This AGREEMENT (the “Agreement”) is between the Rightsholder and PlaySonus Inc., (hereby referred to as “PlaySonus”). This Agreement contains the general terms and conditions under which PlaySonus offers the Services.
c. Disclosure of Information; The Rightsholder acknowledges, consents to, and agrees that PlaySonus may access, preserve, and disclose their account information and content if required by law or if it is believed in good faith that doing so is reasonably necessary for:
i. Comply with legal process
ii. Enforce this Agreement
iii. Respond to a claim that any of Rightsholder’s Content violates the rights of third parties;
iv. Respond to Rightsholder’s requests for customer service
v. Ensure the security of PlaySonus, its employees, users, and the general public by safeguarding their rights, business interests, property, and personal safety.
In agreeing to the terms of this Agreement and freely choosing to become an PlaySonus Pro Partner, by submitting sound recordings (and the musical works embodied therein) for monetized streaming on PlaySonus (whether by upload to the PlaySonus website (www.PlaySonus.com) (the “Website”) or through the PlaySonus App (the “App”)). Rightsholder constitutes their agreement to and acceptance of this document and any applicable Addendum.
PlaySonus reserves the right to add, delete change, replace, amend and or otherwise modify any of the terms and conditions contained in this Agreement (specifically excluding Section 3 below; PlaySonus may not add, delete change, replace, amend and or otherwise modify any part of Section 3 without specifically amending this Agreement directly with Rightsholder) as PlaySonus may deem necessary from time to time in their sole discretion.
Notwithstanding the preceding sentence, no such modifications to this Agreement will apply to any dispute between Rightsholder and PlaySonus that arose prior to the date of such modification. In the event of any material changes to the terms of this Agreement, PlaySonus will notify Rightsholder by email as set forth in Section 9 herein. If any such modification is unacceptable to Rightsholder, their only and sole recourse is to discontinue use of the Services. Rightsholder’s continued use of the Services following posting of a change notice or new agreement on the Site or notice to Rightsholder through e-mail, will constitute their binding acceptance of the changes.
For purposes of this Agreement and whenever the context requires the singular number shall include the plural, and vice versa.
RIGHTSHOLDER IS RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH PLAYSONUS FOR SO LONG AS RIGHTSHOLDER AVAILS THEMSELF OF ANY SERVICES. A FAILURE TO MAINTAIN A VALID E-MAIL ADDRESS SHALL NOT BE A DEFENSE IN THE EVENT RIGHTSHOLDER DOES NOT RECEIVE AN UPDATE OR NOTIFICATION FROM PLAYSONUS FOR ANY AND ALL REASONS.
The terms written in capital letters in this Agreement have the definitions assigned to them in Section 22 or as stated elsewhere in this Agreement.
1. Terms of Service: This Agreement is fully incorporated into and subject to the Terms of Service as they pertain to the parties of this Agreement, and the Terms of Service are fully incorporated into and subject to this Agreement, as outlined in the TOS link (https://playsonus.com/terms/terms).
2. Authorization: The rightsholder appoints PlaySonus as their authorized representative for advertising in connection with the content they upload or deliver to PlaySonus. They grant PlaySonus and PlaySonus' licensees the non-exclusive right to use the content within the defined territory and term of the agreement:
a. Create digital copies and derivative works of the Rightsholder's content by converting it into digital format, including shortened versions known as "Clips" for promotional use as permitted in this agreement.
b. Make Rightsholder's Content, including Clips, available to the public through digital audio transmissions on the Website, a Licensee website, PlaySonus's API, or the App, whether interactively or non-interactively.
c. Include Rightsholder's Content in any media created for the Services and/or PlaySonus's API, but exclude other platforms or services such as synchronization, reproduction, and licensing for use in advertisements, television and motion picture soundtracks, video games, and cellular ringtones.
d. Use and distribute information on copyright management as found in the digital version of the content owned by the rights holder.
e. Use the Content and metadata belonging to the Rightsholder in a reasonable and desirable manner for PlaySonus to fulfill its rights under this Agreement.
f. Grant permission to PlaySonus's licensees to carry out any of the activities listed above or in a relevant addendum.
g. Both parties must display the Rightsholder and their logo on the Website, Licensee website, or App, as well as in marketing materials, labels, and promotional materials. With mutual consent, either party may also release press statements about this Agreement. Additionally, either party may republish information from previously approved press releases on their website and in marketing materials.
