Service and User Agreement

By clicking “I ACCEPT” or by creating an user account on the musikpitch.com website, you agree to comply with these terms and conditions.

The use of the online service provided by Musik Pitch, LLC - a limited liability company based in the State of Tennesee herein referred to as MusikPitch (“MusikPitch”) is governed by these terms and conditions, as set out in this Service and User Agreement (the “Agreement”).

By clicking a button or checkbox on your computer screen, including your acceptance of this Agreement, or by proceeding to use the service, you will be deemed to have accepted to be bound by the terms and conditions of this Agreement.

Whereas, by creating and maintaining an user account on musikpitch.com, the parties agree to be bound by the terms and provisions of this Agreement as of the date of the electronic acceptance of this Agreement.

Therefore, the parties agree as follows:

Article I

DEFINITIONS

1.1 In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

a.MusikPitch means Musik Pitch, LLC - a limited liability company based in the State of Tennessee.

b.MusikPitch.com means the MusikPitch website and underlying software and infrastructure which permits the holding of Music Projects.

c.Amendment Date has the meaning given in clause 16.1.

d.Customer means a person who hosts a Music Project for one or more Musicians to create Music to fulfill the requirements of the Customer's Music Brief.

e.Customer Payment means the amount paid, including MusikPitch service fees plus the Prize Amount to be held by MusikPitch until selection of winning Music.

f.Prize Amount means the amount in U.S. dollars of the prize, selected by the Customer, to be awarded to the winner of the Music Project.

g.Music means musical works (musical compositions) and/or sound recordings of those musical works.

h.Music Brief means a Customer's requirements for their Music.

i.Music Concept means proposed Music submitted by a Musician as part of a Music Project.

j.Music Project means a tender held by a Customer to invite one or more Musicians to submit Music Concepts for the provision of a song to the Customer. The winner(s) of the Music Project will be the successful tenderer(s). For the avoidance of doubt, more than one Musician may win a Music Project.

k.Musicians mean a person(s) who elects to participate in a Music Project to create Music in response to a Customer's Music Brief.

l.Musicians Fee has the meaning given in clause 7.3.

m.Guaranteed Project means a Music Project held by a Customer whereby the Customer guarantees that they will choose winning Music for their Music Project.

n.Indemnified has the meaning given in clause 15.

o.Intellectual Property Rights means all intellectual property rights of any type whatsoever throughout the world including all rights which subsist in copyright, patent rights, and trademark rights, whether or not such rights are registered or able to be registered.

p.Personal Information has the meaning given in clause 10.1.

q.Prepaid Project means the default Music Project type offered by MusikPitch and is a Music Project which is not a Guaranteed Project.

r.Service means the Service provided by MusikPitch which are described in clause 2.

s.User Account means an online account with MusikPitch which enables you, the user, to use MusikPitch.com.

t.Third Party Work means any lyrics or audio samples used without permission of the lyric or audio sample copyright holder.

u.License means the paragraph by that name (or similar names) which sets out a set of terms and conditions governing the Agreement between Musician and Customer as described in clause 6.

1.2 In the interpretation of this Agreement, unless the contrary intention appears:

a.A reference to this Agreement means a reference to the Agreement between you and MusikPitch on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;

b.The words “includes” or “including” mean “includes without limitation” or “including without limitation”;

c.A reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;

d.The singular includes the plural and vice versa;

e.A reference to any gender includes a reference to all other genders;

f.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;

g.An Agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;

h.Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

i.Headings are inserted for convenience only and do not affect the interpretation of this Agreement.

Article II

SERVICE OFFERED BY MUSIKPITCH

2.1 MusikPitch provides an online service, in accordance with and subject to, the terms and conditions of this Agreement (the “Service”), whereby:

a.Customers may, by way of a Music Project, tender their Music for creation by Musicians (in which case, pursuant to clause 7, Customers will make an upfront payment of the Customer Payment at this time);

b.Musicians may bid for the tender to provide Music to a Customer;

c.Upon one or more successful Musicians being chosen:

i.MusikPitch effects the delivery of the successful Music to the Customer; and

ii.MusikPitch separately pays each Musician for their successful Music.

2.2 You, as a user of the Service, may use the Service in the capacity as a Customer, Musician or both a Customer and a Musician. The terms and conditions of this Agreement will apply to your use of the Service in either or both of those capacities.

