Last revised: June 18, 2020
“Artist” means a User who: (a) creates a song or has a song idea with the intention of using the Site or Services in association with development of that song or song idea; or (b) uses the Site or Services to determine develop their production style or sound.
“Artist Payment” means the payment according to the price selected by and due from Artist when Artist creates a Project or Project Service via the Site or Services.
“Contractor Fee” means the Artist Payment minus the ItyDity Fee.
“Contractor” means a freelance producer, instrumentalist, music instructor, studio musician, audio engineer, or studio engineer, whether acting as an individual or entity, who wish to assist in such development through the creation of musical parts or the production of songs. Contractor includes Selected Contractor, but Selected Contractor does not include all Contractors.
“Contractor Services” means all services a Contractor provides to Artist in any way related to or originating from Artist or Contractor’s use of the Site or Services.
“Final Deliverable” means the completed, final recording of the song produced through the use of the Site or Services, as approved by the Artist.
“ItyDity Fee” means Our fees for any Services Artist enters into.
“Project” means the efforts and intentions an Artist undertakes to work with Contractors toward the creation of a Final Deliverable via a Proposal, paying the Artist Payment, working with a Selected Contractor(s), following the other instructions on the Site or Services, or to develop the Artist’s production style or sound.
“Proposal” means a proposal made through the Site to work with available Contractors on a Project pursuant to the creative wishes of the Artist.
“Project Service” means a one-to-one collaboration between an Artist and Selected Contractor through the Site or Services, and subject to the directions and requirements on or within them.
“Sale” means the applicable transaction between Artist and Selected Contractor.
“Selected Contractor” means a Contractor(s) an Artist selects for a particular Project or Project Service.
“Services” means generally those services identified in Section 1.1.
“Submission” means an informational request a Contractor provides to Artist in response to the Artist’s Proposal in the Contractor’s hopes of becoming a Selected Contractor, or in response to Artist’s request to collaborate in a Project Service.
“Selected Submission” means a submission of a Selected Contractor or Contractor that an Artist selects or Accepts for a particular Project or Project Service, as applicable.
“User” in addition to the above definitions, means any user of the Site or Services. Artists and Contractors are both Users, although a User may not be an Artist or Contractor.
“User Content” means any and all information and content a User submits to or uses with the Site or Services. User Content may include and may not include Subject Materials and Subject Intellectual Property, as those terms are defined in Sections 1.3(a) and 2.1.1, respectively.
“Work” means the Artist’s musical composition that is the subject of a Proposal.
ItyDity provides a number of novel services to Users. The “Services” may include:
Providing and operating the Site.
Providing an online platform to facilitate business and collaboration between Artists and Contractors, including, for example, through Proposals, Submissions, Projects, and Project Services, whether in-person, virtually, or via asynchronous online communication.
Providing Artists access to a worldwide network of music producers and other Contractors.
Providing access and use of Our unique and proprietary Songboard technology, which generally develops an Artist’s unique sound and matches the Artist with Contractors.
Production personality assessments to analyze what production style in Our opinion works best for an Artist’s music.
General artist/creative development and educational services;
Providing automated synchronization licensing services to connect Artists with movie, TV, advertising, and film licensing opportunities via our unique and proprietary Ingenious Music Licensing service, including as described in Section 3.1(d).
Music Production Services, including as described in Section 3.1(c).
Hosting a music licensing library.
Administrative support in connection with facilitating the above collaboration and Services.
Music marketing support in connection with facilitating the above collaboration and Services.
(a) Proposal. In order to undertake a Project, an Artist must first submit a Work through a Proposal and clearly specify the requirements as indicated on through the Proposal process such that Contractors clearly know the Artist’s criteria on which the Artist will judge the Submission. A Project consists of three rounds. The first round is the “Written Request Round. The second round is the “Submission Round.” The third round is the “Final Producer Round.” In the Written Request Round, the Artist may obtain written requests from producers to collaborate. An Artist has the option to select a Selected Contractor immediately after the Written Request Round or to select the top five Contractors and move to the Submission Round before selecting a single Selected Contractor. Where an Artist selects five Contractors in the Written Request Round, We will select two additional Contractors as “wildcards” for Artist and for Artist’s consideration. In any event, the Final Producer Round begins when Artist selects a Selected Contractor to work with. The Artist then works one-on-one with the Selected Contractor to create a Final Deliverable, which will be delivered at the end of the Final Producer Round. After the Artist approves the Final Deliverable, the Selected Contractor will receives the Contractor Fee.
