AcidPlanet - rights stripping...
Posted: Thu Sep 27, 2007 6:56 pmMan, I created a new profile on AcidPlanet...by all rights a very cool site.
However, I got the point where you submit a music item & decided to read the agreement...
They pretty much have you agree that you'll hand over your work to them to be used however they wish.
Unless I'm misreading...
My Planet
AUDIO-VISUAL SUBMISSION AGREEMENT
Welcome to ACIDplanet.com. We are pleased that you have decided to upload certain audio, visual and/or audio-visual work(s) ("Material(s)") to ACIDplanet.com ("Site"). You are welcome to use your account and your member page on the Site in any manner that suits you, subject to the terms of the ACIDplanet.com Terms of Service, Privacy Policy and this Audio-Visual Submission Agreement ("AV Agreement").
This AV Agreement describes the legal relationship between you and Sony Creative Software Inc (the corporation operating ACIDplanet.com and referred to in this agreement as "we", "our", "us" or "Sony Creative Software"). "You" may be an individual artist, or if you are in a band, you will be considered as the legal representative of the band. If you are not actually in the band or not actually the artist, but still the person making this Material, you will be considered as the legal representative of the artist or band and shall be referred to collectively as "You" or "Your". Read this Agreement carefully. By submitting Material, you indicate that you have agreed to be bound by all of the terms and conditions of this Agreement.
You agree to and understand the following:
ACIDplanet.com is a site that allows digital music creators to publish and post their Material(s) so that other users of our site will be able to download, listen to, and potentially exchange them. These users may or may not be registered ACID software users. The Material you submit to us (songs, music, lyrics, loops, sounds, visual images and all other content) will be referred to in this Agreement as the "Material" or "Materials".
A - GRANT OF RIGHTS
In order to accomplish your goal of sharing your Material(s) with the Site community and otherwise to participate in Site activities by submitting Material, you hereby grant to us, by the act of submitting your Materials, a limited, perpetual, nonexclusive, worldwide, royalty-free, and payment-free license to:
Perform, copy, reproduce, transmit, exhibit, distribute, publicly perform, publicly display, market, publicize, advertise and otherwise use ("Use") your Material in whole or in part, and excerpts, trailers and clips thereof (including the right to include your Material(s) in a compilation), including, but not limited to, cut-in, synchronized and superimposed versions thereof, in any and all languages and versions (including dubbed, titled and narrated) and in any and all formats (e.g., Quicktime®, RealPlayer®, Windows Media® Player) over all media now known or hereafter devised, including via the internet or other secured switched packet technology and/or online (wired or wireless) and/or computer assisted media ("Online media") throughout the universe ("Territory") and in perpetuity ("Term").
In connection therewith, you also grant to Sony Creative Software a limited, perpetual, non-exclusive, worldwide, royalty-free, payment-free right to Use and perform any and all music, lyrics and musical compositions contained in the Material(s) and/or recorded on the soundtrack thereof pursuant to the same terms set forth herein.
Without limiting the foregoing, Sony Creative Software shall have the right, but not the obligation, to Use the Material(s) continuously and an unlimited number of times, to Use the Material(s), the title of the Material(s) (if any) and images related thereto (if any) for advertising, marketing and publicizing the Site, the Material(s) and any compilations thereof (if any) in Online Media and traditional offline media, including, without limitation, print, television, theatrical motion picture and radio ("Offline Media").
Without limiting the foregoing, the rights granted to us shall include the sole and exclusive right: (1) to make such dubbed and titled versions of the Material(s) and the trailers thereof, for use in the Territory in any Online Media as deemed advisable by us, including, but not limited to editing the Material(s) for timing, space, content and other considerations where used for advertising, marketing and promotional activity; (2) to permit commercial messages (including without limitation banners, frames, animations, links, etc.) to be transmitted, broadcast or telecast before, during or after the exhibition of and/or contiguous to the Material(s) on the Site, (3) to make such changes, additions (including, but not limited to, narration), alterations, cuts, interpolations and eliminations as the Site requires, including (but not limited to) changes needed to make the Material(s) suitable for exhibition in any part of the Territory or to meet exhibition requirements (including without limitation time and length requirements and standards and practices); and (4) to use the Material(s) and excerpts thereof to promote the Material(s), the Site and our software in Online and Offline Media.
