TERMS OF USE AGREEMENT
Please read this Terms of Use Agreement carefully. SOS Studios LLC ( the "Company "), the owner and operator of the website {SOSstudio.co} (the “Site”) welcomes your use of our virtual music recording, mastering and hosting platform, and we are willing to provide you with access to the Company’s software, website, recording tools and databases (collectively “Software”), and to our affiliated musicians , to assist you as an individual, or if you are downloading this software as part of your job responsibilities, or to the company or legal entity you represent as an employee or authorized agent that will be utilizing the Software (collectively “You” or “Your”) to convert your scratch musical recording tracks to fully professionally mastered and mixed recording tracks that, when complete, will be suitable for distribution to online music sites such as Spotify, ITunes, Shezam! and Google Play (the “Vendors”) through which distribution You will have the opportunity to earn royalties and other fees distributed by such Vendor (the “Services”). You agree that your access to the Software and Services is contingent on Your accepting all of the terms of this Terms of Use Agreement (this “Agreement”). By clicking on the “Accept" button below, or by using the Site, you affirm that you agree to the terms and conditions of this Agreement. If you do not agree, do not use the Software, and delete and/or destroy all copies of the Software and related files that You have made.
Definitions.
“Software” means the proprietary Company software, third party software,website,interfaces, data and content that are accessible by you or which are integrated into the Company’s website known as SOS Studios.com including all electronic and related documentation provided by Company for use in connection with the Software (“Documentation”), as well as all Updates thereto.
“Named User” means You or an individual employed or engaged as an independent contractor by You who has been granted rights to use the Software.
“Update” shall mean any patch, update, modification, improvement, new version, add-on, supplement or enhancement provided by Company under this Agreement with respect to the Software or the Documentation.
License to Use the Software. Subject to the terms and conditions of this Agreement, Company grants You the limited, non-exclusive, non-transferable license (“License”) to access and use the Site and Software in object code form or HTML format only for Your personal or internal business use.
Restrictions.
You agree not to use the Software for any purpose other than to assist you in the recording. Mixing and mastering of the musical tracks that you submit to the Site. You may not: (a) copy modify, decompile, disassemble, extract, or otherwise reverse engineer the Software, or create derivative works based upon all or part of Software, or (b) copy, transfer, lease, assign, rent, or sublicense the Software, in whole or in part, except as expressly set forth in this Agreement, or (c) use the Software for the purpose of providing a recording studio or any of the functions or tools thereof, a service bureau, a third-party hosting or time-sharing site, , an application service, provider site, or similar services for third parties, or (d) use or combine the Software with open source programs, including but not limited to programs made available under the GPL license, in any manner that could be interpreted to cause the Software or any part thereof to be subject to an open source license. You agree to provide at least the same level of security for the Software as you provide for your own proprietary software and confidential information, but in no event less than reasonable care, to prevent third parties from performing such activities.
You represent and warrant that You have all third-party software or other licenses, including but not limited to all licenses with any third party through which You may be accessing the Software.
Proprietary Rights. The Software is licensed to you, not sold to you. You acknowledge and agree that Company and its licensors own, control and shall retain all right, title, and interest in and to the Software and the Site, including but not limited to all associated algorithms, data structures, techniques, concepts, technology, report formats, and screen formats, as well all related patents, trademarks, copyrights, trade secrets, and other intellectual property rights. Nothing contained in this Agreement shall be construed directly or indirectly to assign or grant to You any right, title, or interest in or to trademarks, copyrights, patents, or trade secrets of Company or its licensors, or any ownership rights in or to the Software. Company reserves all rights not expressly granted to you in this Agreement.
