Terms and Conditions
As from July 2022
Welcome!
For us, your satisfaction as a customer, as well as the protection of your data, are the highest priorities.
Below you can read our terms and conditions. If you have any questions, please contact us.
The Soundsuit® music service is operated by SPHERZ GmbH, Kirchenstrasse 72, D-81675 Munich, Germany (hereafter referred to as “Spherz”). The services related to Soundsuit® are provided by Spherz exclusively on the basis of these terms and conditions.
- Spherz GmbH, hereinafter “Spherz”, provides and arranges the service of intelligent Internet based in-store music for businesses (customers) on the basis of these general terms of business (“Terms and Conditions”). Insofar as Spherz arranges the service, it is delivered according to the provisions of these terms by the trademark of Spherz, i.e. Soundsuit.
- These terms are only valid insofar as Spherz requires registration of the customers for using the service.
- Spherz has the right to change or supplement these terms of use after a suitable period of announcement. Announcement shall be made exclusively by email and on the Internet on the Soundsuit websites. A change shall be deemed approved by the customer unless the customer objects to the change within a month of receiving the announcement of the change. In the event of objection made by the customer, Spherz shall have the right to termination within the prescribed time.
- Deviating, contradicting or supplementing general terms of business shall not become part of the contract even if known, unless Spherz has explicitly agreed to their validity in writing.
- The customer may save these terms of use, the offers selected by the customer and the service to be provided by Spherz separately.
- A contract about the use of the service is concluded upon acceptance of the customer’s application by Spherz. Access to use the service shall be confirmed immediately and electronically by Spherz. Access confirmation does not yet constitute a binding acceptance of the customer’s application. Acceptance is provided by separate email or on the website after the order procedure by means of an extra link provided which will enable the customer to release the desired service for the customer by activating this link.
- Insofar as Spherz provides the customer free of charge trial access to the service, the conditions are subject to those provided in connection with setup of the trial access. This concerns especially termination and extension of the trial access.
- You may revoke your contract statement within two weeks without stating reasons in text form (e.g. letter, email). The period begins upon receipt of this information in text form, however not before conclusion of the contract and not before fulfilment of our information obligations according to section 312c paragraph 2 BGB (German Civil Code) in combination with section 1 paragraphs 1,2, and 4 BGB – InfoV (German Civil Code Freedom of Information Law) as well as our obligations according to section 312e paragraph 1 clause 1 BGB in combination with article 246 section 3 EGBGB (Introductory Act to the German Civil Code). The period of revocation shall be deemed fulfilled if the revocation is sent timely. Revocation shall be addressed to: Spherz GmbH, Kirchenstrasse 72, 81675 Munich, Germany.
- Consequences of Revocation
In case of effective revocation, the services received by either side shall be returned and any utilization (e.g. interest) shall be handed over. If you cannot return or issue the payment or benefits received (benefits of use) or can only do so partially or in a deteriorated conditions, you shall pay us compensation in this respect. This may result in the consequence that you will have to fulfil your contractual payment obligations for the period up to revocation. Obligations concerning refund of payments must be fulfilled within 30 days. For you, the period begins when you send your declaration of revocation; for us it begins when we receive it. - Special Information
In case of a service, your right of revocation will expire prematurely if the contract has been fulfilled by both parties at your request before you have exercised your right of revocation. If you are an entrepreneur in the sense of section 14 BGB (German Civil Code) and are acting in the scope of your commercial or independent activity when concluding the contract, right of revocation does not apply.
- Spherz provides Internet based POS (i.e. Point-of-Sales”) music for businesses. The free trial requires registration of the customer to Spherz. After 30 days of trial, the customers can continue to use the service, which is then subject to a fee. The service provides the POS with intelligent music: each song is played as the output of a computation performed by Soundsuit cloud-based algorithms. The algorithm selects from Soundsuit music catalogue the right song, to be played at the right time, at the POS of the customer. Different criteria are used to select the optimum song: business type, time of the day, season, geographical location of the POS, age group of clients at POS, music direction wished by customers, favourite music pieces indicated by customer, etc.
- The service can provide the customer with the option to interrupt the broadcast by pressing the pause key or to skip the currently played song to get the next one. The service is not installed in a way that the customer is provided broadcasts of tracks of specific artists or albums. The customer has no claim to these functions.