You shall be solely responsible for the quality of your Material(s), except for any portion thereof created by us, if any. To the extent allowable by applicable law, you hereby waive all moral rights in connection with such works, together with any other rights that are not capable of assignment or transfer, and you authorize us and our affiliates and designees to use such rights without limitation throughout the Territory. You agree to execute any further documentation relating to such transfer or waiver at our request, failing which, we are authorized to execute same as your attorney-in-fact.
You further grant us a limited, perpetual, nonexclusive, royalty-free, payment-free license to use any trademarks, service marks, or trade names incorporated within your Material or used in connection with your Material.
You also grant to us a limited, perpetual, nonexclusive, royalty-free, payment-free license to use the name, likeness image and voice of any individuals represented in or with your Material.
For purposes of clarity, the above rights granted to us by you include the right to Podcast your Material(s).
B - LIMITATION ON RIGHTS GRANTED
The license and rights you grant to us will only apply to enable you to participate in the Site's activities and to participate in promotional efforts; that is, to promote and advertise you, your Materials, the Site and our software products. If we include your Material in any advertising, marketing or promotional activity, we will contact you prior to doing so to confirm your willingness to participate. In the event we wish to include your Materials in a compilation of user Materials, the compilation will not be sold as a separate item. It may be given away at no additional charge or it may be bundled with other products that we sell. If we ever desire to sell the compilation as a stand alone item, we will contact you separately to confirm your willingness to participate.
C - OWNERSHIP
You will retain ownership of the copyrights and all other rights in and to your Materials, subject to the non-exclusive rights granted to us under this Agreement. We will retain ownership of the copyrights to the compilations or other promotional items we may produce. You are free to grant similar rights to others, both during and after the term of this Agreement.
D - TERMINATION
You may terminate this Agreement at any time by so notifying us. The Agreement will terminate upon our actual receipt of such notice. We may terminate this Agreement at any time by so notifying you. The Agreement will terminate upon your actual receipt of such notice or three days after we have sent a notice of termination to the e-mail address that you have supplied to us. Upon termination, all of our licensed rights will terminate, except those rights necessary for us to continue to distribute any promotional items that we have produced prior to the date of termination.
E - REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
The Material is an original work, and contains no sampled Material, other than samples originating from our products that you have been granted the right by us to use; samples originating from other loop libraries which you have been granted the right to use for this purpose; and completely original samples, written and performed by yourself, that contain no material from any other source.
You have full right and power to enter into and perform this Agreement, and have secured all third party consents necessary to enter into this Agreement. You are at least 13 years of age.
The Material does not and will not infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights, rights of publicity or privacy, or moral rights.
The Material(s) shall not contain any content or information contained therein that, in our sole judgment, may be in bad taste or in violation of law, may constitute libel or slander, may be inconsistent with our public image, may fail to meet community standards or online conduct guidelines regarding obscenity or indecency, or may tend to bring disparagement, ridicule, or scorn upon Sony Creative Software (such content collectively referred to herein as "Prohibited Content"). If notified of, or we discover, allegedly infringing, defamatory, libelous, slanderous, damaging, obscene, indecent, illegal, or offensive material, we may (but shall not be required to) investigate the allegation and determine in its sole discretion whether to remove immediately the material forthwith. We may, in our sole discretion, place on any Web page, or on any other graphical or non-graphical interface, an on-screen disclaimer that limits our responsibility for the Material.
The Material does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data.
All factual assertions that you have made and will make to us are true and complete.
You agree to indemnify and hold us (and our customers and other users of this Site) harmless from any and all damages and costs, including reasonable attorney's fees, arising out of or related to your breach of the representations and warranties described in this section. You agree to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this AV Agreement.
All of the above warranties and representations will survive the term of this Agreement and will also apply for the benefit of our assigns and successors in interest.
F - DISCLAIMER
To the maximum extent allowable by local law, we provide our products and services related to this Agreement "AS IS" without warranty of any kind. We will take reasonable steps to insure that your Materials are presented in a professional level of quality and as they were provided to us, but we make no warranties whatsoever to that effect.
G - WAIVER OF DAMAGES
Except for a breach of the "Representations and Warranties" section of this Agreement and to the maximum extent allowable by local law, neither you nor we will be held liable for any consequential, indirect, exemplary, special, or incidental damages arising from or in any way connected to this Agreement.
