Effective as of October 28, 2016
Songtradr is an Internet-based service that allows holders of rights to a musical work (each, a “Holder”) to license and/or sell such work to third parties (each, a “Recipient”). The services offered by Songtradr, Inc. (“Songtradr,” “we,” “us” or “our”) include the website located at www.songtradr.com (the “Site”) and any services, features, Content (as defined in Section 3(a) below), and applications offered from time to time by Songtradr in connection with the Site, whether accessible via personal computer, mobile device or otherwise (collectively, the “Services”).
We may modify this Agreement from time to time by posting the amendments on the Site, and such modifications shall be effective upon such posting. Our right to modify this Agreement includes the right to add, remove or amend the terms hereof. By using the Site and/or the Services after any such modification, you agree to be bound by all such modifications. You should periodically visit this page to determine the current Agreement to which you are bound. When this Agreement is modified, we will also modify the "effective as of" date set forth at the beginning of this Agreement.
You are authorized to use the Services (regardless of whether your access or use is intended) only if you abide by all applicable laws, rules, regulations and orders and this Agreement. If you breach this Agreement or any applicable laws, rules, regulations or orders, your authorization to use the Services automatically terminates.
1. Eligibility. By using the Services, you represent and warrant that (a) all Account registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; and (d) your use of the Services does not violate any applicable law, rules, regulations or orders. Your Account may be deleted, terminated and/or suspended without warning if we believe that you are under 18 years of age or otherwise are not eligible pursuant to the foregoing.
2. Term. This Agreement shall remain in full force and effect while you use the Services or have an Account. Songtradr reserves the right (in its sole discretion, at any time, for any or no reason, with or without prior notice, and without liability) to restrict, suspend, or terminate your access to or use of all or any part of the Site and/or the Services and/or take technical and/or legal steps to prevent you from accessing and/or using the Site and/or the Services. Songtradr will terminate a User’s access to and/or use of the Site and/or the Services if, under appropriate circumstances and without limitation, the User is determined by Songtradr to be a repeat copyright infringer. Even after an Account or Services are terminated, this Agreement will remain in effect as applicable to your Account or use of the Services prior to such termination.
3. Proprietary Rights.
a) The Site and the Services contain text, files, photos, pictures, graphics, images, illustrations, video, musical works, other audio and sounds, icons, links, software, data, comments, job postings, and other content, files, materials and works of authorship (collectively, and together with the selection and arrangement thereof, “Content”) of Songtradr and third parties (other than your Content posted on the Site by you on or through the Services) (hereinafter “Songtradr Content”). The Site and the Services also contain trademarks, service marks, trade names, trade dress, brands, and logos (the “Trademarks”) of Songtradr and third parties (other than Trademarks posted on the Site by you on or through the Services) (hereinafter “Songtradr Trademarks”). Content and Trademarks are protected by copyright, trademark, patent, trade secret, privacy, publicity and other laws. As between you and Songtradr, Songtradr retains ownership of all Songtradr Content, Songtradr Trademarks, the Site and the Services and you retain ownership of all of your Content.
(i) Songtradr hereby grants you a limited, revocable, non-sublicensable, non-transferable license to reproduce and display the Songtradr Content (excluding any software code) solely in connection with viewing the Site and using the Services as provided in this Agreement, provided that (1) you do not modify the Songtradr Content, (2) as between you and Songtradr, Songtradr or the Holder (as defined herein) retains all copyright and other intellectual property and proprietary right notices contained on or in the Songtradr Content, and (3) you may not use, copy, modify, translate, publish, broadcast, transmit, distribute, perform, reproduce, display, republish, download or sell any Songtradr Content for commercial use except in accordance with the terms of an Order (as defined in Section 10(a) below) and subject to the terms and conditions of the Music Rights Agreement (as defined in Section 10(c) below). All rights not expressly granted to you pursuant to this Agreement are expressly reserved by and to Songtradr.
(ii) You may not copy, imitate or use any Songtradr Trademark, domain name or any other feature of the Site in whole or in part, without the prior written permission of Songtradr. Nothing in the Site shall be construed as granting, by implication, estoppel or otherwise, any license or right to use any Songtradr Trademark, domain name, or any other feature of the Songtradr Site, including without limitation any other intellectual property or proprietary rights, other than as expressly set forth herein, whether for non-commercial or commercial use. Unauthorized use of any of the foregoing is strictly prohibited.
(iii) Except as expressly provided in this Agreement or the Music Rights Agreement, you may not use, copy, modify, translate, publish, broadcast, transmit, distribute, perform, reproduce, display, republish, download or sell any Songtradr Content or Songtradr Trademark appearing on or through the Services.
