ITYDITY CONTENT LICENSE AGREEMENT

 

Revised August 1, 2020 

 

This Content License Agreement (the "Agreement") governs the Content that You (“You” “Licensee,” or “Your”) the user Download, as defined below from the website, www.ItyDity.com (the “Site”) of ItyDity, a Colorado limited liability company (together with its Affiliates, “ItyDity,” “Us,” “We,” or “Our”), or via Our Services. Please read this Agreement carefully. By clicking "I agree" or otherwise signifying Your acceptance of this Agreement, or by Downloading or using any Content, You agree to be legally bound by this Agreement. All terms capitalized in this Agreement have the same definition as defined in Our Terms of Use (“TOU”), unless specifically otherwise defined herein. “You” and “Your” as used in this Agreement include all actions and conduct You affirmatively undertake, or that are undertaken on Your behalf.

 

1. Definitions.

 

As used in this Agreement:

 

a. "Content" means any Songs, musical works, recordings, music, and other audio information, files, or works, regardless of their format, You submit to Us or other digital media work, that is Downloaded pursuant to this Agreement.

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b. "Download" and variations of that term means downloading, obtaining, or copying Content: (i) from the Site; (ii) through an ityDity or a Reseller application or application programming interface; (iii) through an ItyDity or Reseller email, electronic or wireless delivery; or (iv) through delivery by ItyDity or Reseller of physical media.

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c. "Item Page" means the specific Content item and item detail pages at the Site where item previews and information about the particular Content is made available for ItyDity Users.

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d. "ItyDity User" means an individual who is a Registered User or account holder.

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e. "Print Run" means the number of physical printed copies of the Content as part of a Production, counted by the lesser of the number of physical analog printed (non-digital) copies or the circulation total for any individual edition containing the Content. Electronic copies are not counted, even if in a physical medium (e.g., a DVD).

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f. "Reseller" means a person or entity who ItyDity has authorized to distribute, license, or allow the download of Content under this Agreement.

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g. “Rights Holder” means any individual or entity that is the holder of a right in, to or under the composition and/or the sound recording that compose the Music Track including, but not limited to, any writer, composer, music publisher, recording artist, producer, record label, or a successor-in-interest to any of these.

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h. "Single Project" means edited versions of the same Production or Digital Production, as defined below, including the related promotional material that complies with this Agreement for that Production or Digital Production.

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i. “Permitted Use” means the parameters of use for synchronization allowed under a particular License.

 

2. Grant of All Media License

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a. The License: Unless You have purchased a Single Use License (as defined below), We hereby grant You a non-exclusive, perpetual right and license throughout the Universe to:

 

    i. use, publish, perform, record in, copy, reproduce, edit, modify, manipulate, couple and synchronize the Content in any independently authored derivative or other work in any media now known or hereafter devised (including in-context works for advertising and promotion), which incorporates Content together with other substantial independently created works, and is created by or for You or on Your behalf as permitted by the terms of this Agreement, in any and all languages (a "Production"). For avoidance of doubt "Productions" include the public display and performance of Content as part of a public event (including performances of the same that are broadcast or streamed);

 

    ii. use the tags, meta data, designations, disclaimers, restrictions, annotations, information and documentation that are available on the Site or otherwise provided by Us to You with, in or otherwise relating to Content (the "Content Information") internally to facilitate the foregoing with regard to the Content.

 

b. Number of Productions: The License authorizes an unlimited number of Productions on the terms and subject to conditions and restrictions of this Agreement, except if the Item Page or this Agreement, indicates that it is for use in a Single Project.

 

3. Grant of Single Use License and Additional Restrictions on Single Use License Only

 

 

a. The Single Use License: If You have purchased a Single Use License, We hereby grant You a non-exclusive, perpetual right and license throughout the Universe on the terms and subject to the conditions and limitations set out in this Agreement (“Single Use License”), to: 

 

b. Publicly perform (subject to any rights of any performance rights organization (e.g., ASCAP or BMI) and synchronize both the composition and the sound recording for the Content solely (i) for the Permitted Use specified in the Order, and (ii) in accordance with the single use description for such Permitted Use AS DEFINED ON EACH ITEM PAGE AND AS SET FORTH in Section 6b to this agreement.

