIA STREAMING SERVICES), AS NECESSARY.
FOR EXAMPLE, YOU CANNOT DELIVER TO US ANY REMIXES, OR RECORDINGS THAT INCLUDE SAMPLES UNLESS YOU HAVE ALL NECESSARY WRITTEN PERMISSION FROM THE SONGWRITERS AND FROM THE OWNERS OF THE APPLICABLE ORIGINAL RECORDINGS.
3.1 The Distribution Service and Your Recordings
The Winamp Service enables you to upload to our servers digital files containing audio-only musical sound recordings or audio-visual works and the underlying musical compositions, literary works, dramatic works or spoken word content embodied therein (“collectively, “Recordings ”) for distribution to your choice of Digital Service Providers, streaming services, and other digital services within our distribution network ( “Digital Service Providers”), who may make your Recordings available to their customers and end users (“Customers”).
Recordings must be musical sound recordings in single track, EP, or album configuration (however, please note that Digital Service Providers will make your Recordings available to Customers to purchase or stream as individual tracks i.e., you cannot require that a Customer purchase or stream an entire album or EP as a single unit). We typically do not accept or distribute ringtones, audio books, spoken-word records, digital booklets, or other types of content; however, if we choose to do so, as determined by us on a case-by-case basis in our discretion, the terms of this Agreement shall apply to such formats.
We can currently accept Recordings in certain formats. We and/or the Digital Service Providers may require different formats or file sizes from time to time during the term, and Winamp reserves the right to convert audio files of the Recordings as necessary.
When uploading each Recording, you must provide us with all accompanying data that we or a Digital Service Provider may require (e.g., artist name, album title, each track title, genre), plus any available cover art (in JPG format with RGB color or any other format that we or a Digital Service Provider may require). For purposes of this Agreement, all such data, metadata, information, image files, artwork and any other materials you provide to us are included in the definition of “Recordings.” We may also require that you indicate if the Recording contains explicit content, in which case a Digital Service Provider may tag it accordingly.
We will automatically generate unique identifying codes for each Recording and provide them to your chosen Digital Service Providers.
3.2 Digital Service Providers
The rights granted by you to Winamp are non-exclusive. Be advised, however, that if you send your Recording(s) to the same Digital Service Providers via Winamp and a separate service, the double listing of your Recordings may cause complications and/or problems in those Digital Service Providers. We reserve the right to unpublish your Recording if it has already been published on the same Digital Service Provider(s) as the one(s) accessible through Winamp.
We undertake to provide your Recordings to Digital Service Providers as quickly as possible. However, it can take a few hours to a few days to several weeks for a Digital Service Provider to integrate, process and make your Recordings available to Customers, depending on the particular Digital Service Provider and the territory.
Each Digital Service Provider will determine its pricing to its Customers, as well as format or media and other terms on which it offers recordings (including your Recordings) to its Customers, in its discretion and according to its business model.
We will distribute your Recordings to Digital Service Providers on a worldwide basis (“Territory”). You can’t specify only certain countries or territories for particular Recordings.
Digital Service Providers may choose not to carry one or more of your Recordings at all or in certain territories (or to remove Recordings at any time) per their policies and practices, so we can’t make any guarantees. We may also decline to distribute (or may remove from Digital Service Providers) one or more Recordings from any or all Digital Service Providers if we receive any legal claims regarding the particular Recording(s), if we reasonably believe that any legal claims or issues may arise, if a Recording may violate the terms and conditions of any Digital Service Provider, or for any other reason in our business judgment. And if our agreement with any Digital Service Provider expires or terminates, or if that Digital Service Provider ceases to operate entirely or in a particular territory, then your Recordings will no longer be available through that Digital Service Provider.
You warrant to Winamp that you have read, understand, and agree to be bound by all of the terms and conditions of all the Digital Service Providers accessible through Winamp and that you and your Recordings and other content comply fully with those terms and conditions.
3.3 Term
Winamp may terminate the term for any reason, including but not limited to if we reasonably believe that you or any of your Recordings or other content have violated this Agreement or the terms and conditions of any Digital Service Provider, that you or your Recordings infringe the intellectual property or other rights of any person or entity, if we are told by any Digital Service Provider or reasonably believe that Digital Service Providers will not accept your Recordings or other content specifically or categorically, or that you are otherwise abusing our Service or any Digital Service Provider or engaging in fraudulent or illegal activity.
