Terms and Conditions - BIAKWE.COM
The Terms and Conditions of use of the Biakwe.com are as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 In these terms the following definitions apply:
Means Biakwe LLC;
Website or BKW:
Means http://biakwe.com, owned by Biakwe;
Means any person who views, navigates or accesses the Website and also those persons who purchase the Services offered by the Website;
Means a User who registers with the Website by opening a User Account;
Means the Non-Interactive Internet Radio Broadcasting Services offered by Biakwe through the Website;
Means code that copies itself or is copied via computer networks, internet or removable storage, it may destroy, alter or corrupt data, cause damage to files and includes computer programs referred to as "worms" “spyware” “malware” or "Trojan horses";
Means the intellectual property rights of the Website including trademarks, copyright, topography rights, database rights, trade or business names and other similar rights or obligations, whether registered or not in any country;
Means the standard terms set out in these terms and conditions of the Website;
1.2 The Federal Identification Number of the Biakwe is: 47-4902045 and the Corporate address is
445 N Pennsylvania Street, Suite 901
Indianapolis, IN 46204
1.3 By using the Website a User agrees and bounds himself or herself to these Terms. If an User does not agree to be bound by these Terms then that User must not use or access the Website and the services offered on the Website.
1.4 Biakwe reserves the right to change, modify, alter and / or update these Terms at any time with or without prior notice. Any aspect of the Website may be changed, supplemented or deleted or updated without notice at the sole discretion of Biakwe. Please check this page frequently and regularly for any changes. A User’s continued usage of the Website after any changes to these Terms will mean that the User have accepted the changes.
1.5 These web pages may contain inadvertent inaccuracies or typographical errors. These will be corrected at the discretion of Biakwe as and when they are found. The information on the different web pages of the Website are updated regularly but inaccuracies may remain or occur when changes occur between updates.
2. TERMS FOR THE USE OF IMIX 2 WEBSITES
Biakwe shall provide the Biakwe services only to those Users who can lawfully enter into and form contracts under applicable law. If a User is under the age of 18, but at least 13 years of age, then that User may use the services provided by Biakwe only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The services provided by Biakwe are not intended for children under the age of 13. If User is under the age of 13 then the User shall not be entitled to get any of the services provided by Biakwe.
2.2 Biakwe grants a limited license to each User to access and make personal use of the contents, materials, services etc of the Website or any third party content in accordance with these Terms and subject to the following conditions:
i. The Website content shall only be used for information and non-commercial purposes (other than the transactions contemplated in accordance with these Terms) and no other use of the content or information is authorized.
ii. A User shall not alter, modify, re-design, reproduce, display, publicly perform, import, distribute, republish, sell, offer for sale, or otherwise use any part of the Website content in any way, unless expressly permitted to do so by Biakwe.
iii. No unauthorized copy is made of any trademark of Biakwe.
2.3 Biakwe does not give User the right to collect or use information, other contents and services contained on the Biakwe Websites for purposes prohibited by Biakwe. Use shall not indulge in any data extraction or data mining activity whatsoever.
2.4 Biakwe does not give User the right to create any derivative work of the contents, services, products of the Biakwe Websites or of any third party content available via the Biakwe Websites.
2.5 Biakwe does not convey any interest in or to the information, content, services available via the Website or any other Company material including intellectual property by permitting the user to access the Website.
3. SERVICES OFFERED BY THE WEBSITE
3.1 The Website provides a User with Non-Interactive Internet Radio Services. The Services provided by the Website shall be similar to that of a traditional Radio.
3.2 The Member will have the option to listen to songs on the Featured Radio Stations, create Custom Radio Stations and songs based on different Search Criteria. The Member will be allowed to create Custom Radio stations on the basis of different Criteria, described in detail in these Terms.
3.3 All the Radio Stations, Featured Stations as well as Custom Stations, shall play the songs randomly based on the Selection Criteria of the User, or based on the playlist for the Featured Radios.
