Audioshake™ Master Subscription Agreement
Last updated February 1, 2021
This Master Subscription Agreement (this “Agreement”) is a legal agreement between you (“You”) and Audioshake, Inc. (“Audioshake”) governing your use of the Audioshake Platform.
By signing up for use of the Audioshake Platform and completing Your registration, You indicate Your acceptance of this Agreement and agree to abide by the terms and conditions set forth herein without modification. This includes any execution or acceptance of an Order Form. If You are entering into this Agreement on behalf of a business or other legal entity, You hereby represent and warrant that You have the authority to bind such entity to the terms and conditions of this Agreement, in which case “You” or “Your” shall refer to such entity. If You do not have such authority, or if You do not agree with the terms and conditions set forth herein, You may not accept this Agreement nor may you use the Audioshake platform.
In addition to the terms defined in the body of this Agreement, the following terms have the following meanings:
“Audioshake Platform” means the online music separation service provided by Audioshake and the underlying servers and software used to provide such a service.
“End Users” means individuals eighteen years or older who are authorized to access and use the Audioshake Platform under Your Subscription. End Users may include but are not limited to You and Your employees, consultants, contractors, and agents.
“Enhancements” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) Audioshake has developed or is developing in connection with the business of creating and offering the Audioshake Platform.
“Fees” means Subscription Fees and any other amounts due to Audioshake and payable by You under this Agreement.
“Order Form(s)” means the ordering documents that are entered into by You and Audioshake from time to time, in the form provided by Audioshake. Order Forms are deemed incorporated herein. For avoidance of doubt, an “Order Form” is either: (1) a written or online document provided by Audioshake into which you enter a subscription term and, as applicable, number of seats or stems covered by Your Subscription, together with payment information; or (2) any online form within the Audioshake Platform for purchase of ancillary services provided by Audioshake, such as stem perfecting.
“Subscription” means the right to use the Audioshake Platform during the Term.
“Subscription Fees” means the fees for a Subscription to the Audioshake Platform as set forth on the Audioshake website, or, to the extent that an Order Form provides for Subscription Fees that differ from those on the Audioshake website, the fees set forth in such Order Form.
“Your Content” means all content uploaded by You or the End Users to the Audioshake Platform.
2. Registration and Access
2.1 Registration. You must provide complete and accurate information during the registration process, including on any Order Forms. If You are an individual, you must be eighteen years or older to register.
2.2 Free Trial. Audioshake may make all or part of the Audioshake Platform available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to Audioshake, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by Audioshake upon receiving your registration, or (ii) the date You execute an Order Form for a Subscription under this Agreement.
2.3 Subscription. Audioshake shall make the Audioshake Platform available to You and Your End Users pursuant to this Agreement and all Order Forms during the Term. You agree that your purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Audioshake with respect to future functionality or features.
2.4 Support. The Audioshake Platform is provided “as is”. However, if You are on a paid Subscription, support via email and phone is made available from Audioshake in its sole discretion.
3. Acceptable Use; End Users
3.1 Restrictions. You are responsible for all activities that occur on Your account and for Your End Users’ compliance with this Agreement. You and Your End Users shall use the Audioshake Platform for Your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the Audioshake Platform or tamper with other customer accounts of Audioshake, (ii) access data on the Audioshake Platform not intended for You, (iii) log into a server or account on the Audioshake Platform that You are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any system or to breach the security or authentication measures; (v) render any part of the Audioshake Platform unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Audioshake Platform or make the Audioshake Platform available to any third party; (vii) use the Audioshake Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (viii) provide to third parties any evaluation or Free Trial version of the Audioshake Platform without Audioshake’s prior written consent.
3.2 Content. You acknowledge and agree that Audioshake does not monitor or police communications, content, or data uploaded to or transmitted through the Audioshake Platform, and that Audioshake will not be responsible for any such communications, data or content. You will use the Audioshake Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Without limiting the generality of the foregoing, you hereby represent and warrant that Your Content does not infringe on the rights of any third party or violate any applicable laws or regulations. You will keep confidential and not disclose to any third parties any user identifications, account numbers and account profiles.
