iMuze SAAS Services Agreement
This SaaS Services Agreement (“Agreement”) is entered into on this twenty second day of February, 2016 (“Effective Date”) between iMuze Inc. a Delaware corporation with a place of business at 169 11th Street, San Francisco, CA 94103 (“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations.
Terms and Conditions
SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer access to Company’s API, where the API permits Customer to utilize Company’s service for automatic composition of original musical works (“Service”), such access to be provided in accordance with the Service Level Terms attached hereto as Exhibit A. Company shall provide Customer with account credentials (“Account Credentials”) that will permit Customer to access Company’s API and use the Service. Company reserves the right to temporarily suspend the Account Credentials, at Company’s sole discretion, for technical or security reasons.
Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.
RESTRICTIONS AND RESPONSIBILITIES
Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Company’s standard published policies then in effect (the “Policy”), the terms of this Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Service. Although Company has no obligation to monitor Customer’s use of the Service, Company may do so and may prohibit any use of the Service it believes may be (or is alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Company allows Customer to download original compositions (“Downloaded Work(s)”) generated by Company’s Service and accessible to Customer via Company’s API, where such Downloaded Works are licensed under the terms of this Agreement, including without limitation the terms listed in Exhibit C.
Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the termination of this Agreement) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
Customer shall pay Company the then applicable fees described in the Order Form and associated Exhibits for the Service and any Downloaded Works in accordance with the terms herein (the “Fees”). If Customer’s use of the Service exceeds the Service Capacity set forth on the Order Form (i.e., Exhibit A) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be invoiced for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). For the purpose of clarity, additional fees following the Initial Service Term have been provided in Exhibits E and F herein. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company in writing no later than 60 days after the closing date of the billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Full payment for invoices issued to Customer in any given month must be received by Company net thirty (30) days from the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure to pay amounts due net sixty (60) days from the date of invoice will be considered a material breach of this Agreement, where, upon written notice to Customer of such breach, this Company may terminate this Agreement with immediate effect. Customer shall be responsible for all taxes associated with the Service other than U.S. taxes based on Company’s net income.
TERM AND TERMINATION
The term of this agreement is the Initial Service Term, which shall be automatically extended by thirty (30) day periods, unless either party requests in writing termination at least thirty (30) days prior to the end of the then-current term (collectively “Term”). This Agreement shall terminate at the end of the Term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days notice (or in the case of nonpayment as directed above), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Service up to and including the last day on which the Service is provided. Upon any termination, all works generated by Company’s Service (Downloaded Works and works generated but not yet downloaded) shall be available for purchase by Customer for a period of thirty (30) days following termination for a fee per Downloaded Work, refer to Exhibit C for purchase terms. However, thirty (30) days following termination of this Agreement Company may, at its sole discretion, delete any stored work generated by Company’s Service resulting from Company’s use of the Service.
All sections of this Agreement, which by their nature survive termination of this Agreement, shall survive termination, including, without limitation, accrued rights to payment, copyright ownership rights, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service and access thereto via Company’s API in a manner which minimizes errors and interruptions in the Service and access thereto. The Service and/or access thereto may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICE OR ACCESS THERETO WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
Company warrants it has the necessary ownership rights to provide the Service as provided herein. Company further warrants it has the necessary ownership rights in any work generated by the Service resulting from Customer’s use of the Service to grant the licenses herein.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable in Company’s sole discretion, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions, and any action between the parties shall be brought in a California court with competent jurisdiction.
The parties shall work together in good faith to issue at least one mutually agreed upon press release within 30 days of the last signature on this Agreement, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
Downloaded Works License Terms
- Territory & Exclusivity: world wide non-exclusive license
- License Limitations & Expiration:
- During the Term of this Agreement Customer may incorporate a Downloaded Work into one or more video works as a soundtrack for the one or more videos created by Customer’s product (“Licensed Videos”).
- After termination of this Agreement Customer may not incorporate a Downloaded Work into any video other than the then existing Licensed Videos, unless the Downloaded Work is purchased under Paragraph 5 below of this Exhibit.
- Licenses to Downloaded Works in Licensed Videos, subject to the terms herein, are perpetual.
- Royalty: Licenses granted hereunder are fully paid upon payment of all fees required herein.
- Copy Limitations: Customer may store copies of one or more Downloaded Works (“Copies”) on Customer’s server, where Copies are subject to the following terms
- All Copies of the Downloaded Works are to be deleted or destroyed (“Destruction”) upon termination of this Agreement, with a certification by Customer to Company that such Destruction has occurred, such certification to be supplied no later than 30 days following termination of this Agreement.
- Purpose of Copies is to integrate the Downloaded Works in the Customer’s video processing back-end and eventually as soundtrack to a video
- Purchase Post Termination: A world-wide perpetual, nonrevocable, fully paid, nonexclusive license to Downloaded Works solely for incorporation into videos in accordance with the applicable license terms of this Agreement may be purchased following termination of this Agreement for $10/Downloaded Work (“Purchased Downloaded Work”). Subject to applicable terms of this Agreement, Customer may incorporate a Purchased Downloaded Work into an unlimited number of videos.
- Use Restrictions:
- Use of any Downloaded Work by Customer and its users is strictly limited to creating a Licensed Video, performance of the Licensed Video over the internet. Customer or its users have no rights to create derivative works of the Downloaded Works, or to use, reproduce, or publicly perform the Downloaded Work except for the limited use licensed herein.
- Distribution of copies of the Downloaded Work, either alone or as a soundtrack to a video, is strictly prohibited. License rights to Downloaded Works are limited to only those expressly licensed herein.
- Company exclusively owns all copyright and publishing rights to all Downloaded Works, and no transfer of such ownership rights is made by this Agreement or License.
- Customer is solely responsible that its users and any third parties receiving, using or performing Downloaded Works in Licensed Videos are bound to license terms at least as restrictive as those of this Agreement.
- Customer may not sublicense a Downloaded Work (or otherwise make it available) as part of any competing product, such as but not limited to a music compilation or music library.
- Customer may not sublicense any Downloaded Work by itself or as part of a package except as incorporated into a Licensed Video and is solely for use by Customer or its users.
- Customer may permit performance of a Downloaded Work as part of a Licensed Video on YouTube or other similar video sharing site but Customer or its users may not claim ownership of the Downloaded Work (or otherwise make it available), e.g., through YouTube’s Content ID, in any manner.
- Customer or its users shall provide copyright notice in a commercially acceptable manner for any Downloaded Work on a Licensed Video. Such notice, at a minimum, shall notify the end user of restrictions on unauthorized use, distribution or copying of the copyrighted Downloaded Work.