Enterprise General Terms and Conditions
These are our Terms and Conditions for the Soundtrack Service (“T&C”) which set out the terms and conditions pursuant to which we provide access to our Service (as defined below) to customers (the “Customer”, “you”), who have purchased our Service from one of our authorized resellers (the “Reseller(s)”). These T&C will remain in full force and effect for as long as you have access to the Service. We acknowledge that the Customer has entered into a separate agreement with the Reseller with respect to the Service (“Reseller Agreement(s)”), but in the event of any conflict between the terms of a Reseller Agreement and these T&C, the T&C will control. Customer and SYB may be individually referred to herein as a “Party” and collectively as “Parties”.
1. Our Service, Content and Products
Our Service and its Content
Registration and Access to the Service
You will receive an invite to register as a user and gain access to the Service. Upon your registration as a user, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to use and access the Service for commercial public use during the Term according to the terms of these T&C. You may not copy, rent, sell, reproduce, publish, republish, post, broadcast, frame or transmit the Service or Content (or any part of them), or authorize or assist anyone else in doing so other than as otherwise explicitly permitted under the terms of these T&C.
Products and placing orders therefor
When we use the term “Products”, we mean our products and services that you or your Affiliates purchase through placement of an order. Activation and purchase of Products through an order is done through your Reseller. By your placement of an order, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to access the Products through the Service for the Term or as a “one-off” or individual purchase (e.g., purchases of Hardware Products). Upon placement of your order of Products, we will confirm your order via email.
Due to licensing restrictions or other limitations or restrictions imposed, access to the Service and Content may be limited in scope to certain geographical territories as further described on our website located at soundtrackyourbrand.com/territory, which may change from time to time (the “Territory”). You may not use the Content and/or the Service outside of the Territory. You shall at all times maintain and upon request make available to us an accurate and up to date list of all your locations that access the Service. SYB shall have the right to change or remove territories upon notice to Customer.
Third Party Use of the Service
The T&C will apply to your use of the Service as well as the use of the Service by any third party acting under your authority or with your consent. You are fully liable for all acts and omissions of any third party that uses or administers the Service for you or on your behalf.
Updates and Upgrades to the Service
We continuously upgrade the features and functionality of the Service and reserve the right to make upgrades, updates, modifications and changes as we see fit in our sole discretion. We will make reasonable efforts to minimise interruptions, failure or delay of the Service and will make reasonable efforts to inform of material changes which affects your use of the Service. Notwithstanding the foregoing, you acknowledge and agree that we assume no liability, responsibility or obligation for any such interruption, modification, failure, delay or discontinuation associated with the Service.
Content Provided in the Service
The Service includes millions of sound recordings and other items of Content. This Content is updated from time to time, including, for example, by the addition and/or deletion of particular sound recordings. Therefore the Content which is available in the Service at any point in time may vary. We make no representation or warranty that any Content will be available on the Service, and we will have no liability to you for any claim arising out of the unavailability of any Content
Also, you may encounter Content that may be regarded as offensive, obscene, indecent or objectionable, irrespective of whether the Content is identified as such. We make no representation or warranty that Content will not be offensive, obscene, indecent, or objectionable, and we will have no liability to you for Content that may be offensive, obscene, indecent or objectionable.
2. Customer Support
Any and all Customer Support matters are referred to your Reseller. Your Reseller will provide Customer Support in accordance with your agreement.
3. Customer Obligations
Customer Login Information
You are responsible for maintaining the strict confidentiality of your customer login information and you shall be responsible and liable for any access to or use of the Service by you or any person or entity using your customer login information, device or other credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee. It is therefore critical that you do not share your customer login information with anyone. You agree to immediately notify Reseller of any unauthorized use of your customer login information, account or device, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your customer login information, (b) update, maintain and control access to your customer login information, and (c) cancel your account on the Service.
Your Hardware, Internet Connection and Equipment
As between you and SYB, you are responsible for all hardware, communication networks and other equipment necessary for use of the Service, and the due installation thereof.
Intellectual Property Rights/Service Misuses
You shall not engage in any of the following activities (“Service Misuse(s)”: (a) copying, reproducing, “ripping”, recording, or making available any part of the Service or Content; (b) reverse-engineering, decompiling, disassembling, modifying or creating derivative works based on the Service or any part thereof; (c) circumventing any technology used to protect Content accessible through the Service; (d) circumventing of any territorial restrictions on the use of the Service; (e) artificially increasing play counts of Content or otherwise manipulating the Service in any way; (f) removing or altering any notices contained on or provided through the Service; (g) providing your login details to any other person/entity or using any other person’s/entity’s log in details; and/or (h) infringing any “Intellectual Property Rights”, which means all rights related to copyright, patent, trademark or service mark, privacy, publicity, trade dress, design, database protection, trade secret and/or any rights similar to the foregoing.