H - RELEASE FROM LIABILITY
To the maximum extent allowable by local law, in consideration of our Use of the Material(s), it is understood and agreed that we (and our affiliated companies, offices, agents, employees and assigns) are released from any past, present or future liability (for any and all claims, whether known or unknown) with respect to the Material(s), including, without limitation, any such liability arising out of the use or non-use thereof, or its disclosure to third parties.
I - YOUR RIGHTS MAY VARY
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOUR SPECIFIC RIGHTS MAY VARY FROM JURISDICTION TO JURISDICTION.
J - INDEPENDENT CONTRACTORS
The submission by you of the Material(s) does not, in whole or in part, establish or create by implication or otherwise, any relationship between Sony Creative Software and you not otherwise expressed herein. The relationship between us by this AV Agreement is that of independent contractors and nothing contained in this AV Agreement shall be construed to give either party the power to direct and control the day to day activities of the other, constitute the parties as partners, joint venturers, co-owners or otherwise participants in a joint or common undertaking or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
K - MATERIAL DISCLAIMER
You understand and agree that we may accept or reject, in our sole discretion, the Material(s) and shall not be obligated to you in any way with respect to such Material(s). You acknowledge that other persons may have submitted to us or to others or may hereafter originate, submit or make public similar or identical mater similar or identical material that we have the right to use. You understand that you shall not be entitled to any compensation or claim against us because of our use of such other similar or identical material.
L - CHANGES IN SITE OWNERSHIP
Sony Creative Software shall have the right to assign its rights and obligations under these Terms of Service and Audio-Visual Submission Agreement to a third party at any time. You will be deemed to have consented to the disclosure to, and use by, a subsequent owner or operator of this Site, of any information about you contained in the Site's database(s) to the extent Sony Creative Software assigns its rights and obligations regarding information about you in connection with a merger, acquisition or sale of all or substantially all of Sony Creative Software s assets to a subsequent owner or operator. In the event of such a merger, acquisition or sale, your continued use of the Site signifies your agreement to be bound by the TOS and Privacy Policy of the Site's subsequent owner or operator. Notwithstanding the above, you will always have the opportunity to remove any content personal to you prior to, during and after any merger, acquisition or sale of all or substantially all of Sony Creative Software 's assets.
M - GOVERNING LAW AND JURISDICTION
These Terms of Service shall be construed and enforced in accordance with the laws of the State of California without regard to the choice of law principles thereof. You 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 American Arbitration Association ("AAA") before a single neutral arbitrator ("Arbitrator"). The Arbitrator shall be an attorney or retired judge with at least ten (10) years experience in the software industry and shall be mutually agreed upon by you and Sony Creative Software (collectively, "the parties"). If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The fees of the Arbitrator shall be borne equally by the parties, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (1) the Arbitrator must authorize such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances and (2) discovery shall be limited to depositions and production of documents unless the Arbitrator finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought. There shall be a record of the proceedings at the arbitration hearing and the Arbitrator shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitrator's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitrator's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the California Superior Court, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitrator shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitrator. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitrator (applying the same standards of review and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeals reviewing a judgment of the California Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitrator. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the California Superior Court, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitrator shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitrator is reversed, in which event the expenses of the appeal shall be borne as determined by the Appellate Arbitrators. The Arbitrator shall have the power to enter temporary restraining orders, preliminary and permanent injunctions. Prior to the appointment of the Arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in Los Angeles County, California, without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall 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. The provisions of this paragraph shall supersede any inconsistent provisions of any prior agreement between the parties.
Nothing in this paragraph shall prevent either party from seeking interlocutory and/or injunctive relief from a court of competent jurisdiction pursuant to the preceding paragraph.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER SOUNDING IN CONTRACT OR TORT AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
N - MISCELLANEOUS
This AV Agreement sets forth the entire understanding between you and Sony Creative Software , supersedes any prior discussions or correspondence, if any. The AV Agreement may only be amended by us from time to time as it is posted on the Site. In the event that any one or more of the provisions contained in this AV Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this AV Agreement, and this AV Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. If either party should waive any breach of any provision of this AV Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
I HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AV AGREEMENT AND I UNDERSTAND THAT SUBMITTING MATERIAL WILL HAVE THE SAME EFFECT AS IF I HAD SIGNED AN ORIGINAL PAPER COPY OF THIS AGREEMENT WITH THE INTENTION TO BE LEGALLY BOUND. IF I DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN I WILL NOT SUBMIT ANY MATERIALS.
