TERMS OF SERVICE
this 'terms of service' is inclusive of BOTH THE 'PRINCIPE CUSTOM music content LICENSE AGREEMENT' And the 'principe custom music terms of use' herein.
PRINCIPE CUSTOM MUSIC CONTENT
LICENSE AGREEMENT
This CONTENT LICENSE AGREEMENT governs the terms by which content users may download and use media works available for licensing via our online marketplace located at the Website (as defined below). Please read this Agreement carefully. By signifying your acceptance of this Agreement or by downloading, copying or using any Content from the Website (as such terms are defined in Section 1 below), you are agreeing to be legally bound by this Agreement, which may be updated from time to time as described in Section 18 and which incorporates by this reference the Website Terms (as defined below).
This Agreement is made and entered into by and between the person(s), or any other entity purchasing any song, and as further ascribed below ("Licensee"), from Principe Custom Music, aka (“PCM”) (“Licensor”), using the web site www.principecustommusic.com (“Website”)
By accepting this Agreement or downloading, copying or using any Content from the Website on behalf of your employer or another Person (as defined below), you represent and warrant that you have full legal authority to bind such other Person to this Agreement. If you do not have such authority or you do not agree with these terms, do not accept the Agreement and do not download or copy anything offered for download from the Website or otherwise use anything downloaded or copied.
If you have any questions, please contact sales at sales@principecustommusic.com
1. Parties and Definitions.
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The party with which you are contracting is, and as used herein the terms "PCM", "we", "us" and "our", refer to Principe Custom Music.
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Notwithstanding the foregoing or anything else in this agreement, without limiting any of the representations and warranties in this Agreement, (i) a user may not download Content unless he or she has authority to and does in fact bind the designated Licensee to this Agreement, (ii) by using anything copied or downloaded from the Website, Licensee is agreeing to be legally bound by this Agreement, and (iii) Licensee will have or benefit from any of the rights and licenses set forth in this Agreement if and only if Licensee does not contest that it is bound by and fully complies with the terms herein.
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If the individual who is accepting this Agreement is doing so on behalf of his/her employer or another Person that is identified as the Licensee, then, subject to clause (a) above, (i) the term "you" as used in this Agreement means, jointly and severally, that Licensee, and with respect to Sections 1, 7, 8, and 12 below, also such individual, (ii) "your" means the possessive of you, and (iii) references to third parties exclude you.
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As used in this Agreement:
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“Audio Content” means Content that is a music or other audio file.
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“Content” means, individually and collectively, the works referred to in Section 2 that are downloaded or otherwise provided or licensed by us to you, whether in the form downloaded or incorporated into a Work For Distribution.
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“Content Information” means the tags, meta data, designations, annotations, information and documentation that are available on the Website or otherwise provided by us to you with, in or otherwise relating to Content.
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“Copyright Act” means the United States Copyright Act, as amended.
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“Derivative work” (whether or not capitalized) has the meaning of said phrase under the Copyright Act.
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“Person” means an individual or legal entity, including a company or a governmental agency or instrumentality.
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“PRO” means a performing rights, mechanical rights or any other similar organizations (including ASCAP, BMI, SOCAN, SESAC, PRS, MCPS, SACEM, SDRM or JASLAC, GEMA).
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“Representative” means a Person’s officer, director, employee, agent or contractor.
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when applied to us, “Subsidiaries” means all companies that from time to time directly or indirectly are owned or controlled by us, under common ownership or control with us or own or control us.
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“Website” means our internet site at www.principecustommusic.com and the other internet sites of Pond5 and its Subsidiaries and Resellers.
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“Website Terms” means our Terms and Conditions, guidelines, and community rules and restrictions contained at the Website where you download content.
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“Work for Distribution” refers to (A) any independently authored derivative work in any media now known or hereinafter devised, or (B) other independently created work, in any and all media now known or hereafter devised (including in-context works for advertising and promotion), which in either case in (A) or (B), incorporates Content together with other substantial independently created works, and is created by or for you or on your behalf as permitted by the terms of this Agreement.