We may also terminate the term if our Service is discontinued for any reason.
After the end of the term, we will notify all applicable Digital Service Providers to remove your Recordings and will have no further obligation to you other than to account and pay for monies earned during the term. Customers who downloaded or otherwise accessed your Recordings may be able to retain and continue listening to your Recordings even after the term of this Agreement is over.
3.4 Grant of Rights
In order for us to provide the Service and to distribute your Recordings, you confirm that you grant us the non-exclusive, sub-licensable right and license during the term and throughout the Territory to:
· reproduce and distribute your Recordings, to Digital Service Providers for them to sell or sublicense to their Customers by any and all applicable digital (non-physical) formats, configurations, technologies and methods (including, without limitation, permanent downloads, temporary or “tethered” download, interactive and non-interactive streaming, “scan and match” services, digital and online/wireless karaoke services, and other audiovisual services) to any and all capable devices (including, without limitation, to personal and tablet computers and smartphones), in each case as now or hereafter known. Without limiting the foregoing, you acknowledge that the foregoing rights include the rights to allow Digital Service Providers any necessary rights of performance and reproduction required for the operation of such Digital Service Providers;
· create, reproduce, publicly perform and make available, and to authorize Digital Service Providers to reproduce, create and publicly perform and make available, free preview clips of your Recordings via streaming format either on Winamp Sites or via the Digital Service Providers;
· display and otherwise use your artist(s) and/or label name and logo (if you have one) and all Artwork, song and album titles, all trademarks, service marks, logos and trade names, and all artist, songwriter, producer and mixer names and approved likenesses, each as embodied in metadata within the Recordings or otherwise provided by you (“Materials”), on Winamp Sites, on the Digital Service Providers’ sites and services, and in any marketing, advertising or promotional materials for our Service or for the Digital Service Providers. Without limiting the foregoing, the Digital Service Providers may (but shall have no obligation to) create editorial content regarding you and your Recordings and may classify or categorize the same for inclusion within one or more genres;
· collect income from the Digital Service Providers from their exploitation of your Recordings (and to collect income after the term from exploitation of your Recordings during the term);
You also grant to Winamp and to your selected Digital Service Providers the right and license during the term and throughout the Territory to take all steps desired or required to effect the foregoing rights and to distribute your Recordings and Materials as contemplated in this Agreement, including without limitation, to store, host, cache, reproduce, convert, edit, serve, transmit and publicly perform such Recordings, and as otherwise required pursuant to our agreements with those Digital Service Providers, as may be amended from time to time during the term. You understand that Digital Service Providers may grant to Customers rights to use your Recordings beyond the term of this Agreement, even perpetual rights. As noted above, Digital Service Providers and/or we may decline to distribute or otherwise exploit any Recordings or other Materials (or to remove any Recordings that have already been distributed or offered to Customers) in our reasonable business judgment. You will be deemed to have approved any Artwork, photographs, biographical material or other information or materials that you provide to us.
3.5 Your Responsibilities
You are solely responsible for and must have obtained all necessary rights, licenses, waivers, clearances and permissions, including without limitation all music publishing rights and licenses in order to distribute, reproduce, display, publicly perform, synchronize with audiovisual works or otherwise exploit the Recordings (including the lyrics of such Recordings) throughout the Territory for all Recordings and other Materials in order to enable Winamp and your selected Digital Service Providers to fully exploit all their rights hereunder free of any claims, liens, encumbrances or other restrictions. Your uploading of Recordings and delivery of any other Materials shall be your unqualified warranty and representation to us that you have obtained any and all such rights required and necessary for Winamp and your selected Digital Service Providers to sell, distribute, publicly perform, promote, and otherwise exploit such Recordings and Materials as contemplated under this Agreement, including the waiver of all so-called “moral rights”, under the laws of any jurisdiction and to the extent permitted by said laws, on your behalf as well as on behalf of any and all contributors involved in any manner with the creation and delivery of your Recordings.
