Subscription License Agreement
This Subscription License Agreement together with the Subscription Terms of Use (“STU”) as set forth below, incorporated herein and made a part hereof (the "Agreement") is entered into between you (“you” or “your”) and Track Club, a division of Marmoset LLC (“Track Club,” ”us,” “our,”). You and Track Club are sometimes referred to collectively as “the parties” and individually as a “party.” This Agreement sets forth your rights and obligations with respect to your use of certain sound recordings (Masters”) and the musical compositions (“Compositions”) embodied thereon (collectively, the “Content”). During the period in which you have subscribed to Track Club and fully paid the applicable subscription fee , and subject at all times to the terms of usage with respect to the applicable subscription tier to which you subscribe (i.e., Individual, Business or Enterprise, each a “Subscription Tier”), and all other terms, conditions and restrictions as set forth in this Agreement, Track Club permits you to download and use Content solely in connection with your productions. By downloading Content from our website, you agree to be bound by this Agreement in respect to such Content. If you do not accept or agree with these terms, do not download Content. The Subscription Tiers may be found here.
1. You acknowledge that each Master and Composition is owned and/or controlled by us and in some instances by musicians, producers, and composers who have licensed rights to us (collectively, “Artists”). If you are entering this Agreement on behalf of an organization, entity, or company, then you warrant and represent that you have the authority to bind the entity to the terms and conditions of this Agreement. In such instances, the term “you” and “your” shall include the entity. You also warrant and represent that the information you provided regarding the Subscription Tier are true and correct.
2. In consideration of the mutual promises contained herein, and our receipt in full of the Subscription payment, Track Club grants you a non-exclusive, non-transferable, non-sublicensable license to use the Content you have downloaded, subject to the rules, terms and conditions of this Agreement.
3. In the event Track Club terminates this Agreement due to your breach, Track Club shall be entitled to retain any fees you have paid pursuant to this Agreement which shall be in addition to any other legal remedies available to Track Club.
4. After termination of this Agreement, any new use of the Content is prohibited and actionable as an act of infringement of our and Artist’s copyright and actionable under any other applicable causes of action.
5 All trademarks, service marks, trade names, logos, domain names, and any other features of the Track Club and its affiliated companies, including but not limited to Marmoset LLC ("Track Club Identifiers") are as between you and Track Club, the sole property of Track Club. The Agreement does not grant you any rights to use any Track Club Identifiers whether for commercial or non-commercial use.
6. Track Club represents and warrants that it owns or controls the Content and has the right to grant the rights granted to you under this Agreement. The Content is provided to you “as is” without warranties or conditions of merchantability or fitness for a particular purpose. Track Club neither represents nor warrants that the Content will meet your requirements or that it will be fit for a particular purpose, or that its use will be uninterrupted or error free. The entire risk as to the quality and performance of the Content is with you. Should the Content prove defective, you, and not us, assume the entire cost of all necessary corrections.
7. IN NO EVENT SHALL TRACK CLUB, MARMOSET LLC OR ANY OF THEIR AFFILIATES DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF TRACK CLUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT TRACK CLUB SHALL NOT BE LIABLE FOR YOUR USE OF CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF YOU OR ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN ANY EVENT, OUR TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT, THE LICENSE PROVIDED HEREUNDER, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT IN RESPECT OF THE USE OF THE CONTENT.
8. The rights and obligations set forth in this Agreement are personal to you and may not be assigned, licensed, sublicensed or otherwise transferred without our express prior written consent. Track Club may assign this Agreement without your consent.
9. You agree to indemnify and hold Track Club, Marmoset LLC, and their employees, officers, directors, members, representatives and agents harmless from and against all liabilities, damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to: (1) your breach or threatened breach of this Agreement; (2) your violation of any third party right, including without limitation, any copyright, property, or privacy right; (3) any claim that your use of the Content caused damage to a third party, and/or(4) your violation of any law or regulation.
10. The public performance of any Content in the public exhibition of any program materials authorized under this Agreement may be made only by systems having valid performance licenses from the American Society of Composers Authors and Publishers ("ASCAP"), Broadcast Music, Inc. ("BMI"), Society of European Stage, Authors and Composers ("SESAC") or other applicable performing rights societies, and not otherwise. The performance of any Composition in the public exhibition of any program materials authorized hereunder by systems not having licenses therefrom is subject to clearance of the performing right either directly or from the applicable performing rights society, in accordance with customary practices and the payment of customary fees. For avoidance of doubt, this Agreement shall not be construed to take the place of any clearances with regard to any Composition or Master authorized hereunder as required by performance right societies throughout the universe which shall be in accordance with customary practices and the payment of customary fees to the extent required hereunder.
