IF YOU WANT EITHER (i) TO USE THE LEGITMIX SITE, TECHNOLOGY, AND SOFTWARE TO CREATE A LEGITMIX FILE TO MARKET AND OFFER YOUR ARTISTIC MIX (THE "MIX") TO THIRD PARTIES AS MIX ARTIST AND/OR (ii) TO ACCESS AND USE THE LEGITMIX SITE, TECHNOLOGY, SOFTWARE, AND LEGITMIX FILE(S) TO RECREATE A MIX (THE "RECREATED MIX") AS A LEGITIMIX FILE(S) PURCHASER, YOU EACH MUST BE LICENSED TO USE THE LEGITMIX TECHNOLOGY, SOFTWARE, AND LEGITMIX FILE(S) IN ACCORDANCE WITH THE FOLLOWING END USER LICENSE AGREEMENT.
THE END USER LICENSE AGREEMENT APPLIES TO ALL END USERS WHO CREATE LEGITMIX FILE(S) (THE "MIX ARTIST") AND TO THOSE END USERS WHO ACCESS/PURCHASE LEGITMIX FILE(S) TO PRODUCE THE RECREATED MIX (THE "PURCHASER") (COLLECTIVELY, THE "END USERS"). THE TERMS OF THE FOLLOWING LICENSE AGREEMENT APPLY EQUALLY TO ALL END USERS UNLESS THE TERMS ARE EXPRESSLY LIMITED TO EITHER THE MIX ARTIST OR THE PURCHASER.
THE LEGITMIX SITE, TECHNOLOGY AND SOFTWARE DISTRIBUTE ONLY LEGITMIX FILES. CONSEQUENTLY, EXCEPT FOR THE LEGITMIX FILE(S) AND ANY RELATED ARTIST MIX CONTENT DISTRIBUTED BY LEGITMIX ON BEHALF OF THE MIX ARTIST, THE PURCHASER HAS AND ASSUMES THE COMPLETE AND TOTAL RESPONSIBILITY FOR OBTAINING ANY REQUIRED COPYRIGHT LICENSES AND/OR OTHER RIGHTS TO ACCESS AND USE IDENTIFIED SOURCES AND OTHER THIRD PARTY CONTENT.
THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). LEGITMIX DOES NOT SELL OR TRANSFER TITLE TO THE LICENSED SOFTWARE TO YOU AS LICENSEE. YOU HAVE NO OWNERSHIP RIGHTS IN THE SOFTWARE, ONLY A LIMITED RIGHT TO USE THE SOFTWARE. ANY USE, REPRODUCTION OR REDISTRIBUTION OF THE SOFTWARE NOT IN ACCORDANCE WITH THE TERMS OF THE LICENSE IS EXPRESSLY PROHIBITED, INFRINGES LEGITMIX'S RIGHTS IN THE SOFTWARE, AND IS ACTIONABLE BY LEGITMIX AGAINST YOU. ANY INFRINGEMENT BY YOU OF LEGITMIX'S RIGHTS AUTOMATICALLY TERMINATES YOUR RIGHT TO POSSESS, ACCESS, AND/OR USE THE LICENSED SOFTWARE. YOU WILL BE UNABLE TO INSTALL ANY SOFTWARE OR PURCHASE ANY LEGITMIX FILE(S) WITHOUT ACCEPTING THE TERMS OF THIS LICENSE AGREEMENT. LEGITMIX'S LICENSE TO YOU IS CONDITIONED ON AND ACTIVELY INDUCED BY YOUR ACCEPTANCE OF THESE TERMS. NEVERTHELESS AND NOTWITHSTANDING THE FOREGOING, ACCESSING THE LEGITMIX SOFTWARE IN ANY WAY, WHETHER BY DOWNLOADING AND INSTALLING THE SOFTWARE OR OTHERWISE, IS CONCLUSIVE INDISPUTABLE EVIDENCE OF YOUR ACCEPTANCE OF THE TERMS OF THE LICENSE AGREEMENT. THE SOFTWARE, ANY PRINTED MATERIALS, ANY ON-LINE OR ELECTRONIC DOCUMENTATION, AND ANY AND ALL COPIES AND DERIVATIVE WORKS OF SUCH SOFTWARE AND DOCUMENTATION (COLLECTIVELY THE "SOFTWARE") ARE THE COPYRIGHTED WORK OF LEGITMIX INC. ALL USE OF THE SOFTWARE IS GOVERNED BY THE TERMS OF THIS LICENSE AGREEMENT WHICH IS SET OUT BELOW (THE "LICENSE AGREEMENT"). THE SOFTWARE IS SOLELY FOR USE BY YOU ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. ANY USE, REPRODUCTION OR REDISTRIBUTION OF THE PROGRAM NOT IN ACCORDANCE WITH THE TERMS OF THE LICENSE AGREEMENT IS EXPRESSLY PROHIBITED. THE OFFICIAL LANGUAGE OF THIS LICENSE AGREEMENT IS ENGLISH AND ONLY THE ENGLISH VERSION SHALL GOVERN THE TERMS OF THE LICENSE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF ANY LICENSED END USER AND OF LEGITMIX UNDER THE TERMS OF THIS LICENSE AGREEMENT.
