Mdundo
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The below information is important. Mdundo has three set of legal
documents which you should check out. Please read all of the below
information carefully
* *User Terms and Conditions:* If you
are downloading music from Mdundo this is the Terms and Conditions
you are accepting.
* *Privacy Policy:* Mdundo care
about your privacy, check out the privacy policy for more information.
* *Content Provider Terms and Conditions:*
If you are uploading music
to Mdundo this is the terms and conditions you are accepting.
Content provider Terms and Conditions
Effective as from 01 October 2014
*Description of Mdundo*
The Platform is an audio content sharing platform available Online and
as a Mobile Application, operating simultaneously, that allows users to
upload, download and live streaming of audio Content.
Online Registered Content Providers (Registered here:
http://mdundo.com/in/signup) of the Platform may submit, upload and post
high quality Audio; Music Sound Recordings, Live Concert Recordings,
photos, text, graphics, comments, and other content, data or information
(“Content”), which will be stored by Mdundo at the direction of such
registered Content Providers, and may be shared and distributed by such
registered Content Providers, and other users of the Platform, using the
tools and features provided as part of the Services and accessible via
the Website and elsewhere.
Mdundo may, from time to time, release new tools and resources on the
Website, or other services and/or features for the Platform. Any new
services and features will be subject to these Terms of Use as well as
any additional terms of use that we may release for those specific
services or features. Mdundo may also edit the content to include
advertising and/or promotional materials.
1. *ACCEPTANCE OF TERMS OF USE*
Please read these Terms of Use, and our Privacy Policy and Guidelines,
very carefully. By accessing or using the Platform, registering an
account, or by viewing, accessing, streaming, uploading or downloading
any information or content from or to the Platform, you represent and
warrant that you have read and understood the Terms of Use, Privacy
Policy and Guidelines, will abide by them, and that you are of legal
age, 18 years, to form a binding contract with Mdundo.
2. *CHANGES TO THE TERMS OF USE*
We reserve the right to change, alter, replace or otherwise modify these
Terms of Use, and our Guidelines and Privacy Policy, at any time. The
date of last modification is stated at the end of these Terms of Use. It
is your responsibility to check this page from time to time for updates.
* *
3. *USER ACCOUNT*
Access to certain Services is only available to registered users;
specifically, Content Providers.
When you register to use the Platform, you will provide us with your
email address, and will choose a password for your account. You must
ensure that the email address that you provide is, and remains, valid.
Your email address and any other information you choose to provide about
yourself will be treated in accordance with our Privacy Policy.
All users of the platform shall be bound by the User Terms and
Conditions here: http://mdundo.com/terms
1. a) Password
You are solely responsible for maintaining the confidentiality and
security of your username and password, and you will remain responsible
for all use of your username and password, and all activity emanating
from your account, whether or not such activity was authorized by you.
If your username or password is lost or stolen, or if you believe that
unauthorized third parties have accessed your account, you are advised
to notify Mdundo in writing through artist@mdundo.com, and should change
your password at the earliest possible opportunity.
1. b) Usernames
We reserve the right to disallow, cancel, remove or reassign certain
usernames in appropriate circumstances, as determined by Mdundo’s sole
discretion, and may, with or without prior notice, suspend or terminate
your account if activities occur on that account which, in our sole
discretion, would or might constitute a violation of these Content
Provider Terms of Conditions or our Guidelines, or an infringement or
violation of the rights of any third party, or of any applicable laws or
regulations.
1. c) Content to be deleted on cancellation of your account
Any attempt to terminate your account by means other than those
described in the Termination section will not be considered a proper
termination.
Once your account has been terminated, any and all Content residing in
your account, or pertaining to activity from your account (for example,
data relating to the distribution or consumption of your sounds), will
be irretrievably deleted by Mdundo, except to the extent that we are
obliged or permitted to retain such content, data or information for a
certain period of time in accordance with applicable laws and
regulations and/or to protect our legitimate business interests. Mdundo
shall not provide you with any file of data relating to activity
associated with your account, whether before or after termination. This
data is provided and is accessible only for viewing via your account
page on the Website for as long as your account is active.