 

c. Reservation of Rights. All rights to, in and under the Content not expressly granted to You pursuant to an Order are expressly reserved by and to Rights Holder.

 

4. License Tiers

 

a. License Tiers for All Media Licenses: If You purchased a "Business License", a "Premium License", or an "Individual License" for the specified Content from ItyDity, the License granted to You for such Content will be on the terms and conditions of this Agreement with the variations and additions that this Agreement states apply to such License. For information about Business Licenses or Premium Licenses, contact Us at info@itydity.com.

 

    i. Number of individuals per license:​

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1. If We have granted You an Individual License, You may allow access to or use of raw Content on Your behalf to no more than one (1) individual. The individual who Downloaded the raw Content through the Site will be deemed to be that person unless at the time of Download another individual was designated by the ItyDity User on the checkout page of the Site or otherwise in writing to us.

2. If We have granted You Our Business License for the Content, You may allow access to or use of raw Content on Your behalf to no more than a total of five (5) natural persons over time.

3. If We have granted You Our Premium License for the Content, You may allow access to or use of raw Content on Your behalf to an unlimited number of natural persons.

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    ii. Print Runs for Physical Productions: For a license granted under Section 2 (All Media License):

 

 

1. If We have granted You an Individual License, the License is limited to a Print Run of 100,000.

2. If We have granted You a Business License, the License is limited to a Print Run of 500,000.

3. If We have granted You a Premium License, the License includes the right to an unlimited number of such copies.

 

b. License Tiers for Single Use Licenses: If You purchased a "Social Media License", a "Podcaster License", a "TV Show License", a "TV Promo License",  an "Independent Film License", a "Studio Film License", an "Ad (Worldwide) License", an "Ad (Online) License", an "Ad (Radio) License", a "Branded Content (All Media) License", a "Branded Content (Online Only) License", a "Small Business Use License", or a "Video Game License" for the specified Content from ItyDity, the License granted to You for such Content will be on the terms and conditions of this Agreement with the variations and additions that this Agreement states apply to such License. For information about License Tiers for Single Use Licenses, contact Us at info@itydity.com.

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    i. Permitted Use

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1. If we have granted You a Social Media Content License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only on social media platforms including but not limited to Facebook, Instagram, Youtube, Snapchat and Tik Tok. This License restricts You from using Content for any other purposes including for a Project that will be displayed or otherwise broadcast on any other type of media outlet other than social media. This License does not include the right to use Content in branded content that is selling or promoting a brand, product, or service. (To purchase a License for branded social media content, please see our Branded Content (Online Only) License.)

2. If we have granted You a Podcaster License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only on a single podcast series. This License includes the right to use Content for multiple episodes within a single series. 

3. If we have granted You a TV Show License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only on a single TV Show and only for a single episode of that show. For information on obtaining a License for a TV show theme song email us directly at info@itydity.com

4. If we have granted You a TV Promo License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single promotional video or commercial for a TV show. This License does not include the right to use Content in any episode of the TV show.

5. If we have granted You an Independent Film License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single independent film. This License does not include the right to use Content in any trailer or advertisement of the independent film. For information on obtaining a License for an independent film trailer email us directly at info@itydity.com

6. If we have granted You a Studio Film License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single studio film. This License does not include the right to use Content in any trailer or advertisement of the studio film. For information on obtaining a License for a studio film trailer email us directly at info@itydity.com

7. If we have granted You an Ad (Worldwide) License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single advertisement, with permission for worldwide broadcast, including but not limited to online advertisements.

8. If we have granted You an Ad (Online) License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single online advertisement, with permission for online only broadcast. This License does not include the right to use Content in advertisements that are broadcast anywhere offline such as on TV and radio.

9. If we have granted You an Ad (Radio) License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single advertisement, with permission for radio only broadcast. This License does not include the right to use Content in advertisements that are broadcast anywhere else besides radio such as on TV or online.

