Terms and Conditions Setfreaks B.V.

3 November 2022

  1. Definitions
    The following definitions are only made for better understanding and easier reading of these Terms and Conditions of SetFreaks BV (SF):
    1. SetFreaks BV: The organization that provides services, applications and tools as a digital service platform (DSP), that facilitates the online buying, and selling and licensing of Tracks (sound recordings/compositions).
    2. Products: SF website, related websites, services, applications and tools
    3. User(s) of SF: Sellers, Buyers and third parties acting as a natural person, or (persons representing) any legal person, accessing the website of SF and/or its related Products and tools
    4. Seller(s)/ Licensor(s): any Seller/Licensor in general meaning, the owner of authors copyrights and neighboring rights performers, including companies offering Tracks in the same manner or operating in a similar way compared to SF.
    5. Buyer: All those natural persons who access the website for personal consumer use of the content sold on SF
    6. CRO: Collective Rights Organization.
    7. PRO: Performing Rights Organization.
    8. Contract: the whole contract between Sellers/Licensor(s), Byers and SF as mentioned in article 18 of the Terms and conditions of SF
    9. Neighboring rights: including both artists and phonogram producers neighboring rights
    10. Copyrights on a sound recording (USA) = Phonogram producer's neighboring rights (Europe and Canada)
    11. Track: Master Recording
    12. Owner: the legal owner and rightful claimant of a Track
  2. General Terms and Conditions for Users
    1. These Terms and Conditions are applicable to all Users of SF, especially to Sellers and Buyers and to all agreements between SF and Sellers or Byers.
    2. SF grants Users for their personal use only, a limited, non-exclusive, non-transferable license to access Track-samples and previews through our service on a streaming-only basis.
    3. Users are responsible for all information that they submit to SF and for all consequences that may result from their posts or uploads.
    4. Users of SF will not:
      • be an enterprise;
      • violate any law of any country or state;
      • act inconsistent with the letter or spirit of SF's policies;
      • infringe any third parties right;
      • copy, modify, or distribute any other person's content without their prior written consent;
      • copy, modify or distribute rights or content from the SF website, services, applications or tools or SF's own copyrights and trademarks;
      • harvest or otherwise collect information about users, including tracks and email addresses, without their consent;
      • sell any infringing, stolen or counterfeit items or otherwise infringe the copyright, trademark or other rights of third parties;
      • use our website for public performances of any sample or preview content viewed or listened to through our website;
      • violate SF's Upload Rules as stated on SF's website here
      • use samples being the reuse of a portion of a sound recording in another recording;
      • use any type of pre-recorded templates;
      • post any threatening, abusive, defamatory, obscene or indecent material or otherwise communicate any false or misleading material or message of any kind;
      • circumvent temporary or permanent suspensions to use SF's site and services;
      • harass other Users and/or employees of SF;
      • distribute viruses or any other technologies that may harm SF or the interests or property of SF users;
      • bypass measures used to prevent or restrict access to SF;
      • impose or contribute to imposing an unreasonable load on SF's infrastructure or interfere with the proper working of SF;
  3. Measures to be taken by SF;
    1. In case of mere suspicion of a User's breach of one the Terms stated in 1 or a suspicious behaviour on SF's website and/or regarding other SF Products, SF reserves the right to take measures at its own discretion to:
      • refuse or delete content that SF believes is inappropriate or a breach of Terms as stated in SF’s terms of use
      • restrict a User's usage of SF either temporarily or permanently or refuse a User's registration.
      • Inform other SF users that have been in contact with the alleged User to be cautious; even provide them with contact data of said User.
      • limit or terminate SF’s service, remove hosted content and take technical and legal steps to keep problem creating Users off SF
      • take without limitation all other measures SF deems necessary to prevent or end a breach as stated in SF’s general terms of use
      • terminate the agreement as mentioned in SF’s terms of use
    2. For safety reasons SF will always store an MP3 and or WAV of a Track on its servers.
    3. In case of proven fraud by Seller SF is entitled to make available Seller's contact information to original owner of The Master Recording.
  4. Fee, payment and refunds 
    1. The fees for SF's services are quoted in euros or, in case SF decides that it is more appropriate, in other currencies. The fees are listed on the SF website.