3. Compensation: If the Rightsholder fulfills all terms and conditions outlined in this agreement and grants Authorization, PlaySonus will pay the Rightsholder or their designated recipient the Revenue Share earned from streaming the Rightsholder's Monetized Content on the Website, a Licensee website, or through the App. This payment is referred to as "Compensation." If the Rightsholder is represented by an entity legally authorized to enter into this Agreement, such as a record label, they have the option to maintain separate accounts for each rightsholder, and the Compensation will be paid to the Rightsholder in aggregate for all their PlaySonus accounts. The Compensation for Monetized Content is calculated as follows:
a. Revenue Per Stream" for PlaySonus is calculated by dividing the total revenue from advertisements, subscriptions, and Actual Costs by the total number of streams (content played for 30 seconds or more) on the PlaySonus platform in a calendar month. (For a complete definition of "Stream," please refer to Section 22(k)).
b. The rightsholder will receive payment based on either the sale of a song or the number of streams of their monetized content, multiplied by the revenue per stream and the PlaySonus revenue share.
c. The “PlaySonus Revenue Share” is Thirty (30%) Percent, with 70% going to the Rightsholder and 30% going to PlaySonus.
d. Reporting and Payment: PlaySonus will give the Rightsholder a real-time report on their dashboard showing the revenue share they are owed for their Content, based on PlaySonus's calculations and the terms outlined on their website. Every 120 days, PlaySonus will transfer the compensation owed to the Rightsholder or their designated recipient in US dollars, after deducting any taxes, to a bank account or PayPal account provided by the Rightsholder or their designee.
i. Payout Threshold: If the payment to the Rightsholder for any month is less than Fifty Dollars ($50.00 USD), no further payments will be made until the total due reaches at least Fifty Dollars ($50.00 USD) (the "Threshold Streaming Payout Amount") on each individual account of the Rightsholder. If required by law, PlaySonus will pay taxes on the payments to the Rightsholder. In case the agreement is entered into on behalf of multiple content owners, separate accounts will be maintained for each owner and the Threshold Streaming Payout Amount will be paid individually for each account.
e. Track Listing: Under this Agreement, all tracks uploaded to any of Rightsholder's PlaySonus accounts during the Term will be considered Rightsholder's Content and eligible for Compensation.
f. Licensee Records: PlaySonus has the option to review the financial records of Licensees, but is not required to do so. PlaySonus may also trust any statements provided by a Licensee as accurate and complete. PlaySonus will not be held responsible for any inaccuracies in financial reports submitted by Licensees that they do not investigate.
g. Recordkeeping and Audits: PlaySonus will keep records of the number of streams or other uses of the content owned by the rightsholder. Once a year, the rightsholder can hire a Certified Public Accountant (CPA) at their own expense to examine the records related to streaming royalties or other uses of their content. The CPA's examination must be done to verify the accuracy of statements sent to the rightsholder, in accordance with generally accepted accounting principles, and can only be done once within a year of the statement being sent. The examination can only be done during PlaySonus's business hours and at their office, with 30 days written notice given to PlaySonus. The CPA cannot be hired on a contingent fee basis and PlaySonus can postpone the examination with 5 days notice. If the examination is not completed within 3 months, PlaySonus can request the rightsholder to end the audit with 7 days notice. The CPA will not be allowed to examine any records other than those related to sales or uses of the rightsholder's content for which PlaySonus has received payment. The CPA must also sign a confidentiality agreement and not share the examination results with anyone without PlaySonus's permission.
h. Objections to Accountings: The Rightsholder, upon receiving an accounting statement from PlaySonus, must notify PlaySonus in writing of any objections they may have within 18 months of the statement being sent or made available to them. This notice should include a copy of the Rightsholder's certified public accountant's analysis of the statement and the reasons for the objection. At the end of the 18-month period, the statement will be considered binding and the Rightsholder will not have any further rights to object to it, regardless of any audit rights they may have under law or regulation. Any payments determined to be owed to the Rightsholder following an audit must be paid within 45 days of the delivery of the CPA's report, unless PlaySonus objects in writing, in which case the payments will be delayed until the dispute is resolved. A late fee of 0.5% will be imposed for underpaid streaming royalties. Unless prohibited by law, the Rightsholder will not have the right to sue PlaySonus in connection with the statement or unpaid royalties, unless the suit is filed within the 18-month period. If a suit is filed in a court of competent jurisdiction, the scope of the proceeding will be limited to determining the amount of royalties due and the court will not have the authority to consider any other issues or award any relief except for the recovery of any royalties found to be owing, plus interest at a rate of 0.5% per month. The Rightsholder's recovery of any such royalties plus interest will be their sole remedy for any claim related to PlaySonus' statements.
i. Tax Information: PlaySonus will make an effort to collect and remit taxes on the streaming of the Rightsholder's Content to government authorities. However, the Rightsholder is ultimately responsible for paying any taxes owed on their Content and will indemnify PlaySonus for any taxes not collected and remitted by PlaySonus.