(b) Refunds and Project Rounds. There are three rounds in every project. The first round is free. Artists shall pay the Artist Payment when they enter the second round. At all times, the Artist Payment is non-refundable. Artist may ask for a refund of the remainder of the Artist Payment in accord with these TOU.
1.3 PROJECT SERVICE
(a) Artists and Contractors can also work with each other through the Site or Services by creating a Project Service and following the directions on the Site. Contractor can create invoices to request payments from Artist related to the Project Service. Artist can pay invoices and reserve the right to accept Submissions before they are considered “Accepted.” If Artist has not Accepted a Submission(s), Artist may request a refund of the Artist Payment, at any time up to sixty (60) calendar days after the date of invoice, or ten (10) calendar days after delivery of the subject Submission, whichever is 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 ten (10) calendar days of delivery of the Submission. If Contractor does not cure the issues in the notice of rejection within thirty (30) days of the pertinent 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 and Contractors from creating Submissions or Final Deliverables using a Project Service 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.
1.3 ARTIST AND CONTRACTOR WARRANTIES; PENALTIES FOR BREACH.
(a) While we encourage Artists and Contractors to work together both on and off the Site, Artists and Contractors understand, represent, warrant and agree to ensure work on all matters related to the Site and Services, including but not limited to via the Project, Proposal, Submission, and Work (collectively, the “Subject Materials”) remain subject to these TOU and the payments guaranteed herein. These TOU do not apply to any songs or other intellectual property that do not implicate the Site or Services. Under no circumstances, however, shall Artist induce or accept any Contractor Services in relation to work on matters substantially similar to the Subject Materials in an effort to avoid the ItyDity Fee or these TOU, including but not limited to permitting, inducing, accepting, or requesting Contractor Services substantially similar to those advertised or provided through the Site or Services. Artist may similarly not cancel any Project, ask for a refund, or otherwise amend, delay, or terminate its use of the Site or Services for the purpose of avoiding the Artist Payment. ItyDity shall have the sole and exclusive discretion to determine whether an Artist or Contractor has undertaken conduct in violation of this Section 1.2(c). Upon any such violation, the involved User shall be in breach of this Agreement, and the User’s right and license to use the Site or Services shall immediately terminate, and all fees or payments, due, owing, or agreed upon, shall become immediately due and owing, and non-refundable. These penalties shall be in addition to any other remedies available to ItyDity under applicable law.
(b) This Section 1.3 is intended to comply with applicable law. Some jurisdictions provide 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”). Any such Mandatory Statutory Rights shall remain unaffected, but shall be applied to the minimum extent permitted under such applicable law.
2. INTELLECTUAL PROPERTY AND ROYALTIES
2.1. Intellectual Property Rights
2.1.1. Contractor Work Made for Hire. As an explicit and non-assignable condition of Your use of the Site and participation in the Services, each Contractor acknowledges and agrees the entirety of its Contractor Services and all of the results and proceeds of the Contractor Services in relation to any Selected Submission collectively constitute a “work made for hire,” as defined by U.S. Copyright Law, for the benefit of the Artist with whom the Contractor collaborates on a Project or Project Service. The Contractor shall accordingly not retain any intellectual property rights in any form related to the Contractor Services for a Selected Submission, its work on the Project or Project Service, or the results of such work in the Final Deliverable or any other iteration of a 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, in Artist’s sole and exclusive discretion, 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, Project Service, Proposal, Work, Final Deliverable, any and all iterations of the Selected Submission, and any result of Selected Contractor’s Services in a particular Project or Project Service in any form and including the Final Deliverable, without further rights, approvals, or compensation to the Contractor. In any event, and based upon the terms of this paragraph, Contractor agrees and understands it shall not have any copyright or other intellectual property in the Subject Intellectual Property, and therefore shall not undertake any Copyright Conduct in regard to it, 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 Contractor’s participation in the Contractor Services and use of the Site, each Contractor waives any benefit of “moral rights” or other similar rights of creators within any Subject Intellectual Property, in which Selected Contractor participates in any form.