We may monitor your use of the Service. We reserve the right to investigate and take appropriate action against you if we believe, in our sole discretion, that you have breached these T&C.
4. Music Licenses and Royalty Payments
Except as provided below with respect to “Public Performance Licenses’, SYB is responsible for obtaining all licenses which are necessary to use the music Content and Products of the Service in accordance with the terms of these T&C and for making all royalty payments in connection therewith.
In countries of the world outside of the United States, Canada and Japan, it is not possible for services like SYB to obtain licenses on your behalf for the right to publicly perform the musical works and sound recordings embodied in the music Content on the premises of your locations. These licenses are referred to herein as “Public Performance Licenses”, and the organizations which grant these licenses are referred to herein as “Performing Rights Organizations” or “PRO’s”. Therefore, solely in countries of the world outside of the United States, Canada, and Japan, you are responsible for obtaining Public Performance Licenses and for making all royalty payments in connection therewith. We may update this list of PRO’s over time, but we will have no liability to you for failure to do so. You will be solely responsible for identifying all PRO’s in the territory and for entering into all Public Performance Licenses with them prior to your use of the Service.
5. Personal Data
6. Suspension of Service
We may suspend your access to and use of the Service at any time, in the event of: (i) your actual or suspected Service Misuse or Prohibited Activity; (ii) your non-payment of fees, including such due to your Reseller; and/or your actual or suspected breach of these T&C or your agreement with your Reseller. In such cases, we may notify you before suspending the Service.
Our suspension of your access of the Service shall be without prejudice to our right to terminate it in accordance with these T&C or your agreement with your Reseller. If we suspend or terminate your access to or use of the Service, you agree that we shall have no liability or responsibility to you, to the fullest extent permitted under applicable law.
7. Terms and Conditions Relating to Rights Holders
You acknowledge and agree that portions of the Service, including Content offered on or through the Service, may be owned, controlled, licensed or otherwise made available by or on behalf of Rights Holders, and your use of or access to the Service is subject to your compliance with the terms, conditions and restrictions imposed by such Rights Holders. In consideration of your use of or access to the Service and Content, you will not engage in any of the following activities (“Prohibited Activities”):
you will not use the Service in any place other than your locations;
you will not amplify, transmit or retransmit the Content outside of the premises of your locations;
you will not use Content in connection with any advertising or sponsorship, including but not limited to using the Content in any manner which suggests an endorsement by any recording artist.
you will not use Content in any location for which an admission fee is charged for access to an entertainment event (e.g., a DJ or live performance);
you will not use Content in connection with fitness or dance classes;
you will not alter or record (or permit the alteration or recording any Content.
You acknowledge and agree that any Content owned or controlled by Rights Holders shall be deemed the copyrighted works of such Rights Holders, with all right, title, and interest in and to such Content vesting exclusively in the applicable Rights Holders. You acknowledge and agree that we will provide non-personally identifiable information related to the usage of Content on the Service to Rights Holders and PRO’s.
8. Use of Marks
The terms for using our trademarks, service marks, trade names, logos and brands are set out in our Terms and Conditions for Marketing and Branding, as may be found at www.soundtrackyourbrand.com/legal. For use of third-party marks (such as Rights Holders’ marks) additional terms may apply. You acknowledge and agree that you will comply with any applicable terms at all times.
9. Intellectual Property Rights
SYB Intellectual Property
As between us, we shall remain the exclusive owner of all Intellectual Property Rights in the Service (including the underlying technology, software and content), Content and Products, including Hardware Products (including implemented software). You agree that you shall not remove any legends or statements, including any copyright notice and trademark information, contained in the Service, or any materials provided therewith, regarding our and our licensors’ proprietary rights.
The parties undertake – without limitation in time - not to disclose any trade secrets or information regarding the other party’s business or operations which the receiving party has received from the disclosing party in confidence and which the disclosing party treats as confidential.
11. Term and Termination
This Agreement shall commence on the date when you get access to the Service and shall apply for the same term as your Master Agreement with your reseller (the “Master Agreement Term”), unless terminated earlier in accordance with the terms set out herein or in your Master Agreement. If your Master Agreement is automatically renewed upon its expiry, these T&C shall also be automatically renewed for the same period, unless terminated no later than 60 (sixty) days prior to the expiry of the Master Agreement Term or the renewal term.
