ITYDITY CONTRIBUTOR AGREEMENT

 

Revised August 1, 2020 

 

This Contributor Agreement (the "Agreement") governs the terms by and under which you (“You” or “Your”), the User and contributor of a Song(s), and ItyDity, a Colorado limited liability company (together with its Affiliates, "ItyDity,” "We," “Our,” or "Us") agree for the distribution and licensing of any subject Song(s) through the ItyDity website at www.ItyDity.com (the "Site") and Services. Please read this Agreement carefully and make sure you understand it before participating in this Service. 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 is undertaken on Your behalf.

 

1. What this Agreement Covers

a. This Agreement applies to any Songs, musical works, recordings, music, and other audio information, files, or works, regardless of their format, You submit to Us (individually and collectively referred to as the "Content") and any tags, captions, metadata, annotations, information or releases You provide to Us relating to the Content (the "Content Information").

b. We have the right, in Our sole discretion, and for any reason to accept or reject any Content or Content Information, or at any time revoke any acceptance of Content or Content Information and remove the same from the Site.

 

2. Rights You Grant Us

 

a. You hereby grant Us the non-exclusive right and license throughout the Universe ("Your License to Us"), to directly or indirectly copy, market, promote, perform, display, distribute, sell or grant licenses to the Content. The licenses We grant (each an "ItyDity License Agreement") may, as We determine to be appropriate, include some or all of the rights, restrictions or other terms of the Content License Agreement, as modified by Us from time-to-time and in Our sole and exclusive discretion, or any variations thereof, including Extended Licenses, as defined below.

b. You, or if different, the owner of the copyright in the Content, will retain all ownership of the Content and the copyright thereto, and no copyright ownership or title will be transferred to Us.

c. Your license to Us also includes the right to, and to authorize others to, use any Content in any kind of works and media now known or hereafter devised, and to use, copy, transmit, broadcast, telecast, stream, and publicly display, perform worldwide the Content, and any derivative works thereof, the Content Information, and Your, and if different, the Content creator's, name, likeness, and biographical information for purposes of promoting, advertising, marketing and distributing the Content, You, the Site, Us or Our business (collectively, "Promotional Uses"). Promotional Uses will not entitle You to any compensation, nor create any additional relationship or responsibilities between You and Us.

d. You hereby forever waive any "moral rights" or droit morale related to the Content and Content Information. If You are not the creator of the Content or the Content Information, You represent, warrant and guarantee You have obtained such a waiver from the creator.

 

e. ItyDity License Agreements may include various or custom license options for Content which provide customers broader rights to the Content, fewer restrictions or greater legal protection than Our All Media License in the Site form of the Content License Agreement (such as with an "Extended License" or “Single Use License”).

f. ItyDity will substantially include the following limitations for any License ItyDity grants to a Content User in accordance with the Permitted Use and the single use description for such Permitted Use AS DEFINED ON EACH ITEM PAGE (“Single Use License”):

(i) the Content is to be used solely as a constituent element of edited versions of the same Production or Digital Production (the “Project”);

(ii) no copies or reproductions of the Content are to be made except as part of the making of copies and reproductions of the Project in substantially its entirety;

(iii)  no copies or reproductions of the Content are to be made, manufactured, sold, licensed, exhibited, publicly performed, communicated to the public, digitally transmitted or otherwise used separately or apart from the Project in substantially its entirety; and

(iv) that any public performance, communication to the public, and/or digital transmission of the Content must be separately licensed by the person, firm, corporation or other entity including, without limitation, the performance rights licensing organization having the legal right to issue public performance, communication to the public, and/or digital transmission rights licenses on behalf of the owner(s) of such rights in the jurisdiction(s) in which the Content is publicly performed and/or digitally transmitted.

g. that any public performance, communication to the public, and/or digital transmission of the Content must be separately licensed by the person, firm, corporation or other entity including, without limitation, the performance rights licensing organization having the legal right to issue public performance, communication to the public, and/or digital transmission rights licenses on behalf of the owner(s) of such rights in the jurisdiction(s) in which the Content is publicly performed and/or digitally transmitted.

 

h. For purposes of this Agreement, “Content User” means any Person who is an actual or prospective licensee of any Content, but who is not a Distributor, as defined in Section 3.c.

