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MusikPitch Terms and Conditions
1. USE OF THE SITE AND SERVICE
2. USER ACCOUNTS
2.1 You agree to create a User Account with MusikPitch in order to use the Site and Service.
2.2 Your User Account will be created using MusikPitch’s online sign up process, or any other method specified by MusikPitch from time to time, including via various third-party internet and/or social media platforms.
2.3 Your User Account will permit You to login to the Site to manage Your User Account, make use of the Site and Service, and to manage other details involving Your relationship with MusikPitch.
2.4 You agree to keep confidential and secure any credentials used to access Your User Account.
2.5 You warrant that all information provided to MusikPitch in the setup of Your User Account is true and correct in every detail.
2.6 You agree to only maintain one User Account in relation to Your use of the Site and Service.
2.7 You agree to provide MusikPitch with all identification documents (including copies of passports and drivers licenses) which MusikPitch may request from You from time to time for the purposes of verifying Your identity.
2.8 By creating a User Account, You represent and warrant to MusikPitch that You are 18 years of age or older and can form legally binding agreements under applicable law. You may however permit minors under 18 years of age to use Your User Account on Your behalf provided that You are their parent or legal guardian, and provided that their use of Your User Account occurs under Your supervision at all times. If You do permit a minor to use Your Account in accordance with the forgoing, then You agree that You are responsible for the actions, omissions or negligence of any such minor, and You agree to indemnify MusikPitch against any loss, cost, expense or damage it may suffer as a result of the such use on Your behalf.
2.9 You agree that You will only use Your User Account and the Site for the purposes of using the Service and for no other purpose. In particular, in using Your User Account and accessing the Site, You will not:
2.9.1 Except as expressly permitted by Section 2.8 hereof with respect to use by a minor under Your direct supervision, resell or sublicense the use of the Site or Your User Account to any other Person;
2.9.2 Use Your User Account in a fraudulent or illegal manner, or email or send any materials from Your User Account which are offensive, unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
2.9.3 Use Your User Account to stalk or harass another Person;
2.9.4 Use Your User Account to impersonate any Person in any manner;
2.9.5 Use Your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any Person;
2.9.6 Use Your User Account for sending advertising, chain letters, junk mail, “spamming” or any other type of unsolicited email or other communication;
2.9.7 Forge or alter the header or address information contained in any email or communication which you send from Your User Account or in relation to the Service;
2.9.8 Use Your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, disabling or destructive files;
2.9.9 Use Your User Account in such a way which damages the Site or denies access to the Site by other Persons;
2.9.10 Intentionally or recklessly use Your User Account in a way that degrades the performance of the Site for other Persons; and
2.9.11 Cancel a Project initiated by You for the purpose of contracting separately with a Musician You meet through the Site or the Service which results in You avoiding paying any Customer Payment or any fees and charges of MusikPitch. In these circumstances, without limiting any remedies against You, MusikPitch may recover its lost fees and charges and the Customer Payment from You by suspending Your User Account and/or deducting any such amounts from any monetary amounts in Your User Account.
3. SUSPENSION OF USER ACCOUNT AND/OR SERVICE
3.1.2 MusikPitch considers that:
18.104.22.168 You are using Your User Account in bad faith;
22.214.171.124 You have colluded in relation to the awarding of a winner in a Project or awarding a separate User Account held by You as the winning Musician; or
126.96.36.199 You and a Musician in a Project are not dealing on an arms-length basis.
3.1.3 You are using the Service to participate in a Project (either as Customer or Musician), which, in MusikPitch’s sole and absolute discretion, is offensive, immoral, unethical or is likely to bring MusikPitch into disrepute;
3.1.4 You are using Your User Account or the Service for illegal or fraudulent means or in a manner which MusikPitch in its sole discretion considers offensive, unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; or
3.1.5 In MusikPitch’s sole and absolute discretion, the provision of the Service to You is resulting in an unreasonable bandwidth load on the Site or MusikPitch’s other services.
