AudiamSM Terms of Service

Effective as of Nov 4th, 2016

THANKS FOR VISITING AND – WE HOPE – FOR SIGNING UP! PLEASE MAKE SURE TO READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY. They constitute a legal agreement between you and Audiam, Inc., a Delaware corporation (“us” or “Audiam”), regarding use of this website (the “Site”) and of our services (“Services”), which are described below and elsewhere on the Site.

By visiting the Site and/or registering for or using the Services, you acknowledge that you have read and understand and agree to be bound by these Terms as well as the terms of our Privacy Policy (www.audiam.com/privacy) and of the YouTube Terms of Service (https://www.youtube.com/t/terms), as each may be amended from time to time.

Section A below applies to registration for and use of our Services, while Section B covers use of our Site generally.

We may occasionally need to change these Terms to assure that we can provide the Services or for other reasons. Therefore, we need to reserve the right to amend these Terms at any time. When we do, we will post the amended Terms here, so please check back often and check the date above to see when they were last updated. If you are a registered Audiam user, we may also notify you by email or by posting notice to your account dashboard that the Terms have been updated, BUT WE PROMISE NOT TO AMEND THE TERM (LENGTH) OF OUR AGREEMENT OR THE FACT THAT YOU ALWAYS KEEP THE COPYRIGHT IN YOUR MUSIC WITHOUT OBTAINING YOUR EXPRESS CONSENT OR ALLOWING YOU TO OPT-OUT. In any case, by continuing to visit or use the Site and/or our Services, you agree to these Terms as they may be amended from time to time.

IF YOU DO NOT AGREE WITH OR DO NOT WISH TO BE BOUND BY ALL OF THESE TERMS, PLEASE NAVIGATE AWAY FROM THE SITE AND DO NOT CLICK “I AGREE” TO REGISTER OR USE OUR SERVICES. IF YOU DON’T CLICK “I AGREE,” WE CANNOT PROVIDE OUR SERVICES TO YOU. THIS DOESN’T MEAN THAT WE DON’T LIKE YOU, WE’RE SURE WE WOULD IF WE GOT TO KNOW YOU.

SECTION A – REGISTRATION AND USE OF OUR SERVICES

A1. REGISTRATION

In order to use our Services, you will need to register and create an account with us. This involves choosing and verifying a valid email address that is your own, choosing a password and providing us with complete and accurate registration information, which may include without limitation your name, age, e-mail address, postal address, phone number, bank account, social security number or other tax ID number and other payment details (as we need a place to send your money), and certain details regarding the songs (“Compositions”) and/or recordings (“Recordings”) that you submit to us, such as titles, ISWCs, ISRCs or other identifying codes, and your percentage copyright interest. THIS PART IS REALLY IMPORTANT: You will be solely responsible for any activity conducted with your user name, password and account, so please keep that information confidential and safe. If at any time your details change or if you learn or suspect that your password has been used or obtained by a person not authorized to use it, please notify us immediately.

If you are registering, submitting materials and/or providing information to us on behalf of one or more other people, a group, or a company or other entity, then you represent and warrant to us that you are duly authorized to do so on their behalf and to bind them to these Terms and that we and our sublicensees are fully entitled to rely on the same. In such case, the term “you” as used throughout these Terms includes all such people and entities.

A2. SUBMISSION OF MUSIC 

Once you have registered, you will be able to submit as many Compositions and/or Recordings as you wish for us to administer within the scope of our Services. We will provide you with detailed instructions to submit all necessary accompanying details and, if necessary, to upload applicable Recordings or other materials.  The Compositions and/or Recordings that you submit to us, together with any accompanying artwork, photographs, lyrics, metadata and/or other materials, are sometimes collectively referred to in these Terms as your “Music.”  We are not able to return any materials or information submitted to us and while we don’t intend or undertake to pre-screen your Music, we may refuse to accept or to perform Services in connection with any Music if we receive a claim involving that Music, if it violates the terms of a license, or for any reason in our discretion.

TO BE CLEAR, YOU KEEP FULL OWNERSHIP OF YOUR INTEREST IN YOUR MUSIC! YOU DECIDE WHICH MUSIC TO REGISTER WITH US! WE DO NOT WANT TO OWN YOUR COPYRIGHTS, WE WANT YOU TO!