10. If we have granted You a Branded Content (All Media) License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single piece of branded content (any content being used to promote a brand, product or service), with permission for worldwide broadcast, including but not limited to online and/or on social media. 

11. If we have granted You a Branded Content (Online Only) License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only in a single piece of branded content (any content being used to promote a brand, product or service), with permission for online only broadcast, including but not limited to social media content. This License does not include the right to use Content in advertisements that are broadcast anywhere offline or off social media such as on TV and radio.

12. If we have granted You a Small Business Use License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only for small business purposes, such as, but not limited to, training videos, etc. This License includes the right to use Content for branded content or advertisement or promotional purposes.

13. If we have granted You a Video Game License the License granted to You for such Content allows you to use Content for synchronization purposes for a Single Project in which the Content will be used or otherwise broadcasted by You only on a Video Game. This License includes the right to use Content for multiple scenes and levels within a single video game series. 

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c. Merchandise: Nothing in this Agreement includes a right to use the Content in Merchandise.

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    i. What is included in "Merchandise": Items of physical products sold or distributed by or for You, including toys, games, and physical electronic products. 

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    ii. What is not included in "Merchandise": (i) music, video, or audiovisual Productions that are in physical media (e.g., in a CD or DVD) all of which are deemed to be included in the term "Production" described in and covered by the license in Section 2.

 

5. License Terms and Restrictions

 

a. Item Page: In addition to the terms and conditions of this Agreement, the License to the Content is subject to any special terms that are contained or linked to in the Item Page for that particular Content, if any, including restrictions on the number or type of Productions in which the Content may be used.

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b. General Restrictions on Content: You may not do any of the following regarding any Content:

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    i. use it in whole or in part to manufacture, distribute, or sell records, CDs, jukeboxes, mp3s or any other predominantly audio product embodying it, in whole or in part, that is not synchronized or combined with other, independently-developed, copyrightable content to create a derivative work as permitted in this Agreement (for example, You cannot use it to create a music compilation to give away or sell);

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    ii. place it on or in any product or platform that makes it available in a manner such that a person can without extraordinary effort extract or access or reproduce it as an electronic file;

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    iii. use or display it in whole or part in an electronic format that enables it to be accessed or distributed or shared in any peer-to-peer or similar file sharing arrangement;

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    iv. resell it in whole or part as backgrounds, "hold" music or ringtones; or

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    v. incorporate it in whole or part in any product or platform that results in its re-distribution or resale (such as music download sites, stock music CDs, electronic greeting card websites, web templates, and similar).

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    vi. This Agreement and the License are non-transferable without ItyDity’s prior written consent. However, if We have granted You a Premium License for the Content, You may one-time assign the License on the condition that the assignee agrees to the terms of this Agreement and You provide Us with prompt written notice of the assignment. This means that except as permitted herein, You may not resell, sublicense, rent, loan, assign or transfer the Content to any third Person, provided that no restriction on transferability in this Agreement applies to Your Productions or Merchandise that incorporate Content pursuant to the License. 

 

c. You must Limit Access to and Distribution of Raw Content: You may not allow access to raw Content, except for the purpose of creation, reproduction, or distribution of Productions made by or for the Licensee as permitted by this Agreement. If You become aware of any unauthorized access to or duplication of any Content, You should promptly notify Us via the Site. Except as expressly permitted by Section 2, You may not: (i) distribute, transmit, perform, publish, or publicly display Content as a template, a standalone file, or to others for consumption, reproduction, or resale; or (ii) superficially modify any raw Content and sell or license it to others.

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d. Sensitive Use: Unless We have granted You a Premium License for the Content, You may not use any Content in any context that would be unflattering or unduly controversial to a reasonable person, including use related to the promotion, advertisement or endorsement of any political party, candidate, or elected official, or in connection with any political policy or viewpoint, or as suffering from, or medicating for, a physical or mental ailment (each of the foregoing, a "Sensitive Use"). Use of Content in an obviously satirical Production would not be prohibited by this Section.

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e. No Unlawful Use: You may not use any Content: (i) in a pornographic, unlawful, or defamatory context or manner, including but not limited to in pornography, adult videos, adult entertainment venues, escort services, dating services, or similar; or (ii) in connection with the advertisement or promotion of tobacco products.