2.1.3. Each Contractor warrants, promises, and agrees to ensure the results, inclusions, deliverables, materials, and proceeds of any third-parties a Contractor hires, employs, retains, or uses, either directly or indirectly, in connection with the provision of the Contractor’s Contractor 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 a Contractor’s Contractor Services or contributions to the Subject Intellectual Property is not considered a work made for hire, or to the extent any portion of paragraph 2.1.1 is declared invalid, Contractor agrees to irrevocably transfer, grant, convey, and assign to Artist all of Contractor’s right, title, and interest to the Subject Intellectual Property, without limitation.
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, image, likeness, voice, and biographical information (collectively, the “Artist Likeness”), and the Final Deliverable solely for any reasonable marketing purpose, such as to market ItyDity’s Site and Services, or on ItyDity’s social media, and in any medium, whether now known or later developed. ItyDity agrees to reasonably attempt 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. Any failure to tag Artist shall not be considered a breach of this Agreement.
(b) Artist grants each Selected Contractor a non-exclusive, limited, non-transferable, royalty-free, license throughout the Universe and into Perpetuity for Selected Contractor to use the Artist 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 Subject Intellectual Property, the Artist 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, express, written consent. Contractor shall credit Artist in any such use (the “Artist Credit”) in a manner substantially similar to the following:
[SONG/ALBUM] by [ARTIST].
(c) For purposes of this Agreement, the Artist 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 or Project Service, and the Final Deliverable. It shall not authorize ItyDity or Selected Contractor to use the Final Deliverable or images, representations, or information outside the scope of the Artist Likeness without Artist’s prior, express, 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 or Project Service. 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.
(e) Contractor grants ItyDity and Artist a non-exclusive, limited, transferable, royalty-free, license throughout the Universe and into Perpetuity for ItyDity and Artist to use Contractor’s name, image, voice, likeness, and biographical information (collectively, the “Contractor Likeness”) solely for any reasonable marketing purpose, including but not limited to ItyDity’s marketing of its Site and Services, and for Artist to advertise the Project or Project Service, or Final Deliverable. Any such posts shall at all times be dignified and professional. Artist further agrees to credit Contractor on the Final Deliverable (the “Contractor Credit”) in a manner substantially similar to the following:
[ROLE] by [CONTRACTOR].
Artist shall include the Contractor 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 Contractor Credit in the title of the Final Deliverable or otherwise within a track name or its metadata.
(f) All Users acknowledge, agree, and grant to ItyDity an irrevocable, freely transferable, non-exclusive, royalty-free, license throughout the Universe and into Perpetuity to reproduce, distribute, publicly display, perform, edit and to otherwise use any User Content, as defined in Section 5, and any part of any Project, Proposal, Submission, Work, and Final Deliverable, in whole, edited, or in part, solely for any reasonable marketing purpose, and to identify Your relationship with ItyDity without any further consent from or payment to You for such use, and subject to these TOU and any privacy elections. 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, droit morale, or attribution with respect to Your User Content and Final Deliverable.
All Users acknowledge and agree that through the use of the Site or Services, they may have access to certain confidential or proprietary information of others (“Confidential Information”). This Confidential Information specifically includes but is not limited to:
(a) A disclosing party’s files, works, recordings, writings, scores, lyrics, ideas, strategies, methodologies, intellectual property, images, designs, schematics, client lists or information, or other materials, iterations, or information related to a Selected Submission, Project, or Project Service in any form, that is furnished to the receiving party as part of the parties’ relationship through the Site or Services;
(b) The Subject Intellectual Property, as defined above; 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, and knows or reasonably should know is confidential or proprietary.