11. You agree to abide by our STU set forth below not to use the Content, or any part thereof in any manner not expressly permitted by this Agreement. Except for the rights expressly granted to you in this Agreement, Track Club grants no right, title, or interest to you in the Content (or any part thereof).
12. You agree that you shall not use the Content in any manner described below:
(a) The Content or any part thereof may not be sold, licensed, sublicensed or otherwise transferred as standalone music files or bundled with any other music files, or included in any library, or collection for distribution or resale. You may not “sample” or alter the Content for any reason whatsoever. You may not create, distribute, license, sublicense, sell, or otherwise exploit phonorecords of Content.
(b) If you provide Content or works incorporating any Content to a person or entity as part of its work product, such person or entity may not reuse the Content or works incorporating the Content for any other purpose.
(c) Content may not under any circumstances be used in or in conjunction with, or in any way that might be considered pornographic, obscene, abusive, immoral, illegal or inciteful of an illegal act.
(d) Content shall not be used in conjunction with sensitive subject matter without our and Artists prior written consent; sensitive subject matter includes, without limitation, sexual activity or sexual-oriented nudity; tobacco, alcohol, or drug use; health issues and bodily functions; illegal activities; excessive or graphic violence; and political content.
(e) Content may not be used in a way that may be considered invasive of privacy, defamatory, libelous, or fraudulent, false or misleading or in a way that is hateful or derogatory of any race, nationality, ethnic identity, gender, gender identity or sexual orientation, or political or religious belief, whether directly or in context or juxtaposition with other materials.
(f) Content may not be used in any manner that creates a false inference or places the Content in a context that is likely to result in bringing us, the Content, and/or Artist into (1) public disrespect, (2) scorn, (3) contempt, (4) scandal, (5) ridicule, or (6) that is likely to shock, insult, or offend the community or public morals or decency or prejudice us and/or Artist, or any person or property in the Content, or otherwise detract from or negatively affect our and/or Artists public image.
13. The parties to this Agreement are independent contractors and neither party shall make any representation otherwise. Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representation, or employment relationship between the parties. Neither party has authority to make or accept any offers or representations on behalf of the other party.
14. The parties agree that any use of Content in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, and such unauthorized use shall entitle Track Club on its and on Artist’s behalf to liquidated damages in the amount of twenty (20) times the annual Subscription fee for each breach. The parties agree that Track Club’s and Artist’s actual damages in the event of this type of breach by you would be highly difficult to definitively ascertain based on uncertainties regarding the impact to Track Club and Artist’s reputation and goodwill in the industry and the damage to Track Club’s relationships with its current and future Artists. The parties agree, therefore, that the above-referenced amount is not a penalty for breach and is a reasonable liquidated damages amount. These liquidated damages are cumulative of and without prejudice to all other equitable and legal remedies Track Club and Artists may have. In addition, Track Club and Artists shall have the right, without providing prior notice to you, to issue a Digital Millennium Copyright Act (DMCA) notice (as provided by 17 U.S.C. §512 and any successor statute) to any site or outlet in which the project appears or is placed in violation of the terms and conditions of this Agreement. The foregoing is not a limiting statement of Track Club’s or Artists' rights or remedies in connection with any unauthorized use of the Content or any breach of this Agreement.
15. This Subscription License Agreement may not be modified, altered or amended, except by written instrument duly executed by both parties. No failure or delay by either party in exercising any right hereunder will operate as a waiver thereof. Any attempt by you to assign this Subscription License Agreement will be null and void. If any provision is found to be invalid or unenforceable by a court of competent jurisdiction, the remaining portions shall remain in full force and effect.
16. All notices hereunder shall be in writing and may be sent by email at hello@trackclub.com for us and to the email address set forth on the information you submitted to us with your Subscription, or by (i) personal delivery, (ii) registered or certified mail, or (iii) overnight mail with a utilized tracking service, to your and our respective addresses. Our address is Track Club c/o Marmoset LLC 1401 NE Alberta St., Portland, OR 97211. Notices shall be deemed given two (2) days after being mailed, except that notice of a change of address shall be effective only from the date of its receipt.