1. LICENSE GRANT
- The following capitalized terms have the meanings stated below:
- The term "Copyrighted Content" means, collectively, alone or in combination, any copyrighted materials (e.g., images, films, audio-visual works and/or other audio files).
- The term "Identified Sources" means all Source Music identified and used by the Mix Artist to create a Mix.
- The term "Legitmix File" means the result of the Mix Artist's use of the Software to remove the Identified Sources from a Mix.
- The term "Legitmix Site" means the Internet IP address and domain registered and owned by Legitmix found at www.Legitmix.com.
- The term "Mix Artist Content" means Copyrighted Content for which the Mix Artist has reproduction, distribution and public performance rights, along with any other content, that is used with the Identified Sources to create a Mix.
- The term "Personal Computer" means a hardware product which operates a wide variety of productivity, entertainment, and other software applications, e.g., a general purpose laptop, desktop, server, large format tablet microprocessor-based computers, personal digital assistant ("PDA"), portable media player, and all other similar forms of computing devices now known or to be developed in the future but not television, television receiver, audio/video receiver, radio, audio headphone, audio speaker, telephone or similar telephony based device, game console, personal video recorder ("PVR"), player for digital versatile disc ("DVD") or other optical media, video camera, still camera, camcorder, video editing and format conversion device, video image projection device, and any similar type of consumer, professional or industrial device.
- The term "Recreated Mix" means the Mix that is produced using the Software, the Legitmix File, and the Identified Sources lawfully obtained and used by the Purchaser.
- The term "Preview" means the portion of the Mix selected by the Mix Artist for promotional use in connection with the Legitmix Site.
- The term "Source Music" means copyrighted audio recording(s), offered for sale or download, which the Mix Artist is not licensed to distribute or publicly perform in connection with the Mix.
- The term "Third-Party Content" means Copyrighted Content for which the Mix Artist has no distribution and/or public performance rights.
- Subject to
- these terms and conditions,
- your appointment (as the Mix Artist) of Legitmix as a non-exclusive licensee and distributor of your Mix Artist Content,
- your payment (by both the Mix Artist and the Purchaser) to Legitmix of certain fees identified below,
- your assurances (as the Mix Artist) of having properly identified the Identified Sources as the only Third-Party Content you used to create the Mix; and
- your assurances (as the Mix Artist or the Purchaser, as applicable) of having a legitimate right to use each of the Identified Sources used to create a Legitmix File or produce a Recreated Mix, as applicable,
- Subject to the Limited Use License granted above, you may not, in whole or in part, copy, photocopy, download, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create by reverse engineering or otherwise, the source code from the object code supplied hereunder, or adapt the Software in any way or use it to create derivative works based on the Software, Mix Artist Content or the Legitmix File(s), or remove any proprietary notices or labels on the Software, Mix Artist Content, and the Legitmix File(s) without the prior written consent of Legitmix. No source code or trade secrets are disclosed to you. Moreover, you may not reverse engineer or otherwise hack any Legitmix File in an attempt to discover its trade secrets and functionality. If you are located in the European Union, please refer to the additional terms at the end of this License Agreement under the heading "European Union Provisions." Legitmix shall not be responsible for providing any updates, enhancements, modifications, revisions, additions, replacements or conversions to the Software, or for otherwise maintaining the Software, if the Software is modified by you or any third party on its behalf.
- The Software is licensed to you as a single product to be installed on your Personal Computer. Its component parts may not be separated for use on more than one computing device. Each computing device must be separately licensed before downloading the Software to each such computing device.
- You may only use the Software, Mix Artist Content and the Legitmix File(s) for your own use.
- Moreover, you are not entitled to sell, transfer, grant a security interest in or transfer reproductions of the Software, Mix Artist Content, and/or the Legitmix File(s) to other parties in any way (e.g., in whole or in segments), nor to rent, lease or license the Software, Mix Artist Content and/or Legitmix File(s) to others without the prior written consent of Legitmix. The Software, Mix Artist Content and the Legitmix File(s) are made available for downloading solely for use under the terms and conditions of this License Agreement. Any reproduction or redistribution of the Software, Mix Artist Content and/or the Legitmix File(s) not in accordance with this License Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Without limiting the foregoing, copying or reproduction of the Software or the Legitmix File to any other server or location for further reproduction or redistribution is expressly prohibited, unless such reproduction or redistribution is expressly permitted by this license agreement.
- You may not emolate or redirect any communication protocols used by Legitmix in the network feature of the Software, through protocol emulation, tunnelling, modifying or adding components to the Software, use of a utility program or any other techniques, now known or hereafter developed, for any purpose including, without limitation, network play over the Internet or as part of content aggregation networks without the prior written consent of Legitmix.
- You may make one backup copy of the Software, provided your backup copy is not installed or used other than for archival purposes. You may not transfer the rights to a backup copy unless you permanently transfer all rights in the Software when permitted under this Limited Use License, provided the recipient agrees to the terms of this Limited Use License and you agree to remove the Software from your Personal Computer.
