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STANDARD AUDIO CONTENT LICENSE AGREEMENT
1. Background of Agreement
(a) This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting the I Agree box on the File Upload page or buy purchasing a file from gamecallswap.com or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download any Audio Content.
(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “The Sound Exchange” or “we” means The Sound Exchange or Gamecallswap.com, operator of the Site; (iii) “Audio Content” means any digitally created compositions, master recordings, non-musical audio recordings and other sound material (whether generated electronically, digitally or by any other means or in any media) or other material that you are downloading from the Site, together with any accompanying material; and (iv) “Synchronize” means to use the Audio Content in timed relation to other elements.(c) This Agreement is set up as a user-determined document where you will choose to enter into either our standard Audio Content license (the “Standard License”) or an extended license, if any, where one or more of the restrictions of the Standard License are amended for your proposed use of the Audio Content (an “Extended License”). At the end of this Agreement you may have the opportunity to select a “Standard License” or an “Extended License”. The options for the Extended License uses, if any, are dependent upon the Audio Content and whether the supplier of the Audio Content has opted-in to the extended license options. If you do not specify an Extended License or there is no Extended License option for the Audio Content you have requested, your download of Audio Content will be subject to the Standard License.
2. Standard License Terms
We hereby grant to you a perpetual, non-exclusive, non-transferable, non-sublicenseable, worldwide license to use, couple and synchronize the Audio Content for the Permitted Uses (as defined below) provided that you may permit third-parties to cause the public performance, replication, telecast, broadcast, transmission, exhibition, distribution or other exploitation of the Audio Content necessary for you to give effect to such Permitted Uses, provided that no further rights in the Audio Content are granted to such third parties. Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Audio Content, including, without limitation, all copyright and other intellectual property rights relating to the Audio Content, are retained by The Sound Exchange or the supplier of the Audio Content, as the case may be.
The Sound Exchange has used reasonable efforts to ensure that the suppliers of Audio Content are not members of any performing rights, mechanical rights or any other similar societies (such as SOCAN, ASCAP, BMI, SESAC, PRS, MCPS, SACEM, SDRM, JASLAC, GEMA, etc…) and that no performing rights or other royalties are required to be paid to any such organizations. However, in certain jurisdictions (for example, France and Spain), you may be required to pay royalties to performing rights or other rights societies due to the exploitation of the Audio Content itself (even if the supplier of the Audio Content is not a member) and/or if a supplier later becomes a member of a performing rights or other rights society. You must determine if such requirements exist in the applicable jurisdiction.
3. Permitted Standard License Uses:
(a) You may only use the Audio Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below).
(b) Seat Restrictions. Only you are permitted to use the Audio Content, although you may transfer files of your completed work product containing Audio Content to your clients, distributors, broadcasters, licensees or ISP for the purpose of broadcast and reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Audio Content and cannot access or extract it from any file, film or television production or other work that you provide. You may install and use the Audio Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Audio Content for the Permitted Uses an unlimited number of times. You may physically transfer the Audio Content and its archives from one location to another, in which case you may use the Audio Content at the new location instead. If you require the Audio Content to be downloaded or installed in more than one location (for example, multiple computer workstations) or accessible by more than one person, you must re-license the Audio Content from the Site for each such use, or purchase an extended license, if available. You may make one (1) copy of the Audio Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
(c) Altering Audio Content. You may alter, edit or modify Audio Content for the purposes of the Permitted Uses, as set out below, provided that you may not alter, edit or modify it to the prejudice of the unwaiveable moral rights of the artist(s).
(d) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Audio Content:
If there is any doubt whether a proposed use is a Permitted Use, you should contact The Sound Exchange for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Audio Content that is not expressly permitted in the preceding section or permitted by an Extended License, if any. Notwithstanding anything contained herein and for greater certainty, the following are “Prohibited Uses” and you may not:
When Audio Content is used in a television or film production, you must give on-screen credit to the artist as follows: The Sound Exchange®, ©membername, title. You must give similar attribution to the artist for every other use of Audio Content: (i) except where technological constraints make it unreasonable to give such attribution (for example, short radio advertisements); or, (ii) unless applicable law permits otherwise.
6. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Audio Content, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Audio Content for any purpose. The Agreement also terminates without notice from The Sound Exchange if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Audio Content and for any purpose; (ii) destroy or delete all copies and archives of the Audio Content or accompanying materials; and (iii) if requested, confirm to The Sound Exchange in writing that you have complied with these requirements.
