Last revised: August 2018
ItyDity provides an online platform that helps connect artists who wish to develop songs or albums (“Artists”) and other musicians and producers who wish to assist in such development through the creation of musical parts or the production of songs (“Contractors”), including, for example, through Projects (“Services”). “User” means any user of the Site or Service, and may be an Artist or a Contractor. If you are a User, the provisions in this Agreement regarding Users apply to you. If you are also an Artist, further the provisions in this Agreement regarding Artists apply to you. If you are also a Contractor, further the provisions in this Agreement regarding Contractors apply to you. “Selected Contractor” means the applicable selected producer in a Project. “Sale” means the applicable transaction between Artist and Selected Contractor. “IPR” means intellectual property rights including all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of the applicable jurisdictions.
(a) Artist may create a project (“Project”) by creating a proposal (“Proposal”), paying the Artist Payment comprised of the Contractor Fee and the ItyDity Fee, and following the other instructions on the Site. The Proposal must clearly specify the requirements for the Proposal, such that Contractors clearly know the rules and criteria on which their Submissions will be judged. Artist has the option to select a Selected Contractor immediately during the first round or to select the top five Contractors and move to the second round of the Project. (b) Artists may request a full refund of the Contractor Fee at any time before the close of the first round. If a refund is timely requested, ItyDity will return the Contractor Fee portion of the Artist Payment to the Artist. If no refund is requested, no Selected Contractor is chosen, and no second round is initiated, ItyDity will refund the Contractor Fee to Artist. If a second round is initiated, the Artist may no longer ask for a refund. If Artist chooses a Selected Contractor, ItyDity will pay the Contractor Fee to the Selected Contractor. If Artist does not choose a Selected Contractor from the up to seven finalists, the Contractor fee will be paid in equal shares to each of the finalists. (c) For the avoidance of doubt, Artist has no right or license to use any Submissions other than the Project Submission provided by the Selected Contractor. (d) Artist may not allow or request Contractors to submit anything similar to a Project Submission to Artist via any means other than via the Site. Artist may not cancel any Project for the purpose of contracting separately with a Contractor who Artist meets through the Site which results in Artist avoiding paying ItyDity. (e) Some jurisdictions provide Artist certain mandatory statutory rights (e.g., right to supplementary performance (e.g., rectification or replacement), right for a refund, right to withdrawal, right to reduce the price and right to damages in case the Proposal is defective) (collectively, “Mandatory Statutory Rights”) which remain unaffected.
1.3 Project Service.
(a) Artists and Contractors can work with each other on musical projects by creating a 1-to-1 project (“Project Service”) and following the directions on the Site. Contractor can create invoices to request payments from Artist. Artist can pay invoices and reserve the right to accept Submissions before they are considered Selected. If Submissions have not been accepted by Artist, Artist may request a refund of the Artist Payment, at any time up to 60 days after the date of invoice payment, or 10 days after delivery of Submission, whichever happens sooner. After Contractor has delivered the Submission, Artist will be deemed to have accepted the designs unless Artist provides notice of rejection to ItyDity and Contractor within 10 days of delivery of the Submission. If the cause for the notice of rejection is not cured within 30 days of a rejection notice, Artist will be refunded the Contractor Fee and Artist will have no right to use the resulting Submission in any way. ItyDity reserves the right in its sole discretion to restrict Artist or Contractors from creating Submissions using Project Services and to remove Submissions. ItyDity has no involvement in managing or providing the Submissions to Artist and is simply providing the ability for Contractor to store files for, work with, invoice and receive payments from Artists, and for Artists to request services from, view Submissions, provide feedback on Submissions and pay Contractors, using Project Services. (b) Some jurisdictions provide Customer certain Mandatory Statutory Rights (defined in Section 1.2(e) above) which remain unaffected.