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2. What we Offer.
We offer 1) an online marketplace where Licensee may download and license music under this Agreement. We also offer custom supplemental audio content for a variety of media, governed by the terms and conditions set forth in a separate agreement by and between Licensor and Licensee, should such service(s) is utilized.
3. Grant of License.
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We hereby grant you a non-exclusive, worldwide, perpetual right and license (the "License") on the terms and subject to the conditions and limitations set out in this Agreement, to, an unlimited number of times: (i) directly or indirectly create Works for Distribution incorporating the Content, (ii) use, copy, modify, manipulate, couple, synchronize, publish, publicly display and perform, transmit, broadcast, telecast and distribute the Content within such Works For Distributions, (iii) permit third parties to do the foregoing subject to the conditions and limitations set out in this Agreement, and (iv) use the Content Information internally to facilitate the foregoing with regard to Content obtained from us.
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The License is non-transferable. The term "non-transferable" as used herein means that except as specifically provided herein, you shall not sell, rent, load, give, sublicense, or otherwise transfer to anyone, any Content or the right to use any Content. You may, however, transfer Content to a third Person for the sole purpose of allowing such third Person to produce, duplicate or distribute your Work for Distribution, provided that you should take all commercially reasonable steps to prevent third parties from extracting or duplicating the Content. If you become aware of any unauthorized duplication of any Content, you should promptly notify us via the Website. For avoidance of doubt, the restriction on transferability does not apply to your Works for Distribution.
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Beyond the initial license fee set forth in the Website, subject to Section 7(e) below, no additional royalties or other payments to us are required for the License of Content, provided such use conforms to the terms of this Agreement, including the limitations on the number of Authorized Users in paragraph (e) below and the Restrictions on Use in Section 4.
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This Agreement is a license, not an agreement of sale. You will not acquire, and we and/or the Contributors will retain, all right, title, and interest in and to all of the copyrights, trademarks, trade secrets, and all other proprietary rights in the Content or Content Information that are not expressly granted to you by the terms of this Agreement. The License does not include the right to record a new version of Content or the composition reflected thereby.
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You may provide access to or use of Content that is not incorporated into a Work for Distribution ("Unincorporated Content") and the associated Content Information to no more than an aggregate of ten (10) Authorized Users at the same time, provided that such access is used solely under the terms of this Agreement and for the purpose of creation, reproduction or distribution of Works for Distribution made by or for you. You will prevent any other Person from having access to the Unincorporated Content or the associated Content Information. As used in this Agreement, the term "Authorized User" refers to any individual (i) who is your officer, director, employee, agent or contractor (collectively, your "Representatives") and (ii) who has been authorized by you to access and/or use Unincorporated Content and the associated Content Information in the creation, reproduction or distribution of Works for Distribution by or for you.
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The License is conditioned upon (i) your and your Representatives’ compliance with the terms of the License and this Agreement, (ii) your and your Representatives’ use of the Content and the associated Content Information only as permitted in this Agreement, (iii) your fulfillment of your responsibilities hereunder, and (iv) our receipt of full payment of the amount(s) required herein or by the Website in respect to the applicable Content.
4. Restrictions on Use.
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The License to any Content is subject to all restrictions and disclaimers applicable to such Content in or referred to in the Website pages where the Content is made available.
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You may not use, modify, resell, sublicense, assign, transfer, otherwise make available or permit access by any third Person to any Content, except as expressly authorized in this Agreement.
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To the extent that source code is contained within the Content, you may not reverse engineer, decompile, or disassemble any part of such source code.
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You may not use any Content in a manner that violates any law of the State of California, the United States or any other applicable jurisdiction.
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You may not use any Content in a manner that or in a Work For Distribution that under applicable law (i) is infringing, or defamatory, (ii) is reasonably likely to bring any person or property associated with the Content into disrepute (including any use in advertising or promoting illegal behavior, hostility or discrimination based on race, religion, ethnic background, sex, age, disability or sexual preference or any other subject matter that would be reasonably likely to be offensive or unflattering to any such person or property), or (iii) is an advertisement or marketing or informational material for a health product or service if the Content depicts a recognizable person unless the Content is accompanied by a disclaimer that the person is shown for illustrative purposes only.