      Changes in SF's fees for services rendered, will be posted on the website in a timely manner. This also counts for the release of new services by SF
      Temporary changes in fees in case of, for instance promotional events, will be posted and be effective on the date SF announces such the event. Sellers are deemed to accept the right of SF to do so.
    2. Buyers of Tracks and content from SF's Products are obliged to pay all SF fees directly when they're due.
      Buyer is responsible for paying any governmental taxes and fees associated with any purchased Track or content from SF, including, but not limited to, sales, use or value-added taxes.
      In case of non-payment, failure of payment methods or an account that is past due, SF is, notwithstanding any other rights or remedies, stated in these Terms and Conditions or any law, entitled to:
      • limit Buyer’s ability to use the services.
      • collect the fees owed, using any collection method SF deems fit.
    3. SF is entitled not to refund to Users, any fees paid for use of our sites, services, applications and tools in case of:
      • breach, of these Terms and Conditions, which include, without limitation, our Upload Rules;
      • posting duplicate or illegal Tracks as defined in our Upload Rules
      • tracks (including musical compositions and/or parts of musical compositions and/or vocals and/or vocal parts) went live with exposure on the SF websites, services, applications or tools, even for a limited time, and so benefited from the service rendered in association with the paid fee.
      • In all other cases of breach of these Terms and Conditions or any law, that in the opinion of SF refunds are not due.
    4. Notwithstanding the options in 3C, SF may provide a refund, discount or other consideration to Buyers, with respect to the fees paid, in case SF establishes that sold or licensed Track(s) are duplicates and/or illegal Tracks as defined in SF's Upload Rules.
      Other infringements or breach of the Terms and Conditions or law by Sellers may, by sole decision of SF, also cause a refund of fees to Byers by SF.
    5. In case of infringement of the Terms and Conditions as mentioned in 3C, Sellers are obliged to reimburse the fees refund by SF to Buyers. Such fees shall immediately be due as from the time of infringement and need to be paid within 7 days after sending a notice.
      Sellers will also reimburse any costs of payment and/or currency losses and/or currency differences.
      SF can also, at its own discretion, deduct the refunded fees with any amount due to Sellers.
      This manner of compensation shall not waive SF's right to claim reimbursements for other damages caused by Sellers.
    6. A Track can only be considered sold when a payment from Buyer is final. In case Buyer fails to complete the transaction process; technical problems; cancellation of payments due to other situations, or a refusal of payment by the payment system, a legal transaction between SF and Buyer has not taken place.
    7. The funds will be transferred to SF’s account. It is Seller's responsibility to provide the correct account details, one which they can access to withdraw the funds. Once the transfer is done, it cannot be returned and it is Seller's responsibility to withdraw the funds from the account.
  5. About content and licenses
    1. Content of SF, Sellers stored in SF's Products is pursuant copyright laws, international treaties and conventions, protected as a collective work and/or compilation.
      Users are forbidden to:
      • copy, distribute, or modify content sold to or bought from SF.
      • disassemble or decompile, reverse engineer or otherwise attempt to discover any source code contained in SF.
      • In general: reproduce, copy, sell, resell, exploit, for whatever purpose, any aspect of SF.
    2. When uploading a Track or posting other content on SF, Users grant to SF:
      • a worldwide, exclusive, royalty-free, transferable license (with the right to sub-license) to use, reproduce, distribute, prepare derivative works, display, and perform the uploaded content in the interest of the performance of SF's services and business.
      • The performance of SF includes, without limitation, promotional and redistributing activities in any media formats and through any media channels, including third-party websites or advertising media.
      • In addition, Users waive all “moral rights” they have in the content, to the fullest extent permitted by law.
    3. To each User of SF’s Products:
      • a worldwide, nonexclusive, royalty-free license to access the uploaded content through our service and to display and publicly perform such content to the extent permitted by the functionality of SF's service and by these Terms and Conditions.
  6. Transfer of rights by Sellers/Licensor(s)
    1. Sellers understand and accept the lawfulness of eSignatures.io (digital) autographs as legally binding for written agreements.
  7. Legal rights of Buyers
    Tracks acquired by buyers on SF may be performed during live dj sets and within private settings only. Any unauthorized exhibition, distribution or copying of said track may result in civil liability and criminal prosecution. 