Article III

CREATING A USER ACCOUNT TO USE THE SERVICE

3.1 Creating a User Account:

a.You agree to create a User Account with MusikPitch in order to use the Service.

b.Your User Account will be created using MusikPitch’s online sign up process, or any other method specified by MusikPitch from time to time to include using the third-party Service provided by various third party internet social media platforms.

c.Your User Account will permit you to login to MusikPitch.com to manage your User Account, make use of MusikPitch.com and to manage other details involving your relationship with MusikPitch.

d.You agree to keep confidential and secure any name or password used to access your User Account.

e.You warrant that all information provided to MusikPitch in the setup of your User Account is true and correct in every detail.

f.You agree to only maintain one User Account in relation to your use of the Service and MusikPitch.com.

g.You agree to provide MusikPitch with all identification documents (including copies of passports and drivers licenses) which MusikPitch requests from you from time to time for the purposes of verifying your identity.

h.All users of the Service must be 18 years of age or older. 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 their actions, omissions or negligence and you indemnify MusikPitch against any loss, cost, expense or damage it may suffer as a result of the same.

3.2 Use of your User Account and MusikPitch.com:You agree that you will only use your User Account and MusikPitch.com for the purposes of using the Service and for no other purpose. In particular, in using your User Account and accessing MusikPitch.com, you will not:

a.Apart from where expressly permitted under clause 3.1, resell or sublicense the use of MusikPitch.com or your User Account to any other person;

b.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, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;

c.Use your User Account to stalk or harass another person;

d.Use your User Account to impersonate any person in any way whatsoever;

e.Use your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any person;

f.Use your User Account for sending advertising, chain letters, junk mail, “spamming” or any other type of unsolicited email;

g.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;

h.Use your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files;

i.Use your User Account in such a way which damages MusikPitch.com or denies access to MusikPitch.com to other s of MusikPitch.com;

j.Intentionally or recklessly use your User Account in a way that degrades the performance of MusikPitch.com for others; and

k.Cancel a Music Project initiated by you for the purpose of contracting separately with a Musician you meet through MusikPitch.com which results in you avoiding paying MusikPitch any Customer Payment or any fees and charges of MusikPitch. In these circumstances, without limiting MusikPitch 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 its loss from any monetary amounts in your User Account.

Article IV

HOSTING A MUSIC PROJECT

4.1 When This Clause Applies:This clause 4 will apply if you use the Service in the capacity as a Customer.

4.2 Hosting a Music Project: The Customer agrees:

a.You may, as a Customer, host a Music Project using MusikPitch.com.

b.To host a Music Project, you, as a Customer must, via MusikPitch.com:

i.Choose the type of Music Project you wish to hold. The types of Music Project available will be determined by MusikPitch from time to time. As at the date of this Agreement, a Music Project will by default be a Prepaid Project, unless you, as the Customer, with the express approval of MusikPitch, select that the Music Project is a Guaranteed Project;

ii.Advertise your Music Brief to Musicians;

iii.Specify the total Prize Amount you wish to pay for the Music (which will need to be greater than a minimum amount specified by MusikPitch from time to time);

iv.Specify how long the Music Project will be open for (subject to any maximum period specified by MusikPitch from time to time);

v.Specify any other details relating to the Music Project as required from time to time by MusikPitch; and

vi.Pay MusikPitch the Payment in accordance with clause 7.

4.3 MusikPitch's obligations to Customers who host Music Projects: If you, as a Customer, host a Music Project, then:

a.MusikPitch will, via MusikPitch.com, invite Musicians to enter the Music Project to bid to produce your Music as required by your Music Brief. Such Musicians will be engaged and invited by MusikPitch, to submit Music Concepts to you. The actual Musicians who are invited to enter the Music Project will depend on the type of Music Project you select;

b.MusikPitch will deliver Music Concepts which it receives from Musicians to you via MusikPitch.com. You acknowledge that such Music Concepts will be submitted in a low resolution file format such as an MP3; and

c.MusikPitch will, via MusikPitch.com, deliver the completed Music to you once:

i.You choose a winning Music Concept; and

ii.MusikPitch has confirmed receipt of your Customer Payment. Payments will be processed in accordance with clause 7.

4.4 Customer's obligation to choose a winning Music:

a.If you, as a Customer, hold a Guaranteed Project, then you must select one or more winning Music Concepts as the winner of your Music Project within 30 days from the time your Music Project ends. If you fail to choose a winning Music Concept in accordance with this clause then:

i.Your Customer Payment will be retained by MusikPitch; and

ii.You, as the Customer, will however have no right to a refund.

b.If you, as a Customer, hold a Prepaid Project and fail to select a winning Music Concept within 30 days from the time that your Prepaid Project closes, then your Customer Payment will be retained by MusikPitch and no winning Music will be chosen and you will have no right to reproduce the Music Concepts submitted to you. In some circumstances, you may however seek a refund of your Customer Payment pursuant to your rights arising under clause 8.