* *
4. *USE OF THE PLATFORM*
When you register to use the Platform, and subject to your strict
compliance with these Terms of Use and our Guidelines, Mdundo grants you
a limited, personal, non-exclusive, revocable, non-assignable and
non-transferable right and licence to:
1. Submit, upload or post Content to the Platform strictly as permitted
in accordance with these Terms of Use and any other applicable terms
posted on the Website from time to time;
2. Participate in the community areas and communicate with other
members of the Mdundo community strictly in accordance with these
Terms of Use and our Guidelines; and
3. Use the Services provided as part of the Platform strictly as
permitted in accordance with these Terms of Use and any other terms
applicable to those Services from time to time.
The above are conditional upon your strict compliance with these Terms
of Use and our Guidelines, including, without limitation, the following:
1. You must not copy, rip or capture, or attempt to copy, rip or
capture, any Content from the Platform or any part of the Platform,
other than by means of download in circumstances where the relevant
Uploader has enabled the download functionality with respect to the
relevant item of Content.
2. You must not adapt, copy, republish, make available or otherwise
communicate to the public, display, perform, transfer, share,
distribute or otherwise use or exploit any Content on or from the
Platform, except:
where such Content is Your Content, or
as permitted under these Terms of Use, and within the parameters set by
the Uploader (for example, under the terms of Creative Commons licences
selected by the Uploader).
3. You must not use any Content (other than Your Content) in any way
that is designed to create a separate content service or that
replicates any part of the Platform offering.
4. You must not employ scraping or similar techniques to aggregate,
repurpose, republish or otherwise make use of any Content.
5. You must not make use of any bots, botnets, spiders, data mining
tools, automated scripts, apps, plugins or extensions with respect
to the Platform or any Content regardless of the configuration or
mode of operation of the same, including without limitation any of
the foregoing that automatically generates messages, plays audio
Content, generates comments or favourites any Content or posts any
activities. This does not apply to any apps, plugins or extensions
officially released by Mdundo and constituting Services.
6. You must not alter or remove, attempt to alter or remove, any
trademark, copyright or other proprietary or legal notices contained
in, or appearing on, the Platform or any Content appearing on the
Platform (other than Your Content).
7. You must not permit any third party to, copy or adapt the object
code of the Website or any of the Services, or reverse engineer,
reverse assemble, decompile, modify or attempt to discover any
source or object code of any part of the Platform, or circumvent or
attempt to circumvent or copy any copy protection mechanism or
access any rights management information pertaining to Content other
than Your Content.
8. You must not use the Platform to upload, post, store, transmit,
display, copy, distribute, promote, make available or otherwise
communicate to the public:
any Content that is offensive, abusive, libellous, defamatory, obscene,
racist, sexually explicit, ethnically or culturally offensive, indecent,
that promotes violence, terrorism, or illegal acts, incites hatred on
grounds of race, gender, religion or sexual orientation, or is otherwise
objectionable in Mdundo’s reasonable discretion;
any information, Content or other material that violates, plagiarises,
misappropriates or infringes the rights of third parties including,
without limitation, copyright, trademark rights, rights of privacy or
publicity, confidential information or any other right; or
any material of any kind that contains any virus, Trojan horse, spyware,
adware, malware, bot, time bomb, worm, or other harmful or malicious
component, which or might overburden, impair or disrupt the Platform or
servers or networks forming part of, or connected to, the Platform, or
which does or might restrict or inhibit any other user's use and
enjoyment of the Platform; or
any unsolicited or unauthorised advertising, promotional messages, spam
or any other form of solicitation.
9. You must not commit or engage in, or encourage, provoke, solicit or
promote, any conduct that would constitute a criminal offence, give
rise to civil liability or otherwise violate any law or regulation.
10. You must not rent, sell or lease access to the Platform, or any
Content on the Platform, although this shall not prevent you from
including links from Your Content to any legitimate online download
store from where any item of Your Content may be downloaded or streamed.
11. You must not make use of any bots, botnets, automated scripts, apps,
plugins or extensions or other automated or electronic means to
artificially increase your play count or downloads, add followers or
otherwise to misrepresent the popularity of Your Content on the
Platform, or offer or promote the availability of any such means to
any other users of the Platform.
12. You must not deliberately impersonate any person or entity or
otherwise misrepresent your affiliation with a person or entity, for
example, by registering an account in the name of another person or
company, or sending messages or making comments using the name of
another person.