b) Solely during the period in which you elect to display or publish (“posting”) any Content on or to the Site, you automatically grant to Songtradr, its affiliates, licensees and successors (i) with respect to your musical works (“Songs”) and Trademarks, a non-exclusive, fully-paid, worldwide (or such other territory as may be specified in such Order) license to market and promote such Songs and Trademarks and to use, copy, publish, broadcast, transmit, distribute, perform, reproduce, display, republish, and download such Songs and Trademarks, and to facilitate the transfer of rights to such Songs, in each case in connection with the performance of the Services, and to incorporate such Songs and Trademarks into the Services, and (ii) with respect to all other Content posted by you, a non-exclusive, fully-paid, worldwide license to use, copy, perform, display, reproduce, and distribute such Content, and to grant and authorize sublicenses of the foregoing. Removing any of your Content from a posting on or to the Site shall automatically terminate the applicability of this paragraph to such Content. Notwithstanding the foregoing, you acknowledge and agree that Content in an intangible or electronic format cannot be, or may be impractical to be, removed, erased or otherwise deleted from archival systems, but that such Content will not be used except as permitted by this Agreement. Notwithstanding anything to the contrary contained herein, Songtradr may retain an archival copy of any Content to the extent required by applicable law or regulation or Songtradr’s retention policy. In the event such Content is inadvertently used by Songtradr, such use shall not be a material breach hereof, but Songtradr shall cease such use within a reasonable time after receiving written notice from you of such continued use.
c) You represent and warrant that: (i) you own all right, title and interest in or control (including without limitation the right to License or Buy-Out (each as defined in Section 9(a)(i)(2) below) to a Song pursuant to the terms of any Order) the Content, individually or with other Holders who are agreeing to this Agreement, posted by you on or through the Services or otherwise have the right to grant the licenses set forth in Section 3(b), (ii) the posting of your Content on or through the Services does not violate the copyright, trademark, patent, trade secret, privacy, publicity, contract, or any other right of any person, and (iii) you will not otherwise violate the terms and conditions of this Agreement. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content or Trademark or any other intellectual property whatsoever posted by you to or through the Services.
4. Prohibited Content.
(a) This Section 4(a) sets forth a partial list of Content that is illegal or prohibited to post on or through the Services. Such Content includes Content that, in the sole discretion of Songtradr:
(i) is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(ii) harasses or advocates harassment of another person;
(iii) is sexually explicit or violent;
(iv) is obscene or lewd or contains nudity or violence, or is otherwise offensive or objectionable subject matter or contains a link to a website containing any such Content;
(v) solicits personal information from anyone under 18;
(vi) promotes information that you know or should know is false or misleading or promotes conduct that is abusive, threatening, obscene, defamatory or libelous;
(vii) promotes an illegal or unauthorized copy of another person's copyrighted work, providing information to circumvent copy-protect devices, or providing pirated music or links to pirated music files;
(viii) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
(ix) furthers or promotes any illegal activity or criminal enterprise or provides instructional information about illegal activities including without limitation making or buying illegal weapons or providing or creating computer viruses;
(x) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
(xi) involves commercial activities and/or sales (other than those expressly permitted by an Order and the Music Rights Agreement) without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(xii) includes a photograph, image or likeness of another person that you have posted without that person’s consent; or
(xiii) violates the copyright, trademark, patent, trade secret, privacy, publicity, contract right or any other right of any person.
(b) Songtradr may refuse to post, delay posting or delete any Content posted or attempted to be posted to the Site by a User (any of the foregoing, “User Content”) that in the sole judgment of Songtradr violates this Agreement or for any other or no reason, with or without prior notice, and without liability.
(c) You are solely responsible for your use of the Services and the Content that you post on or through any of the Services, and any Content that you transmit to other Users and for your interactions with other Users. You understand and acknowledge that no Content transmission over the Internet can be guaranteed to be 100% secure and we cannot guarantee that any Content you submit to us will be free from unauthorized third party intrusion. You understand and agree that all Content you submit to us is submitted at your own risk.
(d) Songtradr does not endorse and has no control over User Content. User Content is not necessarily reviewed by Songtradr prior to posting and does not necessarily reflect the opinions or policies of Songtradr. Notwithstanding Section 4(a), if any User Content violates or is alleged to violate Section 4(a), Songtradr assumes no responsibility or liability for such User Content (other than to the extent expressly set forth in Section 8 hereof). Songtradr makes no warranties, express or implied, as to any Content, whether User Content or otherwise, including as to the accuracy and reliability of any Content or the ownership thereof. We do not warrant that any Content is accurate, complete, reliable, current or error-free.
5. Prohibited Activity.
(a) This Section 5(a) sets forth a partial list of activity that is illegal or prohibited on the Site or through your use of the Services. Such activity includes activity that, in the sole discretion of Songtradr:
(i) is criminal or tortious activity, including, without limitation, fraud, trafficking in child pornography or obscene material, drug dealing, gambling, harassment, stalking, “spimming,” “spamming,” sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
(ii) is advertising to, or solicitation of, any User to buy or sell any products or services through the Services, except pursuant to an Order;
(iii) transmits any chain letters or junk email to other Users;
(iv) uses any information obtained from the Services in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent or pursuant to an Offer;
(v) breaches or circumvents any laws, third party rights or our systems or policies;
(vi) circumvents or modifies, attempts to circumvent or modify or encourages or assists any other person in circumventing or modifying any security technology or software that is part of the Service;
(vii) covers or obscures the advertisements or ownership or copyright information on any Songtradr page via HTML/CSS or any other means;
(viii) is automated use of a system including any of our Services, such as using scripts to send comments or messages;
(ix) interferes with, disrupts, or creates an undue burden on the Services or the networks or services connected to the Services;
(x) attempts to impersonate another User or person;
(xi) uses the Account or password of another Member at any time or discloses your password to any third party or permits any third party to access your Account;
(xii) sells or otherwise transfers your Songtradr Account;
(xiii) uses any information obtained from the Services in order to harass, abuse, or harm another person;
(xiv) except in connection with an Offer or Order, displays an advertisement, accepts payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Services on behalf of that person, or otherwise uses the Services in connection with any commercial endeavors;
(xv) “frames” or “mirrors” any portion of the Site on any other website or server;
(xvi) harvests or otherwise collects information about Users without their consent;
(xvii) is otherwise an illegal and/or an unauthorized use of the Services.