 

3. Pricing and Your Share of Net License Revenue

a. You have the option of allowing Us to set and optimize the price of the Content, or You may set the item price on Your own. You may request to change Your preferences in this regard at any time by contacting us at info@itydity.com. However,

(i) We have the sole and exclusive discretion to increase the price of any Content to maximize Your overall performance (e.g., to round up), or to comply with Our minimum pricing guidelines;

(ii) We have the sole and exclusive discretion to charge additional amounts for Extended Licenses;

 

(iii) We have the sole and exclusive discretion to offer discounts as part of special promotions or to customers who We believe will make volume purchases or commitments or to help secure additional revenue on Your behalf;

 

(iv) We may temporarily or in select markets charge higher or lower prices to test pricing levels in an effort to maximize sales or revenue on Your behalf; and

 

(v) Notwithstanding the foregoing, You shall not set the price for an item of Content that is higher than the lowest price for which the same (or substantially the same) Content item is offered by or on any other media marketplace, agency or other redistribution arrangement (each an "Other Marketplace"), and if We discover that the Content item is offered at a lower price by or on any Other Marketplace, We may, in Our sole and exclusive election, lower the price in Our marketplace to match or beat that price, or terminate this Agreement and remove the Content from Our Services.

 

b. Except as expressly provided below, We will pay You 50% of Net License Revenue and We will deduct and retain the remainder of the Net License Revenue.

c. "Net License Revenue" are license fees collected by Us from resellers and other redistributors (collectively, "Distributors") and customers for Content accepted by Us, subject to the following:

 

(i) We may also exclude or deduct any of the following from the calculation of the Net License Revenue and the net amount payable to You: (A) taxes or other withholdings paid by the customer or that We determine are required by applicable law; (B) refunds, chargebacks, and uncollectible sums; and (C) fees, charges, or costs payable to or deducted by financial institutions for the processing of any credit card, debit card, e-check, or alternative payment method, or currency conversion for payments received by Us or paid to You in a currency other than U.S. Dollars.

(ii) In cases where a customer purchases an Extended License, We will deduct from Net License Revenue and retain a portion of the additional fees charged for the Extended License as a "Legal Guaranty Fee" to cover Our self-insurance costs as We determine in Our sole and exclusive discretion for providing the customer with additional legal protection. For avoidance of doubt, You will be paid Your share of the net Extended License fees We collect after such Legal Guaranty Fee is deducted.

 

d. You are fully liable for and solely obligated to pay all royalties, fees and other monies that are or may become payable to the authors, composers, artists, producers, publishers, administrators and other holders of rights related to the Song, except for Other Holders. These payments must be made in a timely fashion.

4. Inclusion of Content for Licensing on ItyDity

a. Before ItyDity will accept any Content for licensing, You must:

(i) establish and maintain an ItyDity Account;

(ii) agree on all approved Means of Distribution, the License Fee, the Project(s), and the Territory applicable to the Content offered for licensing (“License Settings”) for the Content.

b. Once Content has been offered for licensing, You may propose a change to any Licensing Setting BY SUBMITTING A REQUEST TO DO SO BY EMAILING US WITH REQUEST AT INFO@ITYDITY.COM

 

c. ItyDity does not guarantee any exploitation of Content hereunder. You acknowledge that licensing of Your Content depends, among other things, on the needs and preferences of Content Users, and on any limitations on use of Your Content that You may impose through the Licensing Settings on the Site.

 

5. Content Standards; Releases

 

a. You may not submit any Content that contains a recording of a performance of a musical, choreographic, literary, or dramatic work unless You own all rights in such work and the performance and the recording of such work, or have received the written authorization from the copyright owners or the authorized licensees thereof for such submission and the inclusion of all such rights in Your license to Us and the licenses granted by Us under Our Content License Agreements. You represent and warrant as of the date of each submission of Content that You have obtained all such rights and authorizations and they are included in Your license to Us. We reserve the right to require the prompt provision of documentation evidencing You have obtained all necessary rights or licenses in Content incorporating material authored by a third-party. You agree to promptly, and in any event, within seven (7) calendar days of receiving that request, furnish such proof, the satisfaction of which shall be in Our sole and exclusive discretion.

 

6. Audio Content

 

a. All audio Content You submit to Us and the licenses You grant to Us under this Agreement include all copyrightable material in that audio Content, including the composition, lyrics, and recording of the performance of the Content.

b. Except for reports and royalties that may be due to a performing rights or other similar organizations (including ASCAP, BMI, SOCAN, SESAC, or similar organizations from other jurisdictions) (each a "PRO") with regard to public performance or broadcast of audio Content that You designate on the Site at the time of upload of the same to the Site as being PRO audio Content, to the extent permitted by applicable law: (i) You agree no license is required from and no payments or reports are required to be made to You or any PRO or other Person relating to the license and distribution of Content by Us or the use, duplication, performance, synchronization, modification, or distribution of such Content by Content Users as permitted by Our Content License Agreements; and (ii) You waive any rights to any such payment or report.

c. You may not take any action on or with respect to YouTube, Vimeo (or other networks that allow for the so-called "claiming" or "monetization of content") that would interfere with the ability of Content Users to monetize or collect revenue from any such network with respect to their works.

