This Agreement shall be governed by and construed in accordance with the laws of Ireland and the parties agree that any dispute relating to its terms or subject matter shall be subject to the exclusive jurisdiction of the Irish courts
2.1 The Company will provide the End-user with use of and access to the Services in accordance with the terms of this Agreement.
2.2 In relation to the Authorised Users, the End-user undertakes that each Authorised User shall keep a secure and confidential password for his use of the Services and that each Authorised User shall comply with good industry practice in respect of password security.
2.3 The End-user shall not knowingly access, store, distribute or transmit any Viruses, or any material, data or Content during the course of its use of the Services that, in the sole opinion of the Company:
2.3.1 Is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
2.3.2 violates or infringes any Intellectual Property Rights or other rights of third parties;
2.3.3 facilitates illegal activity;
2.3.4 depicts sexually explicit images;
2.3.5 promotes unlawful violence;
2.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
2.3.7 causes damage or injury to any person or property,
and the Company reserves the right, without liability to the End-user, to disable the End-user's access to any material that breaches the provisions of this Clause 2.3.
2.4. The End-user shall not and shall ensure that the Authorised Users do not:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Services (as applicable) in any form or media or by any means including any part of the Company Data, the data models or screens, and any data that has been entered by the Company or one of its agents; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
1. access all or any part of the Services or Software in order to build a product or service which competes with the Software and/or the Services;
2. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software or the Services available to any third party except the Authorised Users;
3. attempt to obtain, or assist third parties in obtaining, access to the Software or the Services other than as provided under this Agreement;
2.5. The End-user shall not, and shall ensure that the Authorised Users do not, do any of the following while using or accessing the Services or the Software:
2.5.1. disable, hack, circumvent or otherwise interfere with security related features of the Software or the Services;
2.5.2. use any metadata, meta tags or other hidden text utilising the Company name, trademark, URL or product name;
2.5.3. upload, submit, post, email or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
2.5.4. forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Services or the Software to send altered, deceptive or false source-identifying information;
2.5.5. attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Services or the Software;
2.5.6. collect or store Personal Data about any third party except in accordance with the Data Protection Legislation; or
2.5.7. misrepresent or impersonate its affiliate with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud.
2.6. The End-user shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Company.
2.7. The Company may amend the Services in its sole and absolute discretion from time to time on notice to the End- user.
3.1 The End-user shall submit all Content at its sole expense in the format(s) required by the Company or the Consumer Stores. Technical descriptions of such format(s) will be provided to the End-user on request. In the event that Content is provided by the End-user in the incorrect format, the End-user shall be liable to pay any resubmission or similar fees levied by the Consumer Stores in respect of any such Content provided by the Company to the Consumer Stores.
3.2 The End-user hereby grants to the Company, during the term of this Agreement and for a reasonable period thereafter, a non-exclusive, royalty-free, irrevocable and worldwide licence (including without limitation the right to sub-license all of these rights) to:
3.2.1 use the Content to provide the Services;
3.2.2 sell, copy, display, distribute and otherwise exploit the Content by all means and media (whether now known or existing in the future) through any and all Consumer Stores or the Company website (including for permanent download by End-users);
3.2.3 to supplement any artwork provided for use with the Services;
3.2.4 to make and perform clips of any Content of up to thirty (30) seconds in length via streaming or download free of charge, for the purposes of promotion of the Content, the relevant artists or the Services;
3.2.5 to use the Content in connection with the Company's business purposes; and
3.2.6 to collect all income deriving from the activities specified in this clause 3.2.
3.3 The Company shall make the Content available ‘as is’ through the Services and shall not be liable for any reliance placed by the End-user or any third party on the Services, Software or Content.
3.4 The Company engages the services of third party providers who also provide back-up services for data stored in or entered into the Software, including Content. In the event of any loss or damage to Content, the End-user's sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to have its service providers restore the lost or damaged Content from the latest back-up of such Content maintained in accordance with the archiving procedure described in the relevant back up policies. The Company shall not be responsible f or any loss, destruction, alteration or disclosure of Content caused by any third party (except those third parties sub-contracted by the Company to perform services related to Content maintenance and back-up or the Company's duly authorised contractors or agents).
3.5 The End-user warrants and represents that:
3.5.1 It has the authority to enter into this Agreement;
3.5.2 It is the owner or licensee of the Content and is permitted to provide the rights to the Content as specified in this Agreement to the Company and the Consumer Stores; and
3.5.3 the use and exploitation by the Company or any of the Consumer Stores of Content as contemplated by this Agreement shall not infringe the Intellectual Property Rights of any third party.