17. The validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of Oregon applicable to contracts entered into and performed entirely within the State of Oregon. You agree that the state and federal courts located in Multnomah County, Oregon shall have exclusive jurisdiction over claims or disputes arising under or otherwise in connection with this Agreement, and you hereby submit the jurisdiction of such courts. Notwithstanding the foregoing, Track Club and its assignees, successors and designees may seek injunctive or other equitable relief in any jurisdiction to enforce the terms of this Agreement and its rights hereunder. Both you and Track Club unconditionally waive their respective right to a jury trial of any and all claims or causes of action arising from or relating to this Agreement.
18. You do not have the right and are expressly forbidden to contact directly or indirectly by any means or by any manner other than through us, any creator, including without limitation, Artists, of any Content. A breach of the foregoing provision shall be deemed to be an incurable material breach of this Agreement and shall permit us to terminate the Agreement and obtain liquidated damages as set forth herein.
19. Provisions of this Agreement relating to limitation of liability, indemnity, Content use restrictions, Subscription Terms of Use, liquidated damages/DMCA provision, severability, and governing law/venue/jurisdiction shall survive any expiration or termination of this Agreement and termination of your use of the Subscription service.
20. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND US RELATING TO THE SUBJECT MATTER HEREOF.
SUBSCRIPTION TERMS OF USE
Basic subscription tier information may be found here, the terms and conditions of which are incorporated herein by reference and made a part hereof. In the event any information you provide in connection with the determination of the Subscription Tier applicable to you is misstated or incorrect, this Agreement shall be subject to immediate termination by us with all rights in the Content reverting to us and this Agreement shall be deemed void. Co-branded projects, i.e., those featuring the brand, logo, name, or other identifier of a person or entity other than you, require a custom written license from us.
1. By using Track Club, you accept and agree to these STU. If you do not agree to the STU, do not use Track Club. Track Club has the right in its sole discretion, to amend, modify, or revise the STU, and Subscription License Agreement, and you agree to be bound by such amendments, modifications, or revisions. Such amendments, modifications, or revisions shall be effective immediately and your continued use of the Track Club service is your acknowledgment that you agree to be so bound.
2. Account access is limited to you and only you. If you are a company, authorized users must be employed by you. Do not reveal or disseminate the password to anyone. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Track Club in writing immediately of any unauthorized use of your account. You may be liable for our losses due to unauthorized use of your account.
3. Track Club hereby grants you permission to access and use the subscription service as set forth in these STU, provided that:
(a) You must be 18 years of age, or the age of majority in your province, territory, or country, to subscribe to Track Club. Individuals under the age of 18, or the applicable age of majority in your jurisdiction, may not utilize Track Club unless your parent or legal guardian has an active subscription account with Track Club. YOU AFFIRMATIVELY REPRESENT AND WARRANT THAT YOU ARE AT LEAST 13 YEARS OF AGE (AND, IF UNDER THE AGE OF 18, THAT YOU HAVE PARENTAL PERMISSION TO USE THE SUBSCRIPTION SERVICE AND ARE IN THE PRESENCE OF YOUR PARENT OR LEGAL GUARDIAN) AND THAT YOU POSSESS THE LEGAL RIGHT TO USE THE SUBSCRIPTION SERVICE IN ACCORDANCE WITH THESE SUBSCRIPTION TERMS AND ALL OTHER TERMS AND CONDITIONS HEREOF.
(b) Track Club service and any subscription Content accessible solely from the Track Club website is for your use only. During the period of your active subscription, Track Club grants you a limited, non-exclusive, non-transferable license, in accordance with the terms and conditions of the Subscription License Agreement to access the Track Club subscription Content through the Track Club service. Except for the foregoing limited license, no right, title, or interest shall be transferred to you or to any person or entity deriving rights through you.
(c) Track Club Content may be available for exploitation in restricted geographic locations (i.e., less than universe-wide) as indicated on the specific Content and you agree to abide by such restrictions.
(d) The Track Club website, user interfaces, service levels, plans, promotional features, availability of Content, delivery, and pricing may change from time to time and Track Club reserves the right in its sole and absolute discretion to make such changes from time to time and without notice.