4. Term: This Agreement takes effect on the date it is accepted by an authorized representative of Rightsholder and lasts for 12 months (the "Initial Term"). If neither party gives written notice of termination at least 30 days before the end of the Initial Term, the Agreement will renew annually for additional one-year terms. The Agreement can be terminated by either Rightsholder or PlaySonus at any time with 3 business days' written notice. (the "Term").
a. If sent by PlaySonus, may be sent to Rightsholder at the last e-mail address Rightsholder provided to PlaySonus.
b. If sent by Rightsholder to PlaySonus, must be sent by contacting PlaySonus support at [email protected] with the following information:
i. Rightsholder’s username
ii. The email address associated with Rightsholder’s Account
iii. All album or song titles for which Rightsholder is requesting termination
c. The termination notice given by the Rightsholder according to this Agreement will be final and cannot be undone. However, PlaySonus retains the right to end the agreement at any time and without warning to the Rightsholder:
i. Revoke or restrict the access or usage of the Services by the Rightsholder.
ii. Revoke or restrict the access to the account of the Rightsholder.
5. Rightsholder’s Obligations: The person or entity holding the rights, or their authorized representative, will be responsible for obtaining and paying for any necessary licenses or clearance for the use of musical works in the designated territory for the content they hold the rights to, including:
a. Parental Advisory Labeling: The rightsholder will comply with the Recording Industry Association of America's (RIAA) Parental Advisory Logo (PAL) Standards as long as they use the services.
b. Content Sharing: Under this agreement, the Rightsholder commits to making a good faith effort to upload all content produced or obtained through licensing, to various free streaming platforms such as YouTube, Spotify, iTunes, Soundcloud, etc.
6. Right to Withdraw Material; The Rightsholder has the ability to revoke any or all of the permissions outlined in Section 2 of the Agreement at any point during the Term. This can be done by sending a written notice to PlaySonus, known as a Withdrawal Notice, or by terminating the Agreement through Section 4, known as a Termination Notice. Once PlaySonus receives a Withdrawal or Termination Notice, it must promptly remove the affected content from the Website, Licensee website, or App within 5 business days. This does not affect any permissions granted to PlaySonus or Licensees prior to the revocation notice.
7. Names and Likenesses; Rightsholder grants PlaySonus the right to use the names, approved likenesses, biographical material, track and album names, and artwork related to Rightsholder's Content for promotional and advertising purposes, during the Term of this Agreement. This includes using the information for marketing materials for streaming and other uses under this Agreement. The artist or band name and likeness may be used to identify and represent the authorship, production credits, and performances of the artist or band in connection with the exploitation of Rightsholder's Content.
a. Listener Information: From time to time, PlaySonus may provide Rightsholder with information about customers who stream their Content, in accordance with PlaySonus's privacy policy and customers' preferences. Rightsholder may only use this information for internal record keeping and may not disclose it to any third party or use it for any other purpose. Rightsholder must comply with PlaySonus's privacy policy (https://playsonus.com/terms/privacy) when handling the customer data provided under this Agreement.
8. Ownership: Entering into this Agreement will not affect the ownership of (a) the Content of the Rightsholder, (b) the Digital Masters, (c) the Clips, (d) the Physical Product (if applicable), (e) all copyrights and equivalent rights embodied therein, and (f) all materials furnished by Rightsholder that were Rightsholder's prior to this Agreement. These will remain the property of the Rightsholder, subject to any rights PlaySonus may have under this Agreement or any prior agreement between the parties.