 

7. Representations, Warranties and Disclaimer

 

a. You hereby agree, represent, warrant, and guaranty as of the date You accept this Agreement and the date of each submission of Content as follows:

(i) The Content represents original creations and expressions of subject matter, and the Content and Content Information do not infringe or violate any copyright, trademark, right of privacy or right of publicity, moral right, or other proprietary right of any third-party, or defame any third-party.

(ii) You: (A) have the legal capacity and authority to enter into this Agreement, to grant the licenses detailed herein to Us, and to perform Your obligations under this Agreement; (B) are the sole and exclusive owner of the Content, all parts thereof and the copyright(s) thereof or otherwise have obtained from the same from the rightful owner and have the full legal right, power and authority to grant the license to the Content granted to Us hereunder, including the full legal right, power, and authority to grant Us the right to sublicense such Content as contemplated under Our Content License Agreements and the Content Users to use the Content as permitted therein; and (C) have not granted any rights or licenses to any Content or any other intellectual property or technology or entered into any other agreement or commitment that would conflict with Your representations, warranties, rights granted, or obligations under this Agreement or the rights granted by Us in Our Content License Agreements.

 

(iii) No person whose image is depicted or voice is included in the Content is a SAG-AFTRA member.

(iv) If You are an individual, You either: (A) are of sufficient legal age to grant the rights and create binding legal obligations as set out in this Agreement; or (B) are only acting under the authorization of Your parent or legal guardian who has the legal authority to grant the rights and create the binding legal obligations of this Agreement on Your behalf.

(v) No portion of any Content contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement or Our Content License Agreements, and all Content will be free of any virus, worm, code, lock, or other mechanism or device that may be used to access, modify, delete, damage or disable the Site or any other hardware or computer system or software, or which would otherwise render inaccessible or impair the use of any of the same in any way.

(vi) The version of the Content uploaded to the Site shall (1) be a high quality and professional grade sound recording free from any material defects, and (2) not contain any disabling devices or code which could be capable of impairing or tracking ItyDitys, Content User’s or any third party’s access to and/or use of the Song and/or processing environment;

(vii) No Content has been created, obtained or submitted to Us under this Agreement in violation of any law or contract terms.

(viii) If after Your submission of any Content to Us You receive any notice or otherwise learn in any way that any representation You make in this Agreement is or was not complete or accurate, or is or was misleading in any material respect, or of any third-party claim alleging the foregoing, You will promptly provide Us written notice of all relevant facts regarding the same, and if appropriate, remove the Content from the Site.

(ix) You agree to be bound by Our TOU and other applicable documents and agreements, without limitation.

 

b. If the Person who is uploading or otherwise providing Us Content is doing so as Your representative, then both You and that Person represent and warrant that the individual who is providing Content to Us is the Registered User of the Site, and such Person has full legal right, power, and authority to act on Your behalf, bind You to this Agreement, and grant Your license to Us on Your behalf.

c. 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 INTEROPERABILITY, PERFORMANCE OF OR INABILITY OR DELAY IN YOUR OR THE CONTENT USER’S 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 CONTENT USER OR YOU BECAUSE OF THE SITE, ITYDITY’S SERVICES OR ANY OTHER ACT OR OMISSION OF ITYDITY, OR OTHERWISE.

 

8. Indemnification

 

a. We agree to defend, indemnify, and hold You harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney fees and costs) (collectively, "Losses") arising out of or relating to any claim, action, or proceeding by a third Person (each, a "Claim") relating to or arising directly or indirectly out of: (i) a claim that if proven would constitute a breach by Us or any of Our Representatives of this Agreement, or any express representation, warranty, or obligation of Us contained herein; or (ii) a claim that if proven would constitute a failure to fulfill any express responsibility or obligation assumed by Us under this Agreement.

b. You agree to defend, indemnify and hold Us, Our Affiliates, and Our and their respective Representatives and shareholders (collectively,"ItyDity Parties"), Our Distributors, and the Content Users harmless from and against any and all Losses arising out of or relating to any Claim, relating to or arising directly or indirectly out of: (i) a claim that if proven would constitute a breach by You or Your representatives of this Agreement of any representation, warranty, guaranty, or obligation contained herein; or (ii) a claim that if proven would constitute a failure to fulfill any express responsibility or obligation assumed by You under this Agreement. We may withhold amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty, guaranty, or indemnity under this Agreement and amounts that We determine are required to be withheld by law.

c. The indemnified party shall: (i) promptly notify the indemnifying party of the Claim (provided that the failure to do so will not excuse the indemnity obligation unless the failure to notify causes material prejudice to the indemnifying party); and (ii) cooperate with the indemnifying party in the defense of any Claim, at the indemnified party's expense. The indemnifying party will have the opportunity to defend the Claim with counsel reasonably acceptable to the indemnified party. If for any reason the indemnifying party does not, in a timely fashion, elect to or fails to timely defend a Claim as provided herein, the indemnified party may do so at the indemnifying party's sole expense. 