HOWEVER, YOU MAY ONLY REGISTER MUSIC THAT YOU OWN OR CONTROL THE RIGHTS TO, AND ONLY TO THE EXTENT OF YOUR OWN INTEREST! FOR EXAMPLE, IF YOU CO-WROTE A COMPOSITION WITH ONE OR MORE OTHER WRITERS, THEN YOU MUST TELL US WHAT PERCENTAGE OF THE COPYRIGHT YOU OWN IN THAT SONG, AND ONLY YOUR INTEREST WILL BE COVERED UNDER THESE TERMS.

IF YOUR COMPOSITIONS OR RECORDINGS ARE COVERED UNDER AN AGREEMENT WITH A MUSIC PUBLISHER OR ADMINISTRATOR OR WITH A RECORD COMPANY, THEN YOU MAY NOT BE ABLE TO SUBMIT THEM TO US. IF YOU ENTER INTO ANY SUCH AGREEMENT DURING THE TERM, IT WILL BE SUBJECT TO OUR RIGHTS HEREIN. WE RECOMMEND THAT YOU CAREFULLY REVIEW ANY APPLICABLE AGREEMENTS AND CONSULT WITH A CAPABLE LAWYER TO MAKE SURE THAT YOU CAN SUBMIT MUSIC TO US WITHOUT VIOLATING THOSE AGREEMENTS OR THE REPRESENTATIONS AND WARRANTIES BELOW. (Our caps lock key wasn’t stuck - that last part was really important!) If you don’t own or control 100% of the rights to each and every Composition and Recording that you submit to us, then there is still a possibility that someone else may “claim” a portion of the related YouTube content or may demand that it be removed from YouTube altogether.

A.3 GRANT OF RIGHTS **FROM YOU TO US

If you sign up and submit Music to us, then that Music will automatically be included in the YouTube Licensing Claims and Other YouTube Licensing Services described in Sections A3.1 and A3.2 below.

As used in these Terms, “YouTube” means the YouTube website located at http://www.youtube.com, including all mirror and derivative sites, whether mobile or otherwise, and all replacements, successors and international versions thereof, and embedded YouTube players on other websites and services, as may be available from time to time during the Term, either free to users or on a subscription or other paid basis. YouTube’s functionality may include conditional video and audio-only downloads, audio-only and/or background streaming, playback without the video rendered in a manner visible to the user, with or without advertising, free or discounted trials, alternative tiers (e.g., lossless or high-definition tier, or YouTube bundled with other products or services). On behalf of yourself and your music publishing designees (if applicable), you grant to us and our sublicensees, successors and assigns the sole and exclusive rights during the Term and in the Territory to license, administer, collect and otherwise exploit the following rights (as applicable) on your behalf throughout the universe as to 100% of your right, title and interest in and to each piece of Music that you submit to us:

A3.1 YOUTUBE LICENSING CLAIMS

to identify instances where your Music is being used or exploited during the Term (or has been used or exploited prior to the Term) on YouTube without authorization or consent from you (or your authorized representative) and to “claim” and monetize such uses and/or exploitations on your behalf (which we may do by authorizing YouTube to enable the sale and display of advertising on videos embodying your Music). We refer to foregoing kinds of claims as “YouTube Licensing Claims”.

We will have the right but not the obligation to initiate litigation or administrative proceedings on your behalf with regard to any unauthorized uses or exploitations of your Music on YouTube.

We will pay you 100% of Net Sums (defined below) derived from YouTube Licensing Claims for your Music in videos on Your Channel(s) (defined below), provided that you have correctly identified Your Channel(s) to us by providing us the necessary information as required by YouTube and Audiam for us to identify Your Channel(s) (otherwise we won’t know that it’s Your Channel(s) and will pay you 75%).  

We will pay you 75% of Net Sums derived from YouTube Licensing Claims for your Music in videos which are not on Your Channel(s).

(When we refer to “Your Channel(s)” in these Terms, we are referring to those YouTube channels that are owned or controlled by you.)