Without limiting anything in this Agreement, you are solely responsible for and shall timely pay
· any and all royalties, including without limitation all mechanical royalties and synchronization fees, and all other amounts due to artists, producers, mixers, engineers, licensors and any other royalty participants from the sales, license, performance and/or other exploitation of your Recordings and Materials,
· any and all royalties, including without limitation all mechanical royalties and synchronization fees, that may be payable by you to the owners or administrators of copyrighted recordings (e.g., samples) and/or musical compositions embodied in your Recordings,
· all payments that may be required under union, guild or other collective bargaining agreements applicable to you or third parties, and
· any other royalties (including without limitation mechanical royalties), fees and/or sums payable with respect to the Recordings or Materials, including, without limitation, any royalties that may be required to be paid, pursuant to the applicable laws of any jurisdiction, as a result of authorized exploitations by Winamp or your selected Digital Service Providers of your Recordings for so-called performer’s rights, equitable remuneration rights or neighboring rights, however characterized under local law.
3.6 Payment & Accounting Terms
In full consideration of the rights and licenses granted hereunder, we will post in your Winamp wallet a percentage of all monies that we actually earn and receive from your selected Digital Service Providers which are directly attributable to their exploitation of your Recordings, after deducting any applicable payment processing fee and the fees from the Digital Service Providers.
If Winamp receives monies from a Digital Service Provider that is not attributable to any particular Creator account(s) or specific Recordings from any particular Creator account(s), Winamp reserves the right to use this sum for donation purposes.
You understand and acknowledge that Digital Service Providers may retain for themselves a portion of income that they receive from Customers and may deduct or withhold sums from the amount that they pay to Winamp. Sums retained or withheld by Digital Service Providers may include, without limitation, taxes and tariffs, administration fees, royalties or fees paid to third parties, wire transfer fees, and credit card processing fees and chargebacks. Winamp shall be entitled to rely on payments and accountings received from Digital Service Providers.
If we receive a claim or notice or otherwise reasonably suspect that any of your Recordings or Materials or your use of our Site or Service breaches any agreement, infringes any third party rights, violates this Agreement or any law, rule or regulation, that there is a dispute regarding the Recordings or Materials (including without limitation as to ownership or payment of monies), or that your activities involve misrepresentation, misconduct, deception, fraud, or other inappropriate conduct, then in addition to any other available rights and remedies, we may suspend or terminate the distribution of your Recordings and/or the term of this Agreement and/or withhold payment of monies to you in an amount reasonably attributable in our discretion to such Recording(s), Material and activity until and unless any and all claims or other conduct are favorably resolved to our reasonable satisfaction, and we may deduct from your payments our related attorneys’ fees and legal costs in connection.
In case your Recordings or Materials is taken down because of fraudulent activity, we may invoice you a fraudulent content takedown fee per track per channel.
You will forfeit any monies that are attributable to your fraud, infringement or other illegal activity.
4. NFT Services
4.1. Definitions
4.1.1. Collector: A collector is a person who acquires a Digital Token by way of Primary Sale or Secondary Sale or has otherwise rightfully acquired it from a legitimate source, whether through purchase, gift, or other means.
4.1.2. Marketplace: Digital platform or digital platforms where sellers and buyers come together to conduct transactions. In the context of NFTs (Non-Fungible Tokens), it refers to online platforms where users can list, purchase, sell, or trade unique digital assets. Please note that we support only a limited number of these marketplaces to ensure (best effort policy) that royalties are appropriately paid. You are encouraged to refer to our FAQ for the latest list of supported marketplaces.
4.1.3. Blockchain: Blockchain is a decentralized database shared across a network of computers, where each computer, or node, holds a copy of a ledger that records transactions. Ethereum is an example of such a network that operates under a specific set of rules known as the Ethereum protocol, allowing users to create accounts and engage with a multitude of web3 applications from anywhere at any time. Please note that we support only a limited number of these blockchains. You are encouraged to refer to our FAQ for the latest list of supported blockchains.
4.1.4. USDC: USD Coin (USDC) is a digital stablecoin pegged to the United States dollar. USDC is redeemable 1:1 for US dollars. USDC reserves are held in the management and custody of US financial institutions.
4.1.5. Cryptocurrency: Cryptocurrency or crypto is a digital currency designed to work as a medium of exchange through a computer network that is not reliant on any central authority, such as a government or bank. Crypto is sometimes used as an alternative to Web3.