(e) You agree to use the Track Club service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules, and regulations, or other restrictions on use of the service and/or Content. YOU UNDERSTAND AND AGREE THAT THE TRACK CLUB SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. TRACK CLUB AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER TRACK CLUB NOR ANY OWNER OF CONTENT WARRANTS THAT THE TRACK CLUB SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(f) Track Club may terminate your use of our subscription service, without compensation or notice, if you are, or if we suspect that you are, in violation of any of these STU or engaged in illegal or improper use of the Track Club service in addition to any and all other legal and equitable remedies.
(g) The trademarks, service marks, and logos of Track Club are owned by Track Club and subject to trademark, copyright and other intellectual property laws. No rights therein are granted to you.
(h) Track Club reserves the right to discontinue any aspect of the subscription service at any time for any reason.
4. Subscription Billing; Autorenewal and Cancellation.
(a) Billing. You may purchase a paid subscription directly from Track Club by (1) paying a subscription fee in advance on a monthly or yearly basis (or some other recurring interval disclosed to you prior to your purchase) ( “Paid Subscription”); or (2) pre-payment giving you access to the Track Club service for a specific time period ("Pre-Paid Period"). Track Club may change the price for the Paid Subscriptions, including recurring subscription fees, the Pre-Paid Period (for periods not yet paid), from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. Subject to applicable law, you accept the new price by continuing to use the Track Club Service after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by unsubscribing from the Paid Subscription prior to the price change going into effect.
(b) Unless your Paid Subscription has been purchased for a Pre-Paid Period, your payment to will automatically renew at the end of the applicable subscription period, unless you cancel your Paid Subscription before the end of the then-current subscription period by clicking here or by calling us at (971) 260-0201. The cancellation will take effect the day after the last day of the current subscription period. We do not provide refunds or credits for any partial subscription periods. For customer support with account-related and payment-related questions ("Customer Support Questions"), please contact us at hello@trackclub.com or by telephone at (971) 260-0201. We will use reasonable endeavors to respond to all Customer Support Questions within a reasonable time frame but we make no promises that any Customer Support Questions will be responded to within any particular time frame and/or that we will be able to answer any such queries.
5. Termination. Notwithstanding anything herein to the contrary, you agree that Track Club shall have the right, in its sole and absolute discretion, to deactivate your account or otherwise terminate your use of the Track Club service if it believes that you have (a) failed to pay any subscription fees, (b) breached this Agreement and/or violated or acted inconsistently with any STU, or (c) infringed the intellectual property rights of a third party. You agree that any deactivation or termination of your access to the subscription service for the foregoing reasons may be made without prior notice to you and without compensation, and that Track Club will not be liable to you nor any third party for any termination of your account. IN THE EVENT OF ACCOUNT DEACTIVATION UNDER THIS SECTION, ALL PREVIOUS LICENSES OF CONTENT SHALL BE TERMINATED AND DEEMED VOID AND YOU MAY BE SUBJECT TO CLAIMS OF COPYRIGHT INFRINGEMENT. NOTHING IN THESE SUBSCRIPTION TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these STU shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect.
6. Privacy.
Our privacy policy may be found here. The privacy policy addresses the following:
(a) What information is collected by Track Club.
(b) How Track Club uses information you provide.
(c) Whether and with whom Track Club shares the information you provide and other data received from your use of the Service.
(d) Details surrounding the storage and maintenance of your data.
7. General Provisions.
(a) Track Club reserves the right to amend these STU at any time and without notice, and it is your responsibility to review these Subscription Terms for any changes. Your use of the subscription service following any amendment of these Subscription Terms will signify your assent to and acceptance of its revised terms. No waiver of any term of these STU shall be deemed a further or continuing waiver of such term or any other term, and Track Club’s failure to assert any right or provision under these STU shall not constitute a waiver of such right or provision. YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT MUST COMMENCE WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(b) Track Club will be excused from any failure or delay caused by or the result of causes beyond its reasonable control, including, but not limited to, acts of God, fire, flood, earthquake, hurricane or other natural catastrophe, pandemic, epidemic, terrorist actions, civil unrest, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, and failure of any third party operating systems, platforms, applications and networks.
1. You acknowledge that each Master and Composition is owned and/or controlled by us and in some instances by musicians, producers, and composers who have licensed rights to us (collectively, “Artists”). If you are entering this Agreement on behalf of an organization, entity, or company, then you warrant and represent that you have the authority to bind the entity to the terms and conditions of this Agreement. In such instances, the term “you” and “your” shall include the entity. You also warrant and represent that the information you provided regarding the Subscription Tier are true and correct.