- RESTRICTED RIGHTS LEGEND. Any Software, Mix Artist Content, and/or Legitmix File(s) which is downloaded from the Legitmix Site for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is governed by 48 C.F.R. 227.7202-3 Rights in Commercial Computer Software or Commercial Computer Software Documentation and 48 C.F.R. 227.7202-5(d) Specifically Negotiated License Rights. However, should the U.S. Government be determined to have greater rights than as provided in the Legitmix Software License Agreement, under no event shall any such rights exceed the rights granted the U.S. Government in data submitted with Restricted Rights or Limited Rights, as applicable. With respect to Restricted Rights in Restricted Computer Software, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19. Manufacturer is Legitmix Inc., 2760 Salina Street, Ottawa, Ontario K2B 6P Canada; and with respect to Limited Rights Data, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Technical Data and to Legitmix's retained rights as set forth in subparagraph (c) of said Rights in Technical Data clause at DFARS 252.227-7013 or as set forth in subparagraphs (c) and (d) of the Commercial Computer Software—Restricted Rights clause at 48 CFR 227.7203-5, as applicable. Manufacturer is Legitmix, Inc., 2760 Salina Street, Ottawa, Ontario K2B 6P Canada.
- In addition to your obligations to use the Software, Mix Artist Content, and the
Legitmix File(s) strictly in accordance with the terms and conditions of this Limited
Use License, you represent, covenant and agree, as conditions relied on by Legitmix
and as inducements for Legitmix's grant to you of the limited use rights stated
above, as follows that: as the Mix Artist:
- you have acquired by lawful means (e.g., by purchase, license, gift, or under fair use as defined in § 107 of the US Copyright Act or other pertinent law, as applicable) rights to access and use Identified Sources as required by the Software and any Mix Artist Content, including the rights necessary to publicly perform that portion of the Mix you have selected for the Preview.
- you have appropriately, inclusively, clearly and accurately identified in the Software all Source Music utilized in the Mix;
- such Identified Sources are the only Third-Party Content you used to create the Mix;
- you are solely responsible for all Mix Artist Content that you upload, post or distribute to, on or through the Legitmix Site, and any Previews you select from your Mix to be streamed to other Users through the Legitmix Site. To the extent permissible by law, Legitmix excludes all liability with respect to all Mix Artist Content and Previews, and the activities of its users with respect thereto;
- you acknowledge and agree that Legitmix cannot and does not review the Mix Artist Content or the Previews you select, and neither Legitmix nor its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders has any obligation, and does not undertake or assume any duty, to monitor the Mix Artist Content or the Previews for content that is inappropriate, that does or might infringe any third party rights, or has otherwise been uploaded in breach of this Agreement or applicable law;
- you agree to continue to use Legitmix File(s) at all times lawfully and strictly in accordance with the terms of this License Agreement.
- Except as otherwise provided in this Section 1.k, this Limited Use License is effective
- You may terminate the License at any time by deleting the Software and destroying any other Software materials.
- In addition to the termination right reserved under Section 1.j above, Legitmix
may, at its discretion, terminate this Limited Use License without notice in the
event that you fail to comply with the terms and conditions of the License Agreement
or breach any of your other representations, obligations and/or conditions of use.
- In such event, you authorize Legitmix to access your Personal Computer and either de-activate or de-install the Software or otherwise direct you to delete the Software and any Legitmix File(s), and you hereby unconditionally agree to immediately destroy all Software and/or Legitmix File(s).
- Notwithstanding the foregoing, at Legitmix's sole discretion and option, you authorize Legitmix to access your Personal Computer remotely either to delete the Software, Mix Artist Content, and /or Legitmix File(s),or to disable the Software and to leave such disabled Software residing on your Personal Computer.
- You hereby acknowledge that any disabled Software, Mix Artist Content, and/or Legitmix File(s) remaining on your Personal Computer (i) are not abandoned by Legitmix, (ii) are, as between an End User and Legitmix, at all times the sole property of Legitmix or Mix Artist, as applicable, in which you have no right, title or interest, and (iii) are subject to the terms of this Limited Use License for so long as such Software, Mix Artist Content, and/or Legitmix File(s) reside on your Personal Computer.
- Your sale or other transfer of your Personal Computer with the Software, Mix Artist Content, and/or Legitmix File(s) does not terminate Legitmix's and/or Mix Artist's rights in such Software, Mix Artist Content, and/or Legitmix File(s) or this Limited Use License which shall at all time apply to the Software, Mix Artist Content, and/or Legitmix File(s), as applicable. Notwithstanding the foregoing, you agree that prior to your sale or transfer of your Personal Computer, you will delete the Software, Mix Artist Content, and Legitmix File(s), and destroy any other Software, Mix Artist Content, or Legitmix File(s).
Legitmix grants to you, and you accept, a limited, non-transferable and non-exclusive worldwide license to install and use an executable code version of the Software (as defined above) and to use the accompanying manuals and other materials and any Legitmix File(s) you purchase, as applicable, for your own personal, non-public purposes, but not for resale, sub-licensing, export or other redistribution (the "Limited Use License"). This Limited Use License is limited to your use only. When you purchase the right to download and use a Legitmix File under the terms of the Limited Use License, you may download such Legitmix File for a maximum number of five (5) separate times.
Except as expressly stated herein, this License Agreement does not grant you any rights in the Software, Mix Artist Content or in the Legitmix File(s) other than the rights to use them strictly in compliance with the terms of the Limited Use License and all rights not expressly granted by Legitmix are reserved by Legitmix under this License Agreement.