2. Intellectual Property and Royalties.
2.1. Intellectual Property Rights.
2.1.1. As an explicit and non-assignable condition of your participation in the Services and use of the Site, each Selected Contractor acknowledges and agrees the entirety of its Services and all of the results and proceeds of its Services constitute “works made for hire,” as defined by U.S. Copyright Law, for the benefit of the Artist with whom the Selected Contractor collaborates on a Project. The Selected Contractor shall not retain any intellectual property rights in any form related to the Services, its work on the Project, or the results of its work or Services such as in the Final Deliverable or any iteration of the Selected Submission (the “Subject Intellectual Property”). The entirety of the Subject Intellectual Property shall be the Artist’s sole and exclusive property. Artist shall be deemed the author and owner of any and all copyrights in or resulting from the Selected Contractor’s Services, the Selected Submission, the Final Deliverable, and any other element of Selected Contractor’s work on a Project, subject to the terms of section 2.1.5, below. Artist shall accordingly have and retain the unrestricted right, throughout the Universe and into perpetuity, to use, reuse, allow others to use, edit, alter, modify, add to, otherwise arrange, advertise, promote, distribute, transfer, assign, license, and otherwise exploit (the “Copyright Conduct”) any part or portion of the Project, the Final Deliverable, all iterations of the Selected Submission, and any result of Selected Contractor’s Services in a particular Project with Artist in any form. Artist may undertake any Copyright Conduct in its sole and exclusive discretion without further rights, approvals, or compensation to Selected Contractor or ItyDity. In any event, and based upon the terms of this paragraph, Selected Contractor agrees and understands it shall not have any copyright or other intellectual property in the Final Deliverable, and therefore shall not undertake any Copyright Conduct, unless specifically authorized in this Agreement, or undertaken with Artist’s prior, written consent.
2.1.2. As an explicit and non-assignable condition of a Selected Contractor’s participation in the Services and use of the Site, each Selected Contractor waives any benefit of “moral rights” or other similar rights of creators within any Project, Selected Submission, or Final Deliverable in which Selected Contractor participates in any form.
2.1.3. Each Selected Contractor warrants, promises, and agrees to ensure the results, inclusions, deliverables, materials, and proceeds of any third-parties a Selected Contractor hires, employs, retains, or uses, either directly or indirectly, in connection with the provision of Selected Contractor’s Services, the results of which are incorporated into the Final Deliverable, shall be and remain Artist’s sole and exclusive property under the same terms delineated in section 2.1.1 and 2.1.2, above.
2.1.4. Subject to paragraph 2.1.5, below, to the extent any part of Selected Contractor’s Services or contributions to the Project and the Final Deliverable is not considered a work made for hire, or to the extent any portion of paragraph 2.1.1 is declared invalid, Selected Contractor agrees to irrevocably transfer, grant, convey, and assign to Artist all of Selected Contractor’s right, title, and interest to the Subject Intellectual Property.
2.1.5. Any assignment to Artist or Artist ownership in intellectual property as contemplated under paragraphs 2.1.1 through 2.1.5, above, is expressly contingent on Artist’s complete and valid payment for Selected Contractor’s Services under this Agreement. If Artist fails to make complete payment, no work made for hire or assignment of the Subject Intellectual Property shall occur.
a. Artist grants ItyDity a non-exclusive, limited, non-transferable, royalty-free, license throughout the Universe and into perpetuity for ItyDity to use Artist’s name, likeness, and biographical information (collectively, the “Artist’s Likeness”), and the Final Deliverable solely for any reasonable marketing purpose, such as to market ItyDity’s services and Site, or on ItyDity’s social media, and in any medium. ItyDity agrees to tag Artist anytime ItyDity or its representatives post, share, or otherwise use any information on social media. ItyDity agrees any such posts will at all times be dignified and professional.
b. Artist grants Selected Contractor a non-exclusive, limited, non-transferable, royalty-free, license throughout the Universe and into perpetuity for Selected Contractor to use the Artist’s Likeness and the Final Deliverable solely for any reasonable marketing purpose, such as within Selected Contractor’s portfolio, or on Selected Contractor’s social media. Selected Contractor may not use the Project, the Selected Submission, any Subject Intellectual Property other than the Final Deliverable, the Artist’s Likeness, and any part or portion of any of these for any other purpose, including but not limited to any commercial or musical purpose, without Artist’s prior written consent.