5. Your Other Responsibilities.
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You must ensure full compliance with this Agreement by your Representatives.
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If any Unincorporated Content is provided to the Licensee or any other Person, it must be accompanied by the Content Information and a copy of this Agreement.
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You must make reasonable best efforts to safeguard against unauthorized third-Person access to Unincorporated Content or the associated Content Information.
6. Additional Provisions.
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You may alter, edit or modify Audio Content as otherwise permitted in this Agreement, subject to the restrictions in paragraph (g) below.
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You may not monetize or collect revenue from YouTube (or other networks that allow for the so-called "claiming" or "monetization of content") for Audio Content by itself (i.e., Audio Content other than as and when used hereunder in Work For Distribution). If a unique license number is provided to you at the time of your purchase of the License, you will, in the event of any conflict on YouTube (or any such other network), via the tools supplied by YouTube (or the other applicable network), provide such license number to the applicable Contributor on request.
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For PRO Audio Content, nothing herein shall be deemed a waiver of any PRO royalties. You shall submit, and will instruct any third Person acquiring rights to the Works for Distribution, to submit cue sheets to the relevant PRO and to PCM, and you will timely pay any PRO royalties or ensure such royalties are timely paid.
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You may not do any of the following regarding any Audio Content:
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use it in whole or part to manufacture, distribute or sell records, CDs, jukeboxes, mp3s or any other predominantly audio product embodying it, in whole or in part, that is not synchronized or combined with other audio or musical content to create a derivative work as permitted in this Agreement (for example, you cannot use it to create a CD or other music compilation to give away or sell);
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place it on or in any product or platform that makes it available in a manner such that a person can without extraordinary effort extract or access or reproduce it as an electronic file;
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use or display it in whole or part 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;
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resell it in whole or part as backgrounds, "hold" music or ringtones; or
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use it in a design template application intended for resale, whether on-line or not, including a website template or electronic greeting card template.
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You may not do any of the following with any audio content:
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incorporate it in whole or part in any product or platform that results in its re-distribution or re-sale (such as music download sites, stock music CDs, electronic greeting card web sites, web templates and the like);
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edit, modify, or alter it (A) beyond basic editing (e.g., setting fade-in/fade-out points, determining start and end points, or using only a portion of it), (B) in a way that alters its fundamental character, harmonic structure, lyrics and/or melody, or (C) to the prejudice of the un-waiveable moral rights of the artist(s);
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use it in whole or part without synchronization or other combination with other original work(s) of authorship so that the combination constitutes a derivative work;
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use it, in whole or in part, as an element of a new musical work (e.g., by combining the music Audio Content with other work so that a copyright can be claimed in the resulting song); or
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modify it, in whole or in part, so that a copyright can be claimed in the resulting song) other than as part of a Work For Distribution that consists of an audio visual work, computer or mobile device application or an internet page.
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7. Representations, Warranties and Disclaimers.
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We warrant that in the case of each song/audio file/music work on Website, (i) PCM owns the copyright in the Content or has the rights under the copyright to grant the License granted to you herein (the "Copyright Warranty").
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Limited Warranty: We warrant that there are no material defects in the Content which would prevent it from being downloaded from the Website and used as permitted herein. If there are material defects in the Content, your exclusive remedy will be as follows: (i) upon request to us within 30 days of the download of such Content, you will be permitted to download the Content again to obtain a replacement copy of the Content; or (ii) if we determine, in our sole discretion, that defects would continue to prevent it from being downloaded from the Website or used as permitted herein successfully, we will refund the fee actually paid by you for such Content.