4.5 Customer's ability to withdraw a Prepaid Project:

a.Subject to clause 4.4, you, as a Customer, may withdraw your Prepaid Project (but not a Guaranteed Project) before a winning Music Concept is chosen within 30 days after the close of the Prepaid Project. If a Music Project is withdrawn then all Music Concepts submitted will be considered losing Music.

b.Clause 8 sets out your entitlement (as a Customer) to a refund for a withdrawn Music Project.

4.6 How the Music is delivered:

a.Once the requirements of clause 4.3 are fulfilled, the winning Music will be delivered to you, as the Customer, in a file format specified by MusikPitch from time to time.

b.Your ownership rights as a Customer in relation to the Music are specified in this Agreement as described in clause 6.

4.7 Usage of losing Music entries:You, as a Customer, must not reuse or reproduce any Music Concept which is not chosen by you as a winning Music.

Article V

USING THE SERVICE AS A MUSICIAN

5.1 When this clause applies:This clause 5 applies when you use the Service in your capacity as a Musician.

5.2 Participating in Music Projects:

a.You will have the opportunity to participate, as a Musician, in Music Projects hosted by Customers.

b.Music Projects will be advertised by MusikPitch via MusikPitch.com. As a Musician, you may elect to participate in a Music Project via the methods available in MusikPitch.com and otherwise specified by MusikPitch from time to time.

5.3 Submitting Music Concepts:

a.To participate in a Music Project as a Musician, you must submit a Music Concept to the Music Project being hosted by a Customer. The Music Concept, as submitted, must meet the Customer's Music Brief.

b.The Music Concept must be submitted via MusikPitch.com and/or using any methodology, file format or technology specified by MusikPitch from time to time.

c.If you, as a Musician, submit a Music Concept:

i.You undertake and warrant that the Music Concept will not infringe or be a derivative of the Intellectual Property Rights of a third party nor will it be a derivative of any Music or Music Concept submitted to MusikPitch.com by another Musician;

ii.Your Music Concept must not include a Third Party Work unless the inclusion of the Third Party Work is authorized by MusikPitch policies relating to the use of Third Party Works (as those policies exist from time to time);

iii.If your Music Concept includes a Third Party Work, you must at the time of submitting the Music Concept:

(1)Specify that a Third Party Work has been used in the Music Concept; and

(2)Set out the license and/or usage rights which apply to the Third Party Work including whether the Customer is required to purchase a license for the Third Party Work.

5.4 Being chosen as the winning Music:If your Music Concept is selected by a Customer as a winning Music, then:

a.You must upload the highest quality audio version of the Music to MusikPitch.com for delivery to the Customer;

b.MusikPitch will deliver the winning Music to the Customer; and

c.Once the Customer has confirmed its acceptance of the winning Music, MusikPitch will pay you, as the Musician, the Prize Amount accordance with clause 7.

5.5 No guarantee of winning a Music Project or being included: You acknowledge and agree that as a Musician:

d.You may not have the ability to enter each and every Music Project;

e.MusikPitch or a Customer may restrict your ability to enter any one Music Project and/or invite only specific Musicians to a Music Project; and

f.MusikPitch has not made any representation or warranty that you will win any minimum number of Music Projects or earn any income, or any minimum amount of income, from entering Music Projects.

Article VI

LICENSE AGREEMENT

6.1 MusikPitch provides three options for a license agreement between Customer and Musician; a Non-Exclusive License, an Exclusive License and the option for the Customer to upload a Separate and Independent License. MusikPitch does not claim any ownership rights to the winning Music.