All uses not expressly permitted under this Limited Use License are expressly prohibited uses. You are not granted any right or license to use the Software, Mix Artist Content, and the Legitmix File(s) for any prohibited uses and/or unlicensed purposes. You are only licensed to use the Software and the Mix Artist Content to produce the Legitmix File and/or the Recreated Mix. You as the Purchaser expressly acknowledge and agree that neither the Mix Artist nor Legitmix purports to distribute or grant to you any rights to use any Third Party Content in connection with any Recreated Mix.
Moreover, under no circumstances does this License Agreement or Legitmix otherwise grant you any rights in (including, without limitation, any right to use) any Identified Sources, Third-Party Content, Mix Artist Content (except in connection with your use of the Legitmix File) and/or the Recreated Mix. Provided you (as Mix Artist and/or Purchaser) have legally obtained the Identified Sources and any Third Party Content, if applicable, the rights granted to you herein to use the Software, Mix Artist Content and the Legitmix File(s) are limited to the scope of the Limited Use License to create the Mix and/or produce the Recreated Mix, as applicable.
2. RESERVATION OF RIGHTS
The copyright and all other right, title and interest in and to the Software shall at all times remain with Legitmix. You must folly reproduce any copyright or other notice marked on any part of the Software on all copies and must not alter or remove any such copyright or other notice on the original copy of the Software. Legitmix reserves, and you agree that Legitmix has, the right to change this License Agreement from time to time in its sole discretion and your continued use of the Software notwithstanding any such change is conclusive evidence of your agreement to the License Agreement as changed. Legitmix expressly reserves all rights not expressly granted to you in this License Agreement and no other rights inure to you by implication, estoppel or otherwise.
3. LICENSED END USER
You, as a Registered User, by accepting the terms of this License Agreement become a "Licensed User" and you alone are authorized by this License Agreement to execute the Software residing on your Personal Computer using a Password or other form of authentication that verifies that you are a Licensed User.
- Licensed User's Representations. You represent and warrant to Legitmix that:
- you are over the applicable legal age of consent where you live and have the power and authority to enter into and perform your obligations under this License Agreement;
- all information you provide to Legitmix is truthful, accurate and complete;
- you are the named owner of, or are authorized signatory of, the credit or charge card provided to Legitmix in payment of License Fees;
- you shall comply with all terms and conditions of this License Agreement, including, without limitation, the provisions set forth at Section 1;
- where your Personal Computer is shared by several users, you agree to register separately as a Licensed User and to be bound by all of the terms and conditions of this License Agreement, and
- you as a registered user of the Legitmix Site have provided and will provide accurate and complete registration information, including, without limitation, your legal name, address and telephone number.
- Your Obligation to Cooperate. In the event you learn of or have reason to believe that any third party has violated or intends to violate the terms of this License Agreement, you shall, at Legitmix's sole, reasonable discretion and your sole expense, cooperate with Legitmix in seeking injunctive or other relief in your name or that of Legitmix, as appropriate, against any such third party.
- Each Licensed User who purchases Legitmix File(s) acknowledges, covenants and agrees that (i) Legitmix has the exclusive right to distribute Legitmix File(s) posted by Mix Artists on the Legitmix Site and any associated Mix Artist Content and that (ii) such Licensed User is granted no rights herein to further reproduce, and/or further distribute or redistribute, in whole or in part, any Preview(s), the Mix Artist Content and/or the Legitmix File without the permission of Legitmix, the Mix Artist, and any other third parties, if applicable.
4. DELIVERY OF SOFTWARE TO END USERThe Software shall be delivered in executable object code form only. Legitmix shall initially deliver and install a single copy of the Software directly on your Personal Computer, and Legitmix shall deliver electronically any related Documentation to you. Legitmix is under no obligation to provide any updates, enhancements, modifications, revisions, additions, replacements, conversions or maintenance to the Software.
5. APPOINTMENT BY THE MIX ARTIST OF LEGITMIXYou hereby appoint Legitmix, and Legitmix hereby accepts appointment, as the exclusive distributor of your Mix Artist Content in connection with the Recreated Mixes pursuant to the terms and conditions of this License Agreement. This appointment grants to Legitmix the exclusive right to:
- use the Internet to introduce, market, and stream Previews of the Mix(es) without charge, and distribute on your behalf your Mix Artist Content, if applicable, and/or the Legitmix Files resulting from your use of the Software installed and licensed to you by Legitmix under the terms of this License Agreement,
- establish and license, on your behalf, the terms, conditions and/or restrictions of any Purchaser's use of such Mix Artist Content and/or Legitmix Files and/or previewed Mix(es), and
- collect all Purchasers' payments for use of your Legitmix File(s) on your behalf and pay you such payments in accordance with the terms of this License Agreement.
- You acknowledge, covenant, and agree that Legitmix File(s) will only be used in tandem with the Legitmix Site and/or the Legitmix Software under the terms of this License Agreement.
6. LICENSE FEES
- Each Mix Artist may either provide access at no cost to other End Users or set
the price (the "License Fee") for a Purchaser's access to the Mix Artist's Legitmix
File(s) and Mix Artist Content, if applicable.
- Each License Fee must be paid by a Purchaser prior to downloading any Legitmix File.
- Once the License Fee has been paid and received by Legitmix, a Purchaser may download the Legitmix File for a maximum of no more than five (5) separate downloads.