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OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 9(a) or (b), THE WEBSITE, OUR SERVICES, THE CONTENT AND THE CONTENT INFORMATION ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE CONTENT OR THE CONTENT INFORMATION WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PERFORMING RIGHTS OR OTHER SIMILAR FEES WILL NOT BE PAYABLE BY YOU. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE WEBSITE, THE CONTENT AND THE CONTENT INFORMATION OR ANY SERVICES PROVIDED BY US IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE OR PAYMENT OF PERFORMING RIGHTS OR OTHER SIMILAR FEES BE REQUIRED, YOU (AND NOT US) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS OR PAYMENTS. 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.
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While we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, we do not warrant the accuracy of such information. Additionally, we do not warrant the accuracy of any Content Information.
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You represent and warrant that you have full right and authority to enter into and perform under this agreement, and that if you are an individual, you are of sufficient legal age to create binding legal obligations set out in this Agreement.
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You represent that all information provided to us by you if applicable, is accurate and true, including all information relating to the Member and the Licensee and credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
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If you are the individual who is downloading the Content, you represent that you are the Licensee, and you are accessing the Website and downloading or otherwise copying Content from the Website or us.
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You represent that you are (i) the Licensee, or (ii) a duly authorized Representative of the Licensee, as the case may be.
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If the individual who is entering into this Agreement is doing so on behalf of his/her employer or another Person, such individual represents and warrants that (i) he/she has the full right and authority to execute, deliver and perform this Agreement on behalf such employer or other Person, and (ii) this Agreement is a binding Agreement of such employer or other Person, enforceable against such employer or other another Person in accordance with its terms. In the event that such individual does not have such right, power and authority, such individual agrees that in addition to all rights and remedies available against such employer or other Person or his/her or his/her/its Representatives relating to violation or infringement of intellectual rights, he/she will be personally liable to us for any breaches of the terms of this Agreement or violation and infringement of intellectual rights in the Content by such individual, such employer or other Person and his/her or its Representatives.
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If after downloading any Content, you receive any notice or otherwise learn in any way that any of the representations made by you in this Agreement were not accurate, complete and not misleading in all material respects or no longer are accurate, complete and not misleading in all material respects or of any claim by a third Person to the effect of the foregoing, you will promptly provide us with written notice all relevant facts regarding the same and if appropriate, cease use of the Content.
8. Indemnification.
You assume full responsibility for the use of the Content or any services provided by us. You agree to defend, indemnify and hold PCM harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees and costs) arising out of or relating to any claim, action or proceeding by a third Person relating to or arising directly or indirectly out of (i) your or any of your Representative’s or distributees’ use of any Content or any services provided by us, (ii) any claim of a failure to fulfill any responsibility or obligation assumed by you under this Agreement, (iii) any modification of any Content or use of any Content with any work created or provided by you, any of your Representatives or a third Person, or (iv) for any other breach by you or any of your Representatives of this Agreement.
9. Removal of Content.
If you learn that any Content is subject to a threatened or actual third party claim of infringement, violation of another right, or any other claim for which we may be liable, you will promptly notify us of any such claim. If we learn of such a claim from you, the third party or otherwise and we, in our sole good faith discretion, determine that the threatened or actual claim raises an inappropriate legal risk, upon notice from us, you will (i) remove the Content from your computer systems and storage devices (electronic or physical), and (ii) if commercially reasonable, cease any future use of the removed Content at your own expense. In such case, without charge we will provide you with Content that we determine in good faith is comparable, subject to the other terms and conditions of this Agreement.
10. Term and Termination.
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The License will terminate automatically without notice from us if you fail to cure a breach or other failure to comply with any provision of this Agreement within fourteen (14) days of written notice of the same. Upon termination, you must yourself and must cause your Representatives to immediately: (i) stop using the Content; (ii) destroy or, upon our request, return the Content to us; (iii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iv) where applicable, ensure your Representatives and licensees do the same.
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Notwithstanding the foregoing or anything else in this Agreement, so long as the fees due hereunder were paid, in the event of a breach or alleged breach hereunder, PCM shall be limited to the right to recover damages in an action at law and shall not be entitled to seek injunctive relief with respect to a Work for Distribution that has already been released or is in production as of the date of termination of the License.