Drums from the Big Room / Steve Ferrone & Greg Ladanyi
However, I got the point where you submit a music item & decided to read the agreement...
They pretty much have you agree that you'll hand over your work to them to be used however they wish.
Unless I'm misreading...
My Planet
AUDIO-VISUAL SUBMISSION AGREEMENT
Welcome to ACIDplanet.com. We are pleased that you have decided to upload certain audio, visual and/or audio-visual work(s) ("Material(s)") to ACIDplanet.com ("Site"). You are welcome to use your account and your member page on the Site in any manner that suits you, subject to the terms of the ACIDplanet.com Terms of Service, Privacy Policy and this Audio-Visual Submission Agreement ("AV Agreement").
This AV Agreement describes the legal relationship between you and Sony Creative Software Inc (the corporation operating ACIDplanet.com and referred to in this agreement as "we", "our", "us" or "Sony Creative Software"). "You" may be an individual artist, or if you are in a band, you will be considered as the legal representative of the band. If you are not actually in the band or not actually the artist, but still the person making this Material, you will be considered as the legal representative of the artist or band and shall be referred to collectively as "You" or "Your". Read this Agreement carefully. By submitting Material, you indicate that you have agreed to be bound by all of the terms and conditions of this Agreement.
You agree to and understand the following:
ACIDplanet.com is a site that allows digital music creators to publish and post their Material(s) so that other users of our site will be able to download, listen to, and potentially exchange them. These users may or may not be registered ACID software users. The Material you submit to us (songs, music, lyrics, loops, sounds, visual images and all other content) will be referred to in this Agreement as the "Material" or "Materials".
A - GRANT OF RIGHTS
In order to accomplish your goal of sharing your Material(s) with the Site community and otherwise to participate in Site activities by submitting Material, you hereby grant to us, by the act of submitting your Materials, a limited, perpetual, nonexclusive, worldwide, royalty-free, and payment-free license to:
Perform, copy, reproduce, transmit, exhibit, distribute, publicly perform, publicly display, market, publicize, advertise and otherwise use ("Use") your Material in whole or in part, and excerpts, trailers and clips thereof (including the right to include your Material(s) in a compilation), including, but not limited to, cut-in, synchronized and superimposed versions thereof, in any and all languages and versions (including dubbed, titled and narrated) and in any and all formats (e.g., Quicktime®, RealPlayer®, Windows Media® Player) over all media now known or hereafter devised, including via the internet or other secured switched packet technology and/or online (wired or wireless) and/or computer assisted media ("Online media") throughout the universe ("Territory") and in perpetuity ("Term").
In connection therewith, you also grant to Sony Creative Software a limited, perpetual, non-exclusive, worldwide, royalty-free, payment-free right to Use and perform any and all music, lyrics and musical compositions contained in the Material(s) and/or recorded on the soundtrack thereof pursuant to the same terms set forth herein.
Without limiting the foregoing, Sony Creative Software shall have the right, but not the obligation, to Use the Material(s) continuously and an unlimited number of times, to Use the Material(s), the title of the Material(s) (if any) and images related thereto (if any) for advertising, marketing and publicizing the Site, the Material(s) and any compilations thereof (if any) in Online Media and traditional offline media, including, without limitation, print, television, theatrical motion picture and radio ("Offline Media").
Without limiting the foregoing, the rights granted to us shall include the sole and exclusive right: (1) to make such dubbed and titled versions of the Material(s) and the trailers thereof, for use in the Territory in any Online Media as deemed advisable by us, including, but not limited to editing the Material(s) for timing, space, content and other considerations where used for advertising, marketing and promotional activity; (2) to permit commercial messages (including without limitation banners, frames, animations, links, etc.) to be transmitted, broadcast or telecast before, during or after the exhibition of and/or contiguous to the Material(s) on the Site, (3) to make such changes, additions (including, but not limited to, narration), alterations, cuts, interpolations and eliminations as the Site requires, including (but not limited to) changes needed to make the Material(s) suitable for exhibition in any part of the Territory or to meet exhibition requirements (including without limitation time and length requirements and standards and practices); and (4) to use the Material(s) and excerpts thereof to promote the Material(s), the Site and our software in Online and Offline Media.