9. Modification, Termination and Effect of Termination:
a. Modification of Agreement: PlaySonus, at its sole discretion, reserves the right to make any changes, modifications, additions, deletions, amendments, replacements or removals to this Agreement at any time and from time to time. If there are any significant changes made to the Agreement, PlaySonus will notify the Rightsholder via electronic mail at least 30 days prior to the changes taking effect. In the event that the email provided by the Rightsholder is no longer valid or functioning, PlaySonus may choose other reasonable methods of communication, such as through the web page where the Rightsholder accesses their account information or via any accounting statement. The most recent version of this Agreement will be indicated on the first page. If the Rightsholder does not agree to the proposed changes in the Agreement, their only option is to terminate the Agreement by sending a notice to PlaySonus. If the Rightsholder does not submit a Termination Notice within 30 days of receiving notice from PlaySonus, it will be assumed that they have accepted the changes to the Agreement as long as their Content is still available to stream through the Services. To terminate the Agreement, the Rightsholder must contact support at [email protected].
b. Consequences of Termination: Upon the expiration or termination of the Agreement, neither Rightsholder nor PlaySonus will be released from any obligations incurred prior to the termination date. Additionally, certain provisions of the Agreement that are meant to continue after termination will remain in effect.
10. Monitoring of Rightsholder’s Content; Removal of Content from Website:
a. Monitoring: PlaySonus does not have control or responsibility for the content of Rightsholder, and has no obligation to monitor it. PlaySonus may choose to review some or all of Rightsholder's content at their discretion, but this does not make them responsible for it or obligate them to remove or modify any inappropriate elements. They also have no obligation to review or access any other Rightsholder's content or artwork.
b. Right of Removal: PlaySonus has the right to remove any content from the website that is deemed offensive, defamatory, or in violation of intellectual property rights. This includes content that is the subject of a dispute, content that the rightsholder cannot document their rights to, content that is the subject of a takedown notice, or content that is involved in fraudulent activity. Additionally, PlaySonus may remove content if the rightsholder is abusive or provides false information to PlaySonus employees or agents. PlaySonus will not be held liable for removing content, but will provide a credit to the rightsholder for any fees paid for making the content available on the website or through licensees. However, PlaySonus will still be required to pay streaming royalties that may have accumulated before the removal of the content.
c. No Termination Due to Removal: This Agreement will not end automatically if PlaySonus removes Rightsholder's Content from the Website or Licensee's websites or services. To terminate the Agreement following the removal of any of Rightsholder's Content, Rightsholder must send PlaySonus a Termination Notice.
11. Account Information; Disclosures:
a. Rightsholder Account Information; To access certain features on the website or app, such as account information and statements, a user (referred to as "Rightsholder") must create an online account. Rightsholder promises that the information provided during registration will be accurate and up-to-date. They also agree to keep their account information, including email address, current throughout the term of the agreement. For entities legally authorized to enter the agreement on behalf of content owners, such as record labels, they have the option to create separate accounts for each rightsholder the agreement represents.
b. Password; As a registered user of the Services, you will have login information including a username and password. Your account is personal to you and you may not share your account information with or allow access to your account by any third party other than an agent authorized to act on your behalf. You are responsible for all activity that occurs under your account, so take care to preserve the confidentiality of your username and password and any device you use to access the website. If you suspect that your account information has been compromised or that your account has been accessed by a third party not authorized by you, notify PlaySonus immediately by contacting [email protected]. You will be solely responsible for any losses incurred by PlaySonus and others as a result of unauthorized use of your account prior to notification.
c. Disclosure of Information; The Rightsholder agrees that PlaySonus may access, preserve, and disclose their Account information and Content if required by law or if it is deemed necessary for a legitimate purpose:
i. Comply with legal process
ii. Enforce this Agreement
iii. Respond to a claim that any of Rightsholder’s Content violates the rights of third parties;
iv. Respond to Rightsholder’s requests for customer servic
v. Ensure the security of PlaySonus, its employees, users, and the general public by safeguarding their rights, business interests, property, and personal safety.