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You may terminate this Agreement by giving written notice to us and destroying the Content and any derivative works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose.
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The terms and provisions of Sections 1, 4 and 6 through 17 shall survive termination or expiration of this Agreement.
11. Payments & Taxes.
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All sales of Licenses are final, and we are under no obligation to refund any fees paid by you for Content under any circumstances. However, if in the event of such a breach or your request for a refund, we, in our sole discretion, determine to provide you with a refund, the license granted in this Agreement for the Content will be rescinded as if never granted. Any refund will be made by such means as we determine is appropriate.
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Prices, offers and Content are subject to availability and may change.
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You are responsible for promptly paying any and all applicable sales taxes, use taxes, value added taxes, property tax, customs, duties and any related interest or penalties imposed by any jurisdiction as a result of the License, any supplemental or extended license or any use of the Content.
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To the extent that you determine that you are required under law (e.g., under a tax law) to withhold any amount from payments due to us, the price for the applicable License is hereby increased by the amount that would cause the net amount payable by you to equal the price that would otherwise apply for the sale of the License.
12. Credit Attribution.
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If the Content is used in an editorial context in a Work For Distribution that is posted online, you will use your reasonable best efforts to accompany the Work For Distribution with a credit line hyperlink back to www.principecustommusic.com that reads "Music by Principe Custom Music".
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For all other Works For Distribution incorporating the Content where crediting is customary (including any editorial use) or where other such credits are provided, you will use your reasonable best efforts to accompany the Work For Distribution with a credit line that reads "Music by Principe Custom Music", which unless other hyperlinked credits are provided, need not be hyperlinked.
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The unintentional omission of credit attribution provided for above will not be considered to be a breach of this Agreement as long as you use your reasonable best efforts to promptly cure the same upon written notice.
13. Interpretation.
Unless the context requires otherwise, in any part of this Agreement: (a) "including" (and any of its derivative forms, e.g. "includes"), "e.g." and "for example" means "including but not limited to"; (b) "must not", "should not", "shall not" and "may not" are expressions of prohibition, and "will", "must", "should" and "shall" are expressions of command, and not merely expressions of future intent or expectation; (c) use of the singular imports the plural and vice versa; (d) references to one or no gender include the other or no gender; (e) references to the terms "herein" or "hereto" refer to this Agreement (including any terms incorporated by reference herein); (f) references to "in each case" refers to each case referred to prior to such phrase in the same sentence; and (g) the headings in this Agreement are for ease of reference only and shall not affect its interpretation.
14. Miscellaneous Provisions.
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The parties to this Agreement are independent contractors, and nothing in this Agreement or the License or any supplemental or extended license shall create a joint venture, partnership, employment relationship, or franchise or fiduciary relationship between the parties.
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Upon PCM's request, to the extent practical, you shall provide a copy of all uses of the Content.
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If any provision, or portion thereof, of this Agreement, or its application to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
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This Agreement shall be construed in accordance with the laws of the United States and the State of California without regard to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The License, any supplemental or extended license, any download of Content and access to and use of the Website and the entering into this Agreement will be deemed to take place in the United States.
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Any dispute regarding this Agreement, the License, any supplemental or extended license or any Content or the use thereof will be resolved exclusively by a State or Federal court in Ventura County, CA, in the United States. We and you hereby waive any objection to venue, or to the inconvenience of the forum, of any such court or right to trial by jury to resolve any such dispute. The parties hereby consent to the jurisdiction of such courts.
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You will promptly reimburse us for any reasonable attorneys' fees and court costs that are incurred by us in enforcing this Agreement.
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All of the covenants, terms, provisions and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns.