 

9. Claims against Content Users and Third-Parties

 

a. We will have no responsibility whatsoever for the compliance by Content Users, Distributors, or any other Person with the terms of any ItyDity Content License Agreement, nor any liability whatsoever for any breach, infringement, or wrongful conduct or other acts or omissions by any such Person.

b. You grant Us the right and authority, but We have no obligation, to make any claim, bring any lawsuit or take any action regarding a breach or claimed breach by a Content User of an ItyDity Content License Agreement, or an infringement or claimed infringement of any of intellectual property or other rights in or relating to any Content by such Person or any other third Person (each, an "Enforcement Action") that We deem to be commercially reasonable to protect Our rights in the Content. Upon Our request, You will provide any information, assistance, and cooperation We reasonably request in connection therewith. Any monetary recovery received as a result of any Enforcement Action by Us, to the extent such monies are intended to compensate for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses (including reasonable attorney fees and costs) that We incur in connection with such action, be divided between You and Us pursuant to the provisions of the Compensation section above.

c. We recommend You register Your copyrights in Content, as such registration is generally required in order to bring an action for copyright infringement. More information on registering Your copyrights can be found at http://www.copyright.gov.

 

10. Termination

 

a. We may at any time and for any reason (including but not limited to Your submission to Us of infringing Content) remove any or all Content from the Site and cease offering sublicenses to the same (the "Terminated Content").

b. You may for any or no reason remove any or all Content from the Site or deliver to Us written notice of Your request to remove any or all Content from the Site. Such notice must be communicated by email to info@itydity.com or by such other means of written notice acceptable to Us which enables Us to confirm Your identity. After We are able to reasonably confirm Your identity and the authority of the individual who sent the notice, We will use Our reasonable efforts to as soon as is practical cease offering such Content to Distributors and Content Users and remove the same from the Site. Subject to the next sentence and paragraph, upon such removal Our rights hereunder to grant licenses to the specified Content will terminate. You specifically agree We and the Distributors may continue Promotional Uses of the terminated Content for a period of one (1) year from the effective date of such termination.

c. Notwithstanding any other provision in this Agreement: (i) removal of any Content from the Site or the termination or expiration of this Agreement or any rights granted to Us hereunder will not terminate, alter, or otherwise affect any license granted to a Content User prior to the effective date of such removal, termination, or expiration; (ii) if any Content is in a customer's cart at the time of the removal, expiration, or termination, We will not be required to remove such Content from the cart and We may allow the customer to purchase a license to such Content under a Content License Agreement for a period of ninety (90) calendar days after such removal or termination; and (iii) We may continue Promotional Uses of the Content for a period of one (1) year from the effective date of any removal, termination or expiration.

d. Upon termination, We will be entitled to retain all amounts owing to You for a period of thirty (30) calendar days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing, and terminating Your account.

e. The terms and provisions of Sections 3 through 15 and any license granted by Us or any of Our Distributors shall survive termination or expiration of this Agreement for any reason.

 

11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

 

a. ITYDITY DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS AS TO THE PROVISION OF THE SITE OR OUR SERVICES, THE ACCURACY OR COMPLETENESS OF THE SITE OR OUR SERVICES’ CONTENT, OR INFORMATION LINKED THROUGH THE SITE OR OUR SERVICES. YOU ACKNOWLEDGE AND AGREE ITYDITY PROVIDES THE SITE AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. 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 “ITYDITY PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND SERVICES, 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. 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 YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY OR USEFULNESS OF THE SITE. FURTHERMORE, ITYDITY DOES NOT GUARANTEE THAT THE SITE OR SERVICES 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. 