2. In consideration of the mutual promises contained herein, and our receipt in full of the Subscription payment, Track Club grants you a non-exclusive, non-transferable, non-sublicensable license to use the Content you have downloaded, subject to the rules, terms and conditions of this Agreement.
3. In the event Track Club terminates this Agreement due to your breach, Track Club shall be entitled to retain any fees you have paid pursuant to this Agreement which shall be in addition to any other legal remedies available to Track Club.
4. After termination of this Agreement, any new use of the Content is prohibited and actionable as an act of infringement of our and Artist’s copyright and actionable under any other applicable causes of action.
5 All trademarks, service marks, trade names, logos, domain names, and any other features of the Track Club and its affiliated companies, including but not limited to Marmoset LLC ("Track Club Identifiers") are as between you and Track Club, the sole property of Track Club. The Agreement does not grant you any rights to use any Track Club Identifiers whether for commercial or non-commercial use.
6. Track Club represents and warrants that it owns or controls the Content and has the right to grant the rights granted to you under this Agreement. The Content is provided to you “as is” without warranties or conditions of merchantability or fitness for a particular purpose. Track Club neither represents nor warrants that the Content will meet your requirements or that it will be fit for a particular purpose, or that its use will be uninterrupted or error free. The entire risk as to the quality and performance of the Content is with you. Should the Content prove defective, you, and not us, assume the entire cost of all necessary corrections.
7. IN NO EVENT SHALL TRACK CLUB, MARMOSET LLC OR ANY OF THEIR AFFILIATES DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF TRACK CLUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT TRACK CLUB SHALL NOT BE LIABLE FOR YOUR USE OF CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF YOU OR ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN ANY EVENT, OUR TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT, THE LICENSE PROVIDED HEREUNDER, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT IN RESPECT OF THE USE OF THE CONTENT.
8. The rights and obligations set forth in this Agreement are personal to you and may not be assigned, licensed, sublicensed or otherwise transferred without our express prior written consent. Track Club may assign this Agreement without your consent.
9. You agree to indemnify and hold Track Club, Marmoset LLC, and their employees, officers, directors, members, representatives and agents harmless from and against all liabilities, damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to: (1) your breach or threatened breach of this Agreement; (2) your violation of any third party right, including without limitation, any copyright, property, or privacy right; (3) any claim that your use of the Content caused damage to a third party, and/or(4) your violation of any law or regulation.
10. The public performance of any Content in the public exhibition of any program materials authorized under this Agreement may be made only by systems having valid performance licenses from the American Society of Composers Authors and Publishers ("ASCAP"), Broadcast Music, Inc. ("BMI"), Society of European Stage, Authors and Composers ("SESAC") or other applicable performing rights societies, and not otherwise. The performance of any Composition in the public exhibition of any program materials authorized hereunder by systems not having licenses therefrom is subject to clearance of the performing right either directly or from the applicable performing rights society, in accordance with customary practices and the payment of customary fees. For avoidance of doubt, this Agreement shall not be construed to take the place of any clearances with regard to any Composition or Master authorized hereunder as required by performance right societies throughout the universe which shall be in accordance with customary practices and the payment of customary fees to the extent required hereunder.
11. You agree to abide by our STU set forth below not to use the Content, or any part thereof in any manner not expressly permitted by this Agreement. Except for the rights expressly granted to you in this Agreement, Track Club grants no right, title, or interest to you in the Content (or any part thereof).
12. You agree that you shall not use the Content in any manner described below:
(a) The Content or any part thereof may not be sold, licensed, sublicensed or otherwise transferred as standalone music files or bundled with any other music files, or included in any library, or collection for distribution or resale. You may not “sample” or alter the Content for any reason whatsoever. You may not create, distribute, license, sublicense, sell, or otherwise exploit phonorecords of Content.
(b) If you provide Content or works incorporating any Content to a person or entity as part of its work product, such person or entity may not reuse the Content or works incorporating the Content for any other purpose.
(c) Content may not under any circumstances be used in or in conjunction with, or in any way that might be considered pornographic, obscene, abusive, immoral, illegal or inciteful of an illegal act.
(d) Content shall not be used in conjunction with sensitive subject matter without our and Artists prior written consent; sensitive subject matter includes, without limitation, sexual activity or sexual-oriented nudity; tobacco, alcohol, or drug use; health issues and bodily functions; illegal activities; excessive or graphic violence; and political content.
