Total Soundtrack Inc. Membership Agreement

THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND TOTALSOUNDTRACK.COM, AS IDENTIFIED IN SECTION 10.10 BELOW ("TOTAL SOUNDTRACK"). THIS AGREEMENT APPLIES TO SUBSCRIPTIONS PURCHASED VIA THE WEB, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF CONTENT. BY ORDERING A SUBSCRIPTION, YOU ARE CONFIRMING THAT YOU HAVE CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.

1. Definitions. In this Agreement the following definitions apply:

1.1 "Invoice" means the computer-generated or pre-printed standard form invoice provided by Total Soundtrack that shall include, without limitation, the company name, the subscription selected and the corresponding price for the subscription ("Subscription Fee"). The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.

1.2 "Content" means any media or other material that you are downloading from TotalSoundtrack.com or otherwise receiving from Total Soundtrack, together with any accompanying material. Any reference in this Agreement to the Content shall be to each individual item within the Content and also to the Content as a whole.

1.3 "User" means the individual who: (i) downloads, manipulates, edits, modifies, or saves the digital file containing the Content; (ii) is otherwise directly involved in the creative process utilizing the Content; or (iii) incorporates the Content within any derivative work.

1.4 “You” means you, or, except in respect of Section 3.3, if you are accepting this Agreement on behalf of your employer, client or member account entity, then “you” means that employer, client or entity.

2. Grant of Rights. Subject to the terms of this agreement:

2.1 Total Soundtrack grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide right to access the Total Soundtrack subscription and display, use, reproduce, publish, alter, and manipulate the Content made available to you through the subscription pursuant to the terms of the Audio Content License in effect at the date of download (or other delivery to the Licensee) of the Content. Total Soundtrack reserves the right, in its discretion, to change or modify all or any part of the Audio Content License at any time, effective upon being published on TotalSoundtrack.com. The Audio Content License shall be incorporated into this Agreement and all references to the Agreement shall include the Audio Content License.

2.2 NOTWITHSTANDING ANYTHING ELSE IN THE Audio Content License, YOU ARE GRANTED A ONE (1) PERSON SEAT LICENSE FOR USE OF THE CONTENT FOR EACH USER SEAT PURCHASED. THIS IS NOT A SIMULTANEOUS USE LICENSE. ONLY ONE (1) USER MAY ACCESS THE TOTAL SOUNDTRACK SUBSCRIPTION OR USE CONTENT, AS APPLICABLE. A User may not download Content and share such Content with a non-User or act as a designated downloader who shares Content with non-Users.

3. Restrictions.

3.1 You may not share or disclose any password to any other user or third party other than as specifically provided for herein and you agree to hold all passwords for any subscription in the strictest of confidence. If you breach any provision of this section, Total Soundtrack shall be entitled to (i) terminate this Agreement immediately, (ii) retain all payments paid pursuant to this Agreement, and (iii) seek any legal or equitable remedies.

3.2 You may not download more than the permitted number of downloads of Content authorized under the subscription plan purchased by you. You shall not stockpile, download, or otherwise store Content not used during the Term for future use. Total Soundtrack may (a) monitor, as frequently as it determines, anything you download from TotalSoundtrack.com, (b) track any abuse of your username(s) and password(s), and (c) suspend or terminate your subscription, without notice, if it believes there is a violation of this Agreement and/or any abuse or sharing of your username and password.

3.3 Where you are licensing Content on behalf of an employer, client or other entity, you hereby represent and warrant that: (i) you are authorized to act as an agent on behalf of such employer, client, or other entity and have full power and authority to bind such employer, client, or other entity to this Agreement; and (ii) if such employer, client or other entity subsequently disputes such power or authority, you shall be bound and liable for any failure of such employer, client, or other entity to comply with this Agreement. Nothing in this Section 3.3 shall serve to excuse your obligation to make payment to Total Soundtrack of the cost of the Subscription.

4. User Accounts.

Total Soundtrack will provide you with a number of User accounts as specified in the Invoice, to access Content on the Total Soundtrack website. You will be responsible for tracking all activity for each User account and shall, furthermore: (a) maintain the security of all passwords and identifications issued in connection with each User account; (b) notify Total Soundtrack immediately of any unauthorized use of any User account or other breach of security; (c) accept all responsibility for any and all activities that occur under each User account; and (d) accept all risks of unauthorized access to the User accounts by individuals acting or purportedly acting on your behalf.

5. TOTAL SOUNDTRACK REPRESENTATIONS AND WARRANTIES, LIMITATION OF LIABILITY

5.1 EXCEPT AS SPECIFICALLY PROVIDED FOR IN THE Audio Content License, TOTAL SOUNDTRACK DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONTENT OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5.2 ALL WEBSITES OF TOTAL SOUNDTRACK AND ITS DIVISIONS AND AFFILIATE COMPANIES AS WELL AS FEED(S) AND SIMILAR ELECTRONICALLY-DELIVERED CONTENT WILL BE PROVIDED BY TOTAL SOUNDTRACK ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU ACKNOWLEDGE THAT WEBSITES AND PRODUCTS MAY BE SUBJECT TO TEMPORARY SHUTDOWNS FROM TIME TO TIME FOR MAINTENANCE OR DUE TO CAUSES BEYOND REASONABLE CONTROL AND THAT TOTAL SOUNDTRACK SHALL NOT HAVE ANY LIABILITY TO YOU BY REASON OF SUCH SHUTDOWNS. UNDER NO CIRCUMSTANCES SHALL TOTAL SOUNDTRACK OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING SUCH WEBSITES OR PRODUCTS BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM YOUR USE OR INABILITY TO USE THE SAME, INCLUDING, BUT NOT LIMITED TO, THE RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR ELECTRONIC MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS THERETO.