  8. Handling Infringements of third parties' rights
    1. In accordance with article 1 of these Terms and Conditions Sellers guarantee SF, Users and other third parties -owners of intellectual property rights and other rights included- , that they don't post Tracks that infringe, in the most extensive sense of the word, the rights of third parties; all violations of intellectual property rights included.
    2. SF will remove a Track immediately when any party that is entitled to do so -Users of SF- report an infringement of their rights by the Seller of the posted Track and SF has checked the report and confirms that an infringement has been made.
    3. Reports of infringement shall be sent to SF by (preferably legal-) authorized representatives of the complaining party, using SF's "Notice and Take Down Tool", completely filling in and certifying the special form attached in the Tool.
    4. If SF determines that the information provided by a complaining party is incorrect, false and/or abusive SF is entitled to take any measure as stated in article 2 of these Terms and Conditions. The liability of the complaining party for costs of all damages included.
    5. It is mandatory that Users (buyers and Sellers) respect all rights of other Users and agree to comply with the terms and conditions. A User not respecting the terms and conditions and/or intellectual property rights of other Users, will be charged an initial standard penalty of EUR 500,00 through SF to cover initial legal expenses caused by User’s actions.
  9. Liability
    1. General
      SF's liability is limited to fraudulent misrepresentation or actions by SF itself, and for the death or personal injury resulting from SF's gross negligence, SF's agents and employees included.
      In general, no User or other third party can hold SF responsible for any behaviour of other Users of SF. (see also article 11)

    2. As SF is -except in reviewing Sellers uploads and facilitating payments- not involved in actual transactions between Buyers and Sellers, SF takes no responsibility for, accept no liability for, nor guarantees the accuracy of uploads and/or postings, User communications, the quality, safety, and/or legality of what's offered.
    3. Notwithstanding the statement in 8, SF does not accept any liability for the posting by Users of any illegal, threatening, abusive, defamatory, obscene or indecent information nor material of any kind which violates or infringes the rights of any other person, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable intellectual property or other law.
    4. SF, her shareholders, management, employees and licensors are not liable towards Users of our website and services (tools included) for:
      • any loss of profit (whether incurred directly or indirectly), goodwill, business reputation, opportunity or loss of data suffered through the use or inability to use SF’s website or services correctly. Although SF will do it’s utmost to maintain an uninterrupted performance of the website and the services/tools, in Terms of accessibility, availability, error-free functioning of systems, SF does not guarantee an uninterrupted performance; and therefore -to the extent legally permitted- SF disclaims all warranties, representations and Conditions of an uninterrupted performance.
      • any loss or damage which may incur as a result of any changes which SF may make to its services, a permanent or temporary cessation in the provision of our services or features within our services or failure by Users to provide SF with accurate account information or their failure to keep the password or SF’s account details secure and confidential.
      • SF maintains a high level of security regarding sensitive content stored in SF’s database. Despite a low risk due to the high level of security, theft of data might be possible. In such an event SF cannot be held responsible. Sellers and Buyers are responsible for their own content and use of the SF platform.
  10. SF’s limitation of Liability
    SF and/or its users, buyers, sellers staff, agents and third party contract partners cannot be held responsible for any loss of intellectual property rights/content and/or other damage of goods caused in case:
    1. There is no breach of care and legal obligations to you or any other User
    2. SF could not foresee circumstances of aforementioned breach
    3. A breach is a result of your action and/or a violation of the signed Agreement with SF
  11. Disclaimer of Liability
    SF will do its utmost best to keep its service and safety level of the highest standard available in the market. However, SF cannot warrant that
    1. use of the SF platform always will be 100% error-free
    2. use of the SF platform will be 100% free from malicious attacks by others including physical terrorist attacks, and attacks on the SF platform using digital software (such as viruses), corruption, hacking, or any other intrusion such as an Act of God / Force Majeure which undermines the proper services of SF and which causes damage to all Users content.
    All Users, buyers and sellers included, are responsible backing up their own content, even when stored on SF’s database. In case loss of content appears with loss of money as result, Users are advised to claim any damage through their own insurance companies.
  12. Release of liability
    Any User, having breached these Terms and Conditions or violated laws concerning the rights of other (future) Users or third parties or persons, will indemnify and hold SF and all associated with SF as meant in article 8 harmless for all damages and, without limitations all costs, in case other Users, third parties or persons deposit a claim against SF related to content that the said User has posted.