c. For purposes of this Agreement, the Artist’s Likeness shall be limited to those images, videos, names, biographical information, and other depictions or representations of Artist that are directly associated with the Project and the Final Deliverable. It shall not authorize ItyDity or Selected Contractor to use other images, representations, or information about Artist without Artist’s prior, written consent.
d. ItyDity grants Artist and Selected Contractor a non-exclusive, limited, non-transferable, royalty-free, license to display ItyDity’s marks, logos, biographical and company information solely for the purpose of working with and through ItyDity for a Project. Any such use shall only be in the form of reasonable marketing. Artist and Selected Contractor agree any such posts will at all times be dignified and professional.
d. Selected Contractor grants ItyDity and Artist a non-exclusive, limited, non-transferable, royalty-free, license throughout the Universe and into perpetuity for ItyDity and Artist to use Selected Contractor’s name, likeness, and biographical information (collectively, the “Contractor’s Likeness”) solely for any reasonable marketing purpose, including but not limited to ItyDity’s marketing of its services and Site, for Artist to advertise the Project or Final Deliverable, or for use on social media. Any such posts shall at all times be dignified and professional. Artist further agrees to credit Selected Contractor as the producer of the Final Deliverable (the “Producer’s Credit”) in a manner substantially similar to the following:
Produced by [Selected Contractor].
Artist shall include the Producer’s Credit in a reasonable manner associated with the distribution of the Final Deliverable (such as in liner notes or in a YouTube description). Artist is in no way obligated to include the Producer’s Credit in the title of the Final Deliverable or otherwise within a track name or its metadata.
2.1.7. Confidentiality. All Users, including but not limited to all producers, all Selected Contractors and all Artists acknowledge and agree they may have access to certain confidential or proprietary information of others (“Confidential Information”) while using the Site, participating in a Project, or otherwise performing the receiving party’s obligations under these Terms and this Agreement. “Confidential Information” specifically includes but is not limited to:
a. A disclosing party’s files, works, recordings, writings, scores, lyrics, images, or other materials, iterations, or information related to the Selected Submission or the Project in any form, that is furnished to the receiving party as part of the Services;
b. The Subject Intellectual Property, as defined above and related to a specific Project; and
c. Any other confidential or proprietary information of a disclosing party about whom the receiving party gained knowledge as a result of providing the Services.
All Users specifically agree that disclosure to a third-party or misuse of this Confidential Information would irreparably harm the disclosing party. Accordingly, all Users, including but not limited to all Artists and Selected Contractors agree as a specific condition of using the Site and participating in any Project, that as a receiving party, all Users will not disclose or use, either during or at any point after the term of this Agreement, Confidential Information–either known or that reasonably should be known is confidential or proprietary–without the disclosing party’s prior, written permission, and except to the extent necessary to perform the Services. All Users, as a receiving party, further agree not to provide any Confidential Information to any third-party, including but not limited to a User’s agents or independent contractors, without the disclosing party’s prior, written consent. Upon the termination of this Agreement, the completion of the Project, or at the other’s written request, all Users agree, as a receiving party, to deliver to the disclosing party or to permanently destroy all copies of a disclosing party’s Confidential Information regardless of location or form (e.g., whether digital, physical, on the cloud, or otherwise). All Users, as a receiving party, each agree to restrict the disclosure or use of Confidential Information to only those employees, agents, or representatives for whom it is necessary to have the Confidential Information to perform duties or obligations under this Agreement. Should a receiving party be unsure as to whether particular information constitutes “Confidential Information,” it shall notify the disclosing party of that fact prior to disclosing it to any third-party so the disclosing party has a reasonable opportunity to protect it. If a User, as a receiving party, breaches this section or evidences an intent to breach this section, the disclosing party shall be entitled to, among other remedies, injunctive relief prohibiting any disclosure or use of the Confidential Information. This “Confidentiality” section shall not apply to any information available to the general public through no fault of a receiving party. This section shall survive termination of this Agreement and may not be sold or assigned to any third-party without the other party’s prior, written consent.