(b) You may not use our Services if you are not able to form legally binding contracts (for example, if you are under 18) or do not intend to pay or otherwise perform under the terms of any Order applicable to you.
(c) Under no circumstances shall Songtradr be responsible for the conduct of any Users of the Services, whether online or offline.
6. Monitoring. Songtradr assumes no obligation or responsibility for monitoring the Services for inappropriate User Content or User conduct. Notwithstanding the foregoing, Songtradr reserves the right to investigate and take appropriate action, including without limitation legal action, against anyone who, in Songtradr’s sole discretion, violates this Agreement, including without limitation Section 4 or 5, and including, without limitation, (i) removing prohibited Content from the Services, (ii) terminating or suspending the Account of the violators and reporting any User to law enforcement authorities, and (iii) disclosing Content and the circumstance surrounding its transmission, along with any other information regarding use of the Site, to any third party in order to operate the Site properly, to protect ourselves, our sponsors, and Users, and to comply with legal obligations or governmental requests.
7. Copyright Policy. When we receive a proper Notification (as defined below), our policy is to promptly remove, block, or disable access to the allegedly infringing Content and we may, in our discretion, terminate the Accounts of repeat infringers in accordance with the Digital Millennium Copyright Act (“DMCA”).
(a) If you are a copyright owner and believe that your work has been copied and posted on the Site or through the Services in a way that constitutes copyright infringement, you or your agent may submit a notification pursuant to the DMCA by providing our DCMA Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail) (a “Notification”):
(i) an electronic or physical signature of the owner of (or the person authorized to act on behalf of the owner of) the copyright interest allegedly infringed;
(ii) identification of the copyrighted work that you claim has been infringed (or if multiple copyrighted works are covered by a single Notification, a representative list of such works);
(iii) identification of the Content that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the Content on the Site (providing URL(s) that link to the claimed infringing Content satisfies this requirement);
(iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and an electronic mail address;
(v) a written statement by you that you have a good faith belief that the use of the Content in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement that the information in the notification is accurate and, under penalty of perjury, that you are (or are authorized to act on behalf of) the owner of the copyright interest that is allegedly infringed.
You should direct Notifications to Songtradr's DMCA Copyright Agent at: Songtradr, Inc., 2001 Wilshire Blvd, Suite 302, Santa Monica, CA, 90403, Attn: Copyright Agent, or via email at firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section 7, your Notification may not be valid under the DCMA.
(b) If the Content you posted is removed or access to such Content is disabled, and you believe that the Content that was removed or to which access was disabled is not infringing, or that you have the authorization from the copyright owner (or the copyright owner’s agent) or otherwise pursuant to the law to post and use the Content, you may send a counter-notice containing the following information to Songtradr’s DMCA Copyright Agent (a “Counter-Notice”):
(i) your physical or electronic signature;
(ii) identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or access to it was disabled; and
(iii) your name, address, telephone number, and electronic mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided the Notification.
If a Counter-Notice is received by the Songtradr DMCA Copyright Agent, the disputed Content will remain removed from the Site for 10 business days (unless the parties involved with the Notification and Counter-Notice resolve such matter fully), and Songtradr may send a copy of the Counter-Notice to the original complaining party informing that person that if no additional action is taken by the original complaining party, it may replace the removed Content or cease disabling it in 10 business days. Unless the original complaining party files an action seeking a court order against the Content provider or User, the removed Content may be replaced or access to it restored in 10 business days or more after receipt of the Counter-Notice, at Songtradr’s sole discretion.
(c) In the event you believe that the Content posted by another User violates your intellectual property rights other than copyright rights (i.e., trademark rights), please provide the same information requested in Section 7(a) above with respect to the alleged violations. The information should be sent to Songtradr, Inc., 2001 Wilshire Blvd, Suite 302, Santa Monica, CA, 90403, Attn: Legal, or via email at email@example.com.
(a) Prior to completing any Offer (as defined in Sections 9(a) and 9(b) below) or Order, Recipient and Holder must each establish a user account on the Site (each an “Account”), which will include Recipient and Holder each creating its own unique password that will be used to access and complete Offers and/or Orders in connection with such Account. In lieu of creating such a password, Recipient or Holder may, at their respective option, link their respective Accounts to a Facebook or other social media account that may be used to log into their respective Accounts.
(b) Each Member shall (i) be solely responsible for maintaining the confidentiality of its password and all activities that occur under its Account, (ii) immediately notify Songtradr of any actual or suspected unauthorized use of its password or Account or any other breach of security relating thereto, and (iii) not to use the password or Account of another Member at any time or to disclose its password to any third party. Each Member is solely responsible for any and all use of its Account.