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Except as otherwise set forth herein, any notice required or permitted to be given under this Agreement shall be in writing, delivered by hand, nationally recognized overnight courier service, email or registered or certified mail, addressed (i) to Principe Custom Music at: our address set forth on the Website, www.principecustommusic.com with a copy by email to legal@principecustommusic.com
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If you breach any provision of this Agreement and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement. Your obligations, the limitations and our rights and remedies set out in this Agreement are cumulative and are in addition to your obligations and our rights and remedies at law or in equity. Notwithstanding the foregoing or anything else to the contrary in this Agreement, provided the fees due hereunder were paid, PCM shall be limited to the right to recover damages in an action at law and in no event shall PCM be entitled to seek injunctive relief with respect to any breach or alleged breach hereunder with respect to a Work for Distribution.
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This Agreement is personal to you and is not assignable by you without PCM’s prior written consent; provided, however, that to the extent that any Content is included within a Work For Distribution made pursuant to the License, without our consent you may assign your rights hereunder as related to such Work For Distribution or any variation thereof. PCM may assign this Agreement without your consent to any other Person so long as such Person agrees to be bound by its terms. In addition, the applicable Contributors may, without your consent, assign their rights under this Agreement.
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This Agreement is in addition to the Website Terms (which are all incorporated by this reference into this Agreement), all of which together embody the parties' entire agreement and supersedes and cancels any prior agreement, express or implied, written or oral, with respect to its subject matter; provided that in the event of any inconsistency between this Agreement and such Website Terms, the terms of this Agreement shall govern.
15. Our Right to Make Changes to This Agreement.
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Notwithstanding anything else in this or any other agreement, (i) we reserve the right to make changes to this Agreement, the Website Terms at any time and without notice to you, and (ii) you will be subject to the terms of this Agreement and the Website Terms in force at the time that you download the Content. For avoidance of doubt, any changes to the Agreement will not apply to Content downloaded prior to the change.
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No modification, deletion, amendment of any provision is binding on us unless in writing signed by our authorized representative or posted by us on the Website.
16. Consent to Electronic Communications; Your Personal Data.
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You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
17. Acceptance of this Agreement.
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By accepting this Agreement or downloading, copying or using any Content from the Website, the individual who is doing so is accepting and agreeing to be bound by this Agreement for him/herself and on behalf of his/her employer or other Person that is identified as the Licensee, and the Person that is designated as the Licensee. If you are accepting on behalf of your employer or other Person that is the Licensee and/or that is designated as the Licensee, you represent and warrant that you have full legal authority to bind such employer or other Person.
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You acknowledge that you have read this Agreement, understand it, and have had an opportunity to seek independent legal advice prior to agreeing to it. In consideration of PCM allowing you to access or download the Content, you agree to be bound by the terms and conditions of this Agreement. Additionally, you acknowledge and agree that you have reviewed the Website Terms and any other agreements which may be incorporated by reference herein and therein, and to the extent of their incorporation in this Agreement, you agree to be bound by them.
PRINCIPE CUSTOM MUSIC
TERMS OF USE
These Terms of Use govern your access to and use of the www.principecustommusic.com website, which is owned and operated by Principe Custom Music; hereinafter also referred to as (“PCM”).
Please read these Terms of Use carefully before accessing or using the Website. These Terms of Use limit PCM's liability and may substantively affect your rights. By accessing or using the public or private portions of the Website, you accept and agree to be bound by these Terms of Use. If you are accessing or using the Website on behalf of your employer or another person or entity, you represent and warrant that you have full legal authority to bind such employer or other person or entity. If you do not have such authority or you do not agree with these Terms of Use, do not access or use the Website.
Changes to Legal Terms
PCM may change these Terms of Use and the guidelines, policies, restrictions and agreements on the Website at any time and from time to time without notice. You are cautioned to review the Terms of Use and the guidelines, policies, restrictions and agreements posted on the Website periodically. Your continued access to or use of the Website after any such changes are posted will constitute your acceptance of and agreement to the changes.
Content and Other Materials
PCM and together with PCM, "we", "us" and possessives thereof, offer an on-line marketplace where people may audio files, whether generated optically, electronically, digitally or by any other means (any and all of such works that are uploaded to the Website, individually and collectively, “Content”) so the same may be downloaded by and licensed to users and/or licensees of the Website.