13. You must not stalk, exploit, threaten, abuse or otherwise harass
another user, or any Mdundo employee.
14. You must not use or attempt to use another person's account,
password, or other information, unless you have express permission
from that other person.
15. You must not sell or transfer, or offer to sell or transfer, any
Mdundo account to any third party without the prior written approval
of Mdundo.
16. You must not collect or attempt to collect personal data, or any
other kind of information about other users, including without
limitation, through spidering or any form of scraping.
17. You must not use any automatic means of accessing, logging-in or
registering accounts on the Platform.
18. You must not violate, circumvent or attempt to violate or circumvent
any data security measures employed by Mdundo or any Uploader;
access or attempt to access data or materials which are not intended
for your use; log into, or attempt to log into, a server or account
which you are not authorized to access; attempt to scan or test the
vulnerability of Mdundo’s servers, system or network or attempt to
breach Mdundo’s data security or authentication procedures; attempt
to interfere with the Website or the Services by any means
including, without limitation, hacking Mdundo’s servers or systems,
submitting a virus, overloading, mail-bombing or crashing.
Without limitation to any other rights or remedies for Mdundo under
these Terms of Use, Mdundo reserves the right to investigate any
situation that appears to involve any of the above, and may report such
matters to, and cooperate with, appropriate law enforcement authorities
in prosecuting any users who have participated in any such violations.
You agree to comply with the above conditions, and acknowledge and agree
that Mdundo has the right, in its sole discretion, to terminate your
account or take such other action as we see fit if you breach the above
conditions or any of the other terms of these Terms of Use. This may
include taking court action and/or to report offending users to the
relevant authorities.
* *
5. *YOUR CONTENT*
Any and all Content that you upload, store, transmit, submit, exchange
or make available to or via the Platform (hereinafter "Your Content") is
generated, owned and controlled solely by you, and not by Mdundo.
Mdundo does not claim any ownership rights in Your Content, and you
hereby expressly acknowledge and agree that Your Content remains your
sole responsibility.
Without prejudice to the conditions set forth in Your Use of the
Platform, you must not upload, store, distribute, send, transmit,
display, perform, make available or otherwise communicate to the public
any Content to which you do not hold the necessary rights. In
particular, any unauthorized use of copyright protected material within
Your Content (including by way of reproduction, distribution,
modification, adaptation, public display, public performance,
preparation of derivative works, making available or otherwise
communicating to the public via the Platform) may constitute an
infringement of third party rights and is strictly prohibited. Any such
infringements may result in termination of your access to the Platform
as described in the Repeat Infringers section below, and may also result
in civil litigation or criminal prosecution by or on behalf of the
relevant rights holder.
* *
6. *SCOPE OF AGREEMENT*
By uploading or posting Your Content to the Platform, you initiate an
automated process to transcode any audio Content and direct Mdundo to
store Your Content on our servers, from where you may control and
authorise the use, reproduction, transmission, distribution, public
display, public performance, making available and other communication to
the public of Your Content on the Platform and elsewhere using the
Services. To the extent it is necessary in order for Mdundo to provide
you with any of the aforementioned hosting services, to undertake any of
the tasks set forth in these Terms of Use and/or to enable your use of
the Platform, you hereby grant such licenses to Mdundo on a limited,
worldwide, non-exclusive, royalty-free and fully paid basis.
By uploading Your Content to the Platform, you also grant a limited,
worldwide, non-exclusive, royalty- free, fully paid up, license to other
users of the Platform, and to users of any other websites, apps and/or
platforms to which Your Content has been shared or embedded using the
Services (“Linked Services”), to use, copy, transmit or otherwise
distribute, publicly display, publicly perform, prepare derivative works
of, make available and otherwise communicate to the public Your Content
within the parameters set by you using the Services. You can limit and
restrict the availability of Your certain Content to other users of the
Platform, and to users of Linked Services, at any time using the
settings on the Artist’s Dashboard Page for each sound you upload,
subject to the provisions of the Disclaimer section below.
The licenses granted in this section are granted separately with respect
to each item of Your Content that you upload to the Platform. Licenses
with respect to Content, and any images or text within your account,
will (subject to the following paragraph of these Terms of Use).