4.1.6. Web3: The global computer network providing a variety of information and communication facilities, consisting of interconnected networks using standardized communication protocols that we know today, however with the addition of the blockchain layer as protocol for data, value or asset exchange.
4.1.7. Digital Tokens or Digital Collectibles are non-fungible tokens that are linked to and represent a full length single, EP, Audio Track, Audio Tracks or album audio, with the option to include 'Reward' bonus materials. Digital Token’s may be comprised of audio, visual, audio-visual, animated or static components, experiences, tickets, rewards or other benefits as creatively directed by the Creators (“Assets”).
4.1.8. Forks: A fork happens whenever a community makes a change to the blockchain’s underlying protocol or set of rules. When this happens, the chain splits, producing a second blockchain (a copy) that shares with the original all its history.
4.2. The NFT Services
4.2.1. Winamp NFT service (the “Service”) provides a technology that mints a Digital Token for Creators using a centralized Winamp smart contract on the Blockchain. This allows Creators to list and sell their digital Assets on supported Marketplace(s) (see FAQ for latest details). Additionally, Collectors can buy, sell, and showcase their acquired pieces on the same Marketplace.
It's important to note that Winamp does not offer custodial wallets to its Creators.
4.2.2. Collectibles are tokenized by Winamp on behalf of their Creator and sold by the Creators to Collectors on a 3rd party Marketplace. Winamp reserves the right but has no obligation, to become involved in any way with disputes between Collectors and any Creators on Digital Collectibles tokenized by Creators using Winamp’s NFT service. At all times, Winamp does not sell any NFT to Collectors.
4.2.3. Digital Tokens are not investments of any kind. They do not confer any rights or interests in profits, revenues, or ownership interests in Winamp, the Blockchain, the Marketplace or any other commercial association. Winamp does not make any efforts to increase the value of any Digital Token to generate profit for Creators or Collectors. Winamp does not have a common enterprise with any Creator or Collector. You expressly acknowledge the aforementioned.
4.2.4 Winamp does not own or control 3rd party marketplaces, your browser or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to use or access the NFT Service. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer because of your transactions or any other interaction with such third parties.
4.2.5. Winamp’s making available of the Digital Tokens on the Marketplace shall be as a marketplace intermediary or facilitator only and Winamp shall not be a party to the sale and have no liability to any Collectors purchasing Digital Tokens or in relation to the Assets, including any failure by a Creator to secure the full rights necessary for the Collectors use of such Assets.
4.3. Disclaimer related to Blockchain technology
4.3.1. Winamp makes use of cryptographic and Blockchain technologies, such as tokens, cryptocurrencies, and smart contracts, to provide its tokenization service. These technologies are novel and come with inherent uncertainties and risks. Winamp is not responsible for any issues arising from the use of these technologies, including the loss of private keys, malfunctions, or adverse effects on smart contracts.
4.3.2. The value of assets like Cryptocurrencies and Digital Tokens can fluctuate significantly. Regulatory landscapes for Blockchain and Assets are uncertain, potentially affecting the Service and Collectibles. Cryptographic advancements might pose risks to Blockchain security. Winamp has no responsibility for Digital Tokens that Collectors trade . Therefore, Winamp will not investigate and cannot guarantee the uniqueness, marketability, legality, or value of any Digital Tokens presented to the Collectors via the Service.
4.3.3. Forks in the Blockchain can lead to multiple versions of the same Digital Token. Winamp's response to such events is at its discretion.
4.3.4. The Service relies on third-party software and storage solutions, and Winamp cannot guarantee their continuous operation.
4.3.5. Lastly, Winamp is not liable for any losses from third-party attacks, such as phishing or viruses.
4.4. Transactions Rules
4.4.1. The Transactions can occur either by way of initial sales from Creators to Collectors (“Primary Sale”) or by way of subsequent sales from Collectors to other Collectors ("Secondary Sale"). Winamp cannot make any representation or guarantee that Creators will achieve any particular outcome as the result of listing their Digital Tokens on Winamp.
4.4.2. When purchasing a Digital Token using Cryptocurrency, a Collector will likely do so on a supported Marketplace to effect payment and acquire ownership. Winamp is not responsible for this operation.