(b) The Sound Exchange reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Audio Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Audio Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Audio Content. You agree not to use the replaced Audio Content for future products and to take all reasonable steps to discontinue use of the replaced Audio Content in products that already exist. Notwithstanding the foregoing, if the Audio Content is embodied in a product which, in the view of The Sound Exchange cannot be modified following completion (like a film or television production), The Sound Exchange may permit you to use the Audio Content in such product provided that in every case you shall indemnify, defend and hold harmless the Sound Exchange Parties (defined below) from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) arising as a result of such use.
(c) Upon notice from The Sound Exchange, or upon your knowledge that any Audio Content is subject to a threatened, potential or actual claim of infringement of another's right for which The Sound Exchange may be liable, you must immediately and at your own expense (i) stop using the Audio Content; (ii) delete or remove the Audio Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients or ISPs do likewise. The Sound Exchange shall provide you with replacement Audio Content (which shall be determined by The Sound Exchange in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
7. The Sound Exchange Representations and Warranties
(a) The Sound Exchange warrants that your use of the Audio Content in accordance with this Agreement and in the form delivered by The Sound Exchange will not infringe on any copyright or other intellectual property right and will not violate any right of privacy or right of publicity.
(b) While we have made reasonable efforts to correctly categorize and keyword the Audio Content, The Sound Exchange does not warrant the accuracy of such information.
(c) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 7(a), THE AUDIO CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ISTOCKPHOTO DOES NOT REPRESENT OR WARRANT THAT THE AUDIO CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PERFORMING RIGHTS FEES OR OTHER SIMILAR FEES WILL NOT BE PAYABLE BY YOU. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE AUDIO CONTENT IS WITH YOU. SHOULD THE AUDIO CONTENT PROVE DEFECTIVE, YOU (AND NOT ISTOCKPHOTO) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
(d) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
8. The Sound Exchange Indemnification and Limitation Liability
(a) Provided that the Audio Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 7(a) above, The Sound Exchange shall, subject to the terms of Sections 8 (b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of its representations and warranties set forth in Section 7(a) above. The foregoing states The Sound Exchange’s entire indemnification obligation under this Agreement.
(b) The indemnification set out in Section 8(a) above is conditioned on your prompt notification in writing to The Sound Exchange of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with The Sound Exchange in the defiance of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. The Sound Exchange shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
(c) IN NO EVENT SHALL The Sound Exchange OR ANY OF ITS AFFILIATES OR AUDIO CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE AUDIO CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER LEGAL THEORY. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THE AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, THE SOUND EXCHANGE SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE AUDIO CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF ISTOCKPHOTO UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME AUDIO CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER, AND THE OBLIGATION OF THE SOUND EXCHANGE UNDER SECTION 8(a), SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) US DOLLARS. FOR GREATER CLARITY, THE SOUND EXCHANGE’S LIABILITY TO YOU IN RESPECT OF THE AUDIO CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME AUDIO CONTENT FROM THE SOUND EXCHANGE.
(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. Your Indemnification
You agree to indemnify, defend and hold The Sound Exchange, its affiliates, its Audio Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “The Sound Exchange Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any The Sound Exchange Party as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this Agreement.
11. General Provisions
(b) The Sound Exchange’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is not assignable by you without The Sound Exchange’s prior written consent. The Sound Exchange may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Audio Content, pursuant to this Agreement.
(f) This Agreement will be governed under the laws of the State of Michigan and the federal laws of the United States of America applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Audio Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
(g) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Traverse City, Michigan, and shall be conducted in the English language.
(h) This is the entire agreement between the parties with respect to the subject matter hereof and this Agreement cannot be amended or otherwise modified except by an agreement in writing signed by both parties. This Agreement shall be binding upon the parties and enure to the benefit of their heirs, executors, personal representatives, successors and permitted assigns. Nothing in this Agreement shall be deemed to have created a joint venture, partnership or employment relationship between the parties.
(i) The parties have requested that this Agreement and all related documents be drawn up in English.
If you have concerns relating to this Agreement, please contact The Sound Exchange at firstname.lastname@example.org at (800) 891 -3660.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF THE SOUND EXCHANGE AGREEING TO PROVIDE THE AUDIO CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THE SOUND EXCHANGE, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND THE SOUND EXCHANGE RELATING TO THE SUBJECT OF THIS AGREEMENT.