3.2 You agree with respect to any suspension of Your User Account and/or the use of the Service that:
3.2.1 MusikPitch may suspend Your User Account and/or the Service at any time, including during or after a Project;
3.2.2 MusikPitch’s suspension of the Service may, in MusikPitch’s sole discretion, apply to only some of the Service and/or for a fixed or indefinite period of time; and
3.2.3 MusikPitch may, in its sole discretion reactivate the Service and Your User Account for You at any time following their suspension.
3.3 You may not make withdrawals of monies from Your User Account during any period of suspension of Your User Account.
3.4 MusikPitch may, in its sole discretion, retain the balance of all monies in Your User Account towards compensating MusikPitch for any loss and damage it may have suffered as a result of Your breach of this Agreement which lead to the User Account suspension.
4.2 You agree that You will only use the Personal Information of other Customers or Musicians, as applicable, for the purposes of using the Service and for the purposes of interacting with them in relation to Projects. Unless separately agreed between You and another Customer or Musician, as applicable, You shall not use the Personal Information of any other Person for any other purpose.
4.3 You warrant to MusikPitch and its third party providers that You will comply with all privacy laws and data protection laws in relation to the storage, use and transfer of Personal Information.
5. YOUR OBLIGATIONS
5.1 You shall not use the Service for any illegal or fraudulent purpose, or for any purpose other than participating in Project(s) as Customer or Musician;
5.2 You shall comply with all laws which must be complied with in relation to a Project and/or the tender of Music;
5.3 You shall comply with any export restrictions which may apply to the export or import of Music or other Intellectual Property Rights to locations inside or outside the United States or the territory in which You are located;
5.4 You warrant that, by Your use of the Service, You will not cause MusikPitch to breach of any law or obligation owing to a third party;
5.5 You shall not undertake any act or cause any omission which will bring MusikPitch, its brand or other Customers and Musicians into disrepute;
5.6 You shall not use the Service in a manner that may lead to the suspension of the Service under Section 3.1 hereof; and
5.7 You shall provide MusikPitch with all information requested by MusikPitch which MusikPitch requires to provide the Service.
6. TERM AND TERMINATION
6.4.1 MusikPitch shall, within a time period determined by MusikPitch, withdraw the use of the Service from You;
6.4.2 MusikPitch may withhold a portion of any amount payable to You (with such amount to be determined by MusikPitch in its sole discretion) in anticipation of credit card charge backs, refunds, payments due to third parties on Your behalf or other costs and expenses which may be incurred by MusikPitch following termination (including as a result of a breach by You); and
7. WARRANTIES; LIMITATIONS OF LIABLITY
7.1 THE SERVICE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE AND/OR THE SITE ARE PROVIDED BY MUSIKPITCH ON AN "AS IS" AND "AS AVAILABLE" BASIS. MUSIKPITCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE, OR THE INFORMATION, CONTENT, MATERIALS, MUSIC, SOFTWARE OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE AND/OR THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.
7.2 TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, MUSIKPITCH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MUSIKPITCH DOES NOT WARRANT THAT THE SERVICE, INFORMATION, CONTENT, MATERIALS, MUSIC, SOFTWARE OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, THE SITE OR ELECTRONIC COMMUNICATIONS SENT FROM MUSIKPITCH ARE FREE OF ERRORS, VIRUSES AND/OR OTHER HARMFUL COMPONENTS. MUSIKPITCH WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, MUSIC, SOFTWARE OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE AND/OR THE SITE, INCLUDING, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. MUSIKPITCH MAKES NO WARRANTIES OF ANY KIND IN CONNECTION WITH THE COMPUTER NETWORKS OR TELECOMMUNICATIONS FACILITIES (INCLUDING THE INTERNET) THAT ARE NOT OWNED BY MUSIKPITCH AND THAT YOU USE TO ACCESS THE SITE AND/OR THE SERVICE.