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 agree as a specific condition of using the Site or Services, they will not disclose or use, either during or at any point after the term of this Agreement, Confidential Information without the disclosing party’s prior, express, written permission, and except to the extent necessary to perform services as part of a particular Proposal, Submission, Project, or Project Service. All Users further agree not to provide any Confidential Information to any third-party, including but not limited to the User’s agents or independent contractors, without the disclosing party’s prior, express, written consent. Upon the termination of this Agreement, the completion of the parties’ relationship, or at the other party’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 further 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 Section 2.1.7 shall not apply to any information available to the general public through no fault of a receiving party, independently developed without reference to the Confidential Information, or required to be disclosed by valid court order or applicable law. 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, express, written consent.
2.1.8. USE OF THIRD-PARTY INTELLECTUAL PROPERTY
(a) Selected Contractor warrants and agrees–prior to beginning any work on any Project or Project Service–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 Project, Project Service, or the Final Deliverable. This paragraph constitutes an ongoing obligation that survives this Agreement and may not be waived.
(b) If a Contractor in any way uses Third-Party Intellectual Property in any way with the Site or Services:
i. 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 Contractor Services (a “Third-Party License”).
ii. A 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 than before beginning the applicable Project or Project Service;
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 complies with the provisions of this Section 2.1.8(b), any Third-Party License applicable to Third-Party Intellectual Property used or incorporated into the Contractor Services, the Subject Intellectual Property, or the Project or Project Service 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 or 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 any Selected Submission, Project, Project Service, Subject Intellectual Property, or Final Deliverable. All Users indemnify and agree to indemnify, defend, and hold ItyDity harmless, including its affiliates and licensees, and their officers, directors, employees, and agents, for any breach of this section 2.1.8 and in accord with the provisions of Section 12.
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 Artist Payment is the only initial compensation Artist must pay for a Final Deliverable. Artist shall then provide royalties on the Final Deliverable to ItyDity and Selected Contractor in the following amounts. This royalty shall exist throughout the Universe and in Perpetuity. Artist shall retain full ownership in all of its copyrights, but pay royalties to ItyDity and Selected Contractor in the following amounts for any exploitation of the Final Deliverable, regardless of the format, scope, type, or media, whether now known or later developed:
(a) Selected Contractor: three percent (10%) of the gross revenue generated via any exploitation of the sound recording copyright in the Final Deliverable.
(b) ItyDity: two percent (10%) of the gross revenue generated via any exploitation of the sound recording copyright in the Final Deliverable.
2.2.2. 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
3.1 PAYMENT AND DELIVERY
(b) For the Project Services: (1) Artist will pay the Artist Payment to ItyDity; (2) ItyDity will notify Contractor; (3) Contractor shall timely upload the Submission; (4) Upon Contractor’s uploading of the Submission, Artist shall Accept or not accept the Submission as Final Deliverable pursuant to Section 1.3; (5) Where Artist Accepts the Submission as Final Deliverable, ItyDity shall timely pay the Contractor the Contractor Fee; but (6) if Artist does not Accept the Submission, the determination of which shall be made in good faith and not unreasonably withheld, ItyDity will refund the Contractor Fee to Artist.
(c) For “Production Services” from ItyDity: (1) If Artist submits a claim that Selected Contractor has failed to provide a professional quality mix or master as part of their Final Deliverable in either a Project or Project Service and ItyDity agrees to that claim in its sole and exclusive discretion, $300 will be deducted from the Contractor Fee to be paid instead to ItyDity for their professional production services of mixing and mastering.
(d) For “Sync Licensing” via Our Ingenious Music Licensing Library, Artist can join for free. If an Artist’s Final Deliverable is chosen for a sync opportunity, [ADD PAYMENT TERMS].
(e) You understand and agree to be responsible for and to pay all fees due for services requested or rendered. You will see a prompt for Your payment details, such as Your credit card information and any promotional codes, if applicable. By entering Your payment information and submitting Your request, You authorize Us, Our affiliates, or Our third-party payment processors to charge the amount due. In the event Your credit card is rejected, expires, or ItyDity, Our affiliates, or Our third-party payment processors are unable to process Your payment, You may receive notice to provide an alternative payment method. ItyDity and its affiliates have no obligation to provide any services unless and until full payment has been received or verified. All payment will be in the local currency based on the location of the Site.