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f. Retention of Rights to the Content: You will not acquire, and We and the Content contributor will retain, all right, title, and interest in and to all of the copyrights, trademarks, trade secrets and other proprietary rights in the Content or Content Information that are not expressly granted to You by the terms of this Agreement. The License does not include the right to record a new performance of the composition reflected by the Content.

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g. License Conditioned on Compliance: The License is conditioned upon Your material compliance and Your personnel and contractors’ (each a "Representative") material compliance with this Agreement, as well as Our receipt of full payment of the applicable price for the License and Content.

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h. Contact Us If You Need Rights for Use Not Permitted By this Agreement: If You need to use any Content in a manner that is not permitted by this Agreement, please contact ItyDity at info@itydity.com.

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i. PRO Content: If the PRO box adjacent to a Music Track on the Item Page is checked or the Music Track is otherwise designated as a PRO Track, then it is considered to be "PRO Track". "PRO" means a performing rights organization or other similar organization (including ASCAP, BMI, SOCAN, SESAC, and similar organizations from other jurisdictions). For PRO Tracks, notwithstanding anything else in this Agreement, the License does not include the right to public performance of the composition of the Music, there is no waiver of any PRO royalties or cue sheet obligations, and Our warranties do not cover such performance rights. The foregoing may also apply to other Music Tracks created in a country (e.g., certain EU countries) where application of PRO rights may be considered to be mandatory under applicable law, even though the Content contributor has granted Us sublicensable performance rights.

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j. Content Cleared for Sampling: For Content designated on the Site as being "Cleared for Sampling", You may do any of the following:

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    i. edit, modify, or alter it;

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    ii. use it in whole or part with other original work(s) of authorship so that the combination constitutes a Production;

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    iii. use it, in whole or in part, as an element of a new musical work (e.g., by combining the Content with other works so that a copyright can be claimed in the resulting song); or

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    iv. modify it, in whole or in part, so that a copyright can be claimed in the resulting song other than as part of a Production that consists of an audio/visual work, computer or mobile device application, or an Internet page.

 

k. Restrictions on Content Not Cleared for Sampling: Unless the Content is designated on the Site as being "Cleared for Sampling", You may not do any of the things mentioned in Section 5.j, except that You may do basic editing to the Content (e.g., setting fade-in/fade-out points, determining start and end points, or using only a portion of it), in a way that does not alter its fundamental character, harmonic structure, lyrics or melody, or prejudice the un-waivable moral rights of the artist or author(s).

 

6. Credit Attribution

 

a. For all Content, where crediting is customary or where other such credits are provided, You will use Your reasonable commercial efforts to accompany the Production with a credit line that reads "Musical composition and recording provided by [CONTENT CONTRIBUTOR NAME]/ ItyDity" or substantively similar language.

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b. The unintentional omission of credit attribution provided for above will not be considered to be a breach of this Agreement.

 

7. Representations, Warranties and Disclaimers

 

a. Our Warranties: We warrant that:

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    i. We have the right and authority to enter into and grant the rights in the Content granted to You in this Agreement, subject to all applicable limitations, disclaimers, and exclusions in this Agreement.

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    ii. Subject to the provisions of this Agreement, unaltered Content, when Downloaded and used in compliance with this Agreement and applicable law, and where You have fulfilled Your responsibilities and obligations under this Agreement, including but not limited to Your payment of all applicable fees:

 

1. will not infringe any copyright, trademark or other intellectual property right, and

2. will not violate any third-party's rights of privacy or publicity rights.

 

b. Limited Warranty: We warrant that there are no material defects in the Content which would prevent it from being downloaded from the Site and used as permitted herein. If there are material defects in the Content, Your exclusive remedy under this Section will be as follows: (i) upon request to Us within thirty (30) calendar days of the download of such Content, You will be permitted to download the Content again to obtain a replacement copy of the Content; or (ii) if We determine, in Our sole discretion, that defects would continue to prevent it from being downloaded from the Site or used as permitted herein successfully, We will refund the fee actually paid by You for such Content.