- Spherz has the right to use effective technical measures that are designed to prevent the customer from automatically scanning the soundtracks so as to filter certain music tracks from the soundtracks and/or generating copies of the music tracks.
Spherz is responsible for licenses and permissions from the owners of the musical and/or lyrical compositions (i.e. publishing licenses) and the owners of the sound recordings (i.e. master sound recording use licenses) needed for streaming and reproduction/mechanisation of the Content through the Service
Public performance fees (due to e.g. SOCAN, ASCAP, BMI, etc.) are included when you purchase a Service in the US and/or Canada. You are required to pay public performance fees and/or royalties and/or copyright licenses to Performance Rights Organizations – e.g. GEMA, STIM, SACEM, SABAM, PPL, PRS, KONA, AKM, etc. – (“PROs”) when streaming Content from our Service in markets other than the US and Canada.
Please note that you are at all times responsible for any fees and for making such payments to PROs and any Local Rights Organizations.
You agree to indemnify, defend and hold each of the Spherz Parties harmless from and against any Losses arising out of the public performance and any other use of Content, including your failure to secure and maintain any necessary public performance licenses or make payments to Local Rights Organizations.
You acknowledge and agree that portions of the Service, including Content offered on or through the Service, may be owned, controlled, licensed or otherwise made available by or on behalf of Rights Holders, and your use of or access to the Service is subject to your compliance with the terms, conditions and restrictions imposed by such Rights Holders. In consideration of your use of or access to the Service and Content, you represent, warrant and covenant that:
- you will only use the Service to provide foreground or background media (media, messaging and/or video) at your location;
- you will not amplify, transmit or retransmit the broadcast of Content so as to be audible or visible outside of your premises (beyond ordinary patio or other outdoor speaker usage), or transmit Content outside of your premises;
- you will not use Content in conjunction with any advertising, commercial message, entertainment or other public event at any location for which you or any other person receives consideration of any kind (including a physical activity event or entertainment at your location for which an admission fee is charged);
- you will not transmit, retransmit, alter, record or reproduce (or permit the transmission, retransmission, alteration, recording or reproduction of) any Content other than as expressly permitted herein;
- your location will be properly licensed in the jurisdiction where it is located in order to play or otherwise transmit the Content, and you will be solely responsible for obtaining and timely paying for all music licenses and permissions required in your jurisdiction for the public performance of any Content, including payment of fees directly to PROs and/or Local Rights Organizations.
Accordingly, the authorisations specifically exclude any use of the Content as an accompaniment to musicians, singers, dancers, any other entertainers actually present and performing.
You acknowledge and agree that any Content owned or controlled by Rights Holders shall be deemed the copyrighted works of such Rights Holders, with all right, title, and interest in and to such works, including any programming and compilations provided on or through the Service, vesting exclusively in the applicable Rights Holders. Any Rights Holder may change the functionality of certain aspects of the Service at any time, without notice to you or us. You acknowledge and agree that we are entitled to provide and that Rights Holders are permitted to receive, record, report and monitor usage of Content for purposes of reporting and managing licensing activity as well as compliance, directly or through PROs.
The terms for using our trademarks, service marks trade names, logos and brands are set out in our Terms and Conditions for Marketing and Branding. For use of third party marks (such as Rights Holders’ marks) additional terms may apply. You acknowledge and agree that you will comply with any applicable terms at all times. You grant us a non-exclusive, worldwide, royalty free right to display your company’s official trademark as well as corporate and/or trade name on our Website for the sole purpose of listing customers of SYB. You may at any time, through contacting us, revoke such right to continue displaying such and we will without undue delay remove the trademark, corporate and/or trade name from the site.
You further undertake not to:
- use any trademark or trade name in your business which is identical to or similar to any of our or third parties’ (including Rights Holders’) trademark, trade name or domain name, or derivative thereof, in a manner which is likely to cause deception or confusion, whether during or after the Term, in any country throughout the world;
- use, register or seek to register any trademark, trade name or domain name which is identical or similar to any of our or any third parties’ (including Rights Holders’) trademarks, trade names or domain name, or derivative thereof, whether alone or together with any other mark, name, word, logo or symbol, either during or after the Term, in any country throughout the world; and
- use, challenge, register or seek to register any of our trademarks or trade names, or the trademarks or trade names of third parties (including Rights Holders), or derivative thereof, as part of any business, company or trade name or as a domain name.