A3.2 OTHER YOUTUBE LICENSING SERVICES (e.g., AudioSwap and other Google YouTube Services)

to grant to Google Inc. and its affiliates and successors (“_Google_”) a nonexclusive, nontransferable, non-sublicensable, royalty-bearing, limited right and license, to (i) store, reformat, make on-demand streams of, make conditional (“limited” or “tethered”) downloads of, and display your Music as it has been embodied in (A) user videos, (B) “art tracks,” (C) audio-only tracks, and (D) label videos and to make your Music available on and through the Google YouTube Services (defined below) and embedded YouTube video players; and (ii) reproduce, distribute, and prepare derivative works (including synchronization rights) based upon your Music, solely to the extent necessary for the purpose of engaging in the activities described in the preceding clause (i); and to collect all income from Google from the foregoing activities. If and only if you specifically opt-in further, the foregoing license will also include all necessary rights for Google to (and to pass through such rights to users as applicable) include Music in its AudioSwap Library (or any successor product thereto which is owned or controlled by Google), which will consist of master recordings of Music, any of which users may add to their user videos solely through the Google YouTube Services. Google will also have the rights to (and to pass through such rights to labels and users as applicable) create art tracks using your Music. Our rights also include the right (but not the obligation) to grant licenses to Google on a so-called 100% basis (i.e., to license the rights to an entire Composition, even if you or Audiam controls less than 100% of the copyright therein).

For purposes of these Terms, “_Google_ YouTube _Services_” means YouTube and any features thereof made available by Google to paying or non-paying users through Google-authorized or Google-approved application programming interfaces (APIs) or “apps,” as such term is commonly understood in the technology industry), and any other product, device or service (including mobile devices), including embeds and playback pages, capable of accessing the videos and audio only tracks made available on or through YouTube, even if accessed through a means other than the YouTube website, and (iii) any and all other free or paid Google websites, applications, channels, products and services accessed over the internet (or any successor global computer network), a regional wireless transmission network (e.g., SMS or WAP or other device now known or hereafter developed), or a fixed line telecommunications network (including cable) for transfer onto, or reception or performance by, electronic devices, but excluding Google Play Music Services (described below), all as may be amended from time to time per our agreement(s) with Google.

GRANT OF RIGHTS – OPTIONAL

In addition, we may now or in the future offer some of the following Services, all of which will be entirely on an “opt-in” basis – the choice is up to you.  If you do opt-in, then on behalf of yourself and your music publishing designees (if applicable), you grant to us and our sublicensees, successors and assigns the sole and exclusive rights during the Term and in the Territory to administer, collect and otherwise exploit the following rights (as applicable) on your behalf throughout the universe as to 100% of your right, title and interest in and to each piece of Music that you submit to us for the applicable Service:

A3.3   DIGITAL RIGHTS SERVICES

If you opt in for our Digital Rights Services, then you grant to us the sole and exclusive right to license, administer and collect all income (whether earned during or prior to the Term) with respect to any and all digital sites and services other than YouTube or other Google YouTube Services (“Digital Services”) that digitally deliver music via the Internet or a mobile/wireless communications network or the like, including but not limited to:

  1. interactive streams or webcasts,
  2. limited or “tethered” downloads,
  3. so-called “pure” or “permanent” downloads (outside the U.S.A. only),
  4. ringtones and ringback tones,
  5. so-called “scan and match,” cloud storage or locker services,
  6. digital jukeboxes,
  7. digital and online/wireless karaoke services,
  8. business establishment background/foreground and audiovisual music services, and
  9. as music may otherwise be embodied in any and all other digital phonorecord deliveries or digital transmissions of sound recordings currently existing or hereafter developed (excluding only performances in the U.S. of a sound recording that is exempt under 17 U.S.C. §114(d)(1) or which qualify, either alone or as a result of a program in which it is included, for statutory licensing under 17 U.S.C. §114(d)(2)).

By way of example and not limitation, our rights hereunder extend to Digital Services such as Spotify, Apple Music, Pandora, Rdio, Deezer, Rhapsody, Beats Music, SoundCloud, Microsoft Groove, TouchTunes, Slacker, Tidal, iTunes Match, Amazon Cloud Player, the Google Music Store, Google Play Music Services (which currently include the Google Play Music Store, Google Locker Music Service, and Google Play Subscription Service), Amazon Prime, Amazon Scan and Match, Mood Media (incl. Muzak, DMX), PlayNetwork, TouchTunes, AMI Entertainment, Shoplifter and ex-U.S. iTunes and other download or interactive streaming stores or digital services now or hereafter known.

