---Exclusive---
MUSIC AGENT SERVICE FOR COPYRIGHT OWNERS AND SOUND RECORDING OWNERS
This LICENSE REQUEST SUPPORT SERVICE FOR COPYRIGHT OWNERS AND SOUND RECORDING OWNERS (the "Agreement") is a binding agreement between Audilus, Inc. d/b/a Audilus ("Audilus", "us", or "we") and _______________ ("Client", "you", or "your"). This Agreement is effective upon full execution and delivery by the parties hereto (the "Effective Date").
1. APPOINTMENT; GRANT OF RIGHTS. You hereby appoint Audilus, its successors, licensees, and assigns during the Term, the exclusive right to seek, solicit, receive, evaluate, and manage license requests on your behalf (the "Service") throughout the universe (the "Territory"), and to act as your authorized representative to do the same, with respect to all of your right, title, and interest in and to the musical composition(s) and sound recording(s) covered under this Agreement (the "Client Catalog"), and to describe itself as your "authorized representative" in promotional, advertising, and marketing materials in connection with the Service. You hereby grant Audilus a limited, non-exclusive, non-transferable and non-sublicensable, royalty-free license in the Territory during the Term to use Client intellectual property including, but not limited to, Client trademarks, copyrights, and other intellectual property whether registered or unregistered, to market and promote Client Catalog in connection with the Service.
2. CLIENT INFORMATION. You agree to provide Audilus with accurate, complete, and timely information, including, but not limited to, information related to Client Catalog, to obtain access to the Service. If at any time this information changes or if you learn or suspect that such information is inaccurate, in whole or in part, you agree to immediately notify Audilus at licensing@audilus.com. Any assignment, encumbrance, or other transfer of Client Catalog will remain subject to this Agreement during the Term. A purported assignment, encumbrance, or other transfer not in accordance with this paragraph will be void and without effect ab initio.
3. LICENSES. You or your designee will be the contracting party in any license entered into in connection with the Service. You acknowledge that the license term of individual licenses may extend beyond the Term, including in perpetuity, and you authorize Audilus to solicit, evaluate, manage, and/or obtain such licenses on your behalf.
4. THIRD PARTY CLEARANCES. You will be responsible for obtaining and paying for any and all clearances or licenses required for the use of Client Catalog. Without limiting the generality of the foregoing, you shall be responsible for and shall pay: (i) any royalties and other sums due to artists (featured and non-featured), authors, co-authors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Client Catalog; (ii) all mechanical royalties or other sums payable to music publishers and/or authors or co-authors of musical compositions embodied in Client Catalog from sales or other uses of Client Catalog; (iii) all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or SAG-AFTRA); and (iv) any other royalties, fees, and/or sums payable with respect to Client Catalog or other materials provided by you to us. You agree that the amount payable to you is inclusive of any so-called "artist royalties" that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays, or communications to the public of the sound recordings and musical works constituting Client Catalog. To the extent permitted by law, you hereby waive any so-called "moral rights" in Client Catalog applicable under the laws of any jurisdiction.
5. PAYMENT.
(a) Client Payment. Audilus shall pay Client sixty percent (60%) of "Net Sums," which, as used herein, shall mean all monies actually received by Audilus in the United States which are directly attributable to the exploitation of Client's interest in Client Catalog, less all actual, reasonable, non-overhead costs paid or incurred by Audilus solely in connection with the exploitation of Client Catalog and the collection of income.
(b) Service Fee. Audilus shall retain forty percent (40%) of Net Sums for itself as payment for the Service. Audilus may withhold any and all payment of Net Sums owing to Client that Audilus disputes in good faith, pending resolution of such dispute, provided that Audilus: (i) timely renders all payments and amounts that are not in dispute; (ii) notifies Client of the dispute prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Client in good faith to promptly resolve the dispute; and (iv) promptly pays any amount determined to be payable by resolution of the dispute. In the event that Audilus has, in its reasonable business judgment, reason to suspect that your account has been subjected to and/or involved in fraudulent activities, Audilus reserves the right to withhold Net Sums owing to Client until satisfactory resolution and/or explanation of the suspect activities is obtained.
6. ACCOUNTING. Audilus will use commercially reasonable efforts to pay Net Sums owing to Client within 30 days of the later of (a) the date the license agreement is fully executed or (b) the date Audilus actually receives payment from licensee. You understand and agree that Audilus' obligation to pay you is contingent upon Audilus' receipt of payment from licensee. All statements and all other accounts rendered by Audilus to Client shall be binding upon Client and not subject to any objection for any reason unless specific objection in writing, stating the basis thereof, is given to Audilus within three (3) months from the date rendered. No generalized objection (such as, but not limited to, a generalized claim of overreporting of deductions or underreporting of income or any similar generalization) shall be deemed a valid objection.