Licenses with respect to comments or other contributions that you make
on the Website will be perpetual and irrevocable, and will continue
notwithstanding any termination of your account.
You hereby acknowledge and agree that once Your Content is distributed
to a Linked Service, Mdundo is not obligated to ensure the deletion of
Your Content from any servers or systems operated by the operators of
any Linked Service, or to require that any user of the Platform or any
Linked Service deletes any item of Your Content. Any Content other than
Your Content is the property of the relevant Uploader, and is or may be
subject to copyright, trademark rights or other intellectual property or
proprietary rights. Such Content may not be downloaded, reproduced,
distributed, transmitted, re-uploaded, republished, displayed, sold,
licensed, made available or otherwise communicated to the public or
exploited for any purposes except within the parameters set by the
Uploader on the Platform or with the express written consent of the
Uploader.
* *
7. *REPRESENTATIONS AND WARRANTIES*
You hereby represent and warrant to Mdundo as follows:
1. Your Content, and each and every part thereof, is an original work
by you, or you have obtained all rights, licenses, consents and
permissions necessary in order to use, and (if and where relevant)
to authorise Mdundo to use, Your Content pursuant to these Terms of
Use, including, without limitation, the right to upload, reproduce,
store, transmit, distribute, share, publicly display, publicly
perform, make available and otherwise communicate to the public Your
Content, and each and every part thereof, on, through or via the
Website, any and all Services and any Linked Services.
2. Your Content and the availability thereof on the Platform does not
and will not infringe or violate the rights of any third party,
including, without limitation, any intellectual property rights,
performers’ rights, rights of privacy or publicity, or rights in
confidential information.
3. You have obtained any and all necessary consents, permissions and/or
releases from any and all persons appearing in Your Content in order
to include their name, voice, performance or likeness in Your
Content and to publish the same on the Platform and via any Linked
Services.
4. Your Content, including any comments that you may post on the
Website, is not and will not be offensive, abusive, libellous,
defamatory, obscene, racist, sexually explicit, ethnically or
culturally offensive, indecent, will not promote violence,
terrorism, or illegal acts, or incite hatred on grounds of race,
gender, religion or sexual orientation.
5. Your Content does not and will not create any liability to any third
party on the part of Mdundo, its subsidiaries, affiliates,
successors, and assigns, and their respective employees, agents,
directors, officers and/or shareholders.
Mdundo reserves the right to remove Your Content, suspend or terminate
your access to the Platform and/or pursue all legal remedies if we
believe that any of Your Content breaches any of the foregoing
representations or warranties, or otherwise infringes another person's
rights or violates any law, rule or regulation.
8. *SCOPE OF CONTENT USE BY MDUNDO*
You hereby acknowledge and agree that Mdundo:
1. stores Content and other information at the direction, request and
with the authorisation of its users,
2. acts merely as a passive conduit and/or host for the uploading,
storage and distribution of such Content, and
3. plays no active role and gives no assistance in the presentation or
use of the Content. You are solely responsible for all of Your
Content that you upload, post or distribute to, on or through the
Platform, and to the extent permissible by law, Mdundo excludes all
liability with respect to all Content (including Your Content) and
the activities of its users with respect thereto.
You hereby acknowledge and agree that Mdundo cannot and does not review
the Content created or uploaded by its users, and neither Mdundo nor its
subsidiaries, affiliates, successors, assigns, employees, agents,
directors, officers and shareholders has any obligation, and does not
undertake or assume any duty, to monitor the Platform for Content that
is inappropriate, that does or might infringe any third party rights, or
has otherwise been uploaded in breach of these Terms of Use or
applicable law.
You hereby acknowledge and agree that Mdundo may use your name, Content
or excerpts thereof for promotional purposes. Mdundo will issue a
notification of the same through the email provided. An objection is to
be raised within one working day. Thereafter Mdundo shall construe
acceptance.
You hereby acknowledge and agree that Mdundo may include promotional
material within Your Content before or after a download or as streaming
takes place.
You hereby acknowledge and agree that Mdundo can preview your song for
30 Seconds for free before a download takes place for sampling purposes.
You hereby acknowledge and agree that Mdundo can use Your Content and
excerpts thereof in Podcasts, DJ Mixes as well as terrestrial TV shows
created by Mdundo, as promotional material. Where your Content is
included in DJ mixes for the purpose of distribution, such use will be
paid as a download.
