1. Certain Definitions
1.1 “Agreement” shall mean this Licence Agreement between Us and You.
1.2 “Infringing Use” shall mean any use not expressly permitted herein.
1.3 “Intellectual Property” shall mean any and all of the following anywhere in the universe and any and all legal rights, title, or interest in the following arising under the laws of the United States, any state, or any other country or international treaty regime, whether or not filed, perfected, registered or recorded and whether now or later existing, filed, issued or acquired, including all renewals, extensions, continuations, restorations and reversions: (i) copyrights; (ii) rights of paternity, integrity, disclosure, and withdrawal, and any and all other rights that may be known or referred to as “moral rights,” in any of the foregoing; (iii) all derivatives, enhancements and improvements of any of the foregoing; and (iv) any other proprietary rights relating to intangible property.
1.4 “Licensed Music” shall mean the musical works, including, but not limited to musical composition, score, recordings, performances, and any arrangements, adaptations, versions, and editions thereof made available to subscribing users on the Ebeatz Service.
1.5 “Permitted Platforms” shall mean social media and/or social networking sites that facilitate the creation and sharing of information, ideas and other forms of expression in virtual communities and networks in accordance with the Digital Millennium Copyright Act and other applicable copyright laws, such as YouTube, Facebook, Instagram as well as interactive gaming sites, such as Twitch.
1.6 “User Content” shall mean any pre-recorded audio-visual works, recordings, videos, or other projects or content created or generated by You and solely owned by You. You retain all rights in, and are solely responsible for Your User Content and the consequences of posting or publishing it with or without the Licensed Music.
2. LICENCE, RIGHTS & RESTRICTIONS
2.1 Licence and Rights. The Ebeatz Service is owned by Ebeatz. Unless otherwise indicated, all content, information, and data contained on the Ebeatz Service including but not limited to the Licensed Music are the Intellectual Property of Ebeatz, and are protected by relevant intellectual property laws, and remain the property of Ebeatz after You purchase the Ebeatz Service. Subject to the provisions contained in this Agreement, We hereby grant to You a revocable, non-exclusive, and non-transferable licence to access and use the Ebeatz Service and Licensed Music for Your personal, non-commercial use as provided under this Agreement. Any rights not specifically granted herein are reserved by Ebeatz. The license is extended to customers who purchase a subscription to the Ebeatz Service as a primary user or are purchasing on behalf of another primary user (i.e., as a gift). The duties and obligations under this Agreement are binding on all users of the Ebeatz Service. As long as You remain a subscribing user in good standing, You are permitted to access and use the Ebeatz Service and any and all Licensed Music (with no restriction as to time or duration of use), solely for private personal listening or for synchronization in timed relation to Your User Content including, but not limited to, video, streams, gaming content, and/or any other creations solely for use, submission, transmitting, displaying, publishing, performing or posting on Permitted Platforms. However, You shall not add any other musical or non-musical elements to the Licensed Music, or use the Licensed Music with any User Content, which violates or infringes the rights of any third party.
2.2 Restrictions. Notwithstanding anything to the contrary herein, You shall use the Licensed Music only for purposes specifically set forth herein, and, further, You expressly agree that You DO NOT have rights to: (a) own title, or transfer title to the Licensed Music to any third party; (b) copy, reproduce, distribute, sublicense or otherwise pledge any rights in relation to the Licensed Music to any third party or otherwise perform any act inconsistent with Ebeatz’s ownership of the Intellectual Property, including but not limited to, the Licensed Music; (c) edit, alter, enhance, change or modify the Licensed Music; (d) electronically transfer, upload, or share the Licensed Music with third parties outside the scope of the Permitted Platforms for any purpose not specifically within the scope of the license granted by Ebeatz; (e) play, perform, broadcast, publish or display the Licensed Music, in whole or in part, in public where admission is charged; (f) sell, assign, rent or lease or in any way derive a commercial gain from the Licensed Music, including but not limited to User Content containing the Licensed Music; (g) reverse-engineer, decompile, disassemble, create substantially derived forms of the Licensed Music or use any data mining, robots or similar data gathering or extraction methods to obtain the Licensed Music or gain access to the source code of the Ebeatz Service or Licensed Music; (h) use the Licensed Music in the production of any sample library or any other like products; or (i) use the Licensed Music in any manner which is out of context or not in synchronization with Your User Content.
2.3 Enforcement of Restrictions. We shall have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions. Once You are notified of any Infringing Use any continued use, or exploitation of the Licensed Music or any derivative work based upon the Licensed Music will constitute ongoing and further willful infringement of Ebeatz’s rights which will entitle Ebeatz to seek additional damages against You. Ebeatz uses certain computer code, software or algorithms to collect information about the usage of the Licensed Music and Ebeatz Service. Ebeatz uses the information to protect Our rights, enforce Our policies, and ensure that You comply with copyright and other applicable laws.
2.4 Revocation of License. At Our sole discretion, We shall have the right to disable, suspend or terminate your subscription to the Ebeatz Service and revoke the license granted to You herein, at any time, without notice, including, but not limited to where We consider that (a) Your use of the Ebeatz Service or Licensed Music violates these Terms of Service or applicable law, including applicable copyright and intellectual property laws; (b) Your use of the Ebeatz Service or Licensed Music is obscene, defamatory, offensive, or promotes racism, bigotry, hate or physical harm of any kind against any group or individual; or (c) We are unable to continue providing the Ebeatz Service to You due to technical or legitimate business reasons.