(e) Content may not be used in a way that may be considered invasive of privacy, defamatory, libelous, or fraudulent, false or misleading or in a way that is hateful or derogatory of any race, nationality, ethnic identity, gender, gender identity or sexual orientation, or political or religious belief, whether directly or in context or juxtaposition with other materials.
(f) Content may not be used in any manner that creates a false inference or places the Content in a context that is likely to result in bringing us, the Content, and/or Artist into (1) public disrespect, (2) scorn, (3) contempt, (4) scandal, (5) ridicule, or (6) that is likely to shock, insult, or offend the community or public morals or decency or prejudice us and/or Artist, or any person or property in the Content, or otherwise detract from or negatively affect our and/or Artists public image.
13. The parties to this Agreement are independent contractors and neither party shall make any representation otherwise. Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representation, or employment relationship between the parties. Neither party has authority to make or accept any offers or representations on behalf of the other party.
14. The parties agree that any use of Content in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, and such unauthorized use shall entitle Track Club on its and on Artist’s behalf to liquidated damages in the amount of twenty (20) times the annual Subscription fee for each breach. The parties agree that Track Club’s and Artist’s actual damages in the event of this type of breach by you would be highly difficult to definitively ascertain based on uncertainties regarding the impact to Track Club and Artist’s reputation and goodwill in the industry and the damage to Track Club’s relationships with its current and future Artists. The parties agree, therefore, that the above-referenced amount is not a penalty for breach and is a reasonable liquidated damages amount. These liquidated damages are cumulative of and without prejudice to all other equitable and legal remedies Track Club and Artists may have. In addition, Track Club and Artists shall have the right, without providing prior notice to you, to issue a Digital Millennium Copyright Act (DMCA) notice (as provided by 17 U.S.C. §512 and any successor statute) to any site or outlet in which the project appears or is placed in violation of the terms and conditions of this Agreement. The foregoing is not a limiting statement of Track Club’s or Artists' rights or remedies in connection with any unauthorized use of the Content or any breach of this Agreement.
15. This Subscription License Agreement may not be modified, altered or amended, except by written instrument duly executed by both parties. No failure or delay by either party in exercising any right hereunder will operate as a waiver thereof. Any attempt by you to assign this Subscription License Agreement will be null and void. If any provision is found to be invalid or unenforceable by a court of competent jurisdiction, the remaining portions shall remain in full force and effect.
16. All notices hereunder shall be in writing and may be sent by email at hello@trackclub.com for us and to the email address set forth on the information you submitted to us with your Subscription, or by (i) personal delivery, (ii) registered or certified mail, or (iii) overnight mail with a utilized tracking service, to your and our respective addresses. Our address is Track Club c/o Marmoset LLC 1401 NE Alberta St., Portland, OR 97211. Notices shall be deemed given two (2) days after being mailed, except that notice of a change of address shall be effective only from the date of its receipt.
17. The validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of Oregon applicable to contracts entered into and performed entirely within the State of Oregon. You agree that the state and federal courts located in Multnomah County, Oregon shall have exclusive jurisdiction over claims or disputes arising under or otherwise in connection with this Agreement, and you hereby submit the jurisdiction of such courts. Notwithstanding the foregoing, Track Club and its assignees, successors and designees may seek injunctive or other equitable relief in any jurisdiction to enforce the terms of this Agreement and its rights hereunder. Both you and Track Club unconditionally waive their respective right to a jury trial of any and all claims or causes of action arising from or relating to this Agreement.
18. You do not have the right and are expressly forbidden to contact directly or indirectly by any means or by any manner other than through us, any creator, including without limitation, Artists, of any Content. A breach of the foregoing provision shall be deemed to be an incurable material breach of this Agreement and shall permit us to terminate the Agreement and obtain liquidated damages as set forth herein.
19. Provisions of this Agreement relating to limitation of liability, indemnity, Content use restrictions, Subscription Terms of Use, liquidated damages/DMCA provision, severability, and governing law/venue/jurisdiction shall survive any expiration or termination of this Agreement and termination of your use of the Subscription service.
20. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND US RELATING TO THE SUBJECT MATTER HEREOF.