3.6 For clarity, the End-user shall be solely responsible for obtaining and paying for any licences from the owners of any Intellectual Property Rights in Content required in connection with the use or exploitation of Content by the Company or the Consumer Stores as contemplated in this Agreement.
3.7 The End-user acknowledges that in providing the Services and payments hereunder, the Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores shall be within the sole discretion of the Company.
3.8 Nothing in this Agreement shall require the Company, and the Company does not guarantee, that it will use or exploit any Content or upload it to any Consumer Stores.
3.9. Not to use Artificial Intelligence, Artificial Music Generator, or any other artificial and or robotic means.
4.1 If the Company processes any personal data on the End-user's behalf (and the End-user is an entity or an individual other than a Data Subject) when performing its obligations under this Agreement, the parties record their intention that the End-user shall be the data controller and the Company shall be a data processor (where "Controller" and "Processor" have the meanings specified in the GDPR), and in any such case:
4.1.1 for the purposes of this Clause 4.1.1, the terms "Personal Data", "Data Subject" and "Processing" (and "Process" and "Processed" shall have a corresponding meaning) shall have the same meanings as in the GDPR;
4.1.2 Schedule 1 sets out the scope, nature, purpose, duration of Processing by the Company and the types of Personal Data and categories of Data Subject to be Processed;
4.1.3 the End-user will ensure that at all times there is a legal basis in place to enable the Company to Process the Personal Data in order to provide the Services, provide Content to Consumer Stores and the Company's other obligations under this Agreement;
4.1.4 the End-user acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the End-user and the Authorised Users are located in order to provide/make available the Services, provide Content to Consumer Stores and the Company's other obligations under this Agreement;
4.1.5 the End-user permits the Company to subcontract its Processing functions as it deems necessary in order to provide/make available the Software and the Company's other obligations under this Agreement to any of the third parties listed at Schedule 1;
4.1.6 the Company shall, in relation to any Personal Data Processed under this Agreement:
The End-user acknowledges that the Services may enable or assist it to access third party software and/or application programming interfaces and the website content of, correspond with, and purchase products and services from, third parties via third-party websites, software and application programming interfaces, and that it does so solely at its own risk. The Company makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website or application programming interfaces, or any transactions completed, and any contract entered into by the End-user, with any such third party. Any contract entered into and any transaction completed via any third-party website or application programming interfaces is between the End-user and the relevant third party, and not the Company. The Company recommends that the End-user refers to the third party's website or application programming interface terms and conditions and privacy policy prior to using the relevant third-party website or application programming interface. The Company does not endorse or approve any third-party website or application programming interface nor the content of any of the third-party website made available via the Services.
6.1 The Company warrants that the Services and any Software: (i) will be performed in accordance with reasonable skill and care, and (ii) does not infringe any third party Intellectual Property Rights.
6.2 The warranty at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services or the Software by any party other than the Company or the Company's duly authorised contractors or agents. If the Services or the Software do not conform with the warranty at Clause 6.1 above, the Company will, at its expense: (i) use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the End-user with an alternative means of accomplishing the desired performance; or (ii) re-perform the relevant Services (as applicable). Such correction, substitution or re-performance constitutes the End-user's sole and exclusive remedy for any breach of the warranty set out in Clause 6.1. Notwithstanding the foregoing, the Company:
6.2.1. does not warrant that the End-user's use of the Services or the Software will be uninterrupted or error-free, nor that the Software or the information obtained by the End-user through the Services will meet the End-user's requirements; and
6.2.2.is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the End-user acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Company shall use commercially reasonable endeavours to prevent and/or minimise any such delays or loss of data resulting from the transfer of data over communications networks and facilities to the extent that such matters are within the Company’s control.
6.3 Nothing in this Agreement shall prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement
7.1The Company shall pay or arrange payment to the End-user the Net Income within 30 days of the end of the month in which the related Income is received from the Consumer Store(s). Net Income shall be applied to the End-user's Company account, which can be accessed through the Services. For the avoidance of doubt, the Company shall only pay or arrange payment to the End-user the Net Income which is actually received by the Company prior to date on which payment is specified to occur in this Clause 7.1.
7.2 The Company shall not be responsible for the payment of any income tax or corporation tax or comparable taxes levied on the End-user or the Company in respect of the Net Income or Income. If any withholding tax is incurred under income tax or corporation tax enforced in Ireland or elsewhere, the Company shall be entitled to deduct the statutory amount of withholding tax from the payments due to the End-user.
7.3 The Company (on its own behalf or, where applicable, on behalf of its authorised distributors or partners) shall be entitled to deduct the Fee from any Income prior to applying the Net Income to the End-user's account.