Except as provided below under Evaluation Usage, no Content may be downloaded or otherwise copied from the Website, unless the person or entity doing so first agrees to the PCM Content License Agreement, as the same may be changed by us from time to time (the "License Agreement"), and any and all Content downloaded or copied from the Website is subject to and only may be downloaded and used on the terms and subject to the conditions and restrictions of the License Agreement.
All Content, Previews and other works, content and materials (including the organization and presentation of the foregoing) on the Website (the “Materials”) and copyrights and other intellectual property rights therein and thereto are the property of us and our licensors and are protected by copyright, trademark and other intellectual property laws.
Unless you have entered into a separate written agreement with us, such as the License Agreement and as may be expressly permitted by said agreement, except as provided below under Evaluation Usage, any use of any of these Materials, including any modification, public display or performance, derivative use, exploitation or distribution, without our written permission is strictly prohibited. Copyright and other intellectual property notices or watermark on any Materials shall not be deleted or modified.
Use of the Website
We operate the Website as a service provider of an on-line marketplace, providing storage of materials on our systems or networks at the direction of PCM.
You will access and use the Website and participate in the Website for lawful purposes only and only in accordance with these Terms of Use and the guidelines, policies, restrictions and agreements on the Website.
You will not on or through the Website, do any of the following:
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conduct any fraudulent, criminal offense(s) or other unlawful activity;
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conduct any activity which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of "spam";
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resell or make commercial use of the Website, any part thereof or, except as permitted by the License Agreement as related to Content downloaded thereunder, any Material;
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collect or use of any Content descriptions or information or prices, except (i) to view and evaluate for purchase of a license of the Content under the License Agreement or (ii) as permitted by the License Agreement as related to Content downloaded thereunder;
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download or copy any Content information for the benefit of another merchant or website except as necessary to utilize rights to downloaded Content pursuant to the License Agreement;
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use any data mining, robots or similar data gathering and extraction tools on or at the Website or use any other automated means to access the Website;
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use any meta tags or any other "hidden text" utilizing any of our names or trademarks without our express written consent;
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take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our servers or other infrastructure or use the Website in any way that causes, or is likely to cause, the Website or access to or use of it to be interrupted, damaged or impaired in any way;
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advertise products or services or solicit any user of the Website, whether or not such advertising or solicitation is in the form of unrequested bulk commercial email; or
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exploit for any commercial purpose without our express written consent the Website, any part thereof except as necessary to utilize rights to downloaded Content pursuant to the License Agreement.
Links
The Website may provide links or references to other sites, services and resources on the Internet, including payment processors. PCM has no control over such sites, services and resources and we are not responsible for and we do not endorse such sites, services and resources. You further acknowledge and agree that we will not be directly or indirectly responsible or liable for any damage or loss caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site, service or resource. Any dealings you have with third parties found while using the Website are between you and the third party, and you agree that PCM is not liable for any loss or claim that you may have against any such third party.
Termination of Use
We may at our sole discretion terminate or limit anyone's access to or use of the Website at any time and for any reason without prior notice. In addition, we may immediately terminate or limit your access to or use of the Website, if you fail to comply with any provision of these Terms of Use or any other agreement with us. In such event, you agree to immediately (i) stop using the Website and Content Information and (ii) delete all Content Information, other Materials and all copies thereof from all digital media and destroy all other copies, or, at PCM’s request, return all such copies to PCM, and (iii) pay all amounts owed to PCM. If we terminate or limit your access to or use of the Website for breach of any agreement or terms or reasonable cause, PCM will not be obligated to refund any fees paid by you.
Services
We may provide services in connection with the Website, including email notifications, Content downloading and information publication. We will endeavor to ensure that such services are available, operate correctly and are free from malicious code (e.g., computer viruses). You agree to release and hold harmless PCM for any damages arising out of your use of the Website, including the unavailability, failure or improper operation of services provided in connection with the Website.
The Website and Materials Provided "As Is".