7.3 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.1 YOU AGREE TO INDEMNIFY AND HOLD THE MUSIKPITCH INDEMNITEES HARMLESS AGAINST ANY CLAIMS OR LOSSES INCURRED BY THE MUSIKPITCH INDEMNITIES IN CONNECTION WITH YOUR BREACH OF THE TERMS OR USE AND/OR YOUR USE OF THE SITE AND/OR THE SERVICE, AS WELL AS ALL COSTS, EXPENSES AND ATTORNEYS’ FEES INCIDENT THERETO.
8.2 If any demand or claim is made or suit is commenced by a third party against a MusikPitch Indemnitee for which You have an indemnity obligation pursuant to Section 8.1 hereof, MusikPitch shall provide You with written notice of such claim, and You shall undertake the defense of any such claim, and such MusikPitch Indemnitee shall cooperate with You in the defense of the demand, claim or suit to whatever reasonable extent You require and at Your sole expense. You shall have the right to compromise such claim at Your expense for the benefit of such MusikPitch Indemnitee; provided, however, You shall not have the right to obligate a MusikPitch Indemnitee in any respect in connection with any such compromise without the written consent of such MusikPitch Indemnitee. Notwithstanding the foregoing, if You fail to assume Your obligation to defend, a MusikPitch Indemnitee may do so to protect its interest and shall be entitled to reimbursement from You.
8.3 With respect to any litigation involving only You, if any subpoena or other legally binding request related to such litigation is served on a MusikPitch Indemnitee requesting copies of documents maintained by such MusikPitch Indemnitee, You shall reimburse such MusikPitch Indemnitee for all out-of-pocket costs associated with compliance with such request, including attorneys’ fees.
9.2 MusikPitch may use Your corporate identity (if applicable) as a part of promoting the Service and the Site in the marketplace, unless otherwise agreed.
9.5 You agree that any determination by MusikPitch that Music is defective is final and conclusive, is not subject to challenge by You, and is binding on You.
10. DEFINITIONS; INTERPRETATION
10.1.1 Amendment Date has the meaning set forth in Section 9.1 hereof.
10.1.2 Customer means a Person who launches a Project soliciting one or more Musicians to create Music to fulfill the requirements of Customer's Music Brief.
10.1.3 Customer Payment means the amount paid, including MusikPitch service fees plus the Musician Prize to be held by MusikPitch until Customer’s selection of winning Music, as further described in Section 2 of the Customer Agreement.
10.1.4 Defective Music means Music that (i) both Customer and winning Musician agree is defective, provided that they notify MusikPitch of this determination; (ii) is the subject of a third party demand or claim for ownership of the Music or the Intellectual Property Rights in the Music, and MusikPitch believes (to be determined by MusikPitch in its sole and absolute discretion) that there may be grounds for such demand or claim; or (iii) MusikPitch determines (in its sole and absolute discretion) is defective.
10.1.5 Exclusive License means the license agreement between MusikPitch and Customer with respect to Music that Customer licenses on an exclusive basis, as set forth in Section 4 of the Customer Agreement.
10.1.6 Gross Receipts means any future royalties actually collected by MusikPitch or its subcontractor(s) as publisher of the winning Music (less all costs of collection), specifically including (i) any and all net sums actually received (less any costs of collection) by MusikPitch in the U.S. from the exploitation in the U.S. and Canada by licensees of MusikPitch of mechanical rights, electrical transcription and reproducing rights, motion picture and television synchronization rights, and all other rights in the Music, whether or not such licensees are affiliated with, owned in whole or in part by, or controlled by MusikPitch; and (ii) any and all net sums, after deduction of foreign taxes, actually received by MusikPitch (less any costs of collection) in the U.S., from sales, licenses and any other uses of the Music in countries outside of the U.S. and Canada from collection agents, licensees, or others, whether or not same are affiliated with, owned in whole or in part by, or controlled by MusikPitch.
10.1.7 Guaranteed Project means a Project launched by Customer whereby the Customer guarantees that they will choose at least one Music Concept as winning Music under the Project.