Site as a Platform. The Site is a virtual recording studio and communications platform that, among other things, enables You to obtain information provided to the Company and the Site by third parties with respect to recording and mastering techniques, musical compositions, digital music sampling databases and musical performances by experienced studio musicians You understand and expressly agree that the Company does not have control over, nor any liability for: (i) the quality, timing, legality, terms or any other aspect whatsoever of the information that may be provided by such third parties or the competence, integrity, responsibility or legality any of the actions whatsoever of the process used by a third party or Vendor in determining whether to offer you Services
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6. Representations and Warranties. By requesting to use, registering to use and/or using the Site, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions hereof.. You further represent and warrant that you have provided pro accurate, current and complete information in connection with your registration for use of the Software and Site.
7. Support and Maintenance. Although it is the Company’s practice to assist You in the use of the Software and the Site whenever it is commercially feasible to do so, nothing in this Agreement requires Company to provide any training, maintenance, Updates or support to You.
8. Evaluation Feedback. You may provide the Company with input regarding Your reactions, comments, and suggestions for improvement regarding the Software and the Site, including, but not limited to, usability, missing features, functional errors and bug reports. All such reports and other feedback that you provide to the Company will become the property of the Company and may be used by Company for any purpose whatsoever without compensation to You. The Company will be the sole owner of any and all inventions or improvements developed by the Company based on any comments or suggestions for improvements to the Software or Site that you may make.
9. Disclaimers.
9.1 Not Error Free Company does not warrant that the Software or the Site, is accurate, up to date, will operate uninterruptedly or is error-free. You are solely responsible for maintaining all third-party software and hardware in accordance with applicable vendor requirements which is necessary for You to access the Software and/or the Site. THE SOFTWARE AND SITE IS PROVIDED “AS-IS”, AND COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE SOFTWARE OR SERVICES PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANYIMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION.
9.2 Certain Third-Party Software.
You acknowledge and agree that the Company utilizes in the Software certain third party software licensed from third party suppliers and that such suppliers have no liability whatsoever for damages, whether direct, special, incidental or consequential damages, with respect to the Software, the Site or the third party software that they provide.
You may not modify, revise, or otherwise alter any application platform or other interface through which You access the Site or a third party website, nor may you develop, create or use any application program interface to access the Software or a Company website.
10. Content. You are solely responsible for any scratch or other music tracks, musical compositions, data, songwriter’s works, content, messages, photos, videos, reviews or profiles (collectively, "Content") that you upload publish or display (hereinafter, "post") on the Site in a scratch track or otherwise, or transmit to other users of the Site. You will not post on the Site, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to Company, to the Site or to any other user of the Site.
10.1. Content Deletion. You understand and agree that Company may review and delete any Content, in each case in whole or in part, that in the sole judgment of Company violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site.
10.2. License to Content. By posting Content to any public or member area of the Site you automatically grant, subject to the terms of this Agreement, and you represent and warrant that you have the right to grant, to Company, its Affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and Content and to prepare derivative works of, or incorporate into other works, such information and Content, including, without limitation, all “Masters,” , as defined herein, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your Content by Company will not infringe or violate the rights of any third party.
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10.3. Opinions, Statements. Opinions, advice, statements, offers, or other information or content made available on the Site or through the Service, but not directly by Company, are those of their respective authors. Such authors are solely responsible for such content. Company does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Site or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Service. Under no circumstances will Company or its Affiliates be responsible for any loss or damage resulting from: a) your reliance on information or other content posted on the Site or transmitted to or by any user of the Site or Service; or b) reviews or comments made about you on the Site by other users
11. Links To External Sites. Links from the Site to external sites (including external sites that are framed by Company) or inclusion of advertisements do not constitute an endorsement by Company of such sites or the content, products, advertising and other materials presented on such sites or of the products and services that are the subject of such advertisements, but are for Your reference and convenience. You access such links at Your own risk. It is Your responsibility to evaluate the content and usefulness of the information obtained from other sites. Company does not control such sites, and is not responsible for their content. You further acknowledge that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by Company's Terms of Use. COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OR DERIVED FROM YOUR USE AND/OR VIEWING OF LINKS THAT MAY APPEAR ON THIS SITE. YOU HEREBY AGREE TO HOLD COMPANY HARMLESS FROM ANY LIABILITY THAT MAY RESULT FROM THE USE OF LINKS THAT MAY APPEAR ON THE SITE.