If either party materially breaches these T&C for any reason then the non-breaching party shall notify the breaching party of such breach in writing. The breaching party will have ten (10) days from receipt of such notice to remedy the breach, if capable of being remedied. If, after the ten (10) day remedy period, the breach has not been cured, the non-breaching party may, in its sole discretion and in addition to its other remedies, terminate your access to the Service. If Customer is the breaching party, SYB may withhold services in whole or in part upon the occurrence of the breach. The breaching party shall reimburse the non-breaching party for all out-of-pocket costs and expenses incurred in connection with non-breaching party’s exercise of its rights under this Agreement, including without limitation, its costs of collection and reasonable attorneys’ fees and costs.
Either party may terminate this Agreement if the other party: (a) files a voluntary petition for bankruptcy; (b) has an involuntary petition of bankruptcy filed against it which is not discharged within sixty (60) days of such filing; (c) assigns the majority of its assets for the benefit of creditors; (d) has a receiver appointed over a majority of its assets; or (e) is generally unable to pay its creditors as its bills become due. Non-payment of fees or charges when due by Customer shall be considered a material breach of this Agreement.
For the avoidance of doubt, termination of a specific ordered Product will not affect the term of this Agreement, nor the Committed Order. Upon the termination of this Agreement for any reason any sum owing or due to us shall be immediately payable and your access rights to the Service and other rights hereunder shall terminate.
12. Representations and Warranties
Mutual Representations and Warranties
Each Party represents and warrants to the other that (a) it has all right, power, and authority necessary to enter into these T&C, perform its obligations hereunder and grant the rights it grants to the other Party hereunder; (b) its performance of these T&C, and the other Party’s exercise of its rights under these T&C, will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound or any applicable law, rule or regulation; and (c) it will comply with all applicable laws, regulations, orders and other requirements of any governmental authority related to its performance of these T&C.
SYB Representations and Warranties
SYB represents and warrants that except for Public Performance Licenses outside of the United States, Canada, and Japan, SYB maintains all licenses which are necessary to use the music Content and Products of the Service in accordance with the terms of these T&C.
Customer Representations and Warranties
You represent, warrant and covenant that (a) you will comply with the terms of these T&C and follow SYB’s requirements and guidelines in relation to use of the Service; (b) any registration information that you have submitted is true, accurate, complete and is kept updated and you shall be responsible and liable for any access to or use of the Service by your or any person or entity using the Service on your behalf (whether or not such access or use thereof has been authorized by you); (c) you will not access or use the Service, or otherwise stream Content outside of the Territory; and (d) outside of the United States, Canada, and Japan (if applicable), you will obtain all necessary Public Performance Licenses and make all royalty payments in connection therewith in accordance with the terms of such licenses; and (e) you will not engage in any Service Misuse or Prohibited Activities.
13. Warranty Disclaimer
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE T&C, THE SERVICE, CONTENT, PRODUCTS, HARDWARE PRODUCTS AND ALL INFORMATION, MATERIALS AND OTHER SERVICES AND PRODUCTS PROVIDED BY US UNDER THESE T&C ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, THAT THE SERVICE WILL ACHIEVE A PARTICULAR RESULT OR BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. WE HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, USER CONTENT (AS HEREAFTER DEFINED) ASSOCIATED WITH YOUR USE OF THE SERVICE. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICE, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT SYB ASSUMES NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THESE T&C MAY NOT APPLY TO YOU.
SYB agrees to indemnify, defend and hold you and each of your directors, officers, employees, agents and assigns (“Your Parties”), harmless from any claim, demand, suit or proceeding made or brought against you by a third party (“Claim”) and will indemnify Your Parties from any losses, damages, liabilities, costs and expenses, including reasonable outside attorneys’ fees and costs incurred, judgments and any amounts paid in any settlement (“Losses”), arising out of or in connection with (i) our gross negligence or willful misconduct in provisioning the Service or (ii) an allegation that the use of the Service or Content as authorized under these T&C infringes or misappropriates a third party’s Intellectual Property Rights.
You agree to indemnify, defend and hold us and our affiliates, and each of our directors, officers, employees, agents and assigns (“SYB Parties”) harmless from and against any Claim and will indemnify the SYB Parties from any Losses arising out of or in connection with (i) a violation or breach of these T&C by you or (ii) any acts or omissions related to access or use of the Service and/or your account (including negligent or wrongful conduct) by you, your Affiliates or any authorized user; any (iii) Service Misuse or Prohibited Activity.