10.1.8 Intellectual Property Rights means any and all of the following in any jurisdiction throughout the world: (i) patents, patent applications and patent disclosures and any and all reissues, continuations, continuations-in-part, divisionals, extensions, requests for continued examinations, continued prosecution applications and reexaminations thereof and all inventions and designs and all improvements and enhancements thereto, whether or not patentable and whether or not reduced to practice; (ii) registered and unregistered trademarks, service marks, certification marks, trade dress, logos, trade names, corporate names, business and product names, Internet domain names and Internet protocol addresses, together with all translations, adaptations, derivations and combinations thereof and all goodwill associated with any of the foregoing and all applications, registrations and renewals in connection with any of the foregoing and all common law rights relating to any of the foregoing; (iii) registered and unregistered works of authorship, copyrights, industrial designs and industrial models and all applications, registrations and renewals in connection therewith; (iv) trade secrets and other confidential information of any kind (including know-how, ideas, research and development, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans, proposals and methods, whether in tangible or intangible form and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically or in writing); (v) computer software (including data and related documentation); and (vi) all rights pertaining to any of the foregoing (including all statutory, contractual and other claims, demands and rights for royalties, fees or other income from any of the foregoing and all rights to sue for infringement or violation of any of the foregoing and all proceeds thereof).
10.1.9 Music means musical works (musical compositions) and/or sound recordings of those musical works.
10.1.10 Music Brief means Customer's requirements and specifications for Music.
10.1.11 Music Concept means proposed Music submitted by a Musician in connection with a Project.
10.1.12 Musician means a Person who elects to participate in a Project by creating and submitting Music in response to Customer's Music Brief.
10.1.13 Musician Prize means the amount in U.S. dollars, selected by the Customer, to be awarded to the each winning Musician in a Project.
10.1.14 MusikPitch means Musik Pitch, LLC, a Tennessee limited liability company and its affiliates.
10.1.15 MusikPitch Indemnitees means MusikPitch, its subcontractor(s), and their respective directors, officers, employees and agents.
10.1.16 Non-Exclusive License means the license agreement between MusikPitch and Customer with respect to Music that Customer licenses on a non-exclusive basis, as set forth in Section 5 of the Customer Agreement.
10.1.17 Person means any natural person, corporation, general partnership, limited partnership, limited liability company, union, association, court, agency, government, tribunal, instrumentality, commission, arbitrator, board, bureau or other entity or authority.
10.1.18 Personal Information includes Your name, contact details and payment information.
10.1.19 Prepaid Project means the default Project type offered by MusikPitch, and is a Project which is not a Guaranteed Project.
10.1.20 Project means a solicitation by Customer inviting Musicians to tender Music Concepts to Customer, and includes Guaranteed Projects and Prepaid Projects. The winner(s) of the Project will be the successful Musician tenderer(s). For the avoidance of doubt, more than one Musician may win a Project.
10.1.21 Publisher Share means 50% of the Gross Receipts.
10.1.22 Service means the hosting of the online solicitation of Music by Customers from Musicians seeking to tender Music via the Site, the licensing of Music by MusikPitch and, with respect to Musician, the acting as publisher of winning Music.
10.1.23 Single Song Agreement means the single song publishing agreement between MusikPitch and Musician with respect to Music that is selected by a Customer as winning Music, as set forth in Section 3 of the Musician Agreement.
10.1.24 Site means MusikPitch.com and all underlying software and infrastructure which permits the hoof Projects.
10.1.26 Third Party Work means any lyrics or audio samples, the Intellectual Property Rights to which are held by a Person other than Musician.
10.1.27 User Account means an account with MusikPitch that enables You to use the Site.
10.1.28 Writer Share means 50% of the Gross Receipts.
10.2.2 The words “includes” or “including” mean “includes without limitation” or “including without limitation”.
10.2.3 The singular form of a word includes the plural and vice versa.
10.2.4 A reference to any gender includes a reference to all other genders.
10.2.5 A reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions.
10.2.6 Any agreement, representation or warranty made by two or more Persons is made by them jointly and by each of them severally.
10.2.7 Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.