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c. Warranty Disclaimer: Other than as specifically provided in this Agreement, ITYDITY AND ITS AFFILIATES, SUBSIDIARIES, AND ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, LICENSORS, SUPPLIERS, REPRESENTATIVES, PROPRIETORS, PARTNERS, SHAREHOLDERS, SERVANTS, PRINCIPALS, AGENTS, PREDECESSORS, SUCCESSORS, ASSIGNS, ACCOUNTANTS, AND ATTORNEYS (collectively, the “Related Parties”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTENT AND CONTENT INFORMATION, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OR SYSTEM INTEGRATION. SUBJECT TO SECTION 7.b, YOU ACKNOWLEDGE AND AGREE ITYDITY PROVIDES THE CONTENT AND CONTENT INFORMATION ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF THE SITE OR SERVICES WILL NOT INFRINGE THE RIGHTS OF THIRD-PARTIES. TO THE FULLEST EXTENT OF APPLICABLE LAW, NEITHER ITYDITY NOR ITS RELATED PARTIES WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY THE CONTENT OR CONTENT INFORMATION. FURTHERMORE, ITYDITY DOES NOT GUARANTEE THE CONTENT OR CONTENT INFORMATION WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND ITYDITY DISCLAIMS ANY LIABILITY RELATING THERETO. 

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d. Our Content Information Disclaimer: While We have made reasonable efforts to correctly categorize, keyword, caption, description and title the Content, WE DO NOT WARRANT THE ACCURACY OF SUCH INFORMATION.

 

e. Your Representation about You: If You are an individual, You represent and warrant You are of sufficient legal age and have the legal capacity to create and abide by the binding legal obligations in this Agreement.

 

f. Your Representation About Your Information: You represent all information provided to Us by You or under Your ItyDity Registered User account is accurate and true, including all information relating to Your credit card or other payment information, and You agree to update such information as is necessary for such information to continue to be accurate and complete.

 

g. Representation of Individual ItyDity User: If You are the individual who is Downloading the Content, You represent You are the Registered User under whose User account You are doing so. If the individual who is entering into this Agreement is doing so on behalf of his or her employer, the Licensee, or any other Person, such individual represents and warrants: (i) he or she has the full right and authority to execute, deliver and perform this Agreement on behalf such Person; and (ii) this Agreement is a binding Agreement of such Person, enforceable against such Person in accordance with its terms. In the event that such individual does not have such right, power and authority, such individual agrees that in addition to all rights and remedies available against such Person or anyone else relating to violation or infringement of intellectual rights, he or she will be personally liable to Us for any breaches of the terms of this Agreement or violation and infringement of intellectual rights in the Content by such individual, such Person and its Representatives.

 

h. ALTHOUGH ITYDITY WILL IN GOOD FAITH ENDEAVOR TO REMEDY ERRORS IN THE SITE OR ITYDITY’S SERVICES, ITYDITY SPECIFICALLY DOES NOT WARRANT THAT THE CONTENT, THE SITE OR ITYDITY’S SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR THAT ALL ERRORS IN THE CONTENT, THE SITE OR ITYDITY’S SERVICES WILL BE CORRECTED. ITYDITY SHALL HAVE NO LIABILITY ASSOCIATED WITH ANY INOPERABILITY, PERFORMANCE OF OR INABILITY OR DELAY IN YOUR ACCESS TO THE SITE OR THE CONTENT VIA THE SITE. ITYDITY WILL NOT BE RESPONSIBLE FOR ANY LOSS OR ANY MISAPPROPRIATING, INFRINGING OR WRONGFUL USE OF THE CONTENT OR ANY OTHER MATERIALS SUFFERED BY ANY ITYDITY USER  BECAUSE OF THE SITE, ITYDITY’S SERVICES OR ANY OTHER ACT OR OMISSION OF ITYDITY, OR OTHERWISE.

 

i. LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING ANY NECESSARY PARENTAL ADVISORY OR WARNINGS ASSOCIATED WITH THE SONG.