You hereby acknowledge and agree for Mdundo to make available your
Content for free on the Mdundo mobile application.
You hereby grant Mdundo permission to use your image, name, likeness and
any artwork provided for marketing purposes to attract commercial
opportunities for the Mdundo platform. The permission shall extend to
and not be limited to Mdundo’s website and social media accounts,
including but not limited to Facebook, Twitter and Instagram.
9. *REPORTING INFRINGEMENTS*
If you discover any Content that you believe to be in violation of your
trademark or other intellectual property rights, which you believe
violates your rights of privacy or publicity, which you believe is
defamatory, pornographic, obscene, racist or otherwise liable to cause
widespread offence, or which constitutes impersonation, harassment, spam
or otherwise violates these Terms of Use, our Guidelines or applicable
law, please report this to us using any of the methods outlined on our
contacts page.
If you would prefer to send us your own written notification, please
make sure that you include the following information:
1. a statement that you have identified Content on Mdundo that
infringes your copyright or the copyright of a third party on whose
behalf you are entitled to act;
2. a description of the copyright work(s) that you claim have been
infringed;
3. a description of the Content that you claim is infringing and the
Mdundo’s URL(s) where such
Content can be located;
4. your full name, address and telephone number, a valid email address
on which you can be
contacted, and your Mdundo username if you have
one;
5. a statement by you that you have a good faith belief that the
disputed use of the material is not
authorized by the copyright
owner, its agent, or the law; and
6. a statement by you that the information in your notice is accurate
and that you are authorized to
act on behalf of the owner of the
exclusive right that is allegedly infringed;
Your notice should be sent to us by email to support@mdundo.com and/or
by mail to the following address:
Mdundo Limited,
P.O Box 1730-00606,
Nairobi, Kenya.
10. *BLOCKING AND REMOVAL OF CONTENT*
Notwithstanding the fact that Mdundo has no legal obligation to monitor
the Content on the Platform, Mdundo reserves the right to block, remove
or delete any Content at any time, and to limit or restrict access to
any Content, for any reason and without liability, including without
limitation, if we have reason to believe that such Content does or might
infringe the rights of any third party, has been uploaded or posted in
breach of these Terms of Use, our Guidelines or applicable law, or is
otherwise unacceptable to Mdundo.
You have no right of continued access to any particular item of Content
and Mdundo shall have no liability in the event that you are unable to
access an item of Content due to its removal from the Platform, whether
by Mdundo or the relevant Uploader.
* *
11. *REPEAT INFRINGERS*
Mdundo will suspend or terminate your access to the Platform if
determined, in our reasonable discretion, that you have repeatedly
breached these Terms of Use or our Guidelines.
If we receive a valid notification from a third party in accordance with
our reporting processes or applicable law that any of Your Content
infringes the copyright or other rights of such third party, or if we
believe that your behaviour is inappropriate and violates our
Guidelines, we will send you a written warning to this effect. Any user
that receives more than two of these warnings within any twelve-month
period is liable to have their access to the Platform terminated
forthwith. We will also suspend or terminate your account without
warning if ordered to do so by a court, and/or in other appropriate
circumstances, as determined by Mdundo at its discretion.
* *
12. *DISCLAIMER*
THE PLATFORM, INCLUDING, WITHOUT LIMITATION, THE WEBSITE AND ALL CONTENT
AND SERVICES ACCESSED THROUGH OR VIA THE WEBSITE OR OTHERWISE, ARE
PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”.
WHILST MDUNDO USES ALL REASONABLE ENDEAVOURS TO CORRECT ANY ERRORS OR
OMISSIONS ON THE PLATFORM AS SOON AS PRACTICABLE ONCE THEY HAVE BEEN
BROUGHT TO MDUNDO’S ATTENTION, MDUNDO MAKES NO PROMISES, GUARANTEES,
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (EXPRESS OR
IMPLIED) REGARDING THE WEBSITE, THE SERVICES OR ANY PART OR PARTS
THEREOF, ANY CONTENT, OR ANY LINKED SERVICES OR OTHER EXTERNAL SERVICES.