2.1.8. All Users of the Site acknowledge, agree, and grant to ItyDity an irrevocable, non-exclusive, royalty-free, license throughout the Universe and into perpetuity to reproduce, distribute, publicly display, perform, grant sublicenses, and to otherwise use Your User Content, as defined below, including but not limited to Your name, logo, image, biographical and company information, all uploaded User Content, as defined below, and any other publicly available content on the Site and on ItyDity marketing materials to identify your relationship with ItyDity without any further consent from, or payment to, You for such use. ItyDity will only use Proposals in accordance with the private or public settings of the Project. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to Your User Content.
2.1.9. The ItyDity name and logos are trademarks of ItyDity LLC. Other logos or marks used and displayed on the Site or as part of the Services may be marks of third-parties unaffiliated with or not connected to ItyDity. Nothing in these Terms of Service shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ItyDity’s marks without our prior written permission in each instance, unless expressly permitted under the terms of this Agreement. All goodwill generated from the use of ItyDity marks will inure to our exclusive benefit.
2.1.10. Use of Third-Party Intellectual Property.
a. Selected Contractor warrants and agrees–prior to beginning any work on the Selected Proposal–to promptly disclose to Artist any intellectual property of third-parties (“Third-Party Intellectual Property”) that may be or is used during or within Selected Contractor’s work on the Selected Proposal, the Project, the Subject Intellectual Property, and the Final Deliverable. This paragraph constitutes an ongoing obligation that survives this Agreement and may not be waived.
b. If Selected Contractor in any way uses Third-Party Intellectual Property:
i. Selected Contractor warrants it has obtained a license from the relevant third-party to use the Third-Party Intellectual Property and use and incorporate it into the Project and the Final Deliverable (a “Third-Party License”).
ii. Selected Contractor shall promptly provide Artist all evidence within Selected Contractor’s possession, custody, or control of any such Third-Party License, including but not limited to sources that may not be within Selected Contractor’s possession, but from which evidence of the Third-Party License may be obtained through diligent effort.
iii. If the Third-Party License is capable of assignment to the Artist, Selected Contractor hereby irrevocably transfers, grants, conveys, and assigns to Artist all of Selected Contractor’s rights and interest under the license for the life of the license, throughout the Universe and into perpetuity, to the maximum extent under the license and as applicable.
iv. If the Third-Party License is not capable of assignment to Artist:
1. Selected Contractor shall promptly disclose this fact to Artist, and in any event, by no later prior than thirty (30) calendar days prior to the conclusion of the relevant Project or thirty (30) calendar days prior to completion of the Final Deliverable, if applicable;
2. Selected Contractor agrees to work in good faith and diligently to provide Artist with information to determine how and from whom or what to obtain a Third-Party License for use of the Third-Party Intellectual Property; and
3. Selected Contractor warrants that unless Selected Contractor expressly states to the contrary prior to providing Artist with the Final Deliverable and prior to the conclusion of the Project, any Third-Party License applicable to Third-Party Intellectual Property used or incorporated into the Project, the Subject Intellectual Property, or the Project provides Artist with an irrevocable, worldwide, royalty-free, perpetual right to use, display, distribute, and reproduce the Third-Party Intellectual Property in any form and in any medium, whether now known or developed in the future.
c. In any event, no User shall use Third-Party Intellectual Property in any form or in any manner related to use of the Site, provision of or participation in Services, or related to this Agreement, without first obtaining a Third-Party License or similar written consent permitting the use of the Third-Party Intellectual Property as legally necessary to provide clearance for all copyright and other Third-Party Intellectual Property rights for use within the Selected Submission, the Project, the Subject Intellectual Property, and the Final Deliverable. All Users indemnify and agree to hold ItyDity harmless, including its affiliates and licensees, and their officers, directors, employees, and agents, for any breach of this section 2.1.10.