To request a credit or refund, You must submit a claim by email at: firstname.lastname@example.org. The email must contain the following information: (i) the words "Refund Request" in the subject line; (ii) a copy of Your, the Producer or the Contractor’s receipt or invoice; (iii) a detailed reason for the refund request; (iv) the other involved party or parties’ name(s); and (v) the name and reasonable contact information for You or Your contact representative. Failure to provide the request and other information as required above may disqualify Your request for a refund. All approved refunds will be issued within thirty (30) calendar days of approval. Approved refunds will be paid using the payment method on file for the refunded party, or via any other method ItyDity determines is appropriate in its sole and exclusive discretion. Upon the issuance of a refund, Artist waives any rights, title, or privileges to any information or intellectual property contained within any Submission subject to a refund, except that Artist shall maintain all rights, title, and privileges in any information independently developed or owned prior to the subject relationship. ItyDity will generally refund Artists for the following reasons: (i) ItyDity determines, in its sole discretion, the Submission or Final Deliverable to be 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) Artist’s order or request is reasonably suspected by ItyDity or determined by a court of appropriate jurisdiction to be fraudulent; (vi) Artist placed a duplicate order (or request) in error; or (vii) in ItyDity’ sole discretion, ItyDity considers a refund to be reasonably necessary to avoid a credit card charge back. A Submission or Final Deliverable is generally “Defective” where: (i) Artist and Contractor agree it is defective and notify ItyDity of this fact; or (ii) it is subject to a reasonable third-party claim that the Submission infringes on or misappropriates a third-party’s intellectual property rights.
4. INDEPENDENT RESPONSIBILITY FOR TAXES
You agree that You are individually and solely responsible for the collection and payment of all taxes arising from or in any way related to Your use of the Site or Services. ItyDity is not responsible for collecting, reporting, paying, or remitting to You any taxes, regardless of the type of tax, the jurisdiction, or the source of or taxing authority.
5. USER CONTENT
6. USE OF THE SITE AND SERVICES
(b) User Obligation. You agree You will only use the personal information of other users for the purpose of interacting with them in relation to the Services. You must not use their personal information for any other purpose, including for marketing, unethical, or unlawful 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 any and all personal, proprietary, or confidential information of third-parties.
In order to qualify to use the Services, the following must all be true:
You are age 18 or over, or You are a minor with specific parental or guardian consent to use the Site or Services, as applicable.
You understand and agree that satisfying the above requirements does not guarantee You will receive or be provided access to Services through ItyDity or the Site. In addition to the above requirements, We reserve the right to change or include new requirements as deemed appropriate in Our sole discretion without providing prior notice to You.
6.3 USER REGISTRATION AND ACCOUNTS
Although You may access certain parts of the Site, You will have to register an account with ItyDity prior to accessing certain aspects of the Services. Certain Services are only available to users who have registered with ItyDity and to other persons or entities affiliated with ItyDity who have been granted accounts with usernames and passwords (“Registered Users”). If You are a Registered User, You agree to provide information that is accurate, complete and correct, and to accurately maintain and update any information about Yourself that You have provided to Us. If You do not maintain such information, or if We have reasonable grounds to suspect Your information is incorrect, outdated, or false, We have the right to suspend or terminate Your account and Your use of the Services. You also agree to immediately notify Us of any unauthorized use of Your username, password, or of any other breach of security that You become aware of involving or relating to the Services by emailing Us at email@example.com. We may take any and all actions We deem necessary or reasonable to maintain the security of the Site, Services, and Your Registered user account.
You agree to keep confidential Your username and password and to exit from Your Secure user account at the end of each session. You are responsible for all activities that occur under Your account and for maintaining the confidentiality of Your password. If You think Your account has been compromised, You are exclusively responsible for promptly changing Your password. You may not transfer or share Your password to Your user account with anyone, or create more than one account. You may not use anyone else’s account at any time. ITYDITY EXPLICITLY DISCLAIMS LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION 6.3. You acknowledge and agree:
all or any part of the Site may not be accessible at any time, for any period, or for any reason; and
ItyDity will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period.