12. Prohibited Use of the Website and Licensee Websites and Services: The Rightsholder agrees not to use the Website, the App, the Services, or any services provided by Licensees for any illegal purposes or in a way that harms, damages, or insults PlaySonus, its Licensees, or any other party. For example, the Rightsholder will not do or attempt to do any of the following through the Website, the App, PlaySonus’s Licensees, or the Rightsholder's Content:
a. Do not modify, create derivative works, translate, reverse engineer, decompile, disassemble, hack, or unauthorized access any part of the Website, unless specifically allowed by this Agreement, the Website's features, or by law.
b. Do not reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any part of the Website or App, use of the Website or App, or access to the Website or App or content obtained through the Website or App without permission from the Rightsholder who uploaded their Content to the Website or App.
c. Do not tamper with any security features on the Website or App, such as those that prevent or limit copying, or those that impose usage limitations.
d. Violate the legal rights of others, including but not limited to, rights of privacy and publicity, through actions such as threatening, harassing, abusing, slandering, or defaming.
e. Do not distribute or share any material or information that is considered inappropriate, offensive, or illegal.
f. Impersonate another person or create a false identity to deceive others about your true identity, including providing false information to PlaySonus' feedback system.
g. Do not transmit or upload any material that contains malware, such as viruses, Trojan horses, worms, time bombs, bots, cancelbots, or any other harmful software programs that are designed to damage, disrupt, steal, or otherwise harm PlaySonus or its licensees' data, hosts, or networks.
h. Interrupt or disrupt the functionality of the Website or App, networks connected to it, or violate the rules and procedures of those networks.
i. Do not upload or transmit any information or content that violates any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by including it in any content that belongs to the rights holder.
j. Do not use the Website, App, or any Licensee website in a way that would violate any federal, state, or local laws, rules, or regulations.
13. Availability of Services: PlaySonus reserves the right to alter or discontinue any aspect of the Services, including any features, media, content, products, software or services available on the Website or App, at any time and without notice, and without liability to the Rightsholder. The Website or App may contain outdated information and PlaySonus makes no commitment to update it. PlaySonus also makes no guarantees about the availability of the Website or App and may discontinue the Service at any time, with or without notice. The Rightsholder is solely responsible for creating and maintaining backup copies of any Content they upload to the Website or App, or deliver to PlaySonus as a Physical Product.
14. Additional Representations and Warranties:
a. Mutual Representations and Warranties: Both parties assure and guarantee to each other that:
i. Is authorized to enter into this Agreement and abide by its terms and conditions.
ii. Both parties agree to not take any actions that would conflict or interfere with any existing commitments or obligations of the other party and that no prior agreements will prevent either party from fulfilling their obligations under this Agreement.
iii. Will comply with all applicable laws, rules, and regulations of any government authority with jurisdiction over its performance while fulfilling its obligations under this agreement.
b. Representations and Warranties by Rightsholder: The rightsholder guarantees and assures PlaySonus that:
i. They have the full authority to act on behalf of any owner of any rights, titles, or interests in Rightsholder's Content, including but not limited to all musical works within the Content. They are authorized to provide Rightsholder's Content to PlaySonus for the uses outlined in this Agreement. If Rightsholder is acting on behalf of another party, they represent and warrant that they have the full authority to enter into this Agreement on behalf of that party and grant all rights, assume all obligations, and fulfill all representations and warranties outlined in this Agreement.
ii. The Rightsholder holds all necessary rights to grant licenses and permissions for their Content, and has obtained permission to use the names and likenesses of any identifiable individuals featured in the Content, as well as any personal information used in the Content, as outlined in this Agreement.
iii. This agreement ensures that PlaySonus and its licensees' use of Rightsholder's Content, including musical works in the sound recordings, will not infringe or violate any third party rights, such as privacy rights, publicity rights, copyrights, contract rights or other intellectual property rights, on the part of Rightsholder.
iv. As the songwriter of any or all of the musical works in the Rightsholder's Content, whether completely or partially (such as a cowriter), the Rightsholder has the full authority to grant the rights outlined in this Agreement.
v. The rights holder has not transferred any rights to the sound recordings in their content to a third party, such as a record label, who would have exclusive rights to those recordings.
15. No Representations and Warranties with respect to Streams Distributions: PlaySonus does not guarantee a specific minimum number of streams for the content of the Rightsholder.
16. Indemnification: The Rightsholder agrees to protect and defend PlaySonus, its successors, assigns, agents, distributors, licensees, officers, directors, employees, agents, and representatives from any third-party claims, liabilities, costs, and expenses (including reasonable attorney's fees and legal costs) that may arise in connection with any claim that contradicts any agreement, covenant, representation, or warranty made by the Rightsholder in this agreement, or any act or omission by the Rightsholder. This includes, but is not limited to, any claims made by a PRO or music publisher with respect to any public performances or communications to the public of any musical works embodied in the Rightsholder's Content, any contributor to any sound recording included within the Rightsholder's Content, including claims from any unions, guilds, background musicians or vocalists, engineers, etc., or any other party for any use or misuse of any other forms of intellectual property or proprietary rights in the Rightsholder's Content, including, but not limited to, trademark rights and invasions of the right of privacy or publicity.