2.2.1. Producers and others often share in some of the royalties generated by a song. However, in an effort to remove many of the tedious administrative tasks usually associated with revenue sharing, ItyDity has implemented a policy where the Contractor Fees to Selected Contractor and ItyDity are the only compensation Artist must pay for a Final Deliverable, unless and until the Final Deliverable becomes a Commercial Success, as defined below. When the Final Deliverable becomes a Commercial Success, Selected Contractor and ItyDity shall receive an additional royalty on the song in the following amounts:
a. Selected Contractor: three percent (3%) of the gross revenue generated via any exploitation of the sound recording copyright and mechanical license in the Final Deliverable.
b. ItyDity: two percent (2%) of the gross revenue generated via any exploitation of the sound recording copyright and mechanical license in the Final Deliverable.
2.2.2. For purposes of this Agreement, “Commercial Success” shall occur where a song earns more than $10,000 (the “Threshold Royalty Level”) from any combination of the following five sources:
a. Money paid to Artist for distribution of the Song from any Digital Service Provider (“DSP”) as that term is commonly used in the music industry, or by any digital provider performing a substantially similar download, streaming, or other distribution service, including but not limited to iTunes, CD Baby, YouTube, YouTube Music, Amazon Music, Apple Music, Bandcamp, Google Play Music, Pandora, SoundCloud, Tidal, and Spotify. For album sales, the calculation shall be:
((# of songs subject to this Agreement)/(# of songs on the album))
(the total amount Artist earns on the album)
For example, if earnings relate to an album with 10 songs, and this Agreement applies to 1 song on the album, 1/10th of the payment to shall count towards the Commercial Success calculation. This paragraph specifically applies to any monies earned through a third-party distribution services providing access to a DSP, including but not limited to DistroKid or TuneCore.
b. Payments from any Performing Rights Organization (“PRO”) (e.g., ASCAP, BMI, or SESAC in the U.S., or a similar organization operating outside of the United States such as SOCAN in Canada or SACEM in France).
c. Mechanical royalties, whether physical or digital (payments to the writer of a song whenever that song is reproduced in some form).
d. Digital performance payments from a digital performance royalty organization such as SoundExchange.
e. Synchronization or other licensing fees in any form and regardless of the medium (someone licenses the Final Deliverable for a tv commercial, show, movie, etc.).
2.2.3. Once the Final Deliverable attains Commercial Success, Artist shall account to Selected Contractor and ItyDity for all monies earned under paragraph 2.2.2 annually, and by no later than February 1 of each year. Artists agrees, warrants and represents it will account to ItyDity and Selected Contractor promptly and in good faith. ItyDity reserves the right to request, and upon such request, Artist agrees to consent to, a detailed accounting directly from any PRO, DSP, or other entity or organization identified in paragraph 2.2.2, above, regarding an artist’s total sales through that entity or organization, including per song and in any other reasonable form, to assist in a determination of Artist’s calculation toward the Threshold Royalty Level. ItyDity reserves the right to request, and upon such request, Artist agrees to provide to any PRO, DSP, or any other entity or organization identified in paragraph 2.2.2, above, a letter of direction (LOD) telling that organization or entity to send all monies owed to ItyDity and Selected Contractor under the terms of this Agreement directly to ItyDity and Selected Contractor.
2.2.4. The parties agree that, when a song becomes a Commercial Success by surpassing the Threshold Royalty Level, they will work together in good faith to reach such further additional agreements or undertake such conduct as to give effect to the spirit of the royalty provisions detailed above. ItyDity and Selected Contractor shall be entitled to a reasonable audit and examination of Artist’s accountings, including all books, documents, files, accounts, or materials related to them in order to determine whether Artist has surpassed the Threshold Royalty Level, to what degree Artist has surpassed the Threshold Royalty Level, and how much money Artist owes ItyDity and Selected Contractor under the terms of this Agreement. Any such audit shall be limited as reasonably possible to accountings solely related to sales or earnings on any Final Deliverable. In order to obtain an audit, ItyDity or Selected Contractor shall provide Artist thirty (30) calendar days prior written notice. Artist party shall then make all reasonable efforts to effectuate the audit within a reasonable period of time. The requesting party shall pay all costs of any audit. The audit shall take place at Aritst’s primary place of business, or at another reasonable location, as agreed to by the audit parties.