 

8. Indemnification

 

a. Our Indemnity: Subject to the limitations in Section 8.b, We will defend, indemnify, and hold You harmless from any actual or threatened third-party lawsuit, claim, or legal proceeding (each, a "Claim") alleging a breach or facts that if true would constitute a breach of any of Our express representations and warranties in this Agreement or that the distribution or use of Content downloaded and used by You pursuant to this Agreement would result in the breach of any of such representations and warranties (each, an "ItyDity Indemnified Claim"), together with any liability for direct damages arising therefrom and reasonable attorney fees connected therewith, provided in each case that You have paid all amounts due to Us and have not otherwise materially breached the terms of the Agreement.

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b. Indemnity Conditions: Our obligations under Section 8.a (the "ItyDity Indemnification") are conditioned upon You complying with the requirements of this Section 8.b: (i) You must notify Us in writing of the Claim as soon as is practical, but in any case no later than ten (10) business days from the date You know or reasonably should have known of it. Your notification must include all details of the Claim then known to You (e.g., ItyDity Content identification, a copy of the Content and Your Production, the name and contact information of the Person making the Claim, the nature and date of the Claim, and copies of any correspondence received or sent in connection with the Claim). The notification must be sent to Us at Our address on Our Site via certified mail, return receipt requested, or another reputable express delivery service, in each case, recipient's signature required, with a contemporaneous email copy to info@itydity.com; (ii) You must allow Us to assume and control the investigation, handling, settlement and defense of the Claim, and You must cooperate reasonably with them. You shall have the right to participate in the investigation of the Claim or any litigation at Your own expense. The ItyDity Indemnification will be Your sole remedy for a breach of any of Our representations, warranties or obligations. Notwithstanding anything to the contrary in this Agreement, We shall not be liable for, and ItyDity Indemnified Claims shall not include, any Claim related to or arising out of: (A) the particular modifications made to Content after Download; (B) the particular context in which the Content is used; or (C) use of Content not authorized by the License or breach of or failure to carry out an obligation or responsibility assumed by You in this Agreement (each such Claim referred to in 8.b(A) through 8.b(C), as a "Use Related Claim"). In addition, Our obligations under the ItyDity Indemnification are conditioned upon payment in full of all amounts due to Us and Your full material compliance with this Agreement.

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c. Your Indemnity: You agree to indemnify and hold ItyDity and the Related Parties, the applicable Content contributor, and Our Resellers and Our and their respective Representatives, shareholders and partners harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney fees and costs) arising out of or relating to any Use Related Claim; provided that this indemnity shall not apply to the these Parties to the extent that the Claim arises from Our actual breach of a warranty set forth in Section 7.a, or to a Content contributor to the extent the Claim arises from a breach by the contributor of a certification, representation, or warranty made to Us.

 

9. Limitations of Liability

 

a. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.a, WE, THE RELATED PARTIES, AND THE CONTENT CONTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST PROFITS OR, IN THE CASE OF US OR THE RELATED PARTIES, ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING THE COST OF COVER, ARISING UNDER THIS AGREEMENT OR OUT OF OR RELATED TO THE LICENSE, YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OR EXPLOITATION OF CONTENT, THE SITE OR THE CONTENT INFORMATION, ANY SERVICES PROVIDED BY US OR THE RESULTS FROM THE USE THEREOF OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

 

b. REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF ITYDITY IS FOUND TO BE LIABLE, THE AGGREGATE LIABILITY OF ITYDITY FOR CLAIMS ARISING UNDER THIS AGREEMENT, ANY ORDER OR OTHERWISE SHALL BE LIMITED TO THE FEES ACTUALLY PAID TO AND RETAINED BY ITYDITY FOR THE CONTENT, LICENSE AND DOWNLOAD GIVING RISE TO THE LIABILITY.