(c) Any Member may terminate or suspend its Account at any time, for any reason, by emailing firstname.lastname@example.org and electing to either suspend or delete such Account. Songtradr may terminate any Account at any time, without warning and for any reason or no reason.
(d) If you create or use an Account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business as required hereunder. Such Account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer, franchiser-franchisee or other similar relationship is intended or created by this User Agreement.
(a) Initiating the Offer.
(i) Any Holder (the “Initiating Holder”) may make available to Recipients, or any Recipient (the “Initiating Recipient” and either the Initiating Recipient or Initiating Holder, the “Initiating Party”) may request from Holders, via the Site rights to a Song pursuant to the offer terms and conditions completed by the Initiating Party on the Site (the “Initial Offer”). When initiating the Initial Offer, the Initiating Party will, via the Site:
(1) specify whether the Offer includes (A) only the composition of a Song, (B) only the sound recording of a Song, and/or (C) both the composition and the sound recording for the same Song;
(2) identify whether the Initial Offer permits a license to the Song (a “License”) and/or quotes for a License (a “Quote”) and/or a purchase of ownership of the master recording of and/or all other right, title and interest to the Song (a “Buy-Out”);
(3) specify the fee payable with respect to a License (the “License Fee”) (or, if the Initiating Party is a Recipient, request that the Initiating Holder propose a License Fee (a “License Fee Request”) and/or a Buy-Out (the “Buy-Out Fee” and together the License Fee, the “Fees”), in each case subject to any limitations on Fees that may be imposed by Songtradr from time to time;
(4) if the Initiating Party is a Holder, and to the extent known by an Initiating Recipient:
(A) identify and provide to Songtradr the email address for any and all Other Holders (as defined in Section 9(b) below), specify whether each Other Holder has the right to authorize Licenses, a Buy-Out or both, and specify the percentage of fees to be remitted to such Other Holder;
(B) identify and describe all licenses granted with respect to the Song, all other rights to use, commercialize and/or exploit the Song, and all other claims, liens, security interests, charges, restrictions, covenants, options and other encumbrances and title defects related to the Song (any of the foregoing, an “Identified Interest”), provided that the Initiating Party shall only be required to identify and describe Identified Interests with respect to any Offer solely for a License to the extent such Identified Interest is exclusive or would otherwise conflict with such License;
(C) adequately describe and tag the Song and provide such additional information about and materials related to the Song as are prompted by the Site in connection with the initiation of the Initial Offer (collectively, the “Additional Information”); and
(5) if the Initiating Party is a Holder, upload the Song to the Site or facilitate Songtradr’s access to the Song via SoundCloud or another method permitted by and compatible with the Site.
If the Initiating Party is a Recipient, the first Other Holder shall be deemed the Initiating Holder for purposes of responding to a License Fee Request and for purposes of Section 9(a)(i)(4), Section 9(a)(i)(5) and Section 9(a)(iii).
(ii) A different License Fee may be specified for each different business use among the types of permitted business uses described in Appendix A (each, a “Permitted Use”), and License Fees may be per Song or for a catalog of Songs (as specified in the applicable Offer).
(iii) To the extent any change occurs or new information or materials arise related to any Other Holder, Identified Interest or Additional Information, all Holders that are participating via the Site in any Offer are obligated to promptly update the Offer via the Site to reflect such. If no Other Holders are identified by an Initiating Holder in the Initial Offer, or until any Other Holder is identified in any such update, the Initial Offer shall be deemed complete and shall be made available for Order via the Site upon completion of the requirements set forth in this Section 9(a) (at which point, the Initial Offer shall be deemed the “Offer” for purposes hereof).
(b) Other Holders.
(i) For purposes of this Agreement, an “Other Holder” shall mean each holder of a right in, to or under the Song (other than the Initiating Holder) if the holding of such right requires (by law, contract or otherwise) the authorization by such other holder of an Order of the Song pursuant to the terms of the Initial Offer. If the holding of such right requires such Other Holder’s authorization for a Buy-Out but not for a License, such Other Holder shall be deemed an “Other Holder” only for purposes of the Buy-Out. To the extent an Other Holder has granted the Initiating Holder authority to act as such Other Holder’s agent with respect to any Song, the Initiating Holder may act on behalf of the Other Holder to the extent of such authorization.
(ii) Prior to making the Song available via the Site, the Site will automatically email the Initial Offer to each Other Holder identified by the Initiating Party and whose email address has been provided by the Initiating Party. To accept or propose modifications to such Initial Offer, each such Other Holder will be required to establish an Account. Thereafter, each such Other Holder shall take one of the following actions:
(1) accept the Initial Offer via such Other Holder’s Account;
(2) propose modifications to the Initial Offer (a “Modified Offer”) via such Other Holder’s Account, in which event such Modified Offer shall be sent to the Initiating Party and all Other Holders for further modification (which further modifications shall also be deemed a “Modified Offer” for purposes hereof), acceptance or rejection; or
(3) reject the terms and conditions of the Initial Offer.