5.3 TOTAL SOUNDTRACK SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF TOTAL SOUNDTRACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON YOUR BEHALF MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. WITHOUT LIMITING ANY OTHER TERM HEREIN, TOTAL SOUNDTRACK SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH CONTENT IS USED BY YOU.

6. Your Indemnification. You shall defend, indemnify and hold harmless Total Soundtrack and its parent, subsidiaries, and commonly owned or controlled affiliates and their respective officers, directors, and employees from all damages, liabilities and expenses (including reasonable outside attorneys' fees), arising out of or as a result of claims by third parties relating to any actual or alleged breach by you of this Agreement.

7. Interest on Overdue Invoices. If you fail to pay the Invoice in full within the time specified in the Invoice, Total Soundtrack may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.

8. Unauthorized Use and Termination. Any use of Content in a manner not expressly authorized by this Agreement, which includes the Audio Content License, (including, without limitation, access to the Total Soundtrack subscription and use of Content by more than one (1) User without purchase of additional seat licenses and use of any Content not incorporated into an end product, service, campaign, or publication using independent skill and effort prior to the date which is 30 days following the end date of your subscription) constitutes copyright infringement, entitling Total Soundtrack to exercise all rights and remedies available to it under copyright laws around the world.

You shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. Total Soundtrack reserves the right to terminate this Agreement in the event you: (i) enter this Agreement after having received notice of unauthorized use from Total Soundtrack relating to the Content; (ii) fail to pay the Subscription Fee in full within the time specified in the Invoice; or (iii) otherwise breach the terms of these Subscription Terms. Upon termination, you must immediately (I) stop using the Content; and (II) destroy or, upon the request of Total Soundtrack, return to Total Soundtrack the Content and, in the case of termination by Total Soundtrack for cause, any product, service, campaign, or publication embodying the Content in your possession or control.

9. Subscription Cancellation. If you request in writing to cancel a subscription within 7 days of the date of purchase and provided that you have downloaded no more than two (2) items of Content and have made no use of any Content since the date of purchase, then Total Soundtrack shall cancel the applicable subscription and issue a 100% credit to your account or credit card. In the event of such cancellation, the Grant of Rights under Section 2 and the Audio Content License(s) shall be revoked, and you shall immediately delete and/or remove the Content from its premises, computer systems, and storage (electronic or physical). Any use of Content acquired pursuant to a subscription that has been cancelled shall constitute unauthorized use and shall be subject to the terms set forth in Section 8.

10. Miscellaneous Terms.

10.1 Audit/Certificate of Compliance. Upon reasonable notice, you shall provide sample copies of uses of the Content to Total Soundtrack. In addition, upon reasonable notice, Total Soundtrack may, at its discretion, either through its own employees or through a third party, audit your records directly related to this Agreement and use of Content in order to verify compliance with the terms of this agreement. If any such audit reveals an underpayment by you to Total Soundtrack, in addition to paying Total Soundtrack the amount of such underpayment, you shall also reimburse Total Soundtrack for the costs of conducting such audit. Where Total Soundtrack reasonably believes that Content is being used by more than the authorized number of Users, or that Content is being used outside of the scope of the license granted under this Agreement, you shall, at Total Soundtrack’s request, provide a certificate of compliance signed by you (and if you are a corporate entity, one of your officer’s), in a form to be approved by Total Soundtrack.

10.2 Electronic Storage. For all Content that you take delivery of in electronic form, you must retain the copyright symbol, the name of Total Soundtrack, the Content's identification number, and any other information as may be embedded in the electronic file containing the original Content. You shall maintain a robust firewall to safeguard against unauthorized third-party access to the Content.

10.3 Withdrawal. Total Soundtrack makes no representations or warranties that all Content and/or Content collections will be available for use during the Term. Total Soundtrack may discontinue licensing certain Content and/or Content collections in its sole discretion.

10.4 Governing Law. This Agreement will be governed under the laws of state of Tennessee and the federal laws of the United States applicable therein (without reard to conflicts of laws 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 Content was downloaded, or such other address as you may advise us in writing to use, from time to time.

10.5 Arbitration. 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 and confidentially settled under the Rules of 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. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. The judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. Notwithstanding the foregoing, Total Soundtrack shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Total Soundtrack, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.

10.6 Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.

10.7 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

10.8 Entire Agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Total Soundtrack and accepted in writing by your authorized representative. Notwithstanding the foregoing, Total Soundtrack reserves the right to change any of the terms of this agreement at any time, and you agree to be bound by such changes. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, this Agreement shall govern.

10.9 Taxes. Licensee agrees 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 Content, pursuant to this or the Audio Content License.