- Any License Fee initially set or revised by the Mix Artist shall be effective immediately. Legitmix has no authority unilaterally to initiate, change, or waive any License Fee set by a Mix Artist.
- All License Fees paid by a Purchaser are final and nonrefundable.
- Legitmix is entitled to retain thirty percent (30%) of the License Fee (the "Commission")
at the time the Purchaser remits the License Fee to Legitmix.
- Legitmix, at its discretion, may retain a smaller Commission.
- Legitmix may use this Commission for its own benefit and may maintain it in a separate account in any financial or other institution of its choice which shall be and remain under Legitmix's sole control.
- All Commissions owed by the Mix Artist to Legitmix and retained by Legitmix from the License Fees paid by Purchasers are final and nonrefundable.
- Legitmix shall deposit the difference between the License Fee(s) and the Commission(s) (the "Artist Payout") in an account in any financial or other institution of its choice maintained by Legitmix for the benefit of the Mix Artist.
- A Mix Artist can use his/her Artist Payout to pay for other Mix Artist's License Fees, posting fees and/or original music fees (collectively, the "Purchase Fees"). Purchase Fees are deducted from the Artist Payout and are nonrefundable.
- Using the Legitmix Site, a Mix Artist can request payment his/her Artist Payout if it exceeds ten (10) dollars. Payment of the Artist Payout ("Payment Amount") shall be made using PayPal to the email address provided by the Mix Artist.
- If no License Fees have been received by Legitmix during any pertinent payment period and there is no Payment Amount balance, no Payment Amount is due you under the terms of this License Agreement or otherwise.
- Mix Artists have access through an interface on the Legitmix Site to view a monthly report of the gross amounts collected by Legitmix from purchases of each Mix Artist's Legitmix File(s). LEGITMIX MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE ACCURACY OF SUCH USER INFORMATION AND/OR NONPAYMENT OF ANY PAYMENT AMOUNT(S), AND YOU AGREE THAT LEGITMIX'S OBLIGATIONS TO YOU UNDER THIS SECTION 11 ARE LIMITED SOLELY TO NOT KNOWINGLY EITHER FAILING TO REPORT AND PAY, AND/OR UNDER-REPORTING AND UNDER-PAYING, TO A MIX ARTIST, PAYMENT AMOUNT(S) DUE A MIX ARTIST FOR SALES OF A MIX ARTIST'S LEGITMIX FILE(S).
7. PERSONAL COMPUTER, OPERATING ENVIRONMENT AND INSTALLATIONYou shall operate and maintain your Personal Computer in a secure network environment provided by fire-walls and services which will protect the confidentiality and integrity of the Software and Legitmix File(s) stored on your Personal Computer and prevent unauthorized access. You are solely responsible for acquiring, installing, operating and maintaining your Personal Computer, equipment and operating software (the "Equipment") necessary to operate the Software in the Operating Environment.
8. MIX ARTIST CONTENT
- As among the Mix Artist, Legitmix and the Purchasers of Legitmix File(s), the Mix
Artist owns all right, title, and interest in the Mix Artist Content, subject only
- Legitmix's retention of its ownership of all right, title and interest in and to the Software and related technology including, without limitation, all copyrights, trademarks, patents, trade secrets and other intellectual property rights therein
- Legitmix's exclusive right to use the Internet and any other marketing and/or distribution channel, whether now existing or existing in the future, to introduce, market, preview, distribute, license on your behalf the Legitmix File(s) and any related Mix Artist Content and collect all License Fees from Purchasers.
- Legitmix's unilateral determination and/or administrative policies, in force from time to time, made in its sole opinion and non-reviewable judgment, regarding the storage of Legitmix Files, Previews, records, whether or not financial, and other information regarding its activities and those of Mix Artists, End Users/Purchasers, visitors, or other third parties accessing the Legitmix Site.
- Any Purchaser who downloads Legitmix File(s) posted by the Mix Artist on the Legitmix Site hereby agrees that it (i) has no ownership rights in such Legitmix File(s) and (ii) is licensed, effective only upon receipt by Legitmix of the Purchaser's License Fees collected by Legitmix on the Mix Artist's behalf, to use such Legitmix File(s) and any associated Mix Artist Content in accordance with the terms of this License Agreement.
- Each Purchaser licenses and downloads on its Personal Computer the Software before any Legitmix File(s) downloaded and licensed under this Section 1 of this License Agreement are licensed to produce the Recreated Mix so long as such Purchaser has the Identified Sources also available on its Personal Computer.
9. OTHER RIGHTSLegitmix represents that it is the owner of or otherwise has the rights to the Software and that it has the right to grant the limited use license under the terms of this License Agreement.
- Legitmix at all times retains title to the Software including, without limitation, any other deliverables hereunder and to all copies and audiovisual aspects thereof and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights therein. Neither a Mix Artist nor a Purchaser has, by virtue of this License Agreement or otherwise, acquires any proprietary rights whatsoever in the Software, Documentation, or in any other deliverables hereunder, other than the Mix Artist's right, title and interest in the Legitmix File(s) and associated Mix Artist Content under Section 10, above. The Software, Documentation and other deliverables hereunder are, and shall at all times remain, the confidential information and the sole and exclusive property of Legitmix.