2.2.5. Royalty on Recording of Substantially Similar Composition. If at any point in the future, Artist distributes or exploits−in any manner, place, and whether directly or through Artist’s affiliates, publishers, label, distributors, or any other third-party−a substantially similar song to the Final Deliverable or any iteration of the Selected Submission, Artist agrees, warrants, and promises to pay and be liable to Selected Contractor for a royalty on those gross earnings of twenty percent (20%), and to pay and be liable to ItyDity for a royalty on those gross earnings of twenty percent (20%) of total revenue earned pursuant to paragraph 2.2.2, above. The parties acknowledge this paragraph is to ensure the parties’ commitment to the Project and providing and participating in the Services in good faith, and as recognition of the uniqueness of the Final Deliverable and each party’s contributions to it.
3. Payment Terms.
The following terms apply to Artists who have created a Project, purchased a Project Submission, and/or created a Project Service and Contractors who have sold a Project Submission or Project Service Submission.
3.1 Payment and Delivery.
(a) For the Project (1) Artist will pay the Artist Payment to ItyDity and ItyDity will pay Selected Contractor the Contractor Fee (subject to first receiving payment from Artist), and (2) Selected Contractor will upload the Project Submission and relevant files and ItyDity will deliver the Project Submission and relevant files to Artist, in a format specified by ItyDity and/or Artist. (b) For the Project Services, (1) Artist will pay the Artist Payment to ItyDity and ItyDity will pay the Contractor the Contractor Fee after Contractor uploads the Project Submission and Artist accepts the Project Submission as described above, but (2) if the Project Submission is not accepted by Artist, ItyDity will refund the Contractor Fee to Artist. The “Artist Payment” means the price selected by Artist when Artist created a Project or Project Service. The “Contractor Fee” means the Artist Payment, minus the project service fees imposed by ItyDity. (c) For production services from ItyDity, (1) If Artist submits a claim that Selected Contractor has failed to provide a professional quality mix and/or master as part of their final submission in either a Projectt or Project Service and that claim is agreed to be valid by ItyDity, $300 will be deducted from the Contractor Fee to be paid instead to ItyDity for their professional production services of mixing and mastering.
Refunds will be paid to Artist using the same payment methods Artist used to remit the Artist Payment to ItyDity or via any other method specified by ItyDity from time to time. Artist will not receive any rights to any of the Submissions if a refund is issued. ItyDity may refund Artists for the following reasons: (i) the Submission(s) is/are Defective; (ii) ItyDity is required by law or considers that it is required by law to do so; (iii) ItyDity determines that issuing a refund to Artist will avoid any dispute or increased costs to ItyDity; (iv) ItyDity issues the refund to Artist in accordance with any refund policy specified by ItyDity from time to time; (v) the order placed (or request made) by Artist is found to be fraudulent; (vi) Artist placed a duplicate order (or request) in error; or (vii) in ItyDity’ sole opinion, ItyDity considers that it is likely that the refund is necessary to avoid a credit card charge back. A Submission will be deemed to be “Defective” if: (i) Artist and Contractor agree it is defective and notify ItyDity of this fact; (ii) the Submission is subject to a third party claim that the Submission infringes/misappropriates such party’s IPR, that is not frivolous.
3.4 General Payment Terms.
All payment will be in the local currency based on the location of the Site. You agree that you are responsible for the collection and/or payment of all Taxes which you may be liable for in any jurisdiction arising from your sale or purchase of any Selected Proposals via the Site. ItyDity is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement.