(iii) In the event any Other Holder fails to:
(1) establish an Account,
(2) accept the Initial Offer or Modified Offer, or
(3) propose a Modified Offer in accordance with Section 9(b)(ii)(2) above, within thirty (30) days of Songtradr’s email of such Initial Offer or Modified Offer to such Other Holder, the Initial Offer or Modified Offer shall be deemed rejected by such Other Holder.
(iv) If the Initial Offer or Modified Offer is accepted by all Other Holders identified in the Initial Offer, such Initial Offer or Modified Offer shall be deemed complete and shall be made available for Order via the Site upon completion of the requirements set forth in Section 9(a) (at which point, the Initial Offer shall be deemed the “Offer” for purposes hereof). Upon each Other Holder’s acceptance of the Offer, each such Other Holder shall be deemed a “Holder” for purposes of this Agreement.
(v) In the event any new Other Holder is identified in any update provided by Holder via the Site, any Offer shall become an Initial Offer for purposes of this Section 9(b) and the process set forth in this Section 9(b) shall be initiated with respect to such new Other Holder.
(c) Non-Exclusive Relationship. Neither this Agreement nor the Music Rights Agreement will prevent Holder from engaging in similar arrangements with third parties or pursuing other business opportunities related to the Song, provided such arrangements and opportunities are not in conflict with the terms and conditions of this Agreement, a Music Rights Agreement or any Order.
(d) Withdrawal of Offer.
(i) Any Holder may request through its Account that the Offer be withdrawn from the Site at any time, and Songtradr shall promptly remove the Offer from the Site. Notwithstanding the foregoing, no withdrawal of the Offer from the Site shall impact any Order completed prior to the time of such withdrawal.
(ii) Songtradr has the right to withdraw or suspend any Offer or remove or suspend access to the Song from the Site if Songtradr reasonably believes the Offer, Order or distribution of the Song violates or may violate this Agreement or any Order, law, rule, regulation, order, contract or other third party right or upon receipt of any allegation of violation of any of the foregoing from a third party.
(a) Recipient may accept an Offer via the Site by completing an order for such Offer (an “Order”) or propose via the Site an offer for a Song or a counter-offer to an Offer. To complete an Order or propose an offer or counter-offer, Recipient will, via the Site:
(i) to the extent permitted by the Offer, select whether the Order includes (A) only the composition of a Song, (B) only the sound recording of a Song, and/or (C) both the composition and the sound recording for a Song;
(ii) select a License or Buy-Out to a Song, to the extent permitted by the Offer;
(iii) if a License is available and selected by Recipient, Recipient shall also:
(1) identify a single Permitted Use;
(2) as applicable and as requested, complete and deliver via the Site a cue sheet or similar documentation providing details about the Permitted Use; and
(3) provide such additional information about Recipient’s intended use of the Song as is prompted by the Site or otherwise requested in connection with such License;
(iv) when an offer or counter-offer is proposed, specify the Fees applicable to such counter-offer;
(v) effective upon completion of an Order, pay all Fees associated with such Order; and
(vi) effective upon completion of an Order, download the Song from the Site or another method facilitated by the Site.
If an offer or counter-offer is proposed by Recipient, Holder may either complete the Order by accepting the offer or counter-offer via the Site or propose a counter-offer or further counter-offer, which counter-offer or further counter-offer would be deemed a new “Initial Offer” for purposes of this Agreement.
(b) An Order shall be deemed complete and become a binding agreement upon completion of the requirements set forth in this Section 10. This Agreement and, except as provided in Section 10(c), the Music Rights Terms and Conditions available at www.songtradr.com/musicrights (collectively, the “Online Music Rights Agreement”) by this reference are hereby incorporated into and made a part of each Order.
(c) Notwithstanding Section 10(b), prior to completion of an Order the Site shall provide each Recipient and Holder an opportunity to opt out of the Online Music Rights Agreement in lieu of music rights terms and conditions proposed by such Recipient or Holder via the Site within thirty (30) days of completion of an Order (a “Non-Standard Music Rights Agreement”). If any such Non-Standard Music Rights Agreement is proposed, then: (i) prior to completion of any Order, the Site shall notify all other parties to the Order of such Non-Standard Music Rights Agreement, (ii) the Site shall present such Non-Standard Music Rights Agreement (as presented by the applicable Recipient or Holder) to all other parties to the applicable Order for their agreement, and (ii) the Order shall be cancelled and void ab initio if such Non-Standard Music Rights Agreement is not agreed to by all parties to an Order to within ninety (90) days of completion of any Order. Each Recipient and Holder shall be provided the option via the Site to grant Songtradr the right to agree to a Non-Standard Music Rights Agreement on behalf of Recipient or Holder, and any such Recipient or Holder exercising such option hereby releases Songtradr and its RELATED PARTIES (as defined below) FROM ANY AND all losses, liability, damages, costs and expenses IN ANY WAY associated with SUCH NON-STANDARD MUSIC RIGHTS AGREEMENT, including without limitation any actions or omissions of Songtradr in connection therewith. The Online Music Rights Agreement or the Non-Standard Music Rights Agreement applicable to any Order shall be deemed the “Music Rights Agreement” for purposes of this Agreement.