3.3 Breach of Acceptable Use Guidelines. In the event You or Your End Users violate the acceptable use guidelines set forth in this Agreement, Audioshake will endeavor to provide You with the opportunity to remove or disable access to the offending material or content, provided, however, that Audioshake reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, Audioshake reserves the right to immediately suspend access to the Audioshake Platform if such breach, in Audioshake’s opinion, is an imminent threat to Audioshake or the Audioshake Platform, other customer accounts, or constitutes abusive or threatening behavior.
3.4 Account Access. You shall authorize access to up to the number of End Users procured by You on the Order Form. Each End User must be assigned or select a unique password and user name. User logins are for designated End Users and cannot be shared or used by more than one End User, but any End User login may be reassigned to another End User as needed. You are responsible for the use of End User’s passwords and user names, and their confidentiality. Any communications received under Your or Your End Users’ passwords, user names, and/or account numbers will be deemed to have been sent by You. You shall use reasonable efforts to prevent unauthorized access to or use of the Audioshake Platform and shall promptly notify Audioshake of any unauthorized access or use of the Audioshake Platform and any loss or theft or unauthorized use of Your or any End User’s password or name and/or account number.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Audioshake includes non-public information regarding features, functionality and performance of the Audioshake Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance under this Agreement or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Audioshake shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Audioshake Platform and related systems and technologies (including, without limitation, Your Content and information and data derived therefrom). Audioshake may (i) use such information and data to improve and enhance the Audioshake Platform and for other development, diagnostic and corrective purposes in connection with the Audioshake Platform and other Audioshake offerings, and (ii) use and/or disclose such data in aggregate or other de-identified form in connection with its business.
6. Fees and Taxes
6.1 Subscription Fees. Subscription Fees are based on the type of Subscription purchased and not on usage, and are non-refundable. Audioshake may modify the monthly Subscription Fees on thirty (30) days’ prior email notice. In the event you upgrade your Subscription, the Subscription Fees applicable to Your new version of the Audioshake Platform will take effect immediately, with such increased fees calculated on a pro-rated basis, taking into account the number of days remaining in the then-current Subscription. If you downgrade, no adjustment will be made during the then-current Term. The accepted methods of payment are set forth in the Order Forms or on the Audioshake website, as applicable. Unless otherwise provided in an Order Form, paid Subscriptions will be billed in advance, starting on the Effective Date.
6.2 Late Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.
6.3 Suspension of Platform Access. In the event of late payments, in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Audioshake reserves the right to suspend Your access to the Audioshake Platform without liability to Audioshake, until Your account is paid in full.
6.4 Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than Audioshake’s income taxes. If Audioshake pays any such taxes on Your behalf, You agree to reimburse Audioshake for such payment unless You provide Audioshake with a valid exemption certificate authorized by the appropriate taxing authority.
7. Proprietary Rights
7.1 Audioshake Platform. As between the parties, Audioshake shall retain all rights, title and interests in and to to the Audioshake Platform and Enhancements, including all intellectual property rights arising from any suggestions, enhancement requests, recommendations or other feedback provided by You or Your End Users relating to the operation of the Audioshake Platform. You hereby make all assignments to achieve the foregoing ownership. Audioshake reserves all rights not expressly granted herein.
7.2 Restrictions. You shall not: (i) modify, translate, or create derivative works based on the Audioshake Platform; (ii) create any link to the Audioshake Platform or frame or mirror any content contained or accessible from the Audioshake Platform, (iii) reverse engineer, de- compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Audioshake Platform; or (iv) access the Audioshake Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Audioshake Platform.
7.3 Trademarks. Except with the express written permission of Audioshake, You may not use any name, logo, tagline or other mark of Audioshake, or any identifier or tag generated by the Audioshake Platform, including without limitation: (a) as a hypertext link to any website or other location (except as provided for or enabled expressly by Audioshake); or (b) to imply identification with Audioshake as an employee, contractor, agent or other similar representative capacity. You also agree not to remove or alter any of these items as Audioshake may have provided or enabled.