MDUNDO DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM WILL BE
UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE, THAT DEFECTS WILL BE
CORRECTED, OR THAT THE PLATFORM OR ANY PART OR PARTS THEREOF, THE
CONTENT, OR THE SERVERS ON WHICH THE PLATFORM OPERATES ARE OR WILL BE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MDUNDO DOES NOT WARRANT
THAT ANY TRANSMISSION OF CONTENT UPLOADED TO THE PLATFORM WILL BE SECURE
OR THAT ANY ELEMENTS OF THE PLATFORM DESIGNED TO PREVENT UNAUTHORISED
ACCESS, SHARING OR DOWNLOAD OF CONTENT WILL BE EFFECTIVE IN ANY AND ALL
CASES, AND DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN
ANY PARTICULAR JURISDICTION.
MDUNDO AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND
THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND
SHAREHOLDERS, SPECIFICALLY DISCLAIM ALL OF THE FOREGOING WARRANTIES TO
THE FULLEST EXTENT PERMITTED BY LAW, TOGETHER WITH ANY EXPRESS OR
IMPLIED WARRANTIES REGARDING NON-INFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
WHERE THE LAW OF ANY JURISDICTION LIMITS OR PROHIBITS THE DISCLAIMER OF
IMPLIED OR OTHER WARRANTIES AS SET OUT ABOVE, THE ABOVE DISCLAIMERS
SHALL NOT APPLY TO THE EXTENT THAT THE LAW OF SUCH JURISDICTION APPLIES
TO THIS AGREEMENT.
13. *LIMITATION OF LIABILITY*
MDUNDO AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND
THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND
SHAREHOLDERS, SHALL HAVE NO LIABILITY FOR:
ANY LOSS OR DAMAGE ARISING FROM:
YOUR INABILITY TO ACCESS OR USE THE PLATFORM OR ANY PART OR PARTS
THEREOF, OR TO ACCESS ANY CONTENT OR ANY EXTERNAL SERVICES VIA THE
PLATFORM; ANY CHANGES THAT MDUNDO MAY MAKE TO THE PLATFORM OR ANY PART
THEREOF, OR ANY TEMPORARY OR PERMANENT SUSPENSION OR CESSATION OF ACCESS
TO THE PLATFORM IN OR FROM ANY OR ALL TERRITORIES;
ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTS HOLDERS WITH RESPECT
TO ANY ALLEGED INFRINGEMENT OF SUCH THIRD PARTY’S RIGHTS RELATING TO
YOUR CONTENT OR YOUR USE OF THE PLATFORM, OR ANY ACTION TAKEN AS PART OF
AN INVESTIGATION BY MDUNDO OR ANY RELEVANT LAW ENFORCEMENT AUTHORITY
REGARDING YOUR USE OF THE PLATFORM;
ANY ERRORS OR OMISSIONS IN THE PLATFORM’S TECHNICAL OPERATION, OR FROM
ANY INACCURACY OR DEFECT IN ANY CONTENT; YOUR FAILURE TO PROVIDE MDUNDO
WITH ACCURATE OR COMPLETE INFORMATION, OR YOUR FAILURE TO KEEP YOUR
USERNAME OR PASSWORD SUITABLY CONFIDENTIAL;
ANY LOSS OR DAMAGE TO ANY COMPUTER HARDWARE OR SOFTWARE, ANY LOSS OF
DATA (INCLUDING YOUR CONTENT), OR ANY LOSS OR DAMAGE FROM ANY SECURITY
BREACH; AND/OR
ANY LOSS OF PROFITS, OR ANY LOSS YOU SUFFER WHICH IS NOT A FORESEEABLE
CONSEQUENCE OF MDUNDO BREACHING THESE TERMS OF USE. LOSSES ARE
FORESEEABLE WHERE THEY COULD BE CONTEMPLATED BY YOU AND MDUNDO AT THE
TIME YOU AGREE TO THESE TERMS OF USE, AND THEREFORE DO NOT INCLUDE ANY
INDIRECT LOSSES, SUCH AS LOSS OF OPPORTUNITY.
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF
THE PLATFORM MUST BE NOTIFIED TO MDUNDO AS SOON AS POSSIBLE.