(d) An Order for a License is also deemed to be completed by Holder agreeing to: (i) the terms of a blanket license agreement executed by Songtradr with any Recipient (each, a “Blanket License”) on behalf of Holder, or (ii) the terms of a license opportunity generated by Songtradr’s live sales team, with the license agreement therefor executed by Songtradr (each, a “Manual License”) on behalf of Holder. Songtradr may from time to time, via the Site or email, present Holder with an opportunity to opt into any Blanket License or Manual License with respect to one or more Songs. Holder’s assent, via the Site or email, to any such Blanket License or Manual License shall create a binding Order with respect to such Song(s). The Permitted Use(s) under and the other terms and conditions of each Blanket License or Manual License shall be set forth in the Blanket License or Manual License.
11. User Disputes. You are solely responsible for your interactions with other Songtradr Users, including the applicable Holders and Recipients with respect to an Order. Songtradr reserves the right, but has no obligation, to monitor disputes between you and other Users.
12. Modification of Service. Notwithstanding any other provision of this Agreement or any Music Rights Agreement, Songtradr and its licensors reserve the right to change, modify, suspend, discontinue or terminate the Site and/or any of or all of the Services at any time without notice. In no event will Songtradr be liable to you or any third party should Songtradr exercise this right from time to time.
13. Third Party Websites and Advertisements.
(b) Songtradr takes no responsibility for third party advertisements which are posted on this Site or through the Services, nor does it take any responsibility for the goods or services provided by such advertisers.
(a) YOU ACKNOWLEDGE AND AGREE THAT ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, RULES, REGULATIONS AND ORDERS, SONGTRADR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL AND WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE RELIABILITY OR PERFORMANCE OF THE SITE OR THE SERVICES OR THE RELIABILITY, ACCURACY OR COMPLETENESS OF ANY CONTENT. In addition, Songtradr does not represent, warrant, endorse, guarantee or assume responsibility for any third party product or service advertised or offered on or through the Site or any hyperlinked website or featured in any banner or other advertising. You understand and agree that Songtradr is not responsible or liable for any transaction between you and any third party. We have no control over and do not guarantee the ability of Holders to license or sell Content or the ability of Recipients to pay for Content or that a Holder or Recipient will actually complete a transaction. As with any purchase of a product or service through any medium or in any environment, you should use your judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by you from or on behalf of Songtradr shall create any warranty on behalf of Songtradr in this regard. You agree that you are making use of the site and Services at your own risk. Some aspects of this section may not apply in some jurisdictions, solely to the extent prohibited by the applicable laws of such jurisdictions.
(b) ALTHOUGH SONGTRADR WILL IN GOOD FAITH ENDEAVOR TO REMEDY ERRORS IN THE SITE OR THE SERVICES, SONGTRADR SPECIFICALLY DOES NOT WARRANT THAT THE site or the SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR THAT ALL ERRORS IN THE SITE OR THE SERVICES WILL BE CORRECTED. SONGTRADR SHALL HAVE NO LIABILITY ASSOCIATED WITH ANY INOPERABILITY, PERFORMANCE OF OR INABILITY OR DELAY IN YOUR ACCESS TO THE SITE OR THE SERVICES. SONGTRADR WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR CONTENT BECAUSE OF THE SITE, THE SERVICES OR ANY OTHER ACT OR OMISSION OF SONGTRADR OR OTHERWISE.
(c) Songtradr is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet, the site or on any of the Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Services.
16. Limitation on Liability.
(a) IN NO EVENT SHALL SONGTRADR or ANY OF ITS affiliates, OR ANY officers, directors, employees, agents, owners OR representatives of any of the foregoing (collectively, “Related Parties”) BE LIABLE TO you or any other party FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, LOSS OF BUSINESS, OR LOSS OF GOODWILL, WHETHER ARISING IN CONTRACT (includng without limitation any non-Standard Music Rights Agreement), TORT (INCLUDING without limitation NEGLIGENCE) OR OTHERWISE, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE, EVEN IF Songtradr or ANY OF ITS RELATED PARTIES HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
(b) Without limiting the generality of the foregoing and to the extent permitted by applicable law, we (and our affiliates and our and their officers, directors, agents and employees) are not liable and shall not be responsible for any damages or losses resulting directly or indirectly from (i) your use or inability to use the Site or Services, (ii) guidance provided by Songtradr, (iii) interruptions to the Services, (iv) virus or malicious software contained on or transmitted through the Site or the Services, (v) bugs or errors of any kind on the Site or in the services, (vi) damage to your hardware by use of the site or the services, (vii) the actions or omissions of third parties, including without limitation other Users, or (viii) a suspension or termination of your Account. Some jurisdictions do not allow certain disclaimers of warranties or exclusions of damages AND, TO THE EXTENT PROHIBITED BY LAW, such disclaimers and exclusions may not apply to you.
(c) REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF ANY RELATED PARTY IS FOUND TO BE LIABLE, THE AGGREGATE LIABILITY OF THE RELATED PARTIES FOR ANY AND ALL CLAIMS, ACTIONS, DEMANDS, LOSSES, LIABILITY, DAMAGES (ACTUAL AND CONSEQUENTIAL), COSTS, EXPENSES OR SIMILAR ITEMS OF ANY KIND OF NATURE, WHETHER KNOWN OR UNKNOWN (COLLECTIVELY, “CLAIMS”) ARISING UNDER OR RELATED TO THIS AGREEMENT, THE SITE, THE SERVICES OR OTHERWISE SHALL BE LIMITED TO THE GREATER OF (I) $100, OR (II) THE FEES ACTUALLY PAID TO AND RETAINED BY SONGTRADR FOR THE SERVICES GIVING RISE TO THE LIABILITY.