 

c. RIGHTS HOLDER AND YOU HEREBY ACKNOWLEDGE AND AGREE THAT ITYDITY DOES NOT CREATE OR ENDORSE, AND ITYDITY SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO, THE CONTENT OR ANY PUBLICATION, PERFORMANCE OR OTHER USE, COMMERCIALIZATION OR EXPLOITATION OF THE CONTENT BY RIGHTS HOLDER, RECIPIENT OR ANY THIRD PARTY. ITYDITY SHALL HAVE NO LIABILITY WITH RESPECT TO ANY FAILURE TO (A) SOURCE AN ORDER OR DOWNLOAD FOR CONTENT, (B) ANY BREACH OF THIS AGREEMENT BY OR ANY ACT OR OMISSION OF RIGHTS HOLDER OR RECIPIENT, OR (C) INABILITY TO ENFORCE THIS AGREEMENT, ANY ORDER, OR ANY TERM OR CONDITION HEREOF OR THEREOF.

 

d. THESE LIMITS APPLY EVEN IF WE OR A RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE: (i) THE FEES FOR THE USE OF THE CONTENT REFLECT AND ARE SET IN RELIANCE UPON THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT; AND (ii) THE LIMITATIONS OF LIABILITY HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US. NOTWITHSTANDING ANYTHING ELSE IN THIS OR ANY OTHER AGREEMENT, NONE OF US, THE RELATED PARTIES, OR THE CONTENT CONTRIBUTOR SHALL BE LIABLE FOR ANY DAMAGES, COSTS, OR LOSSES ARISING AS A RESULT OF PARTICULAR MODIFICATIONS MADE TO THE CONTENT BY YOU, ANY OF YOUR REPRESENTATIVES, OR ANY THIRD-PARTY AFTER THE CONTENT IS DOWNLOADED OR THE PARTICULAR CONTEXT IN WHICH THE CONTENT IS USED.

 

e. In addition to the notice requirements in Section 8.b, You may not bring any action, regardless of form, arising out of the License, or under this Agreement, more than one (1) year after the cause of action accrued.

 

f. Sections 7 and 9 and their subparts are intended only as permitted by applicable law. If any portion of these Sections is held to be invalid, the invalidity of that portion(s) shall not affect the validity of the remaining portions of the applicable Sections. To the extent that We may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of Our liability will be the minimum permitted under such applicable law.​

 

10. Term and Termination

 

a. Your Material Breach: The License will terminate automatically without notice from Us if You fail to cure a material breach or other material failure to comply with any provision of this Agreement within 14 calendar days of Our written notice to You of the same. Upon termination, to the extent reasonably practical, You must and You must cause Your Representatives to immediately: (i) stop using the Content; (ii) delete or remove the Content from Your premises, computer systems, Internet cloud accounts, and other storage, regardless of its location, scope, or type (e.g., electronic, cloud, or physical); and (iii) where applicable, ensure Your Representatives and licensees do the same.

 

b. All payment obligations of this Agreement shall survive termination of any License.

 

11. Payments & Taxes

 

a. Sale of License Final: All sales of Licenses are final. We are not under any obligation to refund any fees paid by You for Content under any circumstances, except upon a material breach of one of Our express representations and warranties set forth in this Agreement related to that Content. if You request a refund, however, and We, in Our sole discretion, elect to provide You a refund, the license granted in this Agreement for the Content will be rescinded as if never granted. Any refund will be made by such means as We determine is appropriate.

 

b. Taxes: You are responsible for promptly paying any and all applicable sales taxes, use taxes, value added taxes, property tax, customs, duties and any related interest or penalties imposed by any jurisdiction as a result of the License or any use of the Content.

 

c. No Set-Off, Withholdings or Deductions: You must pay all amounts due to Us in a payment currency approved on the Site without any set-off, deduction, or withholding of any kind, including tax withholdings or amounts charged for currency conversion. To the extent that You determine that You are required under law (e.g., under a tax law) to withhold any amount from payments due to Us or a financial institution, or where another intermediary deducts any amount for currency conversion or other services from Your payment to Us, the price for the applicable License is hereby increased by the amount that would cause the net amount actually received by Us to equal the price that would otherwise apply for the sale of the License.

 

12. Governing Law; Dispute Resolution; Arbitration; Venue; Severability of Provisions.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND ITYDITY TO RESOLVE ALL DISPUTES BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ITYDITY.