A Party seeking indemnification for a Claim (the “Indemnified Party”) shall promptly provide written notice detailing the circumstances of the Claim to the Party responsible hereunder for indemnifying against the Claim (the “Indemnifying Party”); provided that failure to timely provide such notice shall not diminish the Indemnifying Party’s indemnification obligation except to the extent the ability to defend the Claim is materially prejudiced by such failure. The Indemnified Party, at the Indemnifying Party’s expense, shall provide the Indemnifying Party with such information and cooperation as the Indemnifying Party may reasonably request. The Indemnifying Party shall control the defense and settlement of any Claim hereunder; provided that the Indemnified Party may participate in the defense and settlement of the Claim with its own counsel at its own expense. Neither Party may enter into any settlement that imposes a financial obligation on or otherwise adversely impacts the other Party without the other Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
If we receive information about an infringement or misappropriation Claim related to the Service, we may in our discretion and at no cost to you (i) modify the Service, Product or Content so that it is no longer claimed to infringe or misappropriate, (ii) obtain a license for your continued use of the Service, Product or Content in accordance with these T&C, or (iii) terminate your Products/subscriptions for the Service upon 30 days’ written notice. Our indemnification obligations will not apply to any infringement resulting from: (i) your continued use of the infringing Service, Product or Content after receipt of written notice from us of a Claim; (ii) modifications to the Service, Product or Content without our written approval, where the infringement arises directly from the modification; or (iv) your use of the Service, Product or Content in a manner that violates the terms of these T&C.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR ANY OF THE SYB PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OR LOSSES OF ANY KIND IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THESE T&C, THE SERVICE, CONTENT OR ANY PRODUCT, INCLUDING ANY HARDWARE PRODUCT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR OPPORTUNITY, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES.
EXCEPT FOR SYB’S BREACH OF CONFIDENTIALITY OR THE INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL OUR LIABILITY FOR ANY CLAIM OR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THAT LOSS OR DAMAGES AROSE.
The limitations set out above do not apply if the loss or damage is due to our gross negligence or willful misconduct.
16. Force Majeure
Neither Party shall be liable to the other Party for any delay or default in performance of its undertakings of obligations under these T&C if such delay or default is caused by force majeure, including wars, insurrections, fires, passing of laws or any governmental order, regulation or ruling, or any other act(s) beyond the reasonable control.. During such force majeure event, the affected Party will use all reasonable efforts to avoid, reduce or eliminate the force majeure event’s prevention, restriction or delay of the performance of its obligations under these T&C. A force majeure event does not excuse either Party’s obligation to make any payment under these T&C.
17. Venue/ Choice of Law
The parties agree to the exclusive jurisdiction of the federal or state courts in New York, New York, as the case may be, and waive any objection to laying venue in any such action or proceeding in such courts, or that such courts are an inconvenient forum or do not have jurisdiction over such party. The Agreement shall be governed by and construed in accordance with the laws of the State of New York pertaining to contracts made and fully performed therein, without regard to choice of law rules.
Any notice or other communication to be given or served under or in connection with these T&C will be sent either by notices in the Service, published on our website or sent by email to your stated email address.
The provisions on Public Performance and Royalty, No Warranty, Personal Data, Hardware, Terms and Conditions Relating To Rights Holders, Use of Marks, IP, Confidentiality, Limitation of Liability, Indemnity, Miscellaneous and Venue/ Choice of Law survive cancellation, expiration or termination of your Service subscription. Further, all other provisions of these T&C that can be reasonably interpreted as surviving the cancellation, expiration or termination of your Service subscription shall survive.
These T&C contain the entire understanding and agreement between you and SYB concerning the Service and supersedes any and all prior or inconsistent understandings relating to the Service and your use thereof. No amendment to, or change, waiver or discharge of, any provision of these T&C shall be valid unless in writing and signed by both Parties.
If any provision of these T&C is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and these T&C shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of these T&C.
The failure of us to exercise or enforce any right or provision of these T&C will not operate as a waiver of such right or provision.
These T&C, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you or us other than in connection with a sale of substantially all assets, merger, consolidation or other sale of the business of the Party.
Each Party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use any Service, Content or Product in an EU or U.S. embargoed country (including North Korea, Sudan, Syria or Crimea) or in violation of any EU, U.S. or other territories’ export law or regulation.