THE WEBSITE, OUR SERVICES AND THE MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE DO NOT REPRESENT OR WARRANT THAT THE WEBSITE, OUR SERVICES AND THE MATERIALS WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE WEBSITE, OUR SERVICES AND THE MATERIALS IS WITH YOU. 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.
Limitation of Liability
WE SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, DIRECT, PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES OR PROCEEDING ARISING UNDER THESE TERMS OF USE OR ARISING OUT OF YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OF THE WEBSITE, OUR SERVICES OR ANY OF THE MATERIALS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. THE FEES FOR OUR SERVICES REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS OF USE. 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.
NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OF USE, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF PCM UNDER THESE TERMS OF USE, OR THE ACCESS OR USE OF THE SITE OR ANY OF THE MATERIALS, SHALL BE LIMITED TO AN AGGREGATE OF ONE ($1) US DOLLAR OR THE AMOUNT SET FORTH IN THE LICENSE AGREEMENT, IF APPLICABLE AND GREATER.
Indemnification
You agree to indemnify and hold PCM harmless against all claims or liability asserted against any of us arising out of or in connection with any breach by you or anyone acting on your behalf of any of these Terms of Use.
Interpretation.
Unless the context requires otherwise, in any part of these Terms of Use: (a) “including” (and any of its derivative forms, e.g. “includes”), “e.g.” and “for example” means “including but not limited to”; (b) "must not", “should not”, “shall not” and “may not” are expressions of prohibition, and “will”, "must", “should” and “shall” are expressions of command, and not merely expressions of future intent or expectation; (c) use of the singular imports the plural and vice versa; (d) references to one or no gender include the other or no gender; (e) references to the terms “herein” or “hereto” refer to these Terms of Use (including any terms incorporated by reference herein); (f) the headings in these Terms of Use are for ease of reference only and shall not affect its interpretation; and (g) when calculating the time period before which, within which or following which any act is to be done or step taken pursuant to these Terms of Use, the date that is the reference date in calculating such period shall be excluded and the time period shall be deemed to end at 11:59 PM Pacific Standard Time on the applicable date.
Consent to Electronic Communications.
By inputting any information on the Website, you are consenting to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Miscellaneous Provisions.
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The parties to these Terms of Use are independent contractors, and nothing in these Terms of Use or the guidelines, policies, restrictions and agreements on the Website shall create a joint venture, partnership, employment relationship, or franchise or fiduciary relationship between the parties.
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If any provision of these Terms of Use is deemed invalid, void, or for any reason unenforceable, that provision will be deemed severable and will not affect the validity and enforceability of any remaining condition.
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No waiver of any default under these Terms of Use will apply to any subsequent default, whether of a similar nature or not, nor will any such waiver be construed as a waiver of any other provision of these Terms of Use.
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If any provision, or portion thereof, of these Terms of Use, or its application to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of these Terms of Use, such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
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These Terms of Use shall be construed in accordance with the laws of the State of California without regard to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not govern these Terms of Use. Any access to and use of the Website and the entering into these Terms of Use will be deemed to take place in the United States.
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Any dispute regarding these Terms of Use will be resolved exclusively by a State or Federal court in Ventura County, California in the United States. We and you hereby waive any objection to venue, or to the inconvenience of the forum, of any such court or right to trial by jury to resolve any such dispute. The parties hereby consent to the jurisdiction of such courts.
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You represent that, if you are an individual, you are at least 18 years of age and have the full right and authority to enter into these Terms of Use.
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If you breach any provision of these Terms of Use and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms of Use.
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Your obligations and our rights and remedies set out in these Terms of Use are cumulative and are in addition to your obligations and our rights and remedies at law or in equity.
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PCM may assign these Terms of Use without your consent to any other party so long as such party agrees to be bound by its terms.
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These Terms of Use are in addition to the PCM Content License Agreement and the policies, guidelines and restrictions contained on the Website (which are all incorporated by this reference into these Terms of Use).
Contact
If you have concerns relating to the Website, these Terms of Use or any Materials, please contact us at legal@principecustommusic.com