17. Indemnity. You agree to indemnify and hold harmless Songtradr and its Related Parties from and against any and all Claims arising out of or related to (i) your breach of any of the representations, warranties or covenants of this Agreement, or (ii) any Content or Trademark posted on the Site by you on or through the Services.
18. Dispute with Users. If you have a dispute with one or more Users, you release Songtradr and the other Related Parties from Claims arising out of or related to such disputes. By accessing the Services and using the Site, you expressly waive any protections, whether statutory or otherwise, that would otherwise limit the coverage of this release to include only those Claims that you may know or suspect to exist in your favor at the time of agreeing to this release.
19. U.S. Export Controls. Software available in connection with the Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
20. Legal Disputes; Governing Law; Venue. PLEASE READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. You agree that any claim or dispute that may arise between you and Songtradr with respect to this Agreement will be resolved in accordance with this Section 20.
(a) Applicable Law. You agree that, except to the extent inconsistent with or preempted by federal law, this Agreement and any claim or dispute that may arise between you and any Related Party under it shall be construed under the laws of the State of California, without regard to its conflict of laws rules.
(b) Agreement to Arbitrate. You and Songtradr agree that any and all claims and disputes arising between us pursuant to this Agreement and your use of the Site or the Services shall be resolved exclusively through final and binding arbitration. Alternatively, you may assert your claims and disputes in small claims court, if the claim or dispute so qualifies, so long as the claim or dispute remains in small claim court and advances on an individual (non-class) basis. The Federal Arbitration Act shall govern this agreement to arbitrate.
(i) Class and Representative Actions Prohibited. You and Songtradr agree that each of us (or any other Related Party) may bring claims and disputes against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Songtradr agree otherwise, the arbitrator may not consolidate more than one person’s claims or disputes or preside over a representative or class proceeding. The arbitrator may award relief only to the individual bringing the action and any relief awarded may not affect other Users.
(ii) Arbitration Procedures. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable) as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. The AAA’s rules shall govern the number of arbitrators assigned to conduct the arbitration. The party intending to seek arbitration shall send to the other, by certified mail, notice of the dispute. Such notice should be sent to Songtradr, Inc., 2001 Wilshire Blvd, Suite 302, Santa Monica, CA, 90403, Attn: Legal. Songtradr shall send any notice to you at the address on file associated with your Account. If you and Songtradr are unable to resolve any of the claims or disputes described in such notice within 30 days after such notice is received, either party may initiate arbitration proceedings. The form for initiating arbitration is available at www.adr.org, and the party initiating arbitration must both file this form with the AAA and mail a copy of the completed form to the other party at the same addresses as set forth earlier in this paragraph. Any settlement offer made by you or Songtradr shall not be disclosed to the arbitrator. The arbitration hearing shall be held in a mutually agreed location. The arbitrator’s award shall be consistent with this Agreement and final and binding, and judgment shall be entered in any court having jurisdiction thereof. Payment of all filing, administration and arbitrator fees shall be governed by AAA’s rules.
(iii) Invalidity. With the exception of Section 20(b)(i) above (“Class and Representative Actions Prohibited”), if an arbitrator or court decides that any portion of this Section 20 is invalid or unenforceable, all other portions of this Section 20 shall continue to apply. If an arbitrator or court decides that Section 20(b)(i) is invalid or unenforceable, then the entirety of this Section 20(b) and its subparts shall be null and void but the rest of Section 20 shall continue to apply.
(v) Amendments to Agreement to Arbitrate. You and Songtradr agree that if Songtradr amends this agreement to arbitrate in the future, the amendment shall not apply to a claim or dispute filed by either party prior to the effective date of the amendment.
(c) If the agreement to arbitrate does not apply to you, either because you opt-out or as a result of a decision by an arbitrator or court order, you agree that any claim or dispute that has arisen between you and Songtradr will be resolved exclusively by a state or federal court located in Los Angeles, California. You and Songtradr agree to submit to personal jurisdiction of the courts located in Los Angeles, California for purposes hereof.