12. Use of The Site And Services
12.1 Uploading Tracks. Subject to your acceptance of the terms of this Agreement, You may upload, without charge, one musical track per week to the Site. Upon receipt of your track, and subject to the Company’s obligations to the “Subscribers” to the Site, as defined below, and the Company’s then existing queue of tracks that have been uploaded ahead of You, the Company will apply its recording, mixing and mastering services, using, in the Company’s discretion and to the extent that the Company deems necessary, the services of the musicians affiliated with or collaborating with the Company, to produce a professionally produced master of the track that you submitted. (“Master”).
12.2 Intellectual Property Rights in the MASTER. You acknowledge and agree that the Company owns any and all right, title and interest in and to all sound recording copyright, trademark, and other proprietary rights in the Master, subject only to the license granted to You with respect to the Master under this Agreement and the license to any uploaded Content provided by You in Section 10.2 and 12.3 hereof.
12.3 Ownership of Pre-Existing Intellectual Property Rights in the UPLOADED CONTENT The Company hereby acknowledge and agree that, subject to the license granted by You in Section 10.2 hereof, all copyright and trademark rights in Content, the uploaded track, and the underlying musical composition contained therein, shall remain owned by You.
12.4 Distribution of the Master. The Company will distribute the Master without any distribution fee to such Vendors as the Company may decide are suitable for the Master, provided that the Company shall retain sixty percent (60%) of all royalties, fees and payments (collectively “Payments”) that are paid by such Vendors with respect to the Master. You agree that: (i) to the extent that a Vendor makes any such Payment directly to You or to Your designated agent, and/or (ii), to the extent that ASCAP, BMI or any other performing rights organization makes any such Payment, or an equivalent payment, to You directly, You will remit sixty percent (60%) of any such Payment to the Company as the consideration for the Services provided pursuant to this Agreement. (the “Fee”). Except as otherwise provided in Section 12.7, below, the Master distributed to the Vendors shall bear the Company label “SOSstudio (feat. Artist’s Name)".
12.5 Subscriber to the Site. In consideration of Your payment of a monthly fee of Five Dollars ($5.00), the Company will enroll You as a subscriber to the Site (“Subscriber”). As a Subscriber, you will be entitled to: (i) upload an unlimited number of tracks to the Site; (ii) have access to the Site’s services of custom tracks, mixing, mastering, and distribution to the Vendors in consideration of Your payment of a fee of Fourty-Nine Dollars ($49) for a Single, One-Hundred Twenty-Nine Dollars ($129) for a 3-Song Demo, or One-Hundred Ninety-Nine Dollars ($199) for a 5-Song EP; and (iii) use Your personal label on all Masters that are distributed to Vendors, as laid forth in Section 12.7, below.
12.6 Private Musician Sessions For Masters. In consideration of Your payment of no less than Three Hundred Ninety Nine Dollars per song, ($399.00), You may select the collaborating musicians who will perform in a privately arranged session dedicated to the tracking, mixing and mastering of Your uploaded tracks.
12.7 Private Labelling of Masters. In consideration of Your payment of a fee of Five Dollars ($5.00) per month, You can apply Your own personal label, trademarking or branding indicia to the Master that is distributed to Vendors.
12.8 Buy-Out Rights. If, at any time, You prefer to discontinue paying a Fee to the Company for any specific Master, you may elect to buy-out the Company’s rights to all such Fees by: (i) remitting to the Company the production, mixing and mastering costs for the Master incurred by the Company, as computed according to the Company’s then applicable hourly fee schedules for the musicians, mixers and other Company personnel who contributed to the Master (the “Buy-Out Transaction”) and (ii) agreeing to pay, and paying for a period of one (1) year from the closing of the Buy-Out Transaction (the “Reference Period”), ten percent (10%) of all Payments, revenues or royalties payable to You at any time arising from the commercialization and performance of the Master during the Reference Period.