The Rightsholder will also reimburse PlaySonus for any payment made by PlaySonus in respect of any claim, liability, damage, or expense to which the aforementioned indemnity relates. If PlaySonus is faced with any such claim, action, or demand, it will have the right to withhold any amounts payable under this agreement that are related to the potential liability in question unless and until the Rightsholder posts a suitable undertaking or bond by a reputable bonding company that is satisfactory to PlaySonus in its sole discretion in the sum equal to the amount of PlaySonus's potential liability under this agreement (including legal expenses and reasonable counsel fees). PlaySonus will also have the right to use any such sums that are withheld to pay for any costs and reasonable attorneys' fees incurred by PlaySonus during the pendency of the determination of any such claim.
If PlaySonus has withheld and reserved any monies with respect to any claim and if said claim has not been followed by the commencement of a legal action or proceeding within one (1) year from the date first made, PlaySonus will release such monies to the Rightsholder unless the claim is in the process of being settled or PlaySonus has a good faith reason to believe an action will be commenced in the future, without prejudice to its rights to again withhold and reserve monies in the future if any legal action or proceeding is later commenced. The Rightsholder shall be promptly notified of any such claim, action, or demand and shall have the right, at their own expense, to participate in the defense thereof with counsel of their own choosing; provided, however, that PlaySonus's decision in connection with the defense of any such claim, action, or demand shall be final. In the case of entities that are legally authorized to enter into this Agreement on behalf of one or more owners of content, such as record labels, said entity shall be solely responsible for any acts or omissions by the Rightsholder that result in any liability under any of the terms and conditions of this Agreement.
It is important to note that PlaySonus shall not be liable for any acts or omissions by the Rightsholder under this Agreement, and this Agreement does not create any form of a contractual relationship between PlaySonus and the Rightsholder beyond the one stated herein.
a. In the event that PlaySonus makes a request for indemnification to the Rightsholder under the provisions outlined in this section, PlaySonus may allow the Rightsholder to take control of the defense, resolution, or settlement of the matter at the Rightsholder's own expense. However, it is important to note that the Rightsholder must obtain prior written consent from PlaySonus before entering into any settlement or agreement that would require PlaySonus to admit liability or impose any conditions or obligations on PlaySonus, other than the payment of monetary compensation that can be easily calculated to determine the Rightsholder's indemnification or reimbursement obligations to PlaySonus.
Additionally, if PlaySonus, in its reasonable and good faith judgment, concludes that the Rightsholder is not capable of effectively defending the interests of both the Rightsholder and PlaySonus against any claims, then PlaySonus reserves the right to take control of the defense in any matter or litigation through the use of counsel chosen by PlaySonus in order to defend against any such claim for which the Rightsholder owes PlaySonus an indemnification. The costs for such counsel, as well as any court costs, will be the responsibility of the Rightsholder to cover.
17. Disclaimers:
a. THE WEBSITE, APP, AND ANY RELATED THIRD-PARTY CONTENT, SOFTWARE, SERVICES, OR APPLICATIONS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH NO GUARANTEES OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE, EITHER EXPRESSED OR IMPLIED.
b. PLAYSONUS AND ITS AFFILIATES, PARTNERS AND LICENSORS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY RIGHTSHOLDER FROM PLAYSONUS OR THROUGH THE WEBSITE OR APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. PLAYSONUS AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE, THE APP OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY PLAYSONUS, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. RIGHTSHOLDER UNDERSTAND AND AGREE THAT THE RIGHTHOLDER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE, THE APP OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER THE RIGHTHOLDER’S CONTENT THROUGH THE SERVICES, AT THEIR OWN DISCRETION AND RISK, AND THAT THE RIGHTHOLDER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO RIGHTHOLDER’S PROPERTY (INCLUDING THE RIGHTHOLDER’S COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE OR THE APP) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
18. Liability: PLAYSONUS WILL NOT BE HELD RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER DUE TO A BREACH OF THIS AGREEMENT OR ANY OTHER REASON. THEY WILL ALSO NOT BE HELD LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS, OR DAMAGES RESULTING FROM A LICENSEE'S FAILURE TO PAY ROYALTIES FOR THE USE OF THE RIGHTSHOLDER'S CONTENT. IN THE EVENT OF A BREACH OF THIS AGREEMENT, THE TOTAL LIABILITY OF PLAYSONUS TO THE RIGHTSHOLDER WILL BE LIMITED TO THE AMOUNT OF MONEY PAID BY PLAYSONUS TO THE RIGHTSHOLDER FOR THE RIGHT TO STREAM THEIR CONTENT IN THE SIX-MONTH PERIOD PRECEDING THE RIGHTSHOLDER'S CLAIM.