3.4 The Services will be available only to those devices (Smart-Phones, Desktops, Tablets etc.) that allow BKW Music Player to function properly. Biakwe does not provide any guarantee that the BKW music player would work on every existing device. BKW Music Player might not work in case the updated version of an Operating System does not support BKW Music Player. BKW will try its best to provide the updated version at the earliest. However, Biakwe does not provide any guarantee because it might require some extensive programming work.
3.5 The Website and the Services will be available only in those locations where the Internet Radio Services are allowed by the applicable laws and legal authorities. It is possible that the Website is blocked by authorities in some countries or areas by blocking the URL of the Website. The Member agrees and accepts that Biakwe and BKW shall not be responsible in case the BKW service is blocked by the authorities in his/her country/area. The Member agrees and accepts that the Member will not be eligible for any refund in case the Website is blocked before the expiration of the Prepaid Subscription Package purchased by the Member.
3.6 At present, BKW is published in the following 4 languages: English, French, Spanish and PG. English is the primary language of the Website. All Terms and Conditions, Privacy Policies, FAQ's, other Text pages are first written in English and then automatically translated into other languages through the use of Google Translate tool. Hence, it is possible that the pages are not accurately translated in French, Spanish or PG. Biakwe states that the English is the official language of BKW and recommends the Users to read and interpret all the Terms and Conditions, Privacy Policies, FAQ's, other Text pages in the English version of the Website.
4. LISTENING OPTIONS PROVIDED BY THE SERVICE
4.1 Internet Radio Services of the Website provides the User with the following options to listen to music.
i. BKW OUR RADIOS (Featured Radios): These Radio Stations will play the songs from playlists (a list of songs) created by the BKW administrator. User agrees and accepts that BKW will have the sole right to create the playlists for featured Radios and all the songs included in the playlists for these Radio Stations shall be selected by BKW at its sole discretion.
ii. CUSTOM RADIOS: BKW provides the Member with an option to create his/her own Custom Radio Stations by using different filters based on genre, year, decade, or country. The Member is able to save the created Custom Radios onto his/her HISTORY page. The Member would be able to go to his/her HISTORY page and play any of the saved Custom Radio Station at anytime. For the avoidance of redundancy, the music played might not be the same at all time.
iii. SEARCH BY ARTISTS OR SONG TITLES: The Member will also have the option to search for songs on the basis of Song titles or name of the Artists. On clicking the search button all the songs pertaining to the search criteria will be displayed on the results page. The songs related to the search will be played on the basis of a random system when the Member will click PLAY button displayed in front of any of the songs displayed in the search result. It is important to mention here that the specific song clicked by the Member might not be the first song that will be played, but the song will be played definitely sometime.
iv. SEARCH BY GENRE: The Member will be able to select a particular genre from a list and the songs pertaining to that particular genre will be played on a random basis.
v. SEARCH BY KEYWORDS: The Member will have the option to use the general search box to search songs on the basis of any keyword. On clicking the search button all the songs pertaining to the search criteria will be displayed on the results page. The songs related to the search will be played on the basis of a random system when the Member will click PLAY button displayed in front of any of the songs displayed in the search result. It is important to mention here that the specific song clicked by the Member might not be the first song that will be played, but the song will be played definitely sometime.
5. LIMITATION OF THE SERVICES PROVIDED BY BKW
5.1 The User will not be able to see all of the songs included in the playlist for a Custom Radio or Featured Radio or a search generated Radio.
5.2 The User shall not be able to pre-determine the sequence of the Songs being played on any of the Radio Stations.
5.3 The User will NOT have the option to play fast forward or rewind a song that is being played on BKW Music Player. However, the User will have the option to skip songs for a limited number of times. Currently, BKW allows the Member to skip only 4 songs per hour subject to the condition that the Member can only skip a total number of 16 songs in a period of 24 hours.
5.4 The User agrees and accepts that a particular song will only be played on a random basis and that too for a limited number of times within a specified period. Currently, the BKW Random system plays a particular song only once in a 3 hours time period.