7. NO GUARANTEE OF INCOME. You acknowledge that any exploitation of musical compositions and/or sound recordings is speculative, and that Audilus cannot guarantee that Client Catalog will be exploited at all or that any Net Sums will be generated or earned hereunder. You waive all claims and warrant, represent, and agree that you will not make any claim, nor will any liability be imposed upon Audilus based upon a claim, that more Net Sums could have been generated or better business achieved than that which was actually generated or achieved by Audilus and/or its licensees.
8. CONFIDENTIAL INFORMATION. From time to time during the Term, either party (as the "Disclosing Party") may disclose or make available to the other party (as the "Receiving Party") information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party. The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any person or entity, except to the Receiving Party's employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Receiving Party making the disclosure pursuant to the order shall first have given written notice to the Disclosing Party and made a reasonable effort to obtain a protective order. The Receiving Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9. TERM; TERMINATION. The "Term" shall commence upon the Effective Date and shall continue: (a) through the end of the calendar quarter following the calendar quarter during which we receive your valid cancellation notice in accordance with this Section or (b) until Audilus terminates the Term. You may cancel the Term at any time by sending an email to licensing@audilus.com with a request to cancel the Service along with your email address. Cancellation shall be effective at the end of the calendar quarter in which we receive such cancellation notice, subject to our collection rights. If you fail, or Audilus suspects that you have failed, to comply with any of the provisions of this Agreement, Audilus, at its sole discretion, may terminate this Agreement and/or your account, in which case you will remain liable for all amounts due under your account up to and including the date of termination. Audilus may also terminate the Term if we no longer provide the Service or for any other reason. After the Term, Audilus shall continue to have the right to collect all income payable in respect to license agreements for the exploitation of Client Catalog substantially negotiated by Audilus during the Term. We will continue to account to you for all such income pursuant to this Agreement.
10. REPRESENTATIONS AND WARRANTIES. You represent and warrant as follows:
(a) All information you submit to Audilus including, but not limited to, Client Catalog information, is and will remain truthful and accurate and you will notify us immediately if any information changes or needs to be updated. In the event we are put on notice with respect to a discrepancy or any inaccuracy with respect to information provided, we shall have the right to suspend payments generated in connection with the Client Catalog in question until the discrepancy or inaccuracy is resolved to our reasonable satisfaction, without limitation of our indemnity rights as set forth herein.
(b) You have and shall continue to have the full right, capacity, power, and authority to enter into and fully perform this Agreement. Without limiting the foregoing, no consent of any third party is required, nor shall it be required, in order to effectuate the grant of rights made to Audilus under this Agreement, or Audilus's enjoyment of such rights and the proceeds thereof as contemplated hereunder.
(c) Neither the music, title, lyrics, sound recording or other material in any Client Catalog nor any part thereof is or shall be a copy of any other copyrighted work or infringes or shall infringe upon any statutory or common law rights of any third party. Without limiting the foregoing, no Client Catalog nor any part thereof embodies an unlicensed "sample," or "interpolation."
(d) Client Catalog is and shall be free from any adverse claims, liens, or encumbrances of any kind by any person or entity.
(e) Audilus shall not be required to make any payments of any nature for, or in connection with, the exploitation of Client Catalog except as specifically set forth herein.
11. INDEMNIFICATION. You shall at all times defend, indemnify, and hold harmless Audilus and its affiliates and their respective members, employees, affiliates, attorneys, representatives, agents, licensees, and distributors (collectively, the "Indemnitees") from and against any and all claims, liabilities, damages, judgments, losses, costs, and expenses, including actual out-of-pocket legal expenses and attorneys' fees, arising out of: (a) any alleged breach or breach by you of any warranty, representation, or covenant made herein; (b) any act, error, or omission committed by you or any person or entity acting on your behalf (or on whose behalf you are acting) or under your direction or control; or (c) any use or exploitation of Client Catalog. You will reimburse Audilus and/or the other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which Audilus or the other Indemnitees are entitled to be indemnified, or Audilus may elect to deduct any such payments from all sums otherwise due you hereunder.
12. WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND AUDILUS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AUDILUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AUDILUS CANNOT GUARANTEE AND DOES NOT PROMISE ANY REVENUE OR OTHER SPECIFIC RESULTS FROM USE OF THE SERVICE. TO THE EXTENT THESE DISCLAIMERS AND LIMITATIONS ARE LIMITED BY APPLICABLE LAW, THEY SHALL OTHERWISE APPLY TO THE FULLEST EXTENT OF SUCH LAW.
13. LIMITATIONS OF LIABILITY. IN NO EVENT WILL AUDILUS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION, IN EACH CASE REGARDLESS OF WHETHER AUDILUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AUDILUS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID, IF ANY, BY AUDILUS TO CLIENT FOR THE SERVICE IN THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. NO LEGAL ADVICE. AUDILUS IS NOT A LAW FIRM AND ITS EMPLOYEES ARE NOT ATTORNEYS NOR ARE WE AFFILIATED OR ASSOCIATED WITH ATTORNEYS. AUDILUS DOES NOT PRACTICE LAW AND DOES NOT GIVE LEGAL ADVICE OR LEGAL SERVICES OF ANY KIND. AUDILUS, ITS SERVICE, AND/OR ITS FORMS ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY.
15. MISCELLANEOUS.
(a) This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) It is expressly agreed that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture, or agency. Neither party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party.
(c) If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(d) This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(e) Audilus reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. We will inform you of any proposed modifications and you may terminate the Term of this Agreement if you do not wish to accept them. Otherwise, such modifications and additional terms and conditions will be deemed accepted and incorporated into this Agreement.
(f) Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Audilus. Any purported assignment or delegation in violation of this Section will be null and void. Audilus may assign or delegate this Agreement or any or all of our rights and obligations hereunder to one or more third parties without notice to you.
(g) No waiver of any provision or default under this Agreement shall affect Audilus' rights thereafter and no waiver by Audilus shall be deemed a continuing waiver.
(h) This Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. Delivery of an executed counterpart of this Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date.
AUDILUS, INC.
By:__________Othniel Tomtania____________________
Printed Name:_____OTHNIEL TOMTANIA________________
Title:_________President____________________
CLIENT:
AGREED AND ACCEPTED: For clarity, Client’s electronic acceptance of these terms via the Audilus contract signing form linked to the Audilus website constitutes Client’s execution of this Agreement.
MASA2324E
---Non exclusive---
MUSIC AGENT SERVICE FOR COPYRIGHT OWNERS AND SOUND RECORDING OWNERS
This LICENSE REQUEST SUPPORT SERVICE FOR COPYRIGHT OWNERS AND SOUND RECORDING OWNERS (the “Agreement”) is a binding agreement between Audilus, Inc. d/b/a Audilus (“Audilus”, “us”, or “we”) and _______________ (“Client”, “you”, or “your”). This Agreement is effective upon full execution and delivery by the parties hereto (the “Effective Date”).
1. APPOINTMENT; GRANT OF RIGHTS. You hereby appoint Audilus, its successors, licensees and assigns during the Term, the non-exclusive right to seek, solicit, receive, evaluate, and manage license requests on your behalf (the “Service”) throughout the universe (the “Territory”), and to act as your authorized representative to do the same, with respect to all of your right, title and interest in and to the musical composition(s) and sound recording(s) covered under this Agreement (the “Client Catalog”) , and to describe itself as your “authorized representative” in promotional, advertising, and marketing materials in connection with the Service. You hereby grant Audilus a limited, non-exclusive, non-transferable and non-sublicensable, royalty-free license in the Territory during the Term to use Client intellectual property including, but not limited to, Client trademarks, copyrights, and other intellectual property whether registered or unregistered, to market and promote Client Catalog in connection with the Service.
2. CLIENT INFORMATION. You agree to provide Audilus with accurate, complete, and timely information, including, but not limited to, information related to Client Catalog, to obtain access to the Service. If at any time this information changes or if you learn or suspect that such information is inaccurate, in whole or in part, you agree to immediately notify Audilus at licensing@audilus.com. Any assignment, encumbrance or other transfer of Client Catalog will remain subject to this Agreement during the Term. A purported assignment, encumbrance or other transfer not in accordance with this paragraph will be void and without effect ab initio.
3. LICENSES. You or your designee will be the contracting party in any license entered into in connection with the Service. You acknowledge that the license term of individual licenses may extend beyond the Term, including in perpetuity, and you authorize Audilus to solicit, evaluate, manage, and/or obtain such licenses on your behalf.