6.2 Non-Exclusive License between Musician and Customer. If the Customer has chosen to use the Non-Exclusive License, once the Customer selects the winning Music, the Customer and Musician shall be deemed to have entered into the terms of this Non-Exclusive License between Musician and the Customer. The Non-Exclusive License relates to the transfer of the right to use the Music created by the Musician for the Customer. In consideration of the mutual promises contained herein, and for other good and valuable consideration, the parties hereby agree as follows:

a.Upon selecting the winning Music, as the holder of the copyright, Musician will automatically grant to the Customer this Non-Exclusive License to use the Music.

b.Musician’s Rights. All rights not expressly granted to Customer in this section are retained by Musician, specifically including the right to grant additional non-exclusive licenses to the Music. MusikPitch does not claim any ownership rights to the winning Music, the Musician continues to retain all ownership rights, copyrights and Intellectual Property Rights to the Music and continues to have the right to use the Music, subject to this Non-Exclusive License.

c.Grant of Rights. Musician hereby grants this Non-Exclusive License to Customer and assigns the right to manufacture, sell, distribute, advertise, promote, market and exploit, and the right to use the winning Music from the Project in any and all formats and configurations and by any and all methods now known or hereafter developed.

d.Representations and Warranties of Musician. The Musician has represented and warranted to Customer:

i.That the Music is Musicians sole, exclusive original work, or;

ii.That if multiples persons or parties wrote or composed the work, then all persons or parties have been listed as a composer on musikpitch.com and all parties have agreed to the MusikPitch User Agreement;

iii.That neither the Music nor any part thereof infringes upon the title, literary or musical property or copyright of any other work nor the statutory, common law or other rights (including rights of privacy) of any person, firm, corporation, or other entity;

iv.That Musician is the sole writer and composer and the sole owner of the Music and of all the rights, title and interest therein, except to the extent of the interest of any co-Musicians as set forth herein;

v.That Musician has not sold, assigned, transferred, hypothecated, mortgaged, or otherwise encumbered in any way any right, title or interest that would affect this Non-Exclusive License or any of the rights conveyed hereby;

vi.That Musician has not made or entered into any contract with any other person, firm, corporation or other entity restricting the ability to enter into this Non-Exclusive License;

vii.That no person, firm, corporation or other entity other than Musician has exclusive use or has claimed any exclusive right, title or interest in or to the Music or any part thereof, any use thereof or any copyright therein; and

viii.That Musician has full right, power and authority to enter into the Non-Exclusive License and to make this present instrument of sale and transfer.

e.Payments to Musician - Royalties.

i.If the Music Project is for private, non-commercial use, and the Music remains as such, then the Music shall be royalty free andMusician retains no right to any further funds or monies;

ii.If the Music Project is for commercial use or the Music becomes a commercial piece or enters the stream of commerce (such as phonorecords, digital downloads, or via future technologies) the Music is subject to performance royalties and mechanical royalties;

(1)Mechanical royalties will be paid at the standard Mechanical Rate if the Customer decides in the future to release the song for sale via phonorecords, digital downloads, or via future technologies deemed to be required to pay mechanical royalties;

(2)Performance royalties will be paid for commercial use by the broadcaster. Anybody who broadcasts the Music, or plays it in public (for example, at a trade show, or in a sports arena), needs to obtain a license from their country's royalty collection society;

(3)As the Customer, if you commercially publish the Music, you will need to appropriately submit a cue sheet;

a.When you send your production to a broadcasting company, always make sure a copy of the cue-sheet is included along with the film.

b.Send a copy of the cue-sheet to Musician.

f.Assignment. Customer shall not have the right to transfer or assign this Non-Exclusive License, or any rights or interests herein, or any sums that may be or become due hereunder, without the prior written consent of Musician. No purported assignment or transfer in violation of this restriction shall be valid to pass any interest to the assignee or transferee.

6.3 Exclusive License between Musician and Customer. If the Customer has chosen to use the Exclusive License, once the Customer selects the winning Music, the Customer and Musician shall be deemed to have entered into the terms of this Exclusive License between Musician and the Customer. This Exclusive License relates to the transfer of the right to use the Music created by the Musician for the Customer. In consideration of the mutual promises contained herein, and for other good and valuable consideration, the parties hereby agree as follows:

a.Upon selecting the winning Music, as the holder of the copyright, Musician will automatically grant to the Customer this Exclusive License to use the Music.

b.Musician’s Rights. All rights not expressly granted to Customer in this section are retained by Musician. MusikPitch does not claim any ownership rights to the winning Music, the Musician continues to retain all ownership rights, copyrights and Intellectual Property Rights to the Music and continues to have such rights, subject to the Exclusive License.

c.Grant of Rights. Musician hereby grants this Exclusive License to Customer and its successors and licensees and assigns the right to manufacture, sell, distribute, advertise, promote, market and exploit, and the right to use the winning Music from the Project in any and all formats and configurations and by any and all methods now known or hereafter developed.