You acknowledge that our exclusive administration rights include, for example, the ability to allow Digital Services to create and make available promotional excerpts and streams of your Music, to encode, reproduce, cache and store your Music on central hardware devices and/or to reproduce and physically deliver programmed physical media and digital storage devices containing your Music to licensed locations. Our rights also include the right (but not the obligation) to grant licenses to Digital Services on a so-called 100% basis (i.e., to license the rights to an entire Composition, even if you or Audiam controls less than 100% of the copyright therein).

For karaoke services, our exclusive administration rights also include, without limitation, the ability to allow Digital Services and their users to display and record your Music in synchronization or timed relation with lyrics and other visual images, to record users’ performances and versions of your Music, and to upload, download, perform and distribute recordings of those performances.

We may also grant Digital Services the right to perform actions necessary or desired for the operation of their services, such as to make and retain cache and server copies of your Music, to create and make available previews of your Music, create and/or use and store metadata to “fingerprint” or match content on their services, to edit Music files and metadata solely for technical or legal purposes, to offer free or discounted promotional trial periods, and to allow users to recommend your Music to others via social media for streaming, subscription and/or purchase opportunities.

You also grant us the exclusive right to allow Digital Services to publicly perform the Music (or if you do not control those rights exclusively, then you grant us the non-exclusive right) and to use the names (real and professional), approved biographical information and approved likenesses of the writers of the Music, and to authorize others to do so, solely in connection with exploitation of the Music via Digital Services.

We will pay you 75% of Net Sums that we collect from Digital Services for uses of your Music beginning on the date that you opt-in to our Digital Rights Services; and 70% of Net Sums that we collect from Digital Services for uses of your Music prior to that date.

**A3.4 ROYALTY RECOVERY SERVICES

If you opt in for our Royalty Recovery Services, you grant us the sole and exclusive right to find, identify and recover any and all pre-existing mechanical and other royalties that have been earned by you but unpaid by Digital Services as of or prior to the date that you opt-in for the Service from permanent digital downloads and/or use in scan-and-match services (such as iTunes Match) of recordings embodying your Compositions in the U.S. (and any applicable statutory late fees and/or interest, collectively, “Recovered Royalties”).

We may employ our proprietary technology to locate and identify commercially released sound recordings embodying the Compositions, and the metadata and identifying codes and ID numbers associated with those recordings. Wemay be able to use this data to recover arrears payments and accurate payments for current and future exploitations.

We will pay you 70% of Net Sums derived from Recovered Royalties.

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Our exclusive rights during the Term for the applicable Services above will include anything reasonably necessary or desirable in furtherance of the foregoing, including without limitation the right to (a) reproduce, modify and display the metadata and Music for the purposes described herein and for other related internal purposes in carrying out the Services; (b) sublicense any or all of the rights granted herein to any person(s) or entity(ies); (c) collect all monies derived from the foregoing prior to and during the Term throughout the Territory; and (d) use and to grant others the right to use the Composition lyrics and the names (real and professional), approved biographical information and approved likenesses of the writers of the Compositions and artists, producers and others whose performances are embodied on the Recordings. You will be deemed to have approved any artwork, photographs, biographical material or other information or materials that you provide to us. You agree that we may contact you by email or using your other registration details with any questions we may have relating to your Music. All rights not granted to us in this agreement (or reasonably necessary or desirable for the exploitation of such rights) are reserved to you. You acknowledge that any Services for which you opt-in are exclusive to us, and so during the Term you may not engage in those Services directly or authorize others to do so. If and to the extent that you retain any moral or other rights, you irrevocably agree not to enforce them against us or our sublicensees.

You hereby irrevocably appoint such of our officers as we may delegate with the power of attorney (coupled with an interest and with full power of substitution and delegation) solely for the purposes of effecting the rights, powers and transactions contemplated by these Terms (e.g., making, executing, filing and/or delivering any documents or taking any other action necessary or reasonably desirable within our reasonable business discretion). However, you and we are independent contractors and licensor-licensee and this agreement does not create any joint venture, agency, employment or other relationship.