4. THIRD PARTY CLEARANCES. You will be responsible for obtaining and paying for any and all clearances or licenses required for the use of Client Catalog. Without limiting the generality of the foregoing, you shall be responsible for and shall pay: (i) any royalties and other sums due to artists (featured and non-featured), authors, co-authors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Client Catalog, (ii) all mechanical royalties or other sums payable to music publishers and/or authors or co-authors of musical compositions embodied in Client Catalog from sales or other uses of Client Catalog, (iii) all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or SAG-AFTRA), and (iv) any other royalties, fees and/or sums payable with respect to Client Catalog or other materials provided by you to us. You agree that the amount payable to you is inclusive of any so-called “artist royalties” that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays or communications to the public of the sound recordings and musical works constituting Client Catalog. To the extent permitted by law, you hereby waive any so-called “moral rights” in Client Catalog applicable under the laws of any jurisdiction.
5. PAYMENT.
(a) Client Payment. Audilus shall pay Client Fifty percent (50%) of “Net Sums,” which, as used herein, shall mean all monies actually received by Audilus in the United States which are directly attributable to the exploitation of Client’s interest in Client Catalog, less all actual, reasonable, non-overhead costs paid or incurred by Audilus solely in connection with the exploitation of Client Catalog and the collection of income.
(b) Service Fee. Audilus shall retain Fifty percent (50%) of Net Sums for itself as payment for the Service. Audilus may withhold any and all payment of Net Sums owing to Client that Audilus disputes in good faith, pending resolution of such dispute, provided that Audilus: (i) timely renders all payments and amounts that are not in dispute; (ii) notifies Client of the dispute prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Client in good faith to promptly resolve the dispute; and (iv) promptly pays any amount determined to be payable by resolution of the dispute. In the event that Audilus has, in its reasonable business judgment, reason to suspect that your account has been subjected to and/or involved in fraudulent activities, Audilus reserves the right to withhold Net Sums owing to Client until satisfactory resolution and/or explanation of the suspect activities is obtained.
6. ACCOUNTING. Audilus will use commercially reasonable efforts to pay Net Sums owing to Client within 30 days of the later of (a) the date the license agreement is fully executed or (b) the date Audilus actually receives payment from licensee. You understand and agree that Audilus’ obligation to pay you is contingent upon Audilus’ receipt of payment from licensee. All statements and all other accounts rendered by Audilus to Client shall be binding upon Client and not subject to any objection for any reason unless specific objection in writing, stating the basis thereof is given to Audilus within three (3) months from the date rendered. No generalized objection (such as, but not limited to, a generalized claim of overreporting of deductions or underreporting of income or any similar generalization) shall be deemed a valid objection.
7. NO GUARANTEE OF INCOME. You acknowledge that any exploitation of musical compositions and/or sound recordings is speculative, and that Audilus cannot guarantee that Client Catalog will be exploited at all or that any Net Sums will be generated or earned hereunder. You waive all claims and warrant, represent and agree that you will not make any claim, nor will any liability be imposed upon Audilus based upon a claim, that more Net Sums could have been generated or better business achieved than that which was actually generated or achieved by Audilus and/or its licensees.
2
8. CONFIDENTIAL INFORMATION. From time to time during the Term, Audilus (as the “Disclosing Party”) may disclose or make available to Client (as the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Receiving Party making the disclosure pursuant to the order shall first have given written notice to the Disclosing Party and made a reasonable effort to obtain a protective order. The Receiving Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9. TERM; TERMINATION. The “Term” shall commence upon the Effective Date and shall continue: (a) through the end of the calendar quarter following the calendar quarter during which we receive your valid cancellation notice in accordance with this Section or (b) until Audilus terminates the Term. You may cancel the Term at any time by sending an email to licensing@audilus.com with a request to cancel the Service along with your email address. Cancellation shall be effective at the end of the calendar quarter in which we receive such cancellation notice, subject to our collection rights. If you fail, or Audilus suspects that you have failed, to comply with any of the provisions of this agreement, Audilus, at its sole discretion, may terminate this Agreement and/or your account, in which case you will remain liable for all amounts due under your account up to and including the date of termination. Audilus may also terminate the Term if we no longer provide the Service or for any other reason. After the Term, Audilus shall continue to have the right to collect all income payable in respect to license agreements for the exploitation of Client Catalog substantially negotiated by Audilus during the Term. We will continue to account to you for all such income pursuant to this Agreement.