d.Representations and Warranties of Musician. The Musician has represented and warranted to Customer:

i.That the Music is Musicians sole, exclusive original work, or;

v.That Musician has not sold, assigned, transferred, hypothecated, mortgaged, or otherwise encumbered in any way any right, title or interest in or to the Music or any part thereof or any of the rights conveyed hereby;

vi.That Musician has not made or entered into any contract with any other person, firm, corporation or other entity affecting this Exclusive License;

vii.That no person, firm, corporation or other entity other than Musician has or has had any claims or has claimed any right, title or interest in or to the Music or any part thereof, any use thereof or any copyright therein;

viii.That the Music will only be licensed to this Customer; and

ix.That Musician has full right, power and authority to enter into the Exclusive License and to make this present instrument of sale and transfer.

e.Payments to Musician - Royalties.

i.If the Music Project is for private, non-commercial use, and the Music remains as such, then the Music shall be royalty free andMusician retains no right to any further funds or monies;

ii.If the Music Project is for commercial use or the Music becomes a commercial piece or enters the stream of commerce (such as phonorecords, digital downloads, or via future technologies) the Music will be subject to performance royalties and mechanical royalties;

(3)As the Customer, if you commercially publish the Music, you will need to appropriately submit a cue sheet;

a.When you send your production to a broadcasting company, always make sure a copy of the cue-sheet is included along with the film.

b.Send a copy of the cue-sheet to Musician.

f.Name and Likeness. Musician hereby grants to Customer the right to use and publish Musician’s name (including any professional name heretofore or hereafter adopted by Musician), likeness and biographical material, or any reproduction or simulation thereof and the title of the winning Music, in connection with the printing, sale, advertising, distribution and exploitation of Music, folios, recordings, performances, player rolls and otherwise concerning the winning Music, and for any other purpose related to the business of Customer, affiliates, subsidiaries, and successors.

g.Assignment. Customer shall have the right to transfer or assign this Exclusive License, and any rights or interests herein, and any sums that may be or become due hereunder.

6.4 Separate and Independent License. The Customer shall have the option to upload a Separate and Independent License which will govern the licensing rights of the winning Music. If the Customer has chosen to upload a Separate and Independent License, once the Customer selects the winning Music, the Customer and Musician shall be deemed to have entered into the terms of the Separate and Independent License as submitted by the Customer. This Separate and Independent License relates to the transfer of the right to use the Music created by the Musician for the Customer. The Separate and Independent License is an agreement separate and unrelated to MusikPitch and therefore MusikPitch makes no assurances or representations concerning the legality, enforceability or warranties of such license.

a.Upon selecting the winning Music, as the holder of the copyright, Musician will automatically grant to the Customer the rights as defined in the Separate and Independent License.

b.Musician’s Rights. All rights not expressly granted to Customer in the Separate and Independent License are retained by Musician. MusikPitch does not claim any ownership rights to the winning Music, the Musician continues to retain all ownership rights, copyrights and Intellectual Property Rights to the Music and Musician continues to have the right to use the Music, subject to the terms of the Separate and Independent License.

c.Grant of Rights. Musician grants to Customer its rights subject to the terms of the Separate and Independent License.

d.Representations and Warranties of Musician. The Musician has represented and warranted to Customer:

i.That the Music is Musicians sole, exclusive original work, or;

vi.That Musician has not made or entered into any contract with any other person, firm, corporation or other entity affecting the ability to enter into the Separate and Independent License or interest therein or in the copyright thereof;

vii.That no person, firm, corporation or other entity other than Musician has or has had claims or has claimed any right, title or interest subject to the Separate and Independent License or any part thereof, any use thereof or any copyright therein;

viii.That the Music will licensed pursuant to the Separate and Independent License and

ix.That Musician has full right, power and authority to enter into the Separate and Independent License and to make this present instrument of sale and transfer.

e.If Musician and Customer enter into a Separate and Independent License, you agree that MusikPitch and its third party providers will not be liable or responsible for any failure in, or delay to, the provision of such agreement and agree to the general provisions of section 14 contained herein.

f.If a Separate and Independent License is used, this Agreement still remains in effective and binding upon the parties, subject to such license agreement.