13. Limitations of Liability and Remedies. IN NO EVENT WILL COMPANY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AUTHORIZED REPRESENTATIVES OR SUPPLIERS: (A) BE LIABLE TO YOU FOR ANY CLAIMS OR DAMAGES IN EXCESS OF AMOUNTS PAID BY YOU FOR THE SOFTWARE, OR (B) BE LIABLE FOR ANY LOST DATA, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, PERSONAL INJURY, DEATH, OR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR THIS AGREEMENT, EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY WILL NOT BE LIABLE FOR ANY SUCH CLAIM BY ANY OTHER PARTY. THESE LIMITATIONS OF LIABILITY AND REMEDIES SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Confidentiality. By virtue of this Agreement, You and the Company may have access to information that is confidential to one another (“Confidential information”). “Confidential Information” will include, without limitation,: (i) the Software, its functionality, and any other material provided by Company that is marked “confidential” or that would reasonably be recognized as confidential;(ii) Your Content; and (iii) Your personal information or data, if any, residing on the Company’s servers.
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Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party
without restriction on the disclosure; or (d) is independently developed by the other party.
We agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. The Company will protect the confidentiality of Your personal data residing on the Company’s servers in accordance with the security practices that the Company uses to protect its own Confidential Information.
15. Termination. This Agreement is effective until terminated. Either party may terminate this Agreement if the other party breaches any of the terms of this Agreement, and such breach is not cured after two days written notice of such breach. Effective immediately on the date of termination, You shall discontinue all further use or access to the Site, and return to the Company or destroy, at Company’s option, all copies of the Software or Confidential Information that may be in Your possession. Either You or the Company may terminate this Agreement by providing the other with notice of such termination and destroying or returning any Confidential Information of the non-terminating Company that is in the possession of the terminating party. . Sections 1, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, shall survive termination of this Agreement for any reason.
16 Law and Disputes. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. All disputes arising under this Agreement or its subject matter that cannot be settled by good faith negotiation shall be decided by arbitration under the rules of the American Arbitration Association. The decision of the arbitrator or arbitrators shall be final. The site of the arbitration will be in Orlando, Florida, unless otherwise expressly agreed, and the arbitration award shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Paragraph 16 to the contrary, Company shall have the right to institute judicial proceedings against You or anyone acting by, through or under You, in order to enforce Company rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. The prevailing party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees from the other party.
17. Entire Agreement. This Agreement sets forth the entire understanding between You and Company with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, oral and written, as they regard the Software, the Services or the Site. This Agreement may be amended only in a writing signed by both parties. No vendor, distributor, dealer, retailer, sales person or other person is authorized to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the representations or promises of this Agreement.
18. Miscellaneous. No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the waiving party; failure to insist upon strict compliance with this Agreement shall not be deemed a waiver of any future right arising out of this Agreement. The relationship between Company and You under this Agreement is intended to be that of independent contractor. Nothing in this Agreement shall be construed to create any partnership, joint venture, and employer-employee or agency relationship of any kind. You grant Company and its representatives the right to audit Your compliance with the terms of this Agreement upon reasonable notice to You. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be fully severable, and this Agreement shall be construed and enforced as if the illegal, invalid or unenforceable provision had never been a part of this Agreement. Neither party may assign or transfer this Agreement, nor shall any such attempted assignment or transfer be null and void. Notwithstanding the foregoing: (a) Company may assign this Agreement without consent to: (i) an affiliated company, or (ii) a party acquiring all or substantially all of the business of Company relating to the Software, and (b) You may assign this Agreement without consent to a party acquiring all or substantially all of Your business.
19 Binding Agreement. BY ACCESSING OR USING THE SITE OR SOFTWARE, YOU ACKNOWLEDGE THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. If You have any questions concerning this Agreement, You may contact Company at [email protected]