4.4.3. For each Primary Sales or Secondary Sales of the Digital Token, the Marketplace where the sales occurred shall pay you as Creator your “Revenue Share” as detailed on the creator platform, or the FAQ The Revenue Share is always paid in the same Cryptocurrency that has been used for the sales to occur. There may be other fees or transactions costs when the revenue share is sent from the Marketplace to the Creator wallet. Winamp can’t be responsible for any additional fees or charges from any 3rd party (e.g.: non-exhaustive: the Creator wallet, the Blockchain service or the Marketplace)
4.4.4. The Marketplace will be responsible for paying Winamp its own Revenue Share for providing the service.
4.4.5. Given the pseudonymous nature of Blockchain, Winamp will provision the VAT for all Primary Sales.
4.4.6. You shall be solely responsible and liable for, and Winamp shall have no responsibility or liability for, any third-party payment processor fees, bad debts (such as credit card returns or fraud), disputed payments, and refunds.
4.5. Modifications to the NFT Service
Winamp reserves the right to modify or discontinue, temporarily or permanently, the NFT Service (or any part thereof) with or without notice. You agree that Winamp will not be liable to you or to any third party for any modification, suspension, or discontinuance of the NFT Service.
4.6. Rules and conduct
When using Winamp, no User or Collector is allowed to:
4.6.1. Manipulate the price of a Digital Token in any way, including bidding on their own items, preventing bidding, or using Winamp to conceal illicit economic activity.
4.6.2. Knowingly use the NFT Service or Digital Tokens for any purpose that is improper or illegal or that they should have known is improper or illegal.
4.6.3. Email or otherwise input or upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) they do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Winamp, is objectionable or which restricts or inhibits any other person from using or enjoying the NFT Service, or which may expose Winamp or its Creators to any harm or liability of any type.
4.6.4. Interfere with or disrupt the NFT Service or servers or networks connected to it, or disobey any requirements, procedures, policies, or regulations of networks connected to the NFT Service.
4.6.5. Violate any applicable local, state, national or international law, or any regulations having the force of law.
4.6.6. Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
4.6.7. Solicit personal information from anyone under the age of 18.
4.6.8. Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized.
4.6.9. Further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism.
4.6.10. Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the NFT Service.
4.6.11. Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the NFT Service or to collect information about its Creators for any unauthorized purpose.
4.6.12. Create Creator accounts by automated means or under false or fraudulent pretenses.
4.6.13. Access or use the NFT Service for the purpose of creating a product or service that is competitive with any of our products or services.
4.6.14. Offer securities or advertise, market, or otherwise suggest that Digital Tokens are investments.
4.7. Intellectual Property Rights
4.7.1. The Creator warrants possession and/or full authority over all rights, titles, and interests in the intellectual property of the Digital Tokens, including copyrights and trademarks. They affirm their right to reproduce, create derivative Digital Tokens, distribute, and publicly display or perform the Digital Tokens as the copyright owner. Additionally, the Creator represents and warrants that the Digital Tokens listed on Winamp consist solely of original content or content they are authorized to use. They assure that their Digital Tokens do not contain any unlicensed or unauthorized copyrighted content, including imagery, design, audio, video, human likeness, or any other content not originally created or authorized for use by the Creator, not in the public domain, or without a valid claim of fair use. Furthermore, the Creator guarantees they have obtained permission to include any such unoriginal content within their Digital Tokens.
4.7.2. Creator acknowledges that it shall be his/her sole responsibility to obtain clearance of all rights, including the rights of any third-party contributors or owners or holders of any copyrights contained in the Assets for the creation, delivery, availability, and provision of Assets to Winamp and for use on the NFT Service and the making available on the Marketplace.
4.7.3. Creator will also be solely responsible for paying all required clearance payments, revenue shares, royalties, or other payments in relation to the use and exploitation of the Assets and Digital Tokens.
4.7.4. For the avoidance of doubt, in the event the Assets include any third-party rights, including but not limited to master recording or video rights, the Creator shall be solely liable for clearance of such rights for use within the Assets and be solely liable for payment of any fees or other amounts to the owners of such rights, and the Creator will indemnify and hold Winamp and its Affiliates harmless against any claims by the owners of the rights.