- Third Party Content and Services. Legitmix does not directly license any Identified
Sources and/or Third Party Content either under the terms of the License Agreement
or otherwise. License fees, royalties and any other charges owed by either a Mix
Artist and/or a Purchaser for use of Identified Sources and/or Third Party Content
are solely the responsibility of every licensee under the terms of this License
- Notwithstanding the foregoing, Legitmix may, from time to time, provide End Users a lawful means to download and access such Identified Sources and/or Third Party Content directly from their respective owners and/or authorized providers (the "Content Providers"). End Users acknowledge that any such downloads are separate transactions exclusively between each End User and the pertinent Content Provider notwithstanding that Legitmix facilitates and/or enables such downloads. An End User's rights to use such downloads are governed exclusively by the terms of its separate agreement with each pertinent Content Provider. License fees, royalties and any other charges owed by either a Mix Artist and/or a Purchaser for use and downloads of Identified Sources and/or Third Party Content to Content Providers are solely the responsibility of every licensee under the terms of this License Agreement notwithstanding that Legitmix may collect directly on behalf of Content Providers from an End User such amounts due to Content Providers for such use and downloads. Notwithstanding anything in any such Content Providers' terms regarding an End Users' use and download of Identified Sources and/or Third Party Content including, without limitation, its obligations, representations, warranties and/or indemnities ("Third Party Conditions"), such Third Party Conditions do not modify, abrogate, change, or amend the terms of, or an End User's and/or Legitmix's obligations and undertakings under, this License Agreement or otherwise. The terms of this License Agreement do not modify, abrogate, change, or amend the terms of, or an End User's obligations and undertakings under, any Third Party Conditions or otherwise. In any dispute with a Content Provider, an End User covenants not to sue Legitmix or otherwise involve Legitmix in such dispute with a Content Provider or otherwise.
- Legitmix does not warrant that any Legitmix, Mix Artist, End User, Purchaser, and/or Third Party content, information, services, Previews, Legitmix Files or downloads currently available from Legitmix, from third parties or on the Internet generally, will continue to be available, or that such content, services or downloads currently available at no charge will continue to be available at no charge in the future.
- Legitmix does not warrant, and hereby disclaims all representations, warranties or undertakings whatsoever regarding, any Previews, Identified Sources and/or Third Party Content downloaded from Content Providers or otherwise and used together with Legitmix File(s) and Software notwithstanding that such downloads are available through Legitmix or elsewhere.
- Notwithstanding the foregoing, Legitmix may integrate to various third party applications, but obtaining the license to use such applications or content is the responsibility of each licensee under the terms of this License Agreement. However, the right to use any technology that licenses Legitmix patent(s) is included in this Limited Use License and is subject to the terms and conditions of this License Agreement.
- Legitmix may immediately terminate this License Agreement, including all license rights granted herein, in the event a licensed Registered User breaches any of its confidentiality and/or limited use obligations regarding the Software, Mix Artist Content, and/or any Legitmix File(s).
- Notwithstanding the foregoing obligations, the confidentiality obligations of the parties shall not extend to information that: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than receiving party; (b) was known to the receiving party at the time of its disclosure and such knowledge can be proven by documentation; (c) is independently developed by the receiving party; or (d) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party.
- If information subject to such confidentiality obligations ("Confidential Information") is required to be disclosed by a regulatory or governmental authority or action, the receiving party shall provide notice to disclosing party of any such disclosure requirement in a timely manner so that the disclosing party may seek protective orders or take other legal actions to prevent or limit disclosure. The receiving party agrees to cooperate with the disclosing party in seeking such order or other remedy. The receiving party further agrees that if the disclosing party is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, the receiving party will furnish only that portion of the Confidential Information which is legally required, will provide the disclosing party with a copy of all Confidential Information so disclosed, and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information legally compelled to be disclosed.
- it owns or otherwise has the right to license the Software, Mix Artist Content, and/or the Legitmix File(s) under the terms of this License Agreement, and
- to the best of Legitmix's actual knowledge and belief as of the date of your acceptance of the terms and condition of this License Agreement, the Software and its use as contemplated and limited in this Limited Use License do not violate or infringe any patents, copyrights, trade secrets or other third party intellectual property rights.
- Notwithstanding the foregoing, use of the Software and/or the Legitmix File(s) do not, nor does Legitmix claim or represent that the Software, Mix Artist Content, and/or the Legitmix File(s) can "cure" or otherwise provide a licensed Registered User with a defence against any third party claim that such licensed Registered User does not lawfully possess or has unlawfully accessed one or more of the Identified Sources. Consequently, a licensed Registered User's unlawful or unauthorized possession/access of the Identified Sources infringes third party proprietary rights although its use of the Software, Mix Artist Content and/or the Legitmix File(s) in the absence of such infringing Identified Sources is not an infringement of third party proprietary rights. Notwithstanding the foregoing, a licensed Registered User's use of the Software, Mix Artist Content, and/or the Legitmix File(s) with unlawfully possessed or accessed Identified Sources is an actionable breach of the terms of this License Agreement and infringes Legitmix's proprietary rights in the Software and its and the Mix Artist's proprietary rights in the Mix Artist Content. Under such circumstances, the Mix Artist's and/or the Purchaser's use of the Software and/or Mix Artist Content is not licensed by Legitmix under the terms of this License Agreement.