|Logo||Use as background music in connection with the display of the same logo for a single feature film subject to agreed terms|
|Background Cue Opening Credits and/or Closing Credits||Use in single feature film as background music, in the display of opening and/or closing credits to such feature film, and/or in the soundtrack to such feature film subject to agreed terms|
|Logo||Use as background music in connection with the display of the same logo for a single independent film subject to agreed terms|
|Background Cue Opening Credits and/or Closing Credits||Use in single independent film as background music, in the display of opening and/or closing credits to such independent film, and/or in the soundtrack to such independent film subject to agreed terms|
|Film Festival |
|Logo||Use as background music in connection with the display of the same logo for a single film festival film subject to agreed terms|
|Background Cue Opening Credits and/or Closing Credits||Use in single film festival film as background music, in the display of opening and/or closing credits to such film festival film, and/or in the soundtrack to such film festival film subject to agreed terms|
|Logo||Use as background music in connection with the display of the same logo for a single film trailer subject to agreed terms|
|Background Cue||Use in single film as background music to a film trailer subject to agreed terms|
|Cable Television Show|
|Logo||Use in the display of the same logo for a single cable television show subject to agreed terms|
|Background Cue||Use as background music in a single episode of a cable television show subject to agreed terms|
|Theme Opening or Closing||Use as background music in the same theme opening or closing for a single series of a cable television show subject to agreed terms|
|Network Television Show|
|Logo||Use in the display of the same logo for a single network television show subject to agreed terms|
|Background Cue||Use as background music in a single episode of a network television show subject to agreed terms|
|Theme Opening or Closing||Use as background music in the same theme opening or closing for a single series of a network television show subject to agreed terms|
|Video Game |
|Logo||Use in the display of the same logo for a single video game subject to agreed terms|
|Background Cue||Use as background music in a single video game subject to agreed terms|
|Theme Opening or Closing||Use as background music as a theme for the opening or closing of a video game subject to agreed terms|
|Background Cue||Use as background music in a single advertisement subject to agreed terms|
|Theme/Jingle||Use as theme in multiple versions of an advertisement subject to agreed terms|
|Logo||Use in the display of the same logo for a single online application subject to agreed terms|
|Background||Use as background music in a single online application subject to agreed terms|
|Theme Opening or Closing||Use as background music as a theme for the opening or closing of an application subject to agreed terms|
|Background||Use in conjunction with an online publicly available for-profit business website subject to agreed terms|
|Corporate Video (Marketing/Tutorial)|
|Background||Use as background music in a publicly available single marketing or tutorial video for a for-profit business subject to agreed terms|
|Background||Use as background music at an event for a for-profit business subject to agreed terms|
|Corporate Internal Use|
|Background||Use as background music in an internal business presentation and/or intranet production of a business subject to agreed terms|
|Corporate Telephone On-Hold|
|Background||Use as background music through a corporate telephone system as music-on-hold or any similar other use through a corporate telephone system subject to agreed terms|
|Background||Use as background music in a publicly available single podcast subject to agreed terms|
| Theme/Jingle||Use as theme in multiple versions of an advertisement for a podcast subject to agreed terms|
|Background||Use as background music in an online publicly available single video (other than a non-profit organization) subject to agreed terms|
|Social Media |
| ||Background||Use as background music in an online single video shared in any social media subject to agreed terms|
|Non-Profit Organization (Church, Charity, School, University)|
|Website||Use in conjunction with an online publicly available website for a non-profit organization subject to agreed terms|
| Background Event||Use as background music at an event for a non-profit organization subject to agreed terms|
|Background Video||Use as background music in a publicly available single video for a non-profit organization subject to agreed terms|
| ||Theme/Jingle||Use as theme in multiple versions of video produced for a non-profit organization subject to agreed terms|
|Background||Use in conjunction with an online publicly available non-commercial, non-business, personal website subject to agreed terms|
|Personal Use Online Video/Slideshow|
|Background||Use as background music in an online publicly available single video for non-commercial, non-business, personal use subject to agreed terms|
|Background||Use as background music in an online publicly available crowdfunding campaign subject to agreed terms|
|Wedding Video/Live Event Video|
| Background||Use as background music in a wedding video for both physical product distribution (e.g., DVD, etc.) and an online publicly available wedding video subject to agreed terms|
|Personal Video |
| ||Background||Use as background music in a personal, non-commercial, non-business use video for both physical product distribution (e.g., DVD, etc.) and an online publicly available personal, non-commercial, non-business video subject to agreed terms|
| ||Feature Performance||Use in performances that are either the principle focus of audience attention (such as a song or other musical composition), whether performed “live” or by means of a recording, or other feature musical subject matter on a radio program that is not a performance as a theme or signature, bridge, cue or background music, jingle or in conjunction with an advertisement or announcement subject to agreed terms|
|Live Performance Venue|
|Background||Use in a public establishment that is not the principal focus of audience attention subject to agreed terms|
|Multimedia Background||Use in a commercial project using more than one medium of expression or communication that is not the principal focus of audience attention subject to agreed terms|
|Multimedia Theme||Use as a theme song for a commercial project using more than one medium of expression or communication subject to agreed terms|
|Backing Track for Performance||Use for synchronization in timed relation with other audio and/or visual elements within a production subject to agreed terms|
|Other Venue Background|
|Retail or Hairdresser Background||Use in retail stores under a single brand or chain of stores subject to agreed terms|
|Local Service Background||Use in a commercial service-based company that is not the principal focus of audience attention subject to agreed terms|
|Bars & Restaurants||Use for play in a public bar or restaurant subject to agreed terms|
|Sports Associations||Use for commercial sports institutions as background music or a theme song subject to agreed terms|
|Healthcare Institutions||Use for a corporate healthcare institution subject to agreed terms|
|Schools||Use for a public or private educational institution as background music or theme song subject to agreed terms|
|Churches||Use in a public setting at a religious institution subject to agreed terms|
|Music Associations||Use as background or featured music for a public or private music association subject to agreed terms|
|Dance Schools||Use as background or featured music for a public or private dance school subject to agreed terms|