4. Important Disclaimers and Release
We make no warranties regarding the Project, Proposals or any other products or services provided by Users. Contractors sell and Artists buy Selected Proposals at their own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any other User. Your interactions with other Users are solely between you and such User and ItyDity will not be responsible for any loss or damage incurred as the result of any such interactions (excluding those directly due to ItyDity’s acts or the Services). If there is a dispute between you and any User, we are under no obligation to become involved. Notwithstanding the foregoing, ItyDity will use commercially reasonable efforts to provide the Services described in this Agreement.
Users hereby release and forever discharge ItyDity (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions of you with, or act or omission of you in relation to other Users (excluding those directly due to ItyDity’ acts or the Services).
5. User Content.
5.1 User Content.
“User Content” means any and all information and content that a User submits to, or uses with, the Site or Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by ItyDity. Because you alone are responsible for your User Content (and not ItyDity), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. ItyDity is not obligated to remove any User Content from the Site unless required by applicable Law. ItyDity is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
6. Acceptable Use Policy.
You agree that you will only use the personal information of other Users made available to you only for the purposes of interacting with them in relation to the Services. You must not use their personal information for any other purpose, including for marketing purposes. You represent and warrant that you will comply with applicable privacy laws and data protection laws in relation to the storage, use and transfer of personal information.
6.2 User Content.
You agree not to provide any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e. g. , material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) is in violation of any Laws, or obligations or restrictions imposed by any third party.
6.3 Use Restrictions.
You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services; (h) impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity; or (i) display, mirror, or frame the Site.
6.4 Content Review
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
7. Site Use.
Subject to the terms of this Agreement, ItyDity grants you a non-transferable, non-exclusive, license to use the Site and Services for your internal business purposes.
7.2 Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, customize, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build or promote a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. ItyDity reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that ItyDity will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that ItyDity will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
If you provide ItyDity any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign and agree to assign upon our request to ItyDity all rights in the Feedback and agree that ItyDity shall have the right to use such Feedback and related information in any manner it deems appropriate. ItyDity will treat any Feedback you provide to ItyDity as non-confidential and non-proprietary. You agree that you will not submit to ItyDity any information or ideas that you consider to be confidential or proprietary.
Each User owns its own User Content. Excluding your User Content, you acknowledge that all the IPR in the Site and Services are owned by ItyDity or ItyDity’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such IPR. ItyDity and its suppliers reserve all rights not granted in this Agreement.
You agree to indemnify and hold ItyDity (and its officers, employees, and agents) harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services, (ii) your User Content (including your Project, Design Concept, Design Template, designs in the Project Service, and Reviews), (iii) your interaction with any other User, or (iv) your violation of this Agreement or any applicable laws. ItyDity reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of ItyDity. ItyDity will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8.2 Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for a legitimate purpose, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases. However we reserve the right to continue to use your User Content to the extent permitted under applicable law. ItyDity will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content.
The Site and Services are provided “AS-IS” and “AS AVAILABLE” and we (and our suppliers) expressly disclaim any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We (and our suppliers) make no warranty that the Site or Services: (a) will meet your requirements; (b) will be available on an uninterrupted, timely, secure, or error-free basis; or (c) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
8.4 Limitation on Liability.
In no event shall we (and our suppliers) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Site or Services, even if we have been advised of the possibility of such damages. Access to, and use of, the Site and Services are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, our (and our suppliers’) liability to you for any damages arising from or related to this Agreement (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) fifty us dollars ($50) or (b) amounts you have paid ItyDity in the prior 12 months (if any). The existence of more than one claim will not enlarge this limit. Some states do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from state to state.**
This Agreement (including pricing terms) is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
8.6 Governing Law
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the United States of America and the State of Colorado, without giving effect to any law that would result in the application of the law of another jurisdiction.
8.7 Entire Agreement.
This Agreement constitutes the entire agreement regarding the use of the Site and Services and supersedes any other agreements made during the term of use of the Site and Services.
The failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
8.9 Section Titles
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
8.10 Enforceability of this Agreement
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
8.11 Independent Contractor Relationship
Your relationship to ItyDity is that of an independent contractor, and neither party is an agent or partner of the other.
8.12 Assignment of Rights
This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without ItyDity’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.