5.5 The Playlist for Radio Stations or a Search will consist of a limited number of songs from a particular Artist or Album. At present, BKW will not play more than four different songs credited to a particular Artist or Album in a three hour period. In other words, BKW will at the most play four songs pertaining to a particular Artist or Album in a three hours period and therefore, the actual number of songs played in such duration may be even less.
6. FEES CHARGED BY THE WEBSITE
6.1 BKW shall charge a Fee for allowing Users to create Custom Radios and listen to the music on the different Radio Stations.
6.2 The User shall have to purchase a Prepaid Subscription Package in order to access the Services provided by the Website. The details of different Subscription Packages are available on the relevant pages of the Website. At this moment, the maximum prepaid subscription plan is 6 months. BKW reserves the right to change the pricing of any Subscription Package at any time and for any reason whatsoever.
6.3 BKW will notify the member, via an Email, to renew his/her subscription before the expiration of the Member’s existing Prepaid Subscription Package.
6.4 FREE TRIAL PERIOD: BKW offers a 30-day free Trial Period of the Website Services to new Members only. The Trial Period shall be for thirty (30) days from the date of signing-up with the Website. At the end of the thirty day period, the Member will no longer have access to the Services unless the Member upgrades his/her User Account by purchasing a Prepaid Subscription Package prior to the expiration of the Trial Period. Biakwe may terminate the Free Trial at any time by giving written notice to the Member.
6.5 A member is able to request a refund of his/her already paid subscription package. To do so, the member will have to contact BKW by email to request that refund. After receiving the email message, BKW will then refund that member. However, BKW only makes refunds to accounts (Paypal, credit cards, bank cards, etc) that are used to pay for the subscribtion packages. BKW will not make any payments unknown accounts.
If after using BKW services for a certain time a member decides terminate his/her subscription and request a refund, only the remaining unused time from his/her paid subscription package would be refunded.
7. USER ACCOUNT
7.1 In order to access the Services provided by the Website, the User will be required to become a Member of the Website. In order to become a Member, the User needs to create a User Account by register himself/herself with the Website using his/her Facebook or Google+ account, or through Email Account by filling out the relevant Sign-Up form on the Website and completing all the necessary steps. Biakwe shall assign a unique Login ID to the Member.
7.2 The Member will be able to see his/her Profile, Payment Log, History of Radios saved. The Member will be able to upgrade his/her account through his/her User Account page.
7.3 USER/MEMBER DATA: BKW will save, on its servers, all the Data (Featured Radios and Custom Radio Stations) saved by the Member/User during the Subscription Period or the Free Trial. The Member/User will be able to re-access all of his/her data after upgrading his/her account by purchasing or renewing a Pre-Paid Subscription.
7.4 The Member has the option to Unsubscribe or delete his/her User Account at any time though. The member will have to send an email to BKW to request that cancelation of account. After receiving the email message, BKW will then unsubscribe that member within 48 hours.
8. BKW LIBRARY OF SONGS
8.1 BKW has a Library of Songs. BKW shall have the sole right to select and add songs to its library at its own discretion, time, and availability. All the radio stations will play songs from this Library of songs.
8.2 All songs/music in the BKW library shall be in mp3 format and of 128kbps quality.
8.3 BKW, in its sole discretion, will create different genres of Songs and will categorize each song with a particular genre. In case a User, Artist, Label or Producer, believes that a particular song is classified in a wrong genre, then the User, Artist, Label or Producer can inform BKW about the wrong categorization of the song and can also suggest alternative genre for the same. If the information of the User, Artist, Label or Producer is correct then BKW will correct the genre of that song. Example, a regular secular music is categorized with a religious genre.
8.4 BKW reserves the right to edit any song, by clipping it, if BKW believes that the song is too lengthy or that some parts are unnecessary to be played on its Service. In case an Artist, Label or Producer of a song feels that the edited version of the song is not proper, then the Artist, Label or Producer can either provide its own edited version that fit BKW Standard or request BKW to remove the edited version of the song.