a. Applicable Law: IT MAY NOT BE LEGALLY POSSIBLE TO LIMIT OR EXCLUDE LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THIS IS THE CASE, THE RIGHTS HOLDER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THE AGREEMENT REFLECT A FAIR ALLOCATION OF RISK BETWEEN THE RIGHTS HOLDER AND THE OTHER PARTY AND ARE NECESSARY FOR THE AGREEMENT TO BE FEASIBLE. THE OTHER PARTY'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT ALLOWED BY LAW AND THE RIGHTS HOLDER UNDERSTANDS THAT THE OTHER PARTY WOULD NOT BE ABLE TO OFFER THE SERVICES WITHOUT THESE LIMITATIONS.
19. Force Majeure: If PlaySonus is unable to fulfill its obligations in this Agreement due to factors beyond its control such as telecommunications or internet service failures, labor disputes, riots, lack of labor or materials, natural disasters, accidents, government restrictions, or other causes, PlaySonus will not be held liable and will be excused from those obligations to the extent that it is unable to perform.
20. Dispute Resolution:
a. Mandatory Arbitration: please read this carefully as it affects Rightsholder’s rights; RIGHTSHOLDER AND PLAYSONUS, ALONG WITH THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS, AGREE TO RESOLVE ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RIGHTSHOLDER'S USE OF THE SERVICES THROUGH ARBITRATION, WITH THE EXCEPTION OF MATTERS THAT CAN BE TAKEN TO SMALL CLAIMS COURT. Arbitration is a less formal process than going to court. Instead of a judge or jury, it utilizes a neutral third party called an arbitrator. The discovery process and court review are also more limited in arbitration. However, the potential outcome is the same as court, as arbitrators have the ability to award the same damages and remedies.
b. Commencing Arbitration: A party who wishes to initiate arbitration must first send a written notice of intent to arbitrate, known as a "Notice," to the other party via certified mail or any other available method, such as email. The Notice should be addressed to PlaySonus Inc. at 7901 4th St N, STE 300, St. Petersburg, FL 33702. The Notice must include a description of the claim or dispute and the specific relief being sought. If the parties do not reach an agreement to resolve the claim within 30 days of receiving the Notice, either party may commence arbitration or file a claim in small claims court. The arbitration will be administered by the American Arbitration Association (AAA) in accordance with its commercial arbitration rules and supplementary procedures for consumer-related disputes, as modified by this agreement. The rules and forms can be found on the AAA's website or by contacting the organization. If the rightsholder is required to pay a filing fee to initiate arbitration against PlaySonus, PlaySonus will reimburse the rightsholder for the fee, unless the rightsholder's demand is $1,000 or more, in which case the rightsholder is responsible for the payment.
c. Arbitration Proceeding: The arbitration will be conducted in English and be presided over by a single, neutral arbitrator, in accordance with the rules outlined in this agreement. Both the Rightsholder and PlaySonus agree to follow these rules, which aim to make the dispute resolution process more efficient and less costly. The arbitration can be conducted by phone, online, or through written submissions, at the discretion of the party initiating the arbitration. Personal appearances by the parties or witnesses are not required unless both parties agree to it in writing. Any award made by the arbitrator can be enforced by a court of competent jurisdiction.
d. No Class Actions: BOTH THE RIGHTS HOLDER AND PAYSONUS AGREE THAT ANY CLAIMS MADE AGAINST EACH OTHER WILL BE BROUGHT BY THE RIGHTS HOLDER OR ITS INDIVIDUAL MEMBERS ONLY, AND NOT AS PART OF A CLASS OR REPRESENTATIVE PROCEEDING. ADDITIONALLY, THE RIGHTS HOLDER AGREES THAT THE ARBITRATOR WILL NOT CONSOLIDATE MULTIPLE CLAIMS OR PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING. IF THIS PROVISION IS FOUND TO BE UNENFORCEABLE, THE ENTIRE SECTION ON MANDATORY ARBITRATION WILL BE VOID.