b. THE ITYDITY PARTIES AND OUR DISTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST ROYALTIES OR PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES OR PROCEEDING ARISING UNDER THIS AGREEMENT OR RELATING TO OR ARISING OUT OF YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OF THE SITE OR OUR SERVICES, 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. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF THE ITYDITY PARTIES ARISING UNDER THIS AGREEMENT OR RELATING TO OR ARISING OUT OF YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OF THE SITE, OUR SERVICES YOUR YOUR SUBMISSION OF ANY CONTENT OR ANY OTHER AGREEMENT (REGARDLESS OF THE AMOUNT OF CONTENT YOU SUBMIT TO US), SHALL BE LIMITED TO AN AGGREGATE OF ONE THOUSAND $1,000 (U.S.), EVEN IF WE OR ANOTHER ITYDITY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED THAT THE LIMITATIONS OF DIRECT DAMAGES IN THIS PARAGRAPH WILL NOT APPLY TO AMOUNTS THAT ARE EXPRESSLY PAYABLE TO YOU HEREUNDER. YOU ACKNOWLEDGE AND AGREE: (i) THE AMOUNTS PAYABLE HEREUNDER REFLECT AND IS 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.

c. YOU EXPRESSLY AGREE YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL, OR INFORMATION OBTAINED THROUGH THE USE OF THE SITE ARE USED AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL, OR INFORMATION. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF OUR SITE AND SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN. YOU AGREE THE ITYDITY PARTIES ARE NOT LIABLE FOR ANY ERRORS IN PRICING OR ANY LOSS OR DAMAGE TO CONTENT OR MATERIAL SUBMITTED TO THE SITE, AND THAT YOU ARE REQUIRED TO MAINTAIN YOUR OWN BACKUP FILES FOR ANY CONTENT SUBMITTED TO US. We will not be held responsible for any delay or failure to comply with Our obligations under this Agreement if the delay or failure arises from any utility, communications, technical, hardware, software issues or failure, any acts or omissions of a third-party, acts of government, god, war or terrorism or any cause which is beyond Our reasonable control.

d. This Section 10 and its 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.​

 

12. Consent to Electronic Communications; Your Personal Data

 

a. Consent to Electronic Communications. We may send any notice to You by an email to the Registered User Account at the email address that has been provided as part of it. 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. Location of Your Personal Information. You consent to Your personal information being shared with and processed in accord with Our Privacy Policy

 

13. 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.

 

14. Miscellaneous

 

a. The parties to this Agreement are independent contractors. Nothing in this Agreement, the rights granted herein, any upload or submission of Content, or access to or use of the Site shall create a joint venture, partnership, fiduciary, employment, or franchise relationship between them.

b. Where permitted by applicable law, You and ItyDity agree that each may bring claims against the other only in Your or Our individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless both You and ItyDity agree, no arbitrator shall have power to consolidate more than one person’s claims or otherwise preside over any form or a representative or class proceeding or multiply actual damages or award punitive damages, and each party hereby irrevocably waives any claim to such damages.

c. You acknowledge and agree that You will be solely responsible (and We will have no responsibility whatsoever) for: (i) each and every access to the Site that occurs in conjunction with Your Registered User name or user ID and corresponding password (including access to the Site via FTP, API, or other modalities) or the Registered User name or user ID and corresponding password of a Person who is Your Representative and who We reasonably believe You have authorized to access the Site or submit Content or Content Information, or who is accessing the Site or submitting Content or Content Information to Us on Your behalf; (ii) monitoring or supervising any logons and activity under Your or any such Person's Registered User Account or name, including the uploading of Content and Content Information; and (iii) the consequences of any of the foregoing. You furthermore acknowledge and agree that We are authorized to accept Your Registered User name or any such Person’s Registered User name or user ID and password as conclusive evidence that You wish to upload and submit Content and Content Information pursuant to this Agreement.

d. You will promptly reimburse Us for any reasonable attorney fees and court costs that are incurred by Us in enforcing this Agreement. We are also entitled to set-off from payments of the amounts payable to You any amounts owed by You to Us and reasonable legal fees and other expenses incurred in enforcing this Agreement.

e. This Agreement is personal to You and is not assignable by You without Our prior written consent. We may assign this Agreement without Your consent to any other party so long as such party agrees to be bound by its terms.

f. This Agreement is in addition to Our TOU and Privacy Policy which are each incorporated by reference, and any additional guidelines and restrictions contained at the Site where You upload Content, as modified by Us from time-to-time in Our sole and exclusive discretion (collectively, the "Site Terms"), as well as the Site form of the ItyDity Content License Agreement (all of which are all incorporated by this reference into this Agreement, except to the extent that they conflict with the express terms of this Agreement), all of which together embody the parties' entire agreement and supersede and cancel any prior agreement, express or implied, written or oral, with respect to its subject matter; provided that in the event of any inconsistency between this Agreement and any such Site Terms, the terms of this Agreement shall govern. 

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. 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.

 

15. 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 that is identified as the Registered User, and agree 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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