8.5 BKW creates artwork / image of each song on the basis of existing or available information and content. In case an Artist, Label or Producer of a song feels that the artwork/image used for the song/work is not proper, then the Artist, Label or Producer can register its objection regarding the same and BKW will change the artwork or image.
8.6 BKW would employ reasonable efforts to remove those parts of the songs which contain explicit and/or offensive language. If a User believes that a particular song has some objectionable, explicit or offensive lyrics or works, the User can inform BKW about the same. BKW might remove the song or the objectionable part after examining the song.
8.7 In case any Artist, label, or Producer want to remove his/her/it’s Song from the Website’s Library, then the Artist, Label or Producer will have to make a written request to BKW to remove his/her/its work from BKW library. BKW will remove the requested song(s) after verifying and confirming the authenticity of that Artist, Label, or Producer. It will be the duty of the Artist, Label or Producer to provide the desired proof of his/her/its identity.
9. ROYALTY PAYMENTS MADE BY THE WEBSITE
9.1 BKW would report to performing rights organizations BMI inc. and SoundExchange all Songs that are played from the Website.
9.2 BKW pays Royalties to performing rights organizations (BMI, inc. and SoundExchange) for each song played through the Website. An Artist, songwriter, composer, music publisher or a sound recording copyright owner, whose song is played on BKW shall receive the Royalty payments through these organizations only and the Website will not make any payment directly to the Artist, songwriter, composer, music publisher or sound recording copyright owner. It is the responsibility of each Artist, songwriter, composer, music publisher or sound recording copyright owner to be part of such organizations in order to collect payments. Any Artist songwriter, composer, or music publisher who belongs to performing rights organizations outside the USA will be collecting BKW Royalty payments through BMI, inc. Any sound recording copyright owner (record label) who belongs to performing rights organizations outside the USA will be collecting BKW Digital Royalty payments through SoundExchange.
10. DUTIES AND OBLIGATIONS OF THE USERS
10.1 User agrees not to use the Website for illegal purposes and the User shall not violate any law, statute, ordinance or regulation relating to the use of the Website and the services provided by Biakwe through the Website.
10.2 User shall not indulge in any activity or transaction, through the Website, that could cause Biakwe to violate any applicable law, statute, ordinance or regulation.
10.4 By registering himself or herself as a Member or by uploading or posting any content or material, the User represents and warrants that he or she is legally capable of entering into binding contracts.
10.5 User agrees to provide accurate personal information while registering himself or herself with the Website.
10.6 Member agrees that he/she is fully responsible for protecting the privacy of the username and the password. A User shall ensure that the password is not misused by anyone.
10.7 The User warrants that any and all the personal information, materials and content provided by the User to Biakwe and / or uploaded or displayed on Website is accurate and complies with all the relevant and applicable laws, standards, and guidelines.
10.8 The Member User warrants that the User shall not post or transmit, on the Website, any material which is defamatory, inaccurate, abusive, threatening, harassing, or racially offensive, obscene, sexually oriented (including adult entertainment or sexual encounter), or which contains child pornography
10.9 User shall not interfere with or disrupt the Website, or networks connected to, or any activity conducted on the Website in any manner including, but not limited to, use of viruses or other similar computer programming.
10.10 User shall not to use any robot, spider, scraper or other automated means to access the Website, or to monitor the activity, or copy any content from Website, except in the operation or use of an internet “search engine”, hit counters or similar technology.
10.11 User shall not take any action that the Website, in its sole discretion, believes imposes an unreasonably large load on our servers, including without limitation, deep linking into our site.
10.12 User agrees to follow all the applicable international and American cyber laws.
11. THIRD PARTIES LINKS AND SERVICES
11.1 The Website may contain links to other sites on the World Wide Web and Internet which are not under the control of, or maintained by, Biakwe. Biakwe undertakes no obligation to monitor such sites, and User agrees that Biakwe shall not be liable or responsible, in any manner whatsoever, for the content or services provided by such sites or any technical or other problems associated with any such third-party Sites, Links or usage.