Article VII

PAYMENTS

7.1The amount payable by a Customer:

a.When you, as a Customer, set up a Music Project, you will pay MusikPitch a total amount ("Customer Payment") which is comprised of:

i.The price or portion of the Customer Payment which will be paid to the Musician for their winning Music awarded through your Music Project ("Prize Amount");

ii.Any fees and charges imposed by MusikPitch;

iii.Fees and charges imposed by a third party on MusikPitch in respect of the Music Project;

iv.Any Taxes which may be levied on the provision of the Music to you;

v.Any Taxes which may be levied on the provision of any other goods or Service by MusikPitch; and

vi.Any portion of the Customer Payment retained by MusikPitch after deduction or payment of the above amounts.

b.The total amount of the Customer Payment will be calculated and shown to you when you create a Music Project.

c.If you, as a Customer, select more than one Music Concept as a winning Music for your Music Project, then the Customer Payment payable by you will be increased by:

i.The amount of the Musician Fee in respect of each winning Music chosen by you (which will be the same for each winning Musician); and

ii.Any applicable fees and charges imposed by MusikPitch (as they exist from time to time).

7.2How is the Customer Payment paid?

a.The Customer Payment is paid using any method of payment which is specified by MusikPitch from time to time which may include credit card, PayPal, direct debit, or telegraphic transfer.

7.3What amounts are paid to Musicians?

a.If you, as a Musician, win a Music Project, then MusikPitch will pay you the full amount (100%) of the Prize Amount (subject to having first received payment from the Customer).

b.The Prize Amount will be the total amount paid to the Musician and will be defined as the Musician Fee.

c.This Musician Fee will be paid to you in US Dollars but may be reclaimed by MusikPitch if any refund is payable to the Customer under clause 8.

d.Other amounts may or may not be payable in the future, paid as royalties as defined under this Agreement.

e. MusikPitch is not responsible for money transfer fees imposed by services such as PayPal (or other services that MusikPitch may choose to use from time to time) when winning payment is transferred to Musician.

7.4 MusikPitch is not an escrow service: MusikPitch is not an escrow service and does not hold property on behalf of any person. All amounts deposited or paid to MusikPitch are property of MusikPitch and MusikPitch may use those funds as it sees fit. The only rights that you have to receive payment of any amounts held by MusikPitch are as set out in this clause 7 or under clause 8.

Article VIII

PROCESSING OF REFUNDS

8.1 How refunds are paid:If MusikPitch issues you a refund, that refund will be paid to you using the same payment methods you used to remit the Customer Payment to MusikPitch as described in clause 7.1 or via any other method MusikPitch chooses from time to time.

8.2 Withdrawn Music Projects: Subject to clause 4, if you, as a Customer, are permitted to, and do withdraw a Music Project, then you may be refunded any amount of the Customer Payment paid in respect of the Music Project.

8.3 MusikPitch money back guarantee for Prepaid Projects:

a.If you as a Customer, host a Prepaid Project, then you may seek a refund of the Prize Amount paid by you at any time up to 30 days after your Music Project has ended but only if:

i.A successful Music Concept was not chosen by you; and

ii.You have reviewed and rated each Music Concept submitted to your Music Project; and

iii. The Music Project has run for at least 14 days.

b.The MusikPitch money back guarantee does not include MusikPitch service fees paid upon launching of a Music Project.

c.For the avoidance of doubt the money back guarantee described in this clause 8.3 does not apply to Guaranteed Projects.

8.4 Refunds for “defective” Music: If a refund is paid to a Customer as a result of defective Music (as determined under clause 8.5) or if a refund is paid for any reason set out in clauses 8.2, 8.3 or 8.6:

a.If the Music is provided by you, in your capacity as a Musician, then you must reimburse MusikPitch for the amount of the Prize Amount you received in respect of that Music.

b.If the refund is paid to you as a Customer, then you will initially receive the amount of the Customer Payment paid by you, less the Prize Amount. You will receive the Prize Amount only once the Prize Amount is reimbursed by the Musician to MusikPitch.

8.5 When is Music deemed to be “defective”?

a.Music will be deemed to be “defective” if:

i.Both a Customer and the winning Musician agree it is defective and notify MusikPitch of this fact;

ii.MusikPitch receives a demand or claim from a third party who claims ownership of the Music or the Intellectual Property Rights in the Music and MusikPitch accepts (to be determined by MusikPitch in its sole and absolute discretion) that there may be grounds for the third party's claim; or

iii.MusikPitch deems (in its sole and absolute discretion) that it is defective.

b.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.

c.If MusikPitch determines that Music is not defective, this will not restrict a Customer from pursuing a Musician separately for amounts paid by MusikPitch to the Musician.