7.4 To the extent that the End-user elects to use Content to distribute free to any third parties (by whatever means), the End-user agrees that it will be solely responsible for any fees or charges levied by Consumer Stores or taxes in respect of such distribution.
7.5 In the event that the Company determines, in its sole discretion, that the End-user's Company account has been subject to and / or involved in fraudulent or infringing activities, the Company reserves the right to discontinue the application of Net Income to the End-user's Company account and block the End-user's ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of the Company. The End- user agrees that any Net Income obtained as a result of the End-user's fraud or infringement of third party Intellectual Property Rights shall be forfeited to the Company. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and the End-user agrees that it is its responsibility to investigate such policies and such policies shall be binding on the End-user hereunder.
7.6 To the extent that any Net Income applied to the End-user's Company account bears any interest prior to the withdrawal by the End-user of such Net Income, the End-user agrees that it will not receive interest or other earnings on the Net Income. In consideration for the End-user's use of the Services, the End-user transfers and assigns to the Company any ownership rights the End-user may have in any interest or other earning that may accrue on Net Income prior to its withdrawal by the End-user.
8.1The End-user shall:
8.1.1. provide the Company with all necessary
9.1 The End-user acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Software and the Services. Except as expressly stated herein, this Agreement does not grant the End-user any rights to, or in, any Intellectual Property Rights.
9.2 The End-user shall ensure that all titles, logos, trademarks, copyright and other notices applied by the Company to the Software or any materials provided or produced by the Company or the Software in connection with this Agreement shall be reproduced and not deleted or removed.
10.1 The End-user may be given access to Confidential Information from the Company in the course of the provision of the Services under this Agreement. The Company's Confidential Information shall not be deemed to include information that:
10.1.1.is or becomes publicly known other than through any act or omission of the End-user;
10.1.2.was in the End-user's lawful possession before the disclosure;
10.1.3.is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4.is independently developed by the End-user, which independent development can be shown by written evidence; or
10.1.5.is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 The End-user shall hold the Company's Confidential Information in confidence and, unless required by law, not make such Confidential Information available to any third party, or use the Company's Confidential Information for any purpose other than the implementation of this Agreement.
10.3 The End-user shall take all reasonable steps to ensure that the Company's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 The End-user acknowledges that details of the Software and the Services constitute the Company’s Confidential Information.
10.5 This Clause 10 shall survive expiry or termination of this Agreement, however arising
11.1 The End-user shall defend, indemnify on demand and hold harmless the Company and its authorised distributors or partners against any and all claims, actions, proceedings, losses, damages, fees expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the End-user's and its Authorised Users' use of the Services otherwise than as permitted under this Agreement, or (ii) any claim by any third party that the use or exploitation of Content by the Company or any of the Consumer Stores infringes a third party's Intellectual Property Rights or other rights
12.1 Except as expressly and specifically provided in this Agreement:
12.1.1.the End-user assumes sole responsibility for results obtained from the use of the Services by the End-user, and for conclusions drawn from such use. the Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the End-user in connection with the Services, or any actions taken by the Company at the End-user's direction;
12.1.2.all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law (with respect to the Services or otherwise) are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
12.1.3.the Services are provided to the End-user on an "as is" basis.
12.2 Nothing in this Agreement shall limit or exclude the liability of either party for a matter in respect of which it would be unlawful to exclude or limit liability.
12.3 Subject to 12.2:
12.3.1.NEITHER THE COMPANY NOR ITS AUTHORISED DISTRIBUTORS OR PARTNERS SHALL BE LIABLE TO THE END-USER WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT.
12.3.2.THE COMPANY'S TOTAL AGGREGATE LIABILITY (AND THAT OF ITS AUTHORISED DISTRIBUTORS OR PARTNERS) IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF THE FEES RECEIVED BY THE COMPANY PURSUANT TO THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12.4 For the purposes of Clause 12.3, the Company is acting on its own behalf and as an agent for and on behalf of its authorised distributors and partners, and accordingly the Company may enforce and rely on Clause 12.3 on its own behalf and/or in its capacity as agent of its authorised distributors and partners
The Company shall have no liability to the End-user under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the End-user is notified of such an event and its expected duration
15.1. The End-user shall not, without the prior written consent of the Company assign, sub-License, delegate or transfer this Agreement or any of its rights under this Agreement to any other person, firm or company. The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, with or without notice to the End-user.