10. REPRESENTATIONS AND WARRANTIES. You represent and warrant as follows:
(a) All information you submit to Audilus including, but not limited to, Client Catalog information, is and will remain truthful and accurate and you will notify us immediately if any information changes or needs to be updated. In the event we are put on notice with respect to a discrepancy or any inaccuracy with respect to information provided, we shall have the right to
3
suspend payments generated in connection with the Client Catalog in question until the discrepancy or inaccuracy is resolved to our reasonable satisfaction, without limitation of our indemnity rights as set forth herein.
(b) You have and shall continue to have the full right, capacity, power and authority to enter into and fully perform this Agreement. Without limiting the foregoing, no consent of any third party is required, nor shall it be required, in order to effectuate the grant of rights made to Audilus under this agreement, or Audilus’s enjoyment of such rights and the proceeds thereof as contemplated hereunder.
(c) Neither the music, title, lyrics, sound recording or other material in any Client Catalog nor any part thereof is or shall be a copy of any other copyrighted work or infringes or shall infringe upon any statutory or common law rights of any third party. Without limiting the foregoing, no Client Catalog nor any part thereof embodies an unlicensed “sample,” or “interpolation.”
(d) Client Catalog is and shall be free from any adverse claims, liens or encumbrances of any kind by any person or entity.
(e) Audilus shall not be required to make any payments of any nature for, or in connection with, the exploitation of Client Catalog except as specifically set forth herein.
11. INDEMNIFICATION. You shall at all times defend, indemnify and hold harmless Audilus and its affiliates and their respective members, employees, affiliates, attorneys, representatives, agents, licensees and distributors (collectively, the “Indemnitees”) from and against any and all claims, liabilities, damages, judgments, losses, costs and expenses, including actual out-of-pocket legal expenses and attorneys’ fees, arising out of: (a) any alleged breach or breach by you of any warranty, representation or covenant made herein; (b) any act, error or omission committed by you or any person or entity acting on your behalf (or on whose behalf you are acting) or under your direction or control; or (c) any use or exploitation of Client Catalog. You will reimburse Audilus and/or the other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which Audilus or the other Indemnitees are entitled to be indemnified, or Audilus may elect to deduct any such payments from all sums otherwise due you hereunder.
12. WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND AUDILUS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AUDILUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AUDILUS CANNOT GUARANTEE AND DOES NOT PROMISE ANY REVENUE OR OTHER SPECIFIC RESULTS FROM USE OF THE SERVICE. TO THE EXTENT THESE DISCLAIMERS AND LIMITATIONS ARE LIMITED BY APPLICABLE LAW, THEY SHALL OTHERWISE APPLY TO THE FULLEST EXTENT OF SUCH LAW.
4
13. LIMITATIONS OF LIABILITY. IN NO EVENT WILL AUDILUS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION, IN EACH CASE REGARDLESS OF WHETHER AUDILUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AUDILUS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID, IF ANY, BY AUDILUS TO CLIENT FOR THE SERVICE IN THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. NO LEGAL ADVICE. AUDILUS IS NOT A LAW FIRM AND ITS EMPLOYEES ARE NOT ATTORNEYS NOR ARE WE AFFILIATED OR ASSOCIATED WITH ATTORNEYS. AUDILUS DOES NOT PRACTICE LAW AND DOES NOT GIVE LEGAL ADVICE OR LEGAL SERVICES OF ANY KIND. AUDILUS, ITS SERVICE, AND/OR ITS FORMS ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY.
15. MISCELLANEOUS.
(a) This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) It is expressly agreed that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture or agency. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party.
(c) If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(d) This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this
5
Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Californa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(e) Audilus reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. We will inform you of any proposed modifications and you may terminate the Term of this Agreement if you do not wish to accept them. Otherwise, such modifications and additional terms and conditions will be deemed accepted and incorporated into this Agreement.
(f) Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Audilus. Any purported assignment or delegation in violation of this Section will be null and void. Audilus may assign or delegate this Agreement or any or all of our rights and obligations hereunder to one or more third parties without notice to you.
(g) No waiver of any provision or default under this Agreement shall affect Audilus’ rights thereafter and no waiver by Audilus shall be deemed a continuing waiver.
(h) This Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. Delivery of an executed counterpart of this Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date.
AUDILUS, INC.
By:__________Othniel Tomtania____________________
Printed Name:_____OTHNIEL TOMTANIA________________
Title:_________President____________________
CLIENT:
AGREED AND ACCEPTED: For clarity, Client’s electronic acceptance of these terms via the Audilus contract signing form linked to the Audilus website constitutes Client’s execution of this Agreement.
MASA2324N
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