- combination of the Software and/or Legitmix File with other software and/or hardware not provided by Legitmix, and/or
- modification of the Software and/or Legitmix File. In no event shall you settle any claim, lawsuit or proceeding invoking Legitmix's obligation to defend under this section without Legitmix's prior written approval. The foregoing states Legitmix's entire liability, regardless of the legal theory or cause of action, and your exclusive remedy with respect to infringement of any third party copyrights, patents, licenses, trade secrets or other proprietary rights by the Software or any portion thereof and/or any Legitmix File, and you hereby expressly waive any other such liabilities and/or indemnification obligations, release Legitmix therefrom, and covenant not to sue Legitmix in connection with any such liabilities or claims for indemnification under this License Agreement or otherwise.
10. LIMITATION OF LIABILITY
- EXCEPT TO THE EXTENT SUCH LIMITATIONS ARE UNENFORCEABLE UNDER APPLICABLE LAW:
- LEGITMIX SHALL HAVE NO LIABILITY TO ANY PERSON OR ENTITY WITH RESPECT TO ITS OBLIGATIONS UNDER OR YOUR USE OF THE SOFTWARE, PREVIEWS AND/OR LEGITMIX FILE(S) UNDER THIS LICENSE AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS WHETHER ANY EXCLUSIVE REMEDY SHALL FAIL OF ITS PURPOSE AND
- IN ANY EVENT AND OTHER THAN LEGITMIX'S DEFENCE OBLIGATION UNDER SECTION 12.h ABOVE OF THIS LICENSED AGREEMENT, THE AGGREGATE LIABILITY OF LEGITMIX FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT OF PAYMENTS RETAINED BY LEGITMIX FROM PURCHASERS' PAYMENTS UNDER THIS LICENSE AGREEMENT FOR THE THEN CURRENT ANNUAL CALENDAR PERIOD IN WHICH SUCH CAUSE OF ACTION OR CLAIM AROSE.
- THESE FOREGOING LIABILITY LIMITATIONS APPLY TO ALL CAUSES OF ACTION OR CLAIMS REGARDLESS OF THE NATURE OF THE CLAIM OR CAUSE OF ACTION, IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, LOSS OF PROFITS AND/OR DATA OR USE OF DATA.
- THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE ALLOCATION OF RISK AMONG THE PARTIES IN CONNECTION WITH LEGITMIX'S OBLIGATIONS UNDER THIS LICENSE AGREEMENT. THE PAYMENTS MADE TO LEGITMIX UNDER THIS LICENSE AGREEMENT REFLECT THIS ALLOCATION OF RISK AND THE EXCLUSION OF SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE, OR OTHER DAMAGE.
- THE LIMITATION OF LIABILITY IN THIS LICENSE AGREEMENT SHALL APPLY NOTWITHSTANDING THAT ANY EXCLUSIVE REMEDY SHALL FAIL OF ITS ESSENTIAL PURPOSE OR OTHERWISE BE UNAVAILABLE.
11. TERMINATION BY LEGITMIXIn addition to various other express rights of Legitmix to terminate this License Agreement set forth in this License Agreement,
- Legitmix shall also have the right to terminate this License Agreement immediately
and cancel any unfilled portion of it by written notice to you if
- you sell or assign your rights, duties or obligations under this License Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, or
- upon your breach of this Limited Use License or confidentiality and nondisclosure provisions contained herein, or
- upon a violation of Legitmix's and/or the Mix Artist's proprietary rights.
- Legitmix shall have the right to terminate this License Agreement upon three (3) days' prior notice upon your breach of any other material provision of this License Agreement, including, if Legitmix has notified you of such breach in writing and you have not cured such breach within such three (3) day period after receipt of such notice.
- Subject to the provisions of Section 14.a above, this License Agreement shall automatically terminate and extinguish the Limited Use License except to the extent under Section 1.k(c) above that any Software, Mix Artist Content and/or Legitmix File(s) including, without limitation, any object code continues to reside on your Personal Computer. At all times Software, Mix Artist Content and Legitmix File(s) within your possession are subject to the terms of this Limited Use License.
12. POST-TERMINATION OBLIGATIONSExcept to the extent Section 1.k above applies, within three (3) days after the termination of this License Agreement, you shall return any copies of the Software, Mix Artist Content and Legitmix File(s) to Legitmix, or at Legitmix's sole discretion, erase any copies of the Software, Mix Artist Content and Legitmix File(s) from all storage media in your possession, and certify the completion of such destruction in writing to Legitmix. Notwithstanding the foregoing, all provisions hereof relating to Legitmix's proprietary rights, confidentiality, and non-disclosure obligations as well as any other provisions which by their nature survive termination or expiration of this License Agreement shall survive until each such provision expires in accordance with its respective term.
- Entire Agreement. This License Agreement, including all attachments, evidences the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges all previous and contemporaneous proposals, communications, representations, understandings and agreements, whether oral or written, between the parties with respect to the subject matter hereof. Legitmix reserves the right at any time to modify, alter or update this License Agreement ("License Changes). Notice of any such License Changes shall be emailed to the address on file for each Registered User and be posted on the Legitmix Site for at least seven (7) days after the change. Your use of the Legitmix Site and/or Software following any changes means that you agree to follow and be bound by the terms as changed. The official language of this License Agreement and of all activities, dealings and correspondence of Legitmix and any Licensed User or others under, or in reference to, this License Agreement is English. Notwithstanding the foregoing, Legitmix has no obligation whatsoever under this License Agreement or otherwise to provide itself, you, any person, and/or any party with any translations in and/or of any non-English language.