4.7.5. The parties acknowledge and agree that the performance, making available or broadcast of any Assets to Collectors will be subject to public performance licenses with respect to the performance or broadcast of works or other rights within such Assets (“Public Performance Licenses”). The parties acknowledge that in relation to such Public Performance Licenses that are required for the performance, making available or broadcast of any Assets in any part of the world, the Creator shall be solely liable for obtaining such Public Performance Licenses and for making payment of all fees required pursuant to such Public Performance Licenses (the “PRO Fees”), and the Creator undertakes to indemnify and hold Winamp harmless against any claims by any collection societies or any other third party relating to the performance, making available or broadcast of works or other rights within the Assets, including for such PRO Fees.
4.7.6. Creators hereby acknowledge, understand, and agree that creating and selling a Digital Token on Winamp constitutes an express representation, warranty, and covenant that the Creator has not, will not, and will not cause another to sell, tokenize, or create another cryptographic token representing a digital Token for the same Digital Token, excepting, without limitation, the Creator’s ability to sell, tokenize, or create a cryptographic token or other digital asset representing a legal, economic, or other interest relating to any of the exclusive rights belonging to the Creator under copyright law.
4.7.7. Creators hereby acknowledge, understand, and agree that launching a Digital Token on Winamp constitutes an express and affirmative grant to Winamp, its Affiliates and successors a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the media assets represented by the Digital Tokens on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising the NFT Service, or any other purpose related to Winamp, including without limitation, the express right to: (i) display or perform the Digital Tokens on the NFT Service, a third party NFT Service, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative Digital Tokens based on the Digital Tokens; (iii) indexing the Digital Tokens in electronic databases, indexes, catalogues; and (iv) hosting, storing, distributing, and reproducing one or more copies of the Digital Tokens and its assets within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or causing, directing, or soliciting others to do so.
4.8. NFT Service Content, Software and Trademarks
4.8.1. You acknowledge and agree that the NFT Service may contain content or features (“NFT Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Winamp, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the NFT Service or the NFT Service Content, in whole or in part. In connection with your use of the NFT Service you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Winamp from accessing the NFT Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the NFT Service or the NFT Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the NFT Service or distributed in connection therewith are the property of Winamp, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Winamp.
4.8.2. The Winamp name and logos are trademarks and service marks of Winamp (collectively the “Winamp Trademarks”). Other company, product, and service names and logos used and displayed via the NFT Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Winamp. Nothing in this Terms of Service or the NFT Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Winamp Trademarks displayed on the NFT Service, without our prior written permission in each instance. All goodwill generated from the use of Winamp Trademarks will insure to our exclusive benefit.
4.9. Third Party Material
While Winamp does conduct initial verification of Creators as set out above, under no circumstances will Winamp be liable in any way for any content or materials of any third parties (including Creators), including, but not limited to, for any errors or omissions in any content, for any purported rights or for any loss or damage of any kind incurred as a result of the use of any such content. Aside from as explained above, you acknowledge that Winamp does not pre-screen content, but that Winamp and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the NFT Service. Without limiting the foregoing, Winamp and its designees will have the right to remove any content that violates these Terms of Service or is deemed by NFT Service, in its sole discretion, to violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, confidential information, electronic fraud, invasion of privacy, pornography, obscenity or libel) or be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any Digital Tokens, including any reliance on the accuracy, completeness, or usefulness of such content.
4.10. Creator Content Transmitted Through the NFT Service
4.10.1. With respect to the content, Digital Tokens, or other materials you upload through the NFT Service or share with other Creators or recipients (collectively, “Creator Content”), you represent and warrant that you own all right, title, and interest in and to such Creator Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any Creator Content, you hereby grant and will grant Winamp and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your Creator Content in connection with the operation of the NFT Service or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed.
4.10.2. Any questions, comments, suggestions, ideas, feedback, or other information about the NFT Service (“Submissions”), provided by you to Winamp are non-confidential and Winamp will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
4.10.3. Winamp may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Winamp, its Creators and the public. You understand that the technical processing and transmission of the NFT Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
4.11. Other Taxes
With the except of the VAT in Belgium, Creators are responsible to pay any and all taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with their use of Winamp (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any artworks).
Last version updated on January 23rd, 2024