TOTAL SOUNDTRACK INC. AUDIO CONTENT LICENSE AGREEMENT
(a) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “TotalSoundtrack.com” or “we” means Total Soundtrack, Inc., operator of the Site; (iii) “Audio Content” means any musical compositions, master recordings, non-musical audio recordings, and other sound material (whether generated electronically, digitally or by any other means or in any media) or other material that you are downloading from the Site, together with any accompanying material; and (iv) “Synchronize” means to use the Audio Content in timed relation to other elements.
(b) This Agreement is our standard Audio Content license (the “Standard License”). If you require one or more of the restrictions of the Standard License to be amended for your proposed use of the Audio Content, then you will need to contact us to negotiate an amended license. If you do not request a special amended license from us, your download of Audio Content will be subject to this Standard License.
(c) While not exhaustive, a list of scenarios where a special amended license may be required can be found below in paragraph 4(a) under Prohibited Uses. If your anticipated use of the Audio Content falls within any of the Prohibited Uses, contact us at firstname.lastname@example.org to negotiate your special amended license.
(d) This “summary” section is provided for your reference and convenience, and is not intended to be an exhaustive or comprehensive intepretation of this Agreement and shall not in any way affect the meaning of this Agreement.
2. Standard License Terms
(a) We hereby grant to you a perpetual, non-exclusive, non-transferable, non-sublicenseable, worldwide license to use, couple and synchronize the Audio Content for the Permitted Uses (as defined below).
You may permit third-parties to cause the public performance, replication, telecast, broadcast, transmission, exhibition, distribution, or other exploitation of the Audio Content necessary for you to give effect to such Permitted Uses, provided that no further rights in the Audio Content are granted to such third parties.
Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Audio Content, including, without limitation, all copyright and other intellectual property rights relating to the Audio Content, are retained by TotalSoundtrack.com or the supplier of the Audio Content, as the case may be.
(b) We have used reasonable efforts to ensure that no performing rights or other royalties are required to be paid to any performing rights, mechanical rights or any other similar societies (such as SOCAN, ASCAP, BMI, SESAC, PRS, MCPS, SACEM, SDRM, JASLAC, GEMA, etc…). However, in certain jurisdictions (for example, France and Spain), you may be required to pay royalties to performing rights or other rights societies due to the exploitation of the Audio Content itself (even if the supplier of the Audio Content is not a member) and/or if a supplier later becomes a member of a performing rights or other rights society. You must determine if such requirements exist in the applicable jurisdiction.
3. Permitted Standard License Uses:
(a) You may only use the Audio Content for those advertising, promotional, and other specified purposes which are Permitted Uses (as defined below).
(b) Seat Restrictions. Only you are permitted to use the Audio Content, except as provided in 2(a). You may install and use the Audio Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Audio Content for the Permitted Uses an unlimited number of times. You may physically transfer the Audio Content and its archives from one location to another, in which case you may use the Audio Content at the new location instead. If you require the Audio Content to be downloaded or accessible by more than one organization (i.e. tax-paying entity), you must re-license the Audio Content from the Site for each such use, or purchase an extended license, if available. You may make one (1) copy of the Audio Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
(c) Altering Audio Content. You may alter, edit, or modify Audio Content for the purposes of the Permitted Uses, as set out below, provided that you may not alter, edit, or modify it to the prejudice of the unwaiveable moral rights of the artist(s).
(d) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Audio Content:
Advertisements and promotions for television, radio, web/mobile (including podcasts), commercial theatre, and DVDs, and infomercials or tags for products, services, and organizations.
Website background music or sound or similar use for a personal website, commercial website, microsite, or site module.
In-store exhibition or performance in commercial, retail, wholesale, or other sales locations promoting products, services, and organizations.
Television programming for broadcast on local, regional, and national networks, non-networks, syndicated, cable, subscription, all forms of video-on demand, CATV, pay and satellite television provided that the Audio Content is Synchronized with visual works, that is, you may not broadcast Audio Content in any audio-only television programming.
Radio programming for broadcast over the air, satellite broadcast, or internet whether by streaming or otherwise and web/mobile programming for distribution and exploitation on the internet and/or mobile devices via browser, device, or download provided that the Audio Content is Synchronized with other musical or audio works. For example, you may not broadcast Audio Content as part of your music programming but you can use it in a radio drama, documentary, or other radio production.
Motion pictures intended for exhibition at festival gatherings, in commercial theatres, on television or via web/mobile distribution provided that the Audio Content is Synchronized with visual works.
DVD replication and distribution of television, radio, and web/mobile programming and motion pictures as permitted above.