- Force Majeure. No party shall be liable to another for any delay or failure to perform any of the services or obligations set forth in this License Agreement due to cause beyond its reasonable control and without its fault or negligence. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.
- Governing Law. This License Agreement and performance hereunder shall be governed by the laws of the State of New York, without giving effect to New York principles of conflict of laws or international treaties. Legitmix and you hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this License Agreement or the subject matter hereof shall be an appropriate state or federal court located in the City of New York. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to herein pursuant to the roles of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this Section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by any court having jurisdiction under this Section. This License Agreement is not governed by the conflict of law roles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- Equitable Remedies. You hereby agree that Legitmix would be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that Legitmix shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as Legitmix may otherwise have available to it under applicable laws. In the event any litigation is brought by any party in connection with this License Agreement, the prevailing party in such litigation shall be entitled to recover from the other breaching party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
- Assignment. This License Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and upon their permitted successors in interest and permitted assigns. You may not assign, without the prior written consent of Legitmix, which consent is within the sole discretion of Legitmix, your rights, duties or obligations under this License Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this License Agreement. Legitmix may assign this License Agreement without notice to or consent of any party. Notwithstanding the foregoing prohibitions, you may, however, transfer all your rights to use the Software in accordance with this Limited Use License to another person or legal entity provided that: (i) you also transfer (x) this License Agreement, and (y) the Software, including all copies, updates, and prior versions, to such receiving person or entity, (ii) you retain no copies, including backups and copies stored on your Personal Computer, and (iii) the receiving person or entity personally accepts the terms and conditions of this License Agreement in the manner provided below.
- Notice. All notices shall be in writing and shall be deemed to be delivered (i) when sent by first-class mail, postage prepaid, or (ii) when sent by facsimile or e-mail to either parties' last known post office, facsimile or e-mail address, respectively, or (iii) by Legitmix to you electronically when you visit the Site. Each licensed Registered User hereby consents to notice by email or electronically when visiting the Site.
- No Waiver. The waiver or failure of a party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
- Enforceability. The provisions of this License Agreement shall be interpreted fairly in accordance with their plain meaning regardless of which party is responsible for their drafting. If for any reason a court of competent jurisdiction finds any provision of this License Agreement, or portion thereof, to be unenforceable, that provision shall be revised to permit its enforcement to the maximum extent permissible so as to effect the original intent of the parties, and the remainder of this License Agreement shall continue in full force and effect.
- Remedies. Unless otherwise specified herein, the rights and remedies of both parties set forth in this License Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
- Headings. The headings of the sections of this License Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this License Agreement.
- No Third Party Beneficiaries. The parties agree that this License Agreement is for the benefit of the parties hereto and is not intended to confer any rights or benefits on any third party, and that there are no third party beneficiaries as to this License Agreement or any part or specific provision of this License Agreement.
- Limitation of Actions. No action, regardless of form, arising out of or relating to this License Agreement or the subject matter hereof may be brought by any party more than three (3) years after the cause of action has initially arisen, with the exception of a party's breach of its confidentiality or non-disclosure obligations herein or your violation of Legitmix's proprietary or other rights in the Software, any other software owned or licensed by Legitmix, and/or Legitmix File(s).
- Taxes. You shall, in addition to the payments required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the license granted in this License Agreement, excluding, however, income taxes on net profits which may be levied against Legitmix. You shall reimburse Legitmix for the amount of any such taxes or duties paid or accrued directly by Legitmix as a result of this license grant.
- Export Laws. You agree that the Software and any Legitmix File will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including, without limitation, Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software, as amended, at any time and from time to time.
14. EUROPEAN UNION PROVISIONSNothing included in this License Agreement shall limit any non-waivable right to decompile the Software that you may enjoy under mandatory law. For example, if you are located in the European Union (EU), you may have the right upon certain conditions specified in the applicable law to decompile the Software if it is necessary to do so in order to achieve interoperability of the Software with another software program, and you have first asked Legitmix in writing to provide the information necessary to achieve such interoperability and Legitmix has not made such information available. In addition, such decompilation may only be done by you or someone else entitled to use a copy of the Software on your behalf. Legitmix has the right to impose reasonable conditions before providing such information. Any information supplied by Legitmix or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software or used for any other act which infringes Legitmix's proprietary rights. Top
15. SPECIFIC PROVISIONS AND EXCEPTIONS
- Limitation of Liability if You Reside in Germany and Austria. If you obtained the
Software in Germany or Austria, and you usually reside in such country, then Section
13 does not apply.
- Legitmix's statutory liability for damages shall be limited as follows: (x) Legitmix shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the license agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation and (y) Legitmix shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
- The aforesaid limitation of liability shall not apply to any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for culpably caused personal injuries.
- Reasonable Measures. You are required to take all reasonable measures to avoid and reduce damages, in particular to make back-up copies of the Software and your computer data subject to the provisions of this License Agreement.
- Questions. If you have any questions regarding this License Agreement, or if you wish to request any information from Legitmix, use the address and contact information provided at http://www.legitmix.com to contact Legitmix.