12.1 The User agree to indemnify and hold harmless Biakwe, its employees and agents against all liabilities, legal fee, damages, losses, costs and other expenses in relation to any claims or actions brought against Biakwe by any third party due to or arising out of any breach by the User of these Terms or other liabilities arising out of or relating to the Website and/or the Services provided through the Website.
13. DISCLAIMER OF WARRANTIES
13.1 The Services, content and information on the Website are provided on an “as is” basis. Biakwe, its affiliates and licensors make no representations or warranties about the accuracy, completeness, security or timeliness of the services, content or information provided on or through the Website. In addition, we specifically disclaim all warranties that the Website or the Services will meet User’s requirements. The User shall avail the Services, content and information provided by the Website at his/her own risk.
13.2 No representation, advice or information, warranty or affirmation of any employee, contractor, agent, detailer, or any other person actually or purporting to represent Biakwe, by word or action, will constitute a warranty.
13.3 Biakwe shall not be liable if for any reason the Website is unavailable at any time or for any period. Access to the Website may be suspended temporarily without notice in case of system failure, maintenance or repair or for any other cause.
13.4 Biakwe disclaims all warranties whether express, or implied, statutory or otherwise, including but not limited to the implied warranties arising from the course of dealing or usage of the Website and any obligation, liability, or remedy in tort, whether or not arising from the negligence of Biakwe.
13.5 Some jurisdictions do not allow limitations of implied warranties, so the limitations and exclusions in this clause may not apply to a particular User.
13.6 Users agree and acknowledge that the limitations and exclusions of liability and warranty provided in these Terms are fair and reasonable.
14. LIMITATION OF LIABILITY
14.1 Biakwe, its affiliates or licensors, directors, employees, or its third-party partners shall not be liable to User whether in contract, tort or otherwise at law, for any incidental, direct or indirect, punitive or consequential loss or damage whatsoever, and/or loss of profits, revenue, goodwill business opportunity or damages arising out of or in connection with:
i. The use of the Website, including inaccuracy of the content, or services and / or availability of the Website.
ii. The Modification, suspension or termination of any part or aspect of the Website and/or resulting interruption.
iii. Third Party Transactions resulting from the use of the Website
This shall apply even where such a loss was reasonably foreseeable or Biakwe had been made aware of the possibility of such loss.
14.2 The entire liability of Biakwe to the User in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services in respect of which the breach has arisen.
15. TEMPORARY OR PERMANENT SUSPENSION, TERMINATION ETC
15.1 Without limiting other remedies, Biakwe may limit User’s activity, temporarily suspend, indefinitely suspend, remove content or information posted by the User, or refuse to provide Website services to the User if, within the sole and independent judgment of Biakwe:
i) User breaches or Biakwe anticipate that User might breach these Terms.
ii) Biakwe is unable to verify or authenticate any information provided by User.
iii) Biakwe believes that User actions may cause financial loss or legal liability to other Users or to Biakwe.
iv) User does not use the Website for a considerable period of time.
v) Encouraging others to violate this Agreement;
vi) Refusing to follow the instructions or directions of Biakwe’s staff.
15.2 Biakwe can also terminate this Agreement at any time, with or without cause and these Terms shall survive until and unless terminated by Company.
15.3 The User agrees that Biakwe shall not be liable to the User or any third party for any action taken by Biakwe under this Clause and the resultant termination of the User’s use of or access to all or any portion of the Website.
16. COPYRIGHTS AND INTELLECTUAL PROPERTY
16.1 Any and all intellectual property associated with the Website and its contents are the sole property of Biakwe, except as expressly provided in these Terms. The Website Content is protected by copyright and other laws in the United States America as well as other countries.