NOTHING IN THESE TERMS OF USE LIMITS OR EXCLUDES THE LIABILITY OF
MDUNDO, ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, EMPLOYEES,
AGENTS, DIRECTORS, OFFICERS AND/OR SHAREHOLDERS FOR ANY DEATH OR
PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR DELIBERATE ACTS OR
OMISSIONS, FOR ANY FORM OF FRAUD OR DECEIT, OR FOR ANY FORM OF LIABILITY
WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
ADDITIONALLY, APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, YOU
ACKNOWLEDGE AND AGREE THAT SUCH LIMITATIONS AND EXCLUSIONS REFLECT A
REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MDUNDO AND ARE
FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN YOU AND MDUNDO, AND THAT
MDUNDO’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. *INDEMNIFICATION*
You hereby agree to indemnify, defend and hold harmless Mdundo’s
successors, affiliates, agents, directors, officers, employees and
shareholders from and against any and all claims, obligations, damages,
losses, expenses, and costs, including reasonable attorneys' fees,
resulting from:
Any violation by you of these Terms of Use or our Guidelines;
Any third party claim of infringement of copyright or other intellectual
property rights or invasion of privacy arising from the hosting of Your
Content on the Platform, and/or your making available thereof to other
users of the Platform, and/or the actual use of Your Content by other
users of the Platform or Linked Services in accordance with these Terms
of Use and the parameters set by you with respect to the distribution
and sharing of Your Content;
Any activity related to your account, be it by you or by any other
person accessing your account with or without your consent.
* *
15. *CHANGES TO MDUNDO*
Mdundo reserves the right to change, modify, withdraw or discontinue any
of the features, services and functionalities of the Platform at any
time and for any reason with or without notice. Mdundo also reserves the
right at any time and for any reason to suspend, discontinue, terminate
or cease providing access to the Platform or any part thereof,
temporarily or permanently, and whether in its entirety or with respect
to individual territories only. In the case of any temporary or
permanent suspension, discontinuation, termination or cessation of
access, Mdundo shall use its reasonable endeavours to notify registered
users of such decision in advance.
Mdundo also reserves the right to make changes, modify and amend its
Terms and Conditions and shall ensure that the Content Uploader and
Users are made aware of such changes through account notifications.
* *
16. *REVENUE SHARE*
All revenue made by Mdundo.com shall be distributed appropriately
between Mdundo.com and its content providers.
Payments shall be calculated and shared on a 50:50 basis with the
Content Provider and shall strictly be made to the Uploader and not any
other third party regardless of Collective Management Organization (CMO)
affiliations based on the declarations made under the Terms of use.
Payment shall depend on whether Mdundo makes revenue, where none shall
be made, there shall be no Payments.
Mdundo may engage a Content Uploader (artist) for brand endorsement
opportunities. Such endorsements shall be subject to a separate revenue
share Agreement.
Any payment due to the Uploader shall be calculated every quarter based
on the number of downloads and frequency of streams of more than 30
Seconds and shall be subject to the relevant taxes required by the tax
authority, shall strictly be paid to the Uploader and no other third party.
Mdundo does not guarantee a fixed amount per download on the Revenue
Share. Neither does Mdundo guarantee a minimum share.
First time payment recipients may be required to present themselves at
the Mdundo offices at Piedmont Plaza 4th Floor along Ngong Road with
original documentation as proof of identification. Non-Kenyan residents
shall be required to swear an affidavit and attach with certified copies
of identification and send to Mdundo before any payments are made. The
documents shall be sent to:
Mdundo Limited,
1. O. Box 1730-00606,
Nairobi, Kenya.
Payments shall be made for more than USD50 generated by Content uploaded
by the Content Provider. Amounts less than the stipulated amount shall
be carried forward to the next quarter and paid once accumulated to the
minimum payable amount.
Mdundo shall make such payments in a manner they find fit and may
include but not limited to mobile money?
Without prejudice to the disclaimers set out in this agreement, Mdundo
will investigate and fraud regarding payments reported to them within 7
working days of receiving complaints on the same.
You hereby agree that Mdundo and its subsidiaries, affiliates,
successors, assigns, employees, agents, directors, officers and
shareholders shall not be liable to you or to any third party for any
changes or modifications to the Website and/or any Services that Mdundo
may wish to make from time to time, or for any decision to suspend,
discontinue or terminate the Website, the Services or any part or parts
thereof, or your possibility to use or access the same from or within
any territory or territories.