8. Your Content; Indemnification
8.1 Ownership. As between You and Audioshake, You shall retain all rights, title and interests in and to all Your Content. You hereby grant Audioshake a limited license to reproduce, process and edit Your Content solely as necessary for Your use of the Audioshake Platform.
8.2 Warranty. You hereby represent and warrant that (i) You have all rights required to upload Your Content to the Audioshake Platform and to process Your Content through the Audioshake Platform, and (ii) Your Content does not infringe on the rights of any third party or violate any applicable laws or regulations.
8.3 Copyright Policy. Audioshake assumes no responsibility for monitoring the Audioshake Platform or Your Content for inappropriate conduct, or modifying or removing such conduct or content, but reserves the right to remove, in its sole discretion, content that is flagged as inappropriate. It is Audioshake's policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our users; and (2) remove and discontinue services to repeat offenders.
8.4 Indemnity. You shall defend, indemnify, and hold Audioshake, its affiliates, officers, employees and agents harmless from and against any third-party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, without limitation, reasonable attorneys fees) arising out of or related to: (i) misuse of the Audioshake Platform; or (ii) any violation of this Agreement or applicable laws, rules or regulations, including, without limitation, any breach of Section 8.2 above.
9. Term and Termination
9.1 Term of Agreement. The “Term” of this Agreement commences on the Effective Date and continues until (i) the expiration or termination of your Free Trial; or (ii) the expiration of the Term (and any applicable renewal terms) set forth or provided for in the applicable Order Form, or termination as set forth below.
9.2 Termination for Cause. This Agreement may be terminated by either party for cause upon thirty (30) days written notice of breach to the other party, if the other party has materially breached this Agreement and such breach remains uncured at the expiration of such period.
9.3 Termination of Free Trial. Audioshake may terminate the Free Trial in its sole discretion at any time.
9.4 Surviving provisions. Sections 4, 5, and 7 through 13, and any accrued rights to payment, shall survive termination or expiration of this Agreement for any reason.
10. Warranty Disclaimer
THE AUDIOSHAKE PLATFORM IS PROVIDED "AS IS." EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER AUDIOSHAKE NOR ITS LICENSORS MAKE ANY WARRANTY REGARDING THE AUDIOSHAKE PLATFORM OR ANY OTHER ITEMS OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION REGARDING THE RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY, COMPATIBILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION. AUDIOSHAKE AND ITS LICENSORS HEREBY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRIGNEMENT.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, EXCEPT FOR BODILY INJURY, NEITHER AUDIOSHAKE NOR ITS LICENSORS SHALL BE LIABLE TO YOU RELATED TO THE SUBJECT MATTER HEREOF FOR ANY (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (II) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, OR (III) LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, EVEN IF AUDIOSHAKE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AUDIOSHAKE’S OR ANY OF ITS LICENSORS’ AGGREGATE LIABILITY TO YOU RELATED TO THE SUBJECT MATTER HEREOF EXCEED THE AMOUNTS ACTUALLY RECEIVED BY AUDIOSHAKE FROM YOU FOR THE AUDIOSHAKE PLATFORM DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in San Francisco, California. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction located in the State of California, which may be made ex parte, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction located in the State of California without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
This Agreement shall be governed by the laws of the State of California, without regard to conflicts of laws provisions thereof. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement and any Order Forms accepted by an authorized representative of Audioshake constitute the entire agreement and understanding between you and Audioshake with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written negotiations, understandings or agreements. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by Audioshake. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed email, or three days after being sent by prepaid certified or registered U.S. mail. You may not assign this Agreement nor any portion thereof to any third party; any purported assignment shall be void and without effect. In any action to enforce rights or obligations under this Agreement, the prevailing party shall be entitled to recover costs and reasonable attorney fees. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST AUDIOSHAKE OR ITS LICENSORS.
Any questions, complaints or claims with respect to the Application should be directed to AUDIOSHAKE, Inc, Attn.: Customer Support, firstname.lastname@example.org.