15.2. All notices to or by the respective Parties shall be in writing in the English language and shall be deemed to have been duly given when (a) delivered by hand, (b) posted by recorded delivery post (postage prepaid), (c) sent by reputable overnight courier (d) sent by fax or (e) sent by email to the party to which such notice is required to be given under this Agreement addressed to the parties as provided for in this Agreement; or to such other address, fax number or email address as either party may subsequently notify to the other in writing.
15.3. Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Company's rights pursuant to this Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Company's rights to take subsequent action.
15.4. This Agreement supersedes any arrangements, understandings, promises or agreements made or existing between the parties prior to the signing of this Agreement that constitutes the entire understanding between the parties hereto. Except as otherwise provided in this Agreement, no addition, amendment or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of each party by a director or such other duly authorised officer as the case may be.
15.5. In the event that any or any part of the terms, conditions or provisions contained in this Agreement or any Schedule hereto shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
13.1 This Agreement shall continue until terminated in accordance with this Agreement.
13.2 The Company may terminate this Agreement on 7 days' notice to the End-user.
13.3 The End-user may terminate this Agreement on 6 months' notice to the Company.
13.4 Without prejudice to any other rights or remedies to which the parties may be entitled, the Company may terminate this Agreement without liability to the End-user if:
13.4.1. the End-user commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
13.4.2. an order is made or a resolution is passed for the winding up of the End-user, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
13.4.3. an order is made for the appointment of an administrator or examiner to manage the affairs, business and property of the End-user, or documents are filed with a court of competent jurisdiction for the appointment of an administrator or examiner of the End-user, or notice of intention to appoint an administrator or examiner is given by the End-user or its directors or by a qualifying floating charge holder;
13.4.4. a receiver is appointed of any of the End-user's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the End-user, or if any other person takes possession of or sells the End-user's assets;
13.4.5. the End-user makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
13.4.6. the End-user ceases, or threatens to cease, to trade;
13.4.7. the End-user (being an individual) is the subject of a bankruptcy petition or order; or
13.4.8. the End-user takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.5 On termination of this Agreement for any reason:
13.5.1. all licenses granted under this Agreement (subject to Clause 3.2) shall immediately terminate;
13.5.2. the End-user shall return and make no further use of any Software, property, documentation and other items (and all copies of them) belonging to the other party;
13.5.3. the Company may destroy or otherwise dispose of any of Content in its possession unless the Company receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a written request for the delivery to the End-user of the then most recent back-up of Content. The Company shall use reasonable commercial endeavours to make available the back-up to the End-user within 30 days of its receipt of such a written request, provided that the End-user has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The End-user shall pay all reasonable expenses incurred by the Company in returning or disposing of Content; and
13.5.4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced
7.1The Company shall pay or arrange payment to the End-user the Net Income within 30 days of the end of the month in which the related Income is received from the Consumer Store(s). Net Income shall be applied to the End-user's Company account, which can be accessed through the Services. For the avoidance of doubt, the Company shall only pay or arrange payment to the End-user the Net Income which is actually received by the Company prior to date on which payment is specified to occur in this Clause 7.1.
7.2 The Company shall not be responsible for the payment of any income tax or corporation tax or comparable taxes levied on the End-user or the Company in respect of the Net Income or Income. If any withholding tax is incurred under income tax or corporation tax enforced in Ireland or elsewhere, the Company shall be entitled to deduct the statutory amount of withholding tax from the payments due to the End-user.
7.3 The Company (on its own behalf or, where applicable, on behalf of its authorised distributors or partners) shall be entitled to deduct the Fee from any Income prior to applying the Net Income to the End-user's account.
7.4 To the extent that the End-user elects to use Content to distribute free to any third parties (by whatever means), the End-user agrees that it will be solely responsible for any fees or charges levied by Consumer Stores or taxes in respect of such distribution.
7.5 In the event that the Company determines, in its sole discretion, that the End-user's Company account has been subject to and / or involved in fraudulent or infringing activities, the Company reserves the right to discontinue the application of Net Income to the End-user's Company account and block the End-user's ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of the Company. The End- user agrees that any Net Income obtained as a result of the End-user's fraud or infringement of third party Intellectual Property Rights shall be forfeited to the Company. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and the End-user agrees that it is its responsibility to investigate such policies and such policies shall be binding on the End-user hereunder.
7.6 To the extent that any Net Income applied to the End-user's Company account bears any interest prior to the withdrawal by the End-user of such Net Income, the End-user agrees that it will not receive interest or other earnings on the Net Income. In consideration for the End-user's use of the Services, the End-user transfers and assigns to the Company any ownership rights the End-user may have in any interest or other earning that may accrue on Net Income prior to its withdrawal by the End-user.