 

a. This Agreement shall be governed by the laws of the State of Colorado, without giving effect to the principles of conflict of laws. Any dispute arising under or relating in any way to these Terms of Use will be resolved exclusively by final and binding arbitration in Denver, Colorado under the rules of the American Arbitration Association, except that either party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction. The parties agree the courts located in Denver, Colorado shall have exclusive personal jurisdiction, subject matter jurisdiction, and venue for any such claim, and affirmatively waive any rights to challenge jurisdiction or venue in Denver, Colorado.

 

b. All parts of this Agreement shall apply to the maximum extent permitted by law. ItyDity and You both agree that if a party cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part the party cannot enforce, to the extent permitted by law. The invalidity of part of this Agreement will not affect the validity and enforceability of the remaining provisions.

 

13. Miscellaneous Provisions.

 

a. Consent to Electronic Communications: You consent to receive communications from Us electronically and You agree that all agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications be in writing.

 

b. You Consent to Us Processing Your Data in Different Countries: You consent to Your personal information being shared with and processed in the course of Our business by Us and Our Affiliates, which may be located in international jurisdictions outside of the U.S., and which may provide varying, and in some cases, less privacy protection than Your country.

 

c. This Agreement is in addition to the Site TOU, Our Privacy Policy, and the other terms, disclaimers, and restrictions contained on the applicable Item Page at the time of Download of the Content item (collectively, the "Site Terms"), (which are all incorporated by reference into this Agreement), all of which together with this Agreement embody the parties' entire agreement and supersedes and cancels any prior or implied agreement with respect to its subject matter; provided that in the event of any inconsistency between this Agreement and such Site Terms, the terms of this Agreement shall govern.

 

d. If You learn any Content is subject to a threatened or actual third-party Claim of infringement, violation of another right, or any other claim for which We may be liable, You agree to promptly notify Us of any such claim. If We learn of such a claim from any source and We, in Our sole good faith discretion, determine that the claim raises an inappropriate legal risk, upon notice from Us, You agree You will immediately: (i) remove the Content from Your computer systems and storage, regardless of the form, location, or scope of it (e.g., electronic, cloud, or physical); and (ii) cease any future use of the Content at Your own expense if possible. If You do remove and cease use of the Content, We will either refund Your license fees for the applicable Content or without charge provide You with other Content that We determine with Your consent, not to be unreasonably withheld or delayed, is comparable, subject to the other terms and conditions of this Agreement.

 

e. The parties to this Agreement are independent contractors. Nothing in this Agreement, or the rights granted herein, shall create a joint venture, partnership, fiduciary, employment, or franchise relationship between them.

 

f. You will promptly reimburse Us for any costs (including reasonable attorney fees and court costs) that We incur in collecting any License fees due to Us.

 

g. All of the covenants, terms, provisions and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns, including but not limited to the Related Parties.

 

h. The Related Parties, the applicable Content contributor, and the Persons indemnified under Section 8 are intended third Person beneficiaries of this Agreement. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other third Person any rights, benefits, or remedies of any nature whatsoever.

 

i. Your representations, warranties, and obligations and Our rights and remedies set out in this Agreement are cumulative and are in addition to Your obligations and Our rights and remedies at law or in equity. If You breach any provision of this Agreement and We take no action, We will still be entitled to use Our rights and remedies in any other situation where You breach this Agreement.

 

j. Survival: The termination or expiration of this Agreement shall not affect any provision of this Agreement, which by its nature should survive this Agreement.

 

k. ItyDity may assign this Agreement without Your consent: (i) as part of a corporate reorganization; or (ii) to any other Person as part of a merger or asset or business sale so long as such Person agrees to be bound by its terms.

 

14. Acceptance of this Agreement

 

a. By clicking "I Agree" or otherwise signifying acceptance, the individual doing so accepts and agrees to be bound by this Agreement for him or herself and on Your behalf, and, if different, his or her employer or other Person, and agrees to be bound by its provisions. 

 

b. You acknowledge that You have read this Agreement and any other agreements or terms which may be incorporated by reference herein, understand them, and have had an opportunity to seek independent legal advice prior to agreeing to it. You have either obtained that advice or are waiving Your right to do so.

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