Use in products, services, presentations, or exhibitions intended to market, promote, or educate clients, personnel, or the general public about the goods, wares and/or services offered by a commercial, governmental, or non-profit enterprise.
Use in private “music-on-hold” systems for telephones but cannot be included in a pre-packaged “music-on-hold” systems intended for re-sale or re-distribution.
Use in home videos.
Use as a personal ring-tone on a mobile device provided it cannot be re-sold or re-distributed.
Use in the following products for re-sale, license or other re-distribution: toys, games, cards, and other similar entertainment goods up to a maximum of 2,000 items in the aggregate.
Any other commercial or non-commercial use approved by us in writing.
If there is any doubt whether a proposed use is a Permitted Use, you should contact our Client Relations for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Audio Content that is not expressly permitted in the preceding section or permitted by an Extended License, if any. Notwithstanding anything contained herein and for greater certainty, the following are “Prohibited Uses” and you may not:
use the Audio Content in a way that incorporates material (including intellectual property) which you do not own or have authority from the third-party owner to use;
use any Audio Content to manufacture, distribute, or sell records, CDs, jukeboxes, or any other audio-only product embodying any Audio Content, in whole or in part, that is not synchronized or combined with other audio or musical content as permitted in this Agreement. For example, you cannot download ten songs and create a CD to give away or sell;
use Audio Content, in whole or in part, as a theme song for any motion picture, or television, radio, or web program;
use Audio Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates or electronic greeting card templates;
incorporate the Audio Content in any product that results in a re-distribution or re-sale of the Audio Content (such as music download sites, stock music CDs, electronic greeting card web sites, web templates, and the like) or is made available in a manner such that a person can extract or access or reproduce the Audio Content as an electronic file;
use the Audio Content, or Synchronize the Audio Content with other material, in a fashion that is considered by us (acting reasonably) as, or under applicable law is, pornographic, obscene, immoral, infringing, defamatory, or libelous in nature, or that would be reasonably likely to bring any person or property associated with or performing the Audio Content or the synchronized material into disrepute (including any use in connection with mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, escort agencies, or any other subject matter that would be reasonably likely to be offensive or unflattering to any such person or property);
to the extent that source code is contained within the Audio Content, reverse engineer, decompile, or disassemble any part of such source code;
remove any notice of copyright, trade-mark, or other proprietary right from any place where it is embedded in the Audio Content or avoid, bypass, remove, or impair any technological measure that effectively controls access to the Audio Content;
sub-license, re-sell, rent, lend, assign, gift, or otherwise transfer or distribute to third-parties Audio Content that is not Synchronized or combined with visual components or other audio or musical elements as permitted in this Agreement;
install and use the Audio Content in more than one location (for example, multiple workstations) at a time or post a copy of the Audio Content on a network server or web server for use by other users;
use or display the Audio Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
use Audio Content, in whole or in part, as an element of a new musical work. For example, you cannot combine Content with your own work and claim copyright in the resulting song
either individually or in combination with others, reproduce the Audio Content in a tangible medium (like a CD or DVD), or an element of the Audio Content: (i) in excess of 2,000 reproductions for the purposes of resale (per section 3(d)12 above), in which event you shall be required to pay an additional royalty fee equal to US $0.10 for each such reproduction in excess of 2,000 reproductions; or (ii) in excess of 50,000 reproductions for any other purposes in which event you shall be required to pay an additional royalty fee equal to US $0.01 for each reproduction which is in excess of 50,000 reproductions.
5. Excess Reproduction Run
In the event you contravene subparagraph 4(a)13 above, you agree to notify us in the event that you (or a combination of you and others involved with you) reproduce the Audio Content, or an element of the Audio Content in a tangible medium (for example CD or DVD) in excess of 50,000 times, or, if the reproduction is for the purposes of re-sale, in excess of 2,000 times. Such disclosure notice must be sent to us each and every month after which the Audio Content, or an element of the Audio Content, has been reproduced in aggregate over the term of this Agreement in excess of the limits. Each such notice must contain the number of reproductions made in any particular month, provided however the first such notice will only require disclosure of those reproductions which are in excess of the permitted limit. We shall invoice you for the fees associated with such excess use and you agree to pay such invoice within 30 days of receipt.
When Audio Content is used in a television or film production, you must give on-screen credit to the artist as follows: Total Soundtrack, Inc., ©membername, title. You must give similar attribution to the artist for every other use of Audio Content: (i) except where technological constraints make it unreasonable to give such attribution (for example, short radio advertisements); or, (ii) unless applicable law permits otherwise.
7. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Audio Content, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Audio Content for any purpose. The Agreement also terminates without notice from us if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Audio Content and for any purpose, except for purposes outlined under the Permitted Uses section which were initiated during the term; (ii) destroy or delete all copies and archives of the Audio Content or accompanying materials; and (iii) if requested, confirm to us in writing that you have complied with these requirements.
(b) We reserve the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Audio Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Audio Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Audio Content. You agree not to use the replaced Audio Content for future products and to take all reasonable steps to discontinue use of the replaced Audio Content in products that already exist. Notwithstanding the foregoing, if the Audio Content is embodied in a product which, in the our view cannot be modified following completion (like a film or television production), we may permit you to use the Audio Content in such product provided that in every case you shall indemnify, defend and hold harmless the TotalSoundtrack.com Parties (defined below) from and against any and all claims, liability, losses, damages, costs, and expenses (including reasonable legal fees on a solicitor and client basis) arising as a result of such use.
(c) Upon notice from us, or upon your knowledge that any Audio Content is subject to a threatened, potential or actual claim of infringement of another's right for which we may be liable, you must immediately and at your own expense (i) stop using the Audio Content; (ii) delete or remove the Audio Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients or ISPs do likewise. We shall provide you with replacement Audio Content (which shall be determined by us in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
8. TotalSoundtrack.com Representations and Warranties
(a) We warrant that your use of the Audio Content in accordance with this Agreement and in the form delivered by us will not infringe on any copyright or other intellectual property right and will not violate any right of privacy or right of publicity.
(b) While we have made reasonable efforts to correctly categorize and keyword the Audio Content, we do not warrant the accuracy of such information.
(c) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 8(a), THE AUDIO CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT THE AUDIO CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PERFORMING RIGHTS FEES OR OTHER SIMILAR FEES WILL NOT BE PAYABLE BY YOU. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE AUDIO CONTENT IS WITH YOU. SHOULD THE AUDIO CONTENT PROVE DEFECTIVE, YOU (AND NOT TOTALSOUNDTRACK.COM) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
(d) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
9. TotalSoundtrack.com Indemnification and Limitation Liability
(a) Provided that the Audio Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 8(a) above, we shall, subject to the terms of Sections 9 (b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries, and affiliates and respective directors, officers, and employees from all damages, liabilities, and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of its representations and warranties set forth in Section 8(a) above. The foregoing states our entire indemnification obligation under this Agreement.
(b) The indemnification set out in Section 9(a) above is conditioned on your prompt notification in writing to us of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with us in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. We shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
(c) IN NO EVENT SHALL TOTALSOUNDTRACK.COM OR ANY OF ITS AFFILIATES OR AUDIO CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT, OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE AUDIO CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER LEGAL THEORY. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THE AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, WE SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS, OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE AUDIO CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF TOTALSOUNDTRACK.COM UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME AUDIO CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER, AND THE OBLIGATION OF TOTALSOUNDTRACK.COM UNDER SECTION 9(a), SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) US DOLLARS. FOR GREATER CLARITY, OUR LIABILITY TO YOU IN RESPECT OF THE AUDIO CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME AUDIO CONTENT FROM US.
(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. Your Indemnification
You agree to indemnify, defend and hold TotalSoundtrack.com, its affiliates, its Audio Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “TotalSoundtrack.com Parties”) harmless from and against any and all claims, liability, losses, damages, costs, and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any TotalSoundtrack.com Party as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this Agreement.
11. General Provisions
(b) Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is not assignable by you without our prior written consent. We may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Audio Content, pursuant to this Agreement.
(f) This Agreement will be governed under the laws of the State of Tennessee, and the federal laws of the United States applicable therein, without regard to either jurisdictions’ conflicts of law provisions. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Audio Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
(g) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of the American Arbitration Association by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Nashville, TN, and shall be conducted in the English language.
(h) This is the entire agreement between the parties with respect to the subject matter hereof and this Agreement cannot be amended or otherwise modified except by an agreement in writing signed by both parties. This Agreement shall be binding upon the parties and enure to the benefit of their heirs, executors, personal representatives, successors, and permitted assigns. Nothing in this Agreement shall be deemed to have created a joint venture, partnership or employment relationship between the parties.
(i) The parties have requested that this Agreement and all related documents be drawn up in English.
(j) By indicating by checking the box at the end of this agreement “I Agree” or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download any Audio Content.
If you have concerns relating to this Agreement, please contact us at email@example.com at (615) 544-5006.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF TOTALSOUNDRACK.COM AGREEING TO PROVIDE THE AUDIO CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND TOTALSOUNDTRACK.COM, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND TOTALSOUNDTRACK.COM RELATING TO THE SUBJECT OF THIS AGREEMENT.