8.6 Other circumstances in which a refund may be paid:

a.MusikPitch may refund an amount paid by a Customer in respect of Music supplied by a Musician if:

i.MusikPitch is required by law or considers that it is required by law to do so;

ii.MusikPitch determines that issuing a refund to the Customer will avoid any dispute or increased costs to MusikPitch;

iii.MusikPitch issues the refund to the Customer in accordance with any refund policy specified by MusikPitch from time to time;

iv.The order placed by the Customer is found to be fraudulent;

v.The Customer placed a duplicate order in error; or

vi.In MusikPitch’s sole opinion, MusikPitch considers that it is likely that the refund is necessary to avoid a credit card charge back.

b.MusikPitch's determination as to whether a refund is required by this clause 8.6 is final and conclusive and may not be challenged by you.

Article IX

SUSPENSION OF THE SERVICE

9.1 Without limiting MusikPitch’s other rights arising under this Agreement, MusikPitch may suspend your User Account and your use of the Service at any time, with or without notice to you, and for any reason in its sole and absolute discretion, including if:

a.MusikPitch considers that you have breached any of your obligations to MusikPitch under this Agreement;

b.MusikPitch considers that:

i.You are using your User Account in bad faith;

ii.You have colluded in relation to the awarding of a winner in a Music Project or awarding a separate User Account held by you as the successful Musician in a Music Project; or

iii.You and a Musician in a Music Project are not dealing on an arms length basis.

c.You are using the Service to participate in a Music Project (either as Customer or Musician), which in MusikPitch’s sole and absolute opinion is offensive, immoral, unethical or is likely to bring MusikPitch into disrepute;

d.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

e.In MusikPitch’s sole and absolute opinion, the provision of the Service to you is resulting in an unreasonable load on MusikPitch’s servers or MusikPitch’s other Service.

9.2 You agree:

a.MusikPitch may suspend the Service where permitted under clause 9.1 at any time including without limitation, during or after a Music Project;

b.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

c.MusikPitch may in its sole discretion reactivate the Service and your User Account for you at any time following their suspension.

d.For the avoidance of doubt, you may not make withdrawals of monies from your User Account during any period of suspension of your User Account.

e.Further MusikPitch may in its 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.

Article X

PRIVACY

10.1 MusikPitch will collect your personal information including your name, contact details and payment details (including, without limitation, credit card details) (“Personal Information”). All Personal Information will be handled, used, maintained and disclosed by MusikPitch in accordance with all applicable privacy laws and data protection laws as well as its privacy policy which applies from time to time.

10.2 You agree that you will only use the Personal Information of other Customers or Musicians for the purposes of this Agreement and for the purposes of interacting with them in relation to Music Projects. Unless separately agreed between you and another Customer or Musician, you must not use their Personal Information for any other purpose.

10.3 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.

Article XI

RELATIONSHIP OF THE PARTIES

11.1 MusikPitch is an independent service provider to you and is not your partner, employee or agent. You do not have the power to bind MusikPitch in relation to any obligation owing to a third party.

Article XII

YOUR GENERAL OBLIGATIONS

You agree that:

12.1 You will not use the Service for any illegal or fraudulent purpose or for any purpose other than holding or entering into Music Projects as a Customer or Musician;

12.2 You will comply with all laws which must be complied with in relation to a Music Project or the supply of Music;

12.3 You will 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;

12.4 You warrant that you will not, by engaging MusikPitch to provide the Service, place MusikPitch in breach of any law or obligation owing to a third party;

12.5 You will not undertake any act or cause any omission which will bring MusikPitch, its brand or other Customers and Musicians into disrepute;

12.6 You will not use the Service in a manner that may lead to the suspension of the Service under clause 9.1; and

12.7 You will provide MusikPitch with all information requested by MusikPitch which MusikPitch requires to provide the Service.

Article XIII

TERMS AND TERMINATION

13.1 This Agreement will commence on the date that you first create a User Account with MusikPitch and will terminate at the later of the date that either the User Account is terminated or closed or you otherwise cease using the Service, except whereas the terms of the Agreement survive termination, as noted in clause 13.6.

13.2 If after termination or closure of your User Account, your User Account is reactivated or a new User Account is opened, you will again become bound by this Agreement at that time.

13.3 This Agreement and your User Account may be terminated by MusikPitch at any time for any reason whatsoever with or without notice to you.

13.4 This Agreement may be terminated by a party immediately on written notice to the other party if:

a.The other party is in default or breach of this Agreement; and

b.The party has provided the defaulting party with 7 days written notice of the default or breach and where the breach or default is capable of rectification, the defaulting party fails to rectify the breach or default within the period of the notice.