* *
17. *TERMINATION*
You may terminate this Agreement at any time by sending notice in
writing to:
Mdundo Limited,
1. O. Box 1730-00606,
Nairobi,
Kenya.
Or support@mdundo.com
Termination shall take effect Ninety days (90) on receipt of the
Termination.
Mdundo may suspend your access to the Platform and/or terminate this
Agreement at any time if
(i) you are deemed to be a Repeat Infringer as described above;
(ii) you are in breach of any of the material provision of these Terms
of Use or our Guidelines, including without limitation, the provisions
of the following sections: Your Use of the Platform, Your Content, Grant
of Licence, and Your Representations and Warranties;
(iii) Mdundo elects at its discretion to cease providing access to the
Platform in the jurisdiction where you reside or from where you are
attempting to access the Platform, or
(iv) in other reasonable circumstances as determined by Mdundo at its
discretion.
Following receipt of your notice of Termination, Mdundo will delete your
account and all associated Content and data. You are therefore advised
to remove, copy or back up any Content in your account before sending us
your notice of Termination.
* *
18. *ASSIGNMENT OF MDUNDO’S RIGHTS TO THIRD PARTIES*
Mdundo may assign its rights and (where permissible by law) its
obligations under this Agreement, in whole or in part, to any third
party at any time without notice, including without limitation, to any
person or entity acquiring all or substantially all of the assets or
business of Mdundo. You may not assign this Agreement or the rights and
duties hereunder, in whole or in part, to any third party without the
prior written consent of Mdundo.
* *
19. *SEVERABILITY*
Should one or more provisions of these Terms of Use be found to be
unlawful, void or unenforceable, such provision(s) shall be deemed
severable and will not affect the validity and/or enforceability of the
remaining provisions of the Terms of Use, which will remain in full
force and effect.
* *
20. *ENTIRE AGREEMENT*
These Terms of Use, together with the Guidelines and Privacy Policy
(which are hereby incorporated by this reference) and any other
annexures and or schedules, constitute the entire agreement between you
and Mdundo with respect to your use of the Platform and supersede any
prior agreement between you and Mdundo. Any modifications to this
Agreement must be made in writing.
* *
21. *THIRD PARTY RIGHTS*
These Terms of Use are not intended to give rights to anyone except you
and Mdundo. Save wherein you VOLUNTARILY elevate your terms of use to
Schedule 1 as a Tier 2 Content Provider which shall operate together
with these Terms of Use. This does not affect our right to transfer our
rights or obligations to a third party as described in the Assignment to
Third Parties section.
* *
22. *DATA PROTECTION AND PRIVACY*
All personal data that you provide to Mdundo in connection with your use
of the Platform is collected, stored, used and disclosed by Mdundo in
accordance with our Privacy Policy. By accepting the Terms of Use and
using the Platform, you also accept the terms of the Privacy Policy,
which are incorporated into this Agreement by reference.
* *
23. *APPLICABLE LAW AND JURISDICTION*
This Agreement is subject to the LAWS OF KENYA and you hereby agree, and
Mdundo agrees, to submit to the exclusive jurisdiction of the courts in
Nairobi, Kenya for resolution of any dispute, action or proceeding
arising in connection with this Agreement.
The foregoing provisions of this Applicable Law and Jurisdiction section
do not apply to any claim in which Mdundo seeks equitable relief of any
kind. You acknowledge that, in the event of a breach of these Terms of
Use by Mdundo or any third party, the damage or harm, if any, caused to
you will not entitle you to seek injunctive or other equitable relief
against Mdundo, including with respect to Your Content, and your only
remedy shall be for monetary damages, subject to the limitations of
liability set forth in these Terms of Use.
Notwithstanding this, You agree that Mdundo shall still be allowed to
apply for injunctive remedies or other types of urgent legal remedy in
any jurisdiction.
* *
24. *DISCLOSURES*
The services hereunder are offered by:
Mdundo Limited,
1. O. Box 1730-00606,
Nairobi, Kenya.
* *
25. *INDEPENDENT LEGAL COUNSEL *
The Content Uploader acknowledges that he has read and understands this
Agreement, and acknowledges that he has had the opportunity to obtain
independent legal advice with respect to it.
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