A4. TERM

The term of our Services (the “Term”) will begin on the date that you first submit your Music to us via the Site and shall continue for a period of one (1) year thereafter. The Term will automatically renew on a month-to-month basis unless and until either party provides the other with at least sixty (60) days’ prior written notice of its desire that the Term expire at the end of the of the then-current period.

Notwithstanding the foregoing, (i) we may suspend, modify or terminate any or all of our Services at any time, without notice, (ii) we may grant sublicenses of your Music to third parties which survive the Term, and (iii) you have the right to terminate the Term upon written notice to us if we stop operating the Site and Service for sixty (60) consecutive days or longer. There may a delay between the end of the Term (or your withdrawal of any particular piece of Music from representation by us) and the time that it takes Google, YouTube or a Digital Service to actually acknowledge or register the transition or to take down your Music (e.g., they may only honor takedown requests semi-annually or on some other periodic basis), and you agree not to hold us or the applicable third party responsible for any such delays.

A5. TERRITORY

The territory of the rights granted to us (the “Territory”) is worldwide as to all Music and Services unless you specify otherwise when you submit or deliver the Music and related information to us during the submission process.

A6. PAYMENTS

We will pay you the applicable percentage of Net Sums for the Services above. As used herein, “Net Sums” shall mean gross monies that we earn, collect and actually receive, from Google, Digital Services or our other sublicensees and which are solely and directly attributable to the exploitation of your interest in the Music pursuant to these Terms, less any refunds, taxes, tariffs or other amounts that we may be legally obliged to withhold or pay. We will retain the remaining Net Sums as our service fee. We shall have the right to rely on accounting, usage and other statements received from our sublicensees (including without limitation YouTube Analytics) for all purposes hereunder. You will be responsible for payment of all taxes assessed to you, and for all payments due to third parties (e.g., co-writers of Compositions if applicable, artists, producers, engineers or others who performed services in connection with Recordings), and hereby agree to indemnify and hold us harmless from and against any sums for which you are responsible.

If we, Google, any other Digital Service or any of our other sublicensees receives a claim or otherwise reasonably suspects that any of your Music or any of Your Channels (or any content therein) infringes the rights of any person or entity, violates any applicable law or terms of service, or that video views or other activity related to Your Channels or your account with us is attributable to misrepresentation, manipulation, misconduct or similar deceptive or fraudulent practices (automated or otherwise), then in addition to any other available rights and remedies we may withhold Net Sums otherwise payable to you in an amount reasonably attributable to such conduct unless and until any and all claims or other conduct are favorably resolved to our reasonable satisfaction and we may attempt to address and resolve matters resulting from such claims or conduct, which may include, without limitation, the disclosure of information to third parties and the payment to or other settlement of disputed amounts with third parties on your behalf, in Audiam’s sole business judgment. You will forfeit all amounts that we, Google, any Digital Services and/or our other sublicensees reasonably determine in our discretion are the result of any of the foregoing activity, or if so determined by a court or administrative body. Additionally, if we in our reasonable discretion engage outside attorneys in connection with the evaluation, investigation, enforcement or defense of such matter, then we shall be entitled to offset our resulting expenses by, in our sole discretion, (i) deducting from your account (whether currently or in the future available) a minimum of $500 and a maximum of our actual costs incurred plus a service fee of 20% on top of said fees or (ii) charging $500 (or any greater or lesser balance not deducted from your account) to any payment method then on file with us (e.g., PayPal, credit or debit card). In addition to any other rights or remedies, we may in our discretion deduct or set-off any amounts that you owe to us from any monies otherwise payable to you.