13.5 Upon the termination of this Agreement:

a.MusikPitch will, within a time period determined by MusikPitch, withdraw the use of the Service from you;

b.MusikPitch may however withhold a reasonable portion of any amount payable to you (with such amount to be determined by MusikPitch in its sole discretion) on User Account 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

c.Within 12 monthsfollowing termination of this Agreement, MusikPitch will pay to you the amount withheld under clause 13.5 less any portion of that amount used by MusikPitch to satisfy refunds, credit card charge backs, payments due to third parties or other costs and expense incurred by MusikPitch either before or after termination.

13.6 Clauses 8, 10, 11, 13.5, 14, 15 and 16 will survive the termination of this Agreement.

Article XIV

LIMITATIONS OF LIABILITY AND IMPLIED TERMS

14.1 You acknowledge that MusikPitch and its third party providers have made no warranties that the Service will be error free.

14.2 You agree that MusikPitch and its third party providers will not be liable or responsible for any failure in, or delay to, the provision of the Service or in MusikPitch complying with its obligations under this Agreement where such failure or delay has an arisen as a direct or indirect result of:

a.Fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;

b.Denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;

c.A significant demand is placed on MusikPitch's Service which is above the usual level of demand and which results in a failure of MusikPitch's software and hardware to function correctly;

d.The failure of any third party (including without limitation, any bank or other financial organization) to fulfill any obligations to MusikPitch; or

e.Any other circumstances or event similar to the above which are beyond the reasonable control of MusikPitch.

14.3 You acknowledge and agree that MusikPitch and its third party providers shall have no liability or responsibility to you whatsoever for any unauthorized withdrawals or unauthorized spending of your account monies where such withdrawal or spend arises from:

a.Any of the events described in clause 14.2; or

b.Any unauthorized use or access of your User Account or MusikPitch.com.

14.4 You acknowledge and agree that MusikPitch and its third party providers have not made and will not make any express or implied warranties in relation to the Service or any other goods or Service provided by MusikPitch under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clause 14.7, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.

14.5 Subject to clause 14.7, you agree that MusikPitch and its third party providers will not be liable in respect of any claim by you (whether contractual, tortuous, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Service or the provision of any other goods or Service under this Agreement and whether as a result of any breach or default by, or any negligence of, MusikPitch or its third party providers.

14.6 The maximum liability of MusikPitch under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement will not exceed the lesser of:

a.The amount of the Customer Payments paid for the Service by you; or

b.The total amount of the Prize Amount received by you.

14.7 Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of MusikPitch will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.

Article XV

INDEMNITY

15.1 You indemnify MusikPitch, its agents, officers, employees, and third party providers (“Indemnified”) against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which any of the Indemnified suffer or incur as a direct or indirect result of:

a.Any breach by you of any representation, warranty or term of this Agreement;

b.Any acts or omissions by you which are described in clause 9.1;

c.Any breach by you of your obligations to a third party, including another Customer or Musician;

d.Any infringement by you of the Intellectual Property Rights of a third party; and

e.Any legal proceedings threatened or initiated against MusikPitch by a third party as a result of the events described in clause 15 above.

Article XVI

MISCELLANEOUS

16.1 MusikPitch may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to you (“Amendment Date”). You agree that without limiting the ways in which it may be bound by such amendments, you will be deemed to have agreed to such amendments by making use of or accessing your User Account or MusikPitch.com after the Amendment Date.

16.2 Unless otherwise requested in writing by you, MusikPitch may use your corporate identity (if applicable) as part of promoting the Service and MusikPitch in the market place.

16.3 Any notice given under this Agreement must be in writing (including written electronic notice with an appropriate electronic signature) and must be signed by the party or its agent giving the notice. A notice is taken to be received:

a.In the case of a notice delivered by hand, when so delivered;

b.In the case of a notice sent by prepaid post, on the third day after the date of posting;

c.In the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the dispatching facsimile machine which confirms that the facsimile has been successfully sent; or

d.In the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient's email server that the email has been received by the recipient.

16.4 This Agreement supersedes all prior representations, arrangements, understandings and Agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive Agreement and understanding between the parties relating to the subject matter of this Agreement.

16.5 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

16.6 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.

16.7 MusikPitch may assign its rights and novate or transfer obligations which arise under this Agreement. You must not assign, novate or otherwise transfer your rights or obligations under this Agreement without the prior written consent of MusikPitch (which may be withheld).

16.8 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

16.9 This Agreement is governed by, and must be construed in accordance with, the laws of the State of Tennessee, United States of America and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Tennessee, United States of America and their Courts of Appeal.

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MusikPitch

Service and User Agreement