16.2 All custom graphics, icons, business names and other items that appear on the Website are trademarks, service marks or trade dress (“Marks”) of Biakwe except as otherwise expressly authorized by these Terms. No license to use any of these trademarks etc is given or implied. A User shall not copy, download, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute these trademarks in any way without prior permission of Biakwe.
16.3 User shall not post, sell, distribute or reproduce in any way any third party’s copyright material, trademarks, or proprietary information without obtaining the consent of the owner of such proprietary rights.
17. COPYRIGHT / OWNERSHIP INFRINGEMENT
17.1 Biakwe has adopted the following policy toward copyright infringement in accordance with the Digital Millennium Copyright Act.
17.2 If a User believes that material posted on the Website constitutes infringement of that User’s work(s), then the User may provide Biakwe with the following information
i) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
ii) a description of where the material that User claims is infringing is located on the Site;
iii) a description of the copyrighted work that User claims has been infringed;
iv) User’s address, telephone number, and email address;
v) a written statement by the User that he/she has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
vi) a statement by the User, made under penalty of perjury, that the above information in User’s notice is accurate and that User is the copyright owner or authorized to act on behalf of the copyright owners;
17.3 The copyright information can be provided at the registered address of Biakwe as specified in clause 1.2 of these Terms.
17.4 In case Company receives a Notice, from any other party, regarding the copyright violation of any content of material posted on the Website by a User, Biakwe shall immediately remove that content or material, temporarily freeze the Account of that User and withhold all the payments due till the final adjudication of the dispute.
17.5 If it is found that a User posted any material which is owned by any other party and for which he has not acquired the necessary rights then Biakwe shall remove that material, forfeit all the payments due to that User and delete the Account of that User.
18.1 Biakwe makes all reasonable attempts to exclude viruses and other form of harmful computer attacks from these pages, but it cannot ensure this exclusion and no liability is accepted for viruses etc. Please take all appropriate safeguards before using or downloading information from the Website.
19. NOTICES AND COMMUNICATIONS
19.1 User shall send all the notices and information, required to be made under these terms, at the Corporate Address of Biakwe or at the following Email Address:
Email Address: administration[at]biakwe.com
19.2 Biakwe shall send all the information, required to be made under these terms, to the User at the Email Address provided by the User at the time of becoming a Member or Creating a Group on the Website.
20.1 These Terms (including all of the policies and other Agreements described in these Terms, which are hereby incorporated herein by this reference) are the entire agreement between the User and Biakwe and replaces all previous agreements between them relating to the same subject matter.
20.2 Unless these Terms provide otherwise, nothing in it creates a partnership or employment relationship between Biakwe and the User.
20.3 Biakwe may assign or transfer these Terms or any part of it at any time. The User can not assign or transfer these Terms or any part of it without the prior written consent of Biakwe.
20.4 If any provision of these Terms are found under the laws of any jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of that provision in that jurisdiction shall not in any way affect the validity, legality or enforceability of all the provisions of these Terms in any other jurisdiction.
20.5 If any court or competent authority decides that any of the provisions in the Agreement are invalid, unlawful or unenforceable to any extent, that provision will to that extent only, be severed from the remaining terms which will continue to be valid to the fullest extent permitted by law.
20.6 No waiver of a breach of any part of these Terms shall affect a party’s right to enforce that part or any other part of these Terms for a later breach. The failure of a party to insist upon strict performance of any part of these Terms shall not be construed as a waiver of any prior or later default of the same or similar nature.
20.7 No party shall be liable to the other for any delay or failure due to acts of God, war, transportation difficulties, labor strikes, natural disasters, riots, acts or omissions of vendors or suppliers beyond the control of the parties.
20.8 The User and BKW agree that these Terms are governed by, and to be construed exclusively in accordance with, the laws of the State of Indiana, USA, without regard to that state’s conflict of law provisions.
20.9 LIMITATION: The User and Biakwe agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of our Website or this Agreement must be filed within one (1) year after the claim or cause of action arose or be forever barred.