- Registration of the customer with Spherz is necessary in order to use the 30 day free trial. For this purpose the customer will have to provide the requested information, choose a customer name and password and state a valid email address (hereinafter “registration data”). The customer herewith agrees to provide only correct registration data and to update his registration data if necessary.
- The customer undertakes not to share his registration data with third parties, or to allow third parties the use of his registration data. The customer is obliged to inform Spherz immediately upon discovery of any unauthorized use of his registration data and/or his customer account. If third parties use services provided by Spherz by using the registration data, the customer shall be liable against Spherz for this. This also applies if third parties use services that are provided to the customer free of charge.
- Spherz provides a charged service. Spherz has the right to request payment of service charges up to 12 months in advance. Payment is due upon receipt of the confirmation mail.
- Payment is made either by means of bank collection, third-party money transfer (e.g. PayPal) or credit card. Insofar as necessary, the customer agrees to accept invoices electronically.
- Spherz has the right to change prices at any time after announcement in writing and with a period of notice of 6 weeks. The changed price applies unless the customer objects to the changed price within 6 weeks. If the customer objects in time, both parties shall have the right to terminate the contract at the end of the month with a period of one month. If the customer does not object the changed price shall be valid; However, it shall only come into effect after the contract renewal following the announcement. The changed price has no effect on the current contract period.
- If the customer is in default, Spherz shall have the right to discontinue all services in the scope of the offer; However, the customer shall remain obliged to pay the agreed charges for this period.
- The customer may only balance claims made by Spherz against undisputed or legally established counter claims. The customer may exercise right of retention only if his counter claim is based on the same contractual relation. Cession of claims of the customer against Spherz to third parties shall be excluded. If payment is made by bank collection and return debt notes are incurred, Spherz shall charge a handling fee in the amount of EUR 5.00 per bank collection plus the bank fees incurred to Spherz, unless the customer is able to prove less damage.
- Spherz guarantees availability of its servers at 98% on annual average. This excludes times when the server cannot be reached via the internet due to technical or other problems outside the influence of Spherz (e.g. acts of God, fault of a third party, etc.). Spherz may restrict access to the service if the safety of the network operation, maintenance of net integrity, especially avoidance of serious disruptions of the network, of the software or of saved data requires such measures.
- Furthermore it is guaranteed that the service complies with the essential functional descriptions.
- Spherz shall be liable for damage caused by it or its simple agents for minor negligence – even outside the contract – only if an obligation is violated whose observation is of special significance for achieving the purpose of the contract (cardinal obligation) as well as in cases of damages arising from death, and injury to body or health. In the event of violation of a cardinal obligation, liability shall be limited to such damages that are typically foreseeable in the scope of this agreement, except in cases of intent or gross negligence or if liability is mandatory due to damages arising from death, and injury to body or health. Liability according to the product liability law shall remain unaffected.
- Spherz shall not be liable for damages that are controllable by the customer or damages that the customer may have prevented by taking reasonable measures. In the event of data loss, Spherz shall be liable only in the amount of the reconstruction effort incurred with backup copies available. The customer is hereby informed explicitly that he is responsible for making backup copies regularly and to a sufficient degree. Therefore, Spherz shall not provide compensation for loss of data. Spherz is committed to protect all customers with the care common to the industry. However, Spherz shall not be subjected to claims for damages incurred by data espionage, hacker attacks, faulty hardware or software or acts of God.
- Change of the burden of proof at the customer’s disadvantage is not connected to the above provisions.
- Spherz dissociates itself explicitly from the contents of any pages that are referenced directly or indirectly (by so-called links) from Spherz’s website. Spherz does not assume liability for these contents and sites. The providers of such pages are responsible for their content. By judgment of May 12th 1998 (case number 312 O 85/98), the Twelfth Civil Chamber of the Hamburg District Court decided that parties who publish a link may have to accept co-responsibility for the contents of the linked page. According to the District Court, this can only be prevented by explicitly distancing oneself from these contents. As the Internet site www.soundsuit.fm (”Soundsuit”) also contains links, Spherz GmbH explicitly distances itself from the contents of the linked pages. This declaration applies to all links published on the Internet site and for all the contents of the pages to which links or banners direct the user.