You shall be solely responsible for the quality of your Material(s), except for any portion thereof created by us, if any. To the extent allowable by applicable law, you hereby waive all moral rights in connection with such works, together with any other rights that are not capable of assignment or transfer, and you authorize us and our affiliates and designees to use such rights without limitation throughout the Territory. You agree to execute any further documentation relating to such transfer or waiver at our request, failing which, we are authorized to execute same as your attorney-in-fact.
You further grant us a limited, perpetual, nonexclusive, royalty-free, payment-free license to use any trademarks, service marks, or trade names incorporated within your Material or used in connection with your Material.
You also grant to us a limited, perpetual, nonexclusive, royalty-free, payment-free license to use the name, likeness image and voice of any individuals represented in or with your Material.
For purposes of clarity, the above rights granted to us by you include the right to Podcast your Material(s).
B - LIMITATION ON RIGHTS GRANTED
The license and rights you grant to us will only apply to enable you to participate in the Site's activities and to participate in promotional efforts; that is, to promote and advertise you, your Materials, the Site and our software products. If we include your Material in any advertising, marketing or promotional activity, we will contact you prior to doing so to confirm your willingness to participate. In the event we wish to include your Materials in a compilation of user Materials, the compilation will not be sold as a separate item. It may be given away at no additional charge or it may be bundled with other products that we sell. If we ever desire to sell the compilation as a stand alone item, we will contact you separately to confirm your willingness to participate.
C - OWNERSHIP
You will retain ownership of the copyrights and all other rights in and to your Materials, subject to the non-exclusive rights granted to us under this Agreement. We will retain ownership of the copyrights to the compilations or other promotional items we may produce. You are free to grant similar rights to others, both during and after the term of this Agreement.
D - TERMINATION
You may terminate this Agreement at any time by so notifying us. The Agreement will terminate upon our actual receipt of such notice. We may terminate this Agreement at any time by so notifying you. The Agreement will terminate upon your actual receipt of such notice or three days after we have sent a notice of termination to the e-mail address that you have supplied to us. Upon termination, all of our licensed rights will terminate, except those rights necessary for us to continue to distribute any promotional items that we have produced prior to the date of termination.
E - REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
The Material is an original work, and contains no sampled Material, other than samples originating from our products that you have been granted the right by us to use; samples originating from other loop libraries which you have been granted the right to use for this purpose; and completely original samples, written and performed by yourself, that contain no material from any other source.
You have full right and power to enter into and perform this Agreement, and have secured all third party consents necessary to enter into this Agreement. You are at least 13 years of age.
The Material does not and will not infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights, rights of publicity or privacy, or moral rights.
The Material(s) shall not contain any content or information contained therein that, in our sole judgment, may be in bad taste or in violation of law, may constitute libel or slander, may be inconsistent with our public image, may fail to meet community standards or online conduct guidelines regarding obscenity or indecency, or may tend to bring disparagement, ridicule, or scorn upon Sony Creative Software (such content collectively referred to herein as "Prohibited Content"). If notified of, or we discover, allegedly infringing, defamatory, libelous, slanderous, damaging, obscene, indecent, illegal, or offensive material, we may (but shall not be required to) investigate the allegation and determine in its sole discretion whether to remove immediately the material forthwith. We may, in our sole discretion, place on any Web page, or on any other graphical or non-graphical interface, an on-screen disclaimer that limits our responsibility for the Material.
The Material does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data.
All factual assertions that you have made and will make to us are true and complete.
You agree to indemnify and hold us (and our customers and other users of this Site) harmless from any and all damages and costs, including reasonable attorney's fees, arising out of or related to your breach of the representations and warranties described in this section. You agree to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this AV Agreement.
All of the above warranties and representations will survive the term of this Agreement and will also apply for the benefit of our assigns and successors in interest.
F - DISCLAIMER
To the maximum extent allowable by local law, we provide our products and services related to this Agreement "AS IS" without warranty of any kind. We will take reasonable steps to insure that your Materials are presented in a professional level of quality and as they were provided to us, but we make no warranties whatsoever to that effect.
G - WAIVER OF DAMAGES
Except for a breach of the "Representations and Warranties" section of this Agreement and to the maximum extent allowable by local law, neither you nor we will be held liable for any consequential, indirect, exemplary, special, or incidental damages arising from or in any way connected to this Agreement.