  13. Limitation of liability costs of SF
    In case and despite the previous articles on liability, SF is held liable for whatever reason, SF 's liability to Users or any third party shall not exceed the greater of:
    1. the total fees paid to SF in the 6 months prior to the action giving rise to liability, or:
    2. 200 euro in total
  14. Ending of the relationship with SF
    1. SF can terminate the signed agreement with Seller, as follows;
      • notifying Seller at any time
      • closing their SF account
    2. SF can at any time terminate the agreement with Sellers and Buyers in case of:
      • breach of any provision of these Terms and Conditions, actions that clearly show that there was no intention, or inability to comply with the provisions of these Terms and Conditions;
      • SF was forced to termination by law;
      • SF no longer provides its services to Users in the country in the resident country or the country in which SF’s services were used
      • in the opinion of SF, the provision of our services is no longer commercially viable.
    3. When an agreement, including these Terms and Conditions comes to an end, all of the legal rights, obligations and liabilities that SF and Users or Buyers have benefitted from the relationship, have accrued over time or are expressed or implied to continue indefinitely, shall stay unaffected by the termination. This also applies to provisions regarding jurisdiction, given guarantees, liabilities and applicable laws.
  15. Destiny of Tracks after termination 
    1. When an account is closed by SF, for any reason, SF, is not responsible for the return of any (previously uploaded) Tracks or packs.
    2. Upon deletion of a Track or the account the Track has been uploaded to, the Track (and or it's parts or stems) will immediately be completely removed and can no longer be downloaded from SF servers.
  16. Privacy policy
    1. Storage of personal data
      Sellers and Buyers of SF agree that SF collects, transfers, stores and uses their personal information on servers located in the Netherlands as further described in our Privacy Policy as published on SF's website.
      Sellers and Buyers also agree that SF is entitled to let them provide a copy of their valid identity card and/or passport as further described in our Privacy Policy.
      SF’s sole purpose to do so is to ensure that (legal) measures can be undertaken against Buyers and/or Sellers in case it is established that the rights of Buyers, Sellers, or third parties have been infringed. Users of SF may agree or refuse the receipt of marketing communications from SF.
    2. Transferability
      By using SF, Sellers and Buyers agree that their account is personal and not transmittable to anyone. If anyone gets access to their account (-details) and uses their accounts (i.e.: uploads or distributes Tracks via their account), they remain liable as stated under these Terms and Conditions.
  17. Resolution of disputes
    Disputes between and/or complaints from Users, third parties or persons to SF will at first be solved via informal way. When no solution is found, SF may agree to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration. Notwithstanding the former procedures SF reserves the right to have the dispute resolved by litigation (court).
  18. Compensation
    In case of violation of contracts or these Terms and Conditions by Users, SF reserves the right to claim all remedies available by law including compensation for damages to SF or third parties involved, up to an amount of € 1.000.000 (one million euro), excluding full legal fees and all extra (juridical) costs.
  19. Dutch Law applicable
    1. The signed letters of agreement, these Terms and Conditions and the other policies and rules posted on SF's website constitute the whole contract between SF and Sellers and/or Buyers.
      New or adapted contracts supersede any prior agreements.
      Contracts as mentioned in this article shall be governed by and construed in accordance with Dutch Law.
      Claims or disputes against SF will be resolved by the jurisdiction of the Court of Amsterdam.
    2. Merely as proof for legal validity, SF will co-sign the letter of agreement.
    3. Notwithstanding the statement in 18 SF can apply for injunctive of other urgent remedies in any jurisdiction of choice.
    4. If it appears that one or more parts of these Terms and Conditions are against the law or generally applicable rules, all other components remain applicable. SF will correct the illegal parts as soon as possible.
  20. Final Provisions
    1. Notices
      Except for notices relating to illegal or infringing content, for which notices we refer you to our Notice and Take Down Tool, notices to SF must be sent by registered mail to Czaar Peterstraat 1, 1506 SK Zaandam, the Netherlands and/or via e-mail to info@setfreaks.com.
    2. SF will send notices to the email address provided, or by registered mail.
      Notices sent by registered mail will be deemed to have been received within five days following the date of mailing.
    3. Change in Terms and Conditions
      Changes in or updates of these Terms and Conditions of SF will be immediately effective on the date of publishing on SF's website for new Users.