A7. ACCOUNTINGS

Our goal is to provide you your money as quickly as possible. For the time being, we will render payment of Net Sums payable to you within (90) days after our actual receipt thereof from Google or another applicable Digital Service, together with copies of any accompanying statements that we receive; provided, in each case, that Google or the applicable Digital Service provides sufficient information in its accounting statement to us to enable us to identify and distinguish the specific exploitation of your Music and associated income and to allocate your share of Net Sums therefrom. If Google and/or the applicable Digital Servicedoes not provide sufficient information, then we will use our commercially reasonable efforts to work with the reporting service to identify and obtain such information so that we can allocate, account and pay your share of Net Sums. If the Net Sums due to you for a particular quarter are Ten Dollars ($10) or less, then we may hold that amount in your account until a statement shows Net Sums of Ten Dollars ($10) or more payable to you (or, if later, until the final statement after the Term ends). We may furnish statements by posting them to your account dashboard on the Site, by e-mail, by regular mail, or otherwise in our reasonable discretion, in each case using the registration details you have provided – PLEASE MAKE SURE TO KEEP YOUR CONTACT AND PAYMENT DETAILS CURRENT. All statements shall be binding upon you and not subject to any objection for any reason unless you give us a specific, non-generalized objection in writing, stating the basis thereof, within one (1) year from the date rendered, and any lawsuit must be commenced within two (2) years from the date such statement was rendered.

It will be up to you to regularly monitor and withdraw amounts from your Audiam account. If any sums remain in your Audiam account for two-and-a-half years or longer, then we will charge an administration fee of one percent (1%) or Five Dollars (US$5) per month (whichever is greater) on that amount (or a lesser fee, if required under applicable law).

We hope to be as transparent as possible, and therefore will provide you with copies of the statements that we receive from Google and our other sublicensees relating to your Music, from which we calculate the Net Sums payable to you. But if you really wish, you may nevertheless at your sole expense elect to have a Certified Public Accountant examine our books and records only as they relate to your Music and only to confirm the accuracy of our statements and payment of Net Sums to you. You must provide at least thirty (30) days prior written notice to us that you intend to have your CPA conduct such an examination, which will take place at our office during our normal business hours, will be for a reasonable duration, may not occur more than once per calendar year, and each statement may only be examined once. We may require you and your CPA to sign a confidentiality agreement before beginning an examination, and you agree to provide us with a copy of the CPA’s report promptly when it’s available. And if and when the numbers line up and you find no discrepancy after incurring those audit costs, don’t say we didn’t tell you so. This paragraph reflects your only right to examine our books and records.

A8. REPRESENTATIONS AND WARRANTIES

You represent and warrant to us that: (a) you are 18 years of age or older and have and shall continue to have the full legal right, capacity and authority to agree to and fully perform these Terms and to grant the above rights to us without the consent of any other person; (b) all information, data and materials that you provide to us are accurate and complete, including without limitation your stated percentage copyright interest in the Music and your ownership or control of Your Channels, and you will update the same during the Term so as to remain accurate and complete; (c) none of the Music or Your Channels, nor any part thereof, infringes upon any rights of any third party or violates any applicable law or terms of service; without limiting the foregoing, no Music embodies a sample, interpolation or other portion of a work owned or controlled by a third party unless licensed (in writing) by all applicable third parties for your embodiment in the applicable Music; (d) any sale, assignment, transfer, mortgage or licensing or other grant of rights in or to your interest in any of the Music shall be subject to our rights hereunder and the terms and conditions hereof; (e) there is no existing agreement, and you will not enter into any agreement or perform any act, which materially interferes or is inconsistent with the rights granted to us hereunder; (f) the Music and Your Channels are and shall be free from any adverse claims, liens or encumbrances of any kind by any person or entity; (g) we shall not be required to make any payments of any nature for, or in connection with, the exploitation of the rights granted herein, including without limitation to any co-writers of the Compositions or any performers, producers or others in connection with any Recordings; (h) you will not join or become party to any class action against us or otherwise involving the Site or our Services; and (i) you have had the opportunity to consult with independent legal counsel in connection with these Terms.

We may disable, suspend, or terminate your account if we receive a claim or otherwise become aware of circumstances that, if true, would violate any of the foregoing representations and warranties or any other provisions of these Terms.

SECTION B - USE OF OUR SITE AND SERVICES GENERALLY

B1. SITE CONTENT

All of the content, information and other materials available on the Site (collectively, “Content”) belong to Audiam or our licensors and are protected by copyright, trademark and other applicable laws. Except as provided in paragraph B1A below, content may not be copied, downloaded, distributed, publicly performed or otherwise used in any manner without our prior written consent. AUDIAM and our logo are service marks of Audiam Inc.  YOUTUBE, the YouTube logo, and AudioSwap are service and trademarks of Google Inc. and/or its subsidiaries and affiliates.  Any other marks on the Site are the property of their respective owners.