H - RELEASE FROM LIABILITY
To the maximum extent allowable by local law, in consideration of our Use of the Material(s), it is understood and agreed that we (and our affiliated companies, offices, agents, employees and assigns) are released from any past, present or future liability (for any and all claims, whether known or unknown) with respect to the Material(s), including, without limitation, any such liability arising out of the use or non-use thereof, or its disclosure to third parties.
I - YOUR RIGHTS MAY VARY
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOUR SPECIFIC RIGHTS MAY VARY FROM JURISDICTION TO JURISDICTION.
J - INDEPENDENT CONTRACTORS
The submission by you of the Material(s) does not, in whole or in part, establish or create by implication or otherwise, any relationship between Sony Creative Software and you not otherwise expressed herein. The relationship between us by this AV Agreement is that of independent contractors and nothing contained in this AV Agreement shall be construed to give either party the power to direct and control the day to day activities of the other, constitute the parties as partners, joint venturers, co-owners or otherwise participants in a joint or common undertaking or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
K - MATERIAL DISCLAIMER
You understand and agree that we may accept or reject, in our sole discretion, the Material(s) and shall not be obligated to you in any way with respect to such Material(s). You acknowledge that other persons may have submitted to us or to others or may hereafter originate, submit or make public similar or identical mater similar or identical material that we have the right to use. You understand that you shall not be entitled to any compensation or claim against us because of our use of such other similar or identical material.
L - CHANGES IN SITE OWNERSHIP
Sony Creative Software shall have the right to assign its rights and obligations under these Terms of Service and Audio-Visual Submission Agreement to a third party at any time. You will be deemed to have consented to the disclosure to, and use by, a subsequent owner or operator of this Site, of any information about you contained in the Site's database(s) to the extent Sony Creative Software assigns its rights and obligations regarding information about you in connection with a merger, acquisition or sale of all or substantially all of Sony Creative Software s assets to a subsequent owner or operator. In the event of such a merger, acquisition or sale, your continued use of the Site signifies your agreement to be bound by the TOS and Privacy Policy of the Site's subsequent owner or operator. Notwithstanding the above, you will always have the opportunity to remove any content personal to you prior to, during and after any merger, acquisition or sale of all or substantially all of Sony Creative Software 's assets.
M - GOVERNING LAW AND JURISDICTION
These Terms of Service shall be construed and enforced in accordance with the laws of the State of California without regard to the choice of law principles thereof. You 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 American Arbitration Association ("AAA") before a single neutral arbitrator ("Arbitrator"). The Arbitrator shall be an attorney or retired judge with at least ten (10) years experience in the software industry and shall be mutually agreed upon by you and Sony Creative Software (collectively, "the parties"). If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The fees of the Arbitrator shall be borne equally by the parties, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (1) the Arbitrator must authorize such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances and (2) discovery shall be limited to depositions and production of documents unless the Arbitrator finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought. There shall be a record of the proceedings at the arbitration hearing and the Arbitrator shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitrator's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitrator's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the California Superior Court, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitrator shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitrator. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitrator (applying the same standards of review and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeals reviewing a judgment of the California Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitrator. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the California Superior Court, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitrator shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitrator is reversed, in which event the expenses of the appeal shall be borne as determined by the Appellate Arbitrators. The Arbitrator shall have the power to enter temporary restraining orders, preliminary and permanent injunctions. Prior to the appointment of the Arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in Los Angeles County, California, without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall 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. The provisions of this paragraph shall supersede any inconsistent provisions of any prior agreement between the parties.
Nothing in this paragraph shall prevent either party from seeking interlocutory and/or injunctive relief from a court of competent jurisdiction pursuant to the preceding paragraph.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER SOUNDING IN CONTRACT OR TORT AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
N - MISCELLANEOUS
This AV Agreement sets forth the entire understanding between you and Sony Creative Software , supersedes any prior discussions or correspondence, if any. The AV Agreement may only be amended by us from time to time as it is posted on the Site. In the event that any one or more of the provisions contained in this AV Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this AV Agreement, and this AV Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. If either party should waive any breach of any provision of this AV Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
I HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AV AGREEMENT AND I UNDERSTAND THAT SUBMITTING MATERIAL WILL HAVE THE SAME EFFECT AS IF I HAD SIGNED AN ORIGINAL PAPER COPY OF THIS AGREEMENT WITH THE INTENTION TO BE LEGALLY BOUND. IF I DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN I WILL NOT SUBMIT ANY MATERIALS.
Drums from the Big Room / Steve Ferrone & Greg Ladanyi