- During the period of the contract, personal data of the customer shall be collected, processed and used by Spherz without express agreement only for the purpose of processing the contract, including invoicing. Data collection, use and processing are done electronically.
- Furthermore, the customer shall take note that for the purpose of detection, containment and rectification of errors and faults on telecommunication systems, Spherz has the right to collect, process and use the inventory and connection data of the customer, if this is required in individual cases. In the event of such conditions, Spherz may collect, process and use inventory and connection data necessary for discovery and prevention of acquisition of services by fraud and other illegal use of telecommunication networks and services.
- According to legal provisions, Spherz shall provide information to prosecuting authorities and courts for the purpose of criminal prosecution. For the purpose of advertisement, market research and customized design of the tele-services, Spherz shall generate customer profiles using aliases. The customer has the right to object to this type of processing and use of his data at any time. Upon request, Spherz shall provide the customer with information about the data saved for his person or his alias free of charge and immediately. This information may be provided electronically at the request of the customer. Spherz may transfer the invoicing data of the customer to other service providers or third parties if this is required to determine the charge and to invoice the customer. Furthermore, Spherz shall not share the customer’s data or the content of the customer’s private messages with third parties without the customer’s consent. Spherz expressly notifies the customer that data protection and data safety at the current technical standard cannot be assured at 100% for data transmission in open networks such as the internet. The customer is aware that Spherz may anytime view the website stored on the web server and any data of the customer stored there from a technical point of view. The customer hereby agrees that Spherz during the period of the contract will send the customer emails concerning technical support including technical hints and information about the scope of the subscribed service, possible options for extension and other information with regard to the operation of the service.
- In addition, this website uses Google Analytics, a web analysis service by Google Inc. (“Google”). Google Analytics uses so-called “cookies”, i.e. text files that are saved on the computer of the customer and that allow analysis of the use of the website by the customer. The information generated by a cookie about the use of this website (including the customer’s IP address) is transferred to a Google server in Ireland and/or the USA and saved there. Google will use this information to evaluate use of the website in order to compile reports on website activities for the website providers and in order to provide other services in relation with use of the website and the Internet. Furthermore, Google may transfer this information to third parties if necessary, if this is legally prescribed or if third parties process these data on behalf of Google. However, Google shall never combine the customer’s IP address with other data saved by Google. Customers may prevent installation of cookies by a certain setting of their browser software; However, we want to point out that in that case it may be possible that not all functions of this website are fully available. By using this website, the customer agrees that the data collected about him are processed by Google in the above described way and for the purpose described above. Customers of this website can deactivate this type of data capturing and saving here: http://tools.google.com/dlpage/gaoptout?hl=en
- The period of the contract is defined by the service and offer selected by the customer.
- The period of charged offers is extended automatically by the period corresponding to the selected offer; unless the contract is terminated in writing before expiry of the contract by one party. The period of termination is:
– for a monthly subscription, 14 days to the end of the subscription;
– for a quarterly subscription, 1 month to the end of the subscription;
– at one yearly subscription, 3 months to the end of the subscription. - Termination is to be declared vis-à-vis Spherz GmbH, Kirchenstrasse 72, 81675 Munich, Germany, in writing. Text form shall be deemed fulfilled by sending a letter. The right to terminate the contract without notice shall remain unaffected. Specifically, Spherz shall have the right to termination without notice if the customer has provided incorrect information for registration, if the customer changes the domicile stated at the time of the conclusion of the contract and he does not inform Spherz of his new address without being requested to do so within 14 days, if the customer violates these terms of use, or if the customer is in default for payment of the fees in the amount of at least two monthly charges.
- In the event of termination without notice on the part of Spherz, Spherz shall have the right to claim an amount of 75% of the sum of all monthly basic fees the customer would have been obliged to pay if contract periods would have proceeded properly or in case of proper termination by the customer. The customer’s right to prove less damage shall remain unaffected. In the event of termination due to an important reason, Spherz shall have the right to block the service for the customer.
The legal relations between the customer and Spherz are subject to the law of the Federal Republic of Germany. Exclusive court of jurisdiction for all disputes arising from this contract is Munich, if the customer is a businessman, juristic person of public law or a special fund under public law or is without legal venue in Germany. In addition, Spherz has the right to take legal proceedings at his general legal venue.
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