e. Decision of the Arbitrator: The decision of the arbitrator will typically be made within 120 days from their appointment, but this time limit may be extended for an additional 30 days if necessary for the interests of justice. All arbitration proceedings will be kept private and confidential, and all records will be sealed, except for those needed for court confirmation of the arbitration award. The award will be written and explain the reasoning for the outcome of any claims. The arbitration will be conducted using the laws of Wyoming and the United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings under this arbitration clause in the agreement. This agreement and the use of the Services and Website is considered to involve interstate commerce.
f. Applicable Law: This agreement, the Rightsholder's use of the Services and the Website will be governed by the laws of the State of Wyoming, ignoring any choice of law or conflicts of law principles.
g. Equitable Relief: The provisions outlined in the Dispute Resolution section do not apply to claims where PlaySonus requests any form of equitable relief. Rightsholder understands that in case of a breach of this Agreement by PlaySonus or any third party, the damages incurred by Rightsholder will not grant them the right to request injunctive or other forms of equitable relief against PlaySonus, and the only remedy available will be monetary damages in accordance with the limitations of liability mentioned in this Agreement.
h. Claims: Both the rightsholder and PlaySonus agree that any legal action related to this Agreement, the Services, or the use of the Website (excluding claims for indemnification) must be started within one year of the cause of action occurring. If not, the cause of action will be permanently barred.
i. Improperly Filed Claims: This Dispute Resolution section applies to all claims brought by Rightsholder against PlaySonus. Any claims filed or brought in violation of this section will be considered invalid. If Rightsholder files a claim in violation of this section, PlaySonus may be entitled to recover attorney's fees and costs of up to $5,000, if they have notified Rightsholder in writing of the invalid claim and Rightsholder has not withdrawn it promptly.
21. General Provisions:
a. Relationship of the Parties: The parties involved acknowledge that they are independent contractors and this agreement does not establish an agency, partnership, or joint venture between Rightsholder and PlaySonus. Additionally, PlaySonus does not have a fiduciary duty to Rightsholder as a result of this agreement.
b. Entire Agreement: This Agreement, along with the PlaySonus TOS, encompasses all understanding between the parties regarding the subject matter. This Agreement, including all Addenda, overrides all previous agreements or arrangements between the Rightsholder and PlaySonus concerning the Services. However, if the Rightsholder had previously entered into a digital distribution or consignment agreement with PlaySonus and chosen options that specify or limit the distribution of their Content, those limitations and authorizations will still apply under this Agreement and the relevant Addendum. This Agreement can only be altered as provided in it.
c. Waiver; Severability: A waiver of any term or condition in this agreement by either party will not be considered a waiver of that term or condition or any future breaches of it. If a court finds any provision of this agreement to be unenforceable, it will not affect the rest of the agreement and the unenforceable provision will be replaced with one that most closely aligns with the intentions of the parties.
d. Binding Effect: This Agreement will be binding on assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors of each party, whether through merger, operation of law, or otherwise.
e. Notice: Any communication required under this Agreement, such as notices, approvals, requests, authorization, or directions, must be in writing and considered delivered on the date sent by email to the address provided by the Rightsholder upon registration with PlaySonus or as updated. If an email address is not provided, PlaySonus may choose another method of delivery, such as posting on the Website.
f. Governing Law: This Agreement shall be governed and interpreted by the laws of the State of Wyoming, and any disputes arising from it shall be resolved in accordance with the TOS. This applies regardless of any conflicting laws.
g. Rights Cumulative: This Agreement states that, as allowed by applicable laws, the rights and remedies given to the parties under this Agreement are supplementary and can be used in addition to any other rights and remedies that the parties may have under the law or through equity.
h. Headings: The titles and headings in this Agreement are for reference only and should not be used to interpret or construe the Agreement.
i. No Third Party Beneficiaries: This Agreement is intended for the benefit of the parties involved and any authorized successors or assigns they may have. It does not grant any legal or equitable rights, benefits, or remedies to any other person or entity.
j. Assignment: PlaySonus has the right to transfer its rights and responsibilities under this Agreement to any other party at any time. Rightsholder is not allowed to transfer their rights and/or responsibilities under this Agreement without obtaining written permission from PlaySonus.