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 applicable governmental authority.
6.4 ACCEPTABLE USE
Except as ItyDity expressly authorizes, You agree You will not, directly or indirectly, and will not attempt to: (a) impersonate any person or entity or otherwise misrepresent Your affiliation with any person or entity; (b) use the Site or Services to violate any local, state, national, or international law; (c) reverse engineer, disassemble, decompile, or translate any software or other components of the Site; (d) distribute, input, upload, transmit, or otherwise run or propagate any virus, application, Trojan horse, or any other harmful computer code that could damage or alter a computer, portable device, computer network, communication network, data, or Our Site, or any other system, device, or property; (e) access or use the Site in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party; (f) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third-party the Site, Services, or related materials in any way; (g) use or access the Site to create or develop competing products or services or for any other purpose that is to ItyDity or its Related Parties’ (as defined in Section 10) detriment or commercial disadvantage; (h) take any action or use the Site in any manner that could damage, destroy, disrupt, disable, impair, overburden, interfere with, or otherwise impede or harm in any manner Our Site or any content, in whole or in part; (i) disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to Our Site or any computer network; (j) bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure ItyDity or its service providers implement or have implemented to protect the Site; (k) remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from Our Site or any content made available to You on or through Our Site; (l) use any manual process or automated device to monitor or copy any content made available on or through Our Site for any unauthorized purpose except as permitted by this section; (m) copy, duplicate, download, store in a retrieval system, publish, transmit, or otherwise reproduce, transfer, distribute, store, disseminate, aggregate, use as a component of or as the basis for a database or otherwise use in any form or by any means any data, text, reports, or other materials related to ItyDity or third-party content from the Site; (n) engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods; (o) otherwise use the Site in any manner that exceeds the scope of the license granted above; or (p) encourage or enable any other individual to undertake any of the conduct listed in this section. If ItyDity blocks You from accessing the Site or the Services (including by blocking Your IP address), You agree not to implement any measures to circumvent such blocking (e.g., by masking Your IP address or using a proxy IP address).
6.5 USER OBLIGATION
In consideration of Your use of Our Services, You represent You are of legal age to form a binding contract and are not a person barred from using, receiving, or accepting Our Services under the laws of the United States or other applicable jurisdictions, such as the European Union. If You are under 13 years of age, You are not authorized to use the Site or Our Services. If You are between the ages of 13 and 18 years old, You may use the Site and Our Services solely with the approval of Your parent or legal guardian.
7. SITE USE
7.1 SITE CONTENT
7.2 OWNERSHIP OF SITE CONTENT, TRADEMARKS
7.3 YOUR CONSENT
7.4 TECHNOLOGICAL AND FINANCIAL REQUIREMENTS FOR USE
You must have compatible computing or mobile devices, access to the Internet, and certain necessary software in order to use the Site. Fees and charges may apply to Your use of the mobile services and to the Internet. You are individually and solely responsible for any such fees, costs, or expenses You incur in relation to Your use of the Site or Services.
8. LINKS TO THIRD-PARTY WEBSITES
The Site may contain hyperlinks or references to other websites (“Linked Sites”) operated by Users or third-parties. The Linked Sites may not be under Our control, and We are not responsible for the information, products, or services described on Linked Sites, or for the content of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. We are providing these Linked Sites to You only as a convenience, and the inclusion of any link does not necessarily imply endorsement of the Linked Site or any association with its operators. Your use of these Linked Sites is at Your Own risk, and We are not liable to You in any way, either directly or indirectly, for any content, errors, damage, or loss caused by or in connection with use of or reliance on information contained in or provided to Linked Sites.
9. SITE ACCESS; TERMINATION
10. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK. 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 “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 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.
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.
11. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT WILL ITYDITY OR ITS RELATED PARTIES BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, USE OF (OR INABILITY TO USE) THE SITE OR ANY SERVICES PROVIDED THROUGH THE SITE, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE. THIS IS TRUE EVEN IF ITYDITY OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
The foregoing Sections 10 and 11, entitled, “DISCLAIMER OF WARRANTIES” and “LIMITATION OF LIABILITY” 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.
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.
14. INDEPENDENT CONTRACTOR RELATIONSHIP
Your relationship with ItyDity is one of independent contractors. Nothing in this Agreement or otherwise shall be interpreted or construed to create or imply any partnership, fiduciary, joint venture, employment, or other agency relationship between You and Us. Neither You nor We may enter into any contract on the other party’s behalf or bind the other party in any way.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
ItyDity reserves the right to remove any content or any other material or information available on or through Our Site, at any time, for any reason. ItyDity otherwise complies with the provisions of the Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended), and responds to clear notices of alleged copyright infringement. This Section describes the procedure for notifications and counter requests regarding alleged infringement, and termination for continued infringement.
(a) Notification of Claimed Copyright Infringement. If You have objections to copyrighted content, other intellectual property, or other material made available on or through Our Site (the “Objected-to Content”), because you believe that Objected-to Content is infringing or is infringed upon, You may submit a notification to Our Designated Agent at the following address:
Emily Satterlee at firstname.lastname@example.org
Any such notification to ItyDity must include the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right being infringed;
An identification of the Objected-to Content that You claim has been infringed or, if multiple works are covered by a single notification, a representative list of such works;
An identification of the Objected-to Content or material that You claim is infringing or infringed upon, as applicable, and where it is located on Our Site;
Information sufficient for ItyDity to contact You, such as Your address, telephone number, and email address;
A statement by You that You have a good-faith belief that the use of the Objected-to Content is not authorized by the copyright owner, its agent, or the law; and
A signed statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright owner or authorized to act on the copyright owner’s behalf.
(b) Counter Request. If, in the alternative, You believe that Your content that was removed (or Your access was disabled) is not in violation of the DMCA, or that You have previously received authorization from the copyright owner, the copyright owner's agent, or pursuant to the Copyright Act, 17 U.S.C. § 101, et seq., to upload, reproduce, or otherwise use the Objected-to Content in Your content, You may forward a written counter-notice containing the following information to the above-referenced Designated Agent:
A physical or electronic signature of the owner of the copyright or other intellectual property interest, or its authorized agent, acting on the owner’s behalf or with the owner’s consent to use the Objected-to Content;
Identification of the content or Objected-to Content that has been removed or to which access has been disabled and the location where it appeared on Our Site prior to its disabling or removal;
A statement by the owner or its authorized agent of a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
The address, telephone number, and email address of the owner or its authorized agent, including a statement that the owner or its authorized agent consents to the jurisdiction of the federal court located within the State of Colorado and a statement that You will accept service of process from the person who provided notification of the alleged infringement.
If Our Designated Agent receives a counter-notice, We will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the complaining party files an action seeking a court order against the content provider or User, the removed content may be replaced, or access to it restored, within ten to fourteen (10 to 14) business days or more following the receipt of the counter-notice, at ItyDity’s sole and exclusive discretion.
(c) Infringement Policy. In accordance with the DMCA and other applicable laws, in appropriate circumstances and at Our sole discretion, ItyDity may terminate any User deemed to be a repeat infringer under this section 15. We also reserve the right to limit access to the Site and Services or terminate a User’s registration or membership at Our sole and exclusive discretion, including any Users who infringe on any intellectual property rights of others, whether or not there is any repeat infringement.
16.1 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.
16.2 NO WAIVER
The section titles or headings in this Agreement are for convenience only and have no legal or contractual effect.
16.6 MODIFICATIONS TO THE SITE
ItyDity reserves the right, at any time and for any reason, to modify, or temporarily or permanently discontinue, the Site or Services or any portion of them, with or without notice. You agree ItyDity shall not be liable to You or to any third-party for any modification, suspension, or discontinuance of the Site or Services.
17. HOW TO CONTACT US
[1320 Crestmore Pl
Fort Collins, CO 80521]