B2. SITE INTEGRITY AND REQUIREMENTS

The Site is to be used solely for its stated purposes. You may not interfere or attempt to interfere with the appearance or operation of the Site or any transaction conducted on the Site. You may not take any action that imposes an unreasonable or disproportionately large load on the Site or on our infrastructure.

You are responsible for any hardware, systems and/or software you use and any associated fees and expenses to connect to and use this Site. You may not attempt, nor support others’ attempts, to decrypt, reverse-engineer, circumvent or otherwise alter or interfere with the Site or any Content.

B3. LINKS

The Site may contain advertisements or other links to third party websites and services, and those of third parties may link to our Site. Clicking on a link will redirect you away from our Site to a third party site or service, in which case any resulting interactions, communications, purchases or other transactions are strictly between you and such third parties. We are not responsible for examining or evaluating, and do not warrant the goods, services or offerings of any third party or the content of their websites or advertisements. We disclaim any liability or responsibility for the statements, actions, products, services, practices, availability or content of these outside resources. Please direct any concerns regarding other sites to their operators.

B4. REPRESENTATIONS AND WARRANTIES

You represent, warrant and agree that: (a) any information you submit to us via the Site is and will remain truthful, complete and accurate; (b) that neither your use of the Site nor any information submitted by you or the use of such information by us or our users or sublicensees in accordance with these Terms will (i) violate or infringe upon the rights of any third party, including, without limitation, copyright, trademark, privacy or publicity, moral rights, contract or other personal or proprietary rights; (ii) contain unlawful material; (iii) constitute false or misleading statements of fact or indications of origin; (iv) slander, libel or defame any person or entity; or (v) cause injury of any kind to any person or entity; or (vi) violate any applicable laws, rules (including any applicable terms of service), regulations or other governmental regulations; and (c) you are at least the applicable age of majority in the jurisdiction where you reside and you and possess the legal authority and capacity to agree to these Terms.

You agree to and hereby indemnify, defend and hold us and our officers, directors, shareholders, agents, service providers, affiliates, licensors, users, sublicensees, agents and representatives (collectively, the “Indemnified Parties”) harmless from and against any and all liability and costs incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms or the representations, warranties and covenants herein, including, without limitation, court costs and reasonable attorneys’ fees. You shall cooperate as fully as reasonably required in the defense of any claim and shall not enter into any settlement agreement that affects our rights without our prior written approval. We reserve the right to assume the defense and control of any matter otherwise subject to indemnification by you, which may include, without limitation, the disclosure of information to third parties and the payment to or other settlement of disputed amounts with third parties on your behalf, in Audiam’s sole business judgment. Pending the determination of any claim involving any alleged breach or failure, we may withhold any sums due to you in an amount reasonably related to such claim. If no suit is filed within twelve (12) months of our receipt of notice of a potential third party claim, we shall release monies held pursuant to this paragraph, provided however, that we may, in our sole discretion, continue to hold such monies if there is an ongoing settlement negotiation or if there is an indication that a suit may be brought imminently (the foregoing does not apply to sums withheld due to fraudulent activity or statements regarding your Music or Your Channels, which will be deemed forfeited).

B5. DISCLAIMER OF WARRANTIES

We don’t represent, warrant or endorse the accuracy or reliability of any statement or other information displayed, uploaded, or distributed through the Site. Your use of our Site and/or Services is at your sole risk. OUR SERVICES AND ALL INFORMATION AND MATERIALS PROVIDED VIA THE SITE ARE PROVIDED “AS IS.” WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, INCLUDING BUT NOT LIMITED TO THE ACCURACY, TIMELINESS OR USEFULNESS OF OUR SERVICES OR ANY INFORMATION OR MATERIALS PROVIDED VIA THE SITE. WE CANNOT AND DO NOT GUARANTEE THAT ACCESS TO OR USE OF THE SITE OR SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT OUR SERVICES WILL IDENTIFY ANY OR ALL CLAIMS  OR UNAUTHORIZED USES OF YOUR MUSIC OR RESULT IN ANY NET SUMS PAYABLE TO YOU. AS A CONDITION OF OUR PROVIDING THE SERVICES, YOU HEREBY WAIVE ALL CLAIMS (WHETHER KNOWN OR UNKNOWN TO YOU) AGAINST US AND OUR SUBLICENSEES, INCLUDING TUNESAT LLC, REGARDING UNIDENTIFIED CLAIMS OR THAT BETTER BUSINESS OR GREATER NET SUMS COULD HAVE OR SHOULD HAVE BEEN ACHIEVED.   WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES TO THE FULLEST EXTENT OF THE LAW.  