2.5 Our Obligations. Upon purchase of a subscription and execution of this Agreement, We will: (a) permit You access to and use of the Ebeatz Service and Licensed Music for Your use on Permitted Platforms under this Agreement; and (b) provide You from time to time with updates to the Licensed Music at our sole discretion. However, We shall have no other obligations to provide updates or support services to You. Ebeatz takes no responsibility and assumes no liability for any of Your User Content or for any loss or damage resulting therefrom. Your use of the Ebeatz Service is at Your own risk. Ebeatz is not liable for any statements or representations included in Your User Content. Ebeatz does not endorse any User Content, opinion, recommendation or advice expressed therein, and Ebeatz expressly disclaims any and all liability in connection with Your User Content.
3. INTELLECTUAL PROPERTY AND TITLE.
You hereby acknowledge that You are not acquiring any ownership in Intellectual Property hereunder, whether in the Licensed Music or any other content on the Ebeatz Service such as graphics, logos and/or code contained on the Ebeatz Service. You agree to protect the Intellectual Property, including but not limited to the Licensed Music, from unauthorized use, reproduction, distribution or publication in electronic or physical form.
4. WARRANTY, INDEMNIFICATION AND DISCLAIMERS
4.1 Warranty. We warrant that We are the owner of the Licensed Music or We are authorized to use and permit the use of the Licensed Music as set forth herein, and have the right and authority to grant the licence to the Licensed Music. We do not warrant, guarantee, accept any condition or make any representation that the Licensed Music will meet Your requirements or that the use of the Licensed Music will be uninterrupted or without error. We will occasionally restrict your access to the Ebeatz Service to carry out maintenance or repairs, and We will endeavour to keep disruption to a minimum.
4.2 Indemnification. You agree to indemnify, defend, and hold harmless Ebeatz, its contractors, employees, agents and its suppliers, companies, contractors, independent hires, employees, agents, licensors, licensees, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the Ebeatz Service, the Licensed Music, the User Content You post, publish, store or otherwise transmit, Your violation of the rights of any third party, any violation by You of the terms of service of this Agreement, or any breach of the representations, warranties, and covenants made by You herein. Ebeatz reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Ebeatz, and You agree to cooperate with Ebeatz’s defense of these claims. Ebeatz will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
4.3 DISCLAIMER. THERE ARE NO WARRANTIES FOR SERVICES. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES, EXCEPT THOSE EXPRESSLY STATED IN SECTION 4.1 ABOVE. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY AND REMEDIES
5.1 LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE EBEATZ SERVICE OR THE LICENSED MUSIC REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS UNDER THIS AGREEMENT, OR THE LICENSE PROVIDED HEREUNDER, WILL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO US TO USE THE EBEATZ SERVICE. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT.
6. SUCCESSORS AND ASSIGNS.
This License is personal to You and strictly subject to the exercise of the rights set out herein. You shall not have any right to assign or otherwise transfer the rights or delegate the duties under this Agreement to any third party at any time. Any attempt to do so shall be null and void, ab initio. Ebeatz shall have the right to assign the Agreement or any part thereof without Your consent.
The term of this Agreement will commence upon on the date You agree to these Terms and shall continue for the duration of Your use of the Ebeatz Service.
The terms and conditions of this Agreement are confidential and shall not be disclosed to any third party without Our consent except to the extent as may be required by law or as necessary to effectuate or enforce this Agreement.
9.1 Consents. Any consent required under this Agreement will not be unreasonably withheld.
9.2 Captions. The paragraph or section headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
9.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties. You acknowledge that You have read and understand the terms and conditions set forth in this Agreement.
9.4 Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
9.5 Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
9.6 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein is intended to constitute such a partnership or joint venture. Except as expressly provided herein, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
9.7 Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
9.8 Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
9.9 Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, or electronic mail, with confirmation of receipt. Our address is: P.O. box 7619 Bloomfield Hills Michigan 48302-7619, and firstname.lastname@example.org.
9.10 Governing Law. This Agreement and the rights and obligations of the parties hereto shall be governed by and construed and enforced in accordance with the substantive laws of the State of Michigan without regard to any conflicts of law provisions thereof that would result in the application of the laws of any other jurisdiction. The federal and state courts, and/or any arbitration tribunal situated in the State of Michigan, County of Wayne shall have sole and exclusive jurisdiction and venue of any and all controversies regarding or arising from this Agreement, and each of the parties hereto hereby expressly consents and submits to personal jurisdiction, and waives any objection based upon lack of personal jurisdiction, lack of subject matter jurisdiction, forum non conveniens, venue or any similar ground.
9.11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON ANY MATTER ARISING OUT OF, OR IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT.
9.12 Revisions to this Agreement. We may amend the terms of this Agreement at any time by posting the amended terms on the Ebeatz Service or by providing you notice of any changes. It is Your responsibility to review these Terms from time to time to check if they have been amended. The effective date of each new version of the Terms will be included at the bottom of the Terms page. Your continued use the Ebeatz Service after We have posted any amended terms shall constitute Your acceptance of Our updated Terms. You may terminate the Ebeatz Service if you do not accept these amendments.
Effective as of August 7, 2018