B6. LIMITATION OF LIABILITY

NEITHER WE NOR ANY OF OUR SHAREHOLDERS, OFFICERS, EMPLOYEES, DIRECTORS, AFFILIATES, LICENSORS, SUBLICENSEES OR REPRESENTATIVES SHALL BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR LOSSES INCURRED IN CONNECTION WITH USE OF, OR INABILITY TO USE, OUR SERVICES OR THE SITE OR ANY OF THE INFORMATION OR MATERIALS PROVIDED ON THE SITE, OR ANY DAMAGE OR LOSS, INTERRUPTIONS, ERRORS, DEFECTS, LOST DATA, FAILURES OF DETECTION, ERRORS IN MONITORING OR REPORTING, OR DELAYS IN PERFORMANCE, REGARDLESS OF THE CLAIM AS TO THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE AGGREGATE LIABILITY OF US AND THE THIRD PARTIES STATED ABOVE TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100. The foregoing is applicable to the fullest extent permissible under applicable law.

B7. COPYRIGHT INFRINGEMENT

If you believe that any information or material on our Site infringes upon a copyright owned or controlled by you, please send our Copyright Agent an e-mail or other written notice that includes the following information: (a) an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) a description of where the material that you claim is infringing is located on the Site; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our Copyright Agent for notice of claims of copyright infringement on the Site is:

Jeff Price, Chief Executive Officer

Audiam Inc.

1650 Broadway, Suite 1011

New York, NY 10019 U.S.A.

ph: (212) 247–4404

em: copyright@audiam.com or jeff@audiam.com

B8. NOTICES

All correspondence and notices in connection with these Terms should be sent to us at the address below:

Audiam Inc.

Attn: Business Affairs

1650 Broadway, Ste. 1011

New York, NY 10019

or via email at copyright@audiam.com

If you are a registered user of our Site or Services, we will communicate with you at the address(es) you provided upon registration. Otherwise, please include a postal or e-mail address where we may reach you.

B9. MISCELLANEOUS

These Terms (including our Privacy Policy) constitute the entire agreement between you and us with respect to your access to and use of the Site and Services. If any provisions are deemed invalid or unenforceable, they will be severed or construed to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect. No waiver of any provision by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms of use shall not constitute a waiver of such right or provision. We shall not be deemed to be in breach of any of our obligations hereunder unless we receive specific written notice from you via FedEx or registered or certified mail (return receipt requested) of an alleged breach and we fail to begin steps to cure such breach, if any, within thirty (30) days following our receipt of such written notice. Your rights and remedies shall be limited to damages in an action at law. We may assign, delegate or sublicense this agreement, in whole or in part, or any of its rights hereunder, to any person or entity, as may any person or entity acquiring such rights hereunder. You may not assign any of your rights or obligations hereunder without our prior written consent, and any purported attempt otherwise shall be null and void ab initio. The Site is hosted and operated in the United States of America and we make no representation that any Content is appropriate for access outside of the U.S.A. Those who choose to access the Site from outside the United States do so on their own initiative and are responsible for compliance with local laws. These Terms shall be construed and enforced in accordance with New York law without regard to any conflict of law provisions and any and all actions in connection with the Site and/or these Terms of Use shall be brought exclusively in the federal or state courts located in New York County, New York, U.S.A. and the parties expressly waive their respective rights to a trial by jury. Any process in any action, suit or proceeding arising out of or relating to these Terms may, among other methods, be served upon you by delivering it or mailing it in accordance with paragraph B8 above. Any such delivery or mail service shall be deemed to have the same force and effect as personal service in New York.