SUBSCRIPTION TERMS OF USE
Basic subscription tier information may be found here, the terms and conditions of which are incorporated herein by reference and made a part hereof. In the event any information you provide in connection with the determination of the Subscription Tier applicable to you is misstated or incorrect, this Agreement shall be subject to immediate termination by us with all rights in the Content reverting to us and this Agreement shall be deemed void. Co-branded projects, i.e., those featuring the brand, logo, name, or other identifier of a person or entity other than you, require a custom written license from us.
1. By using Track Club, you accept and agree to these STU. If you do not agree to the STU, do not use Track Club. Track Club has the right in its sole discretion, to amend, modify, or revise the STU, and Subscription License Agreement, and you agree to be bound by such amendments, modifications, or revisions. Such amendments, modifications, or revisions shall be effective immediately and your continued use of the Track Club service is your acknowledgment that you agree to be so bound.
2. Account access is limited to you and only you. If you are a company, authorized users must be employed by you. Do not reveal or disseminate the password to anyone. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Track Club in writing immediately of any unauthorized use of your account. You may be liable for our losses due to unauthorized use of your account.
3. Track Club hereby grants you permission to access and use the subscription service as set forth in these STU, provided that:
(a) You must be 18 years of age, or the age of majority in your province, territory, or country, to subscribe to Track Club. Individuals under the age of 18, or the applicable age of majority in your jurisdiction, may not utilize Track Club unless your parent or legal guardian has an active subscription account with Track Club. YOU AFFIRMATIVELY REPRESENT AND WARRANT THAT YOU ARE AT LEAST 13 YEARS OF AGE (AND, IF UNDER THE AGE OF 18, THAT YOU HAVE PARENTAL PERMISSION TO USE THE SUBSCRIPTION SERVICE AND ARE IN THE PRESENCE OF YOUR PARENT OR LEGAL GUARDIAN) AND THAT YOU POSSESS THE LEGAL RIGHT TO USE THE SUBSCRIPTION SERVICE IN ACCORDANCE WITH THESE SUBSCRIPTION TERMS AND ALL OTHER TERMS AND CONDITIONS HEREOF.
(b) Track Club service and any subscription Content accessible solely from the Track Club website is for your use only. During the period of your active subscription, Track Club grants you a limited, non-exclusive, non-transferable license, in accordance with the terms and conditions of the Subscription License Agreement to access the Track Club subscription Content through the Track Club service. Except for the foregoing limited license, no right, title, or interest shall be transferred to you or to any person or entity deriving rights through you.
(c) Track Club Content may be available for exploitation in restricted geographic locations (i.e., less than universe-wide) as indicated on the specific Content and you agree to abide by such restrictions.
(d) The Track Club website, user interfaces, service levels, plans, promotional features, availability of Content, delivery, and pricing may change from time to time and Track Club reserves the right in its sole and absolute discretion to make such changes from time to time and without notice.
(e) You agree to use the Track Club service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules, and regulations, or other restrictions on use of the service and/or Content. YOU UNDERSTAND AND AGREE THAT THE TRACK CLUB SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. TRACK CLUB AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER TRACK CLUB NOR ANY OWNER OF CONTENT WARRANTS THAT THE TRACK CLUB SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(f) Track Club may terminate your use of our subscription service, without compensation or notice, if you are, or if we suspect that you are, in violation of any of these STU or engaged in illegal or improper use of the Track Club service in addition to any and all other legal and equitable remedies.
(g) The trademarks, service marks, and logos of Track Club are owned by Track Club and subject to trademark, copyright and other intellectual property laws. No rights therein are granted to you.
(h) Track Club reserves the right to discontinue any aspect of the subscription service at any time for any reason.
4. Subscription Billing; Autorenewal and Cancellation.
(a) Billing. You may purchase a paid subscription directly from Track Club by (1) paying a subscription fee in advance on a monthly or yearly basis (or some other recurring interval disclosed to you prior to your purchase) ( “Paid Subscription”); or (2) pre-payment giving you access to the Track Club service for a specific time period ("Pre-Paid Period"). Track Club may change the price for the Paid Subscriptions, including recurring subscription fees, the Pre-Paid Period (for periods not yet paid), from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. Subject to applicable law, you accept the new price by continuing to use the Track Club Service after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by unsubscribing from the Paid Subscription prior to the price change going into effect.
(b) Unless your Paid Subscription has been purchased for a Pre-Paid Period, your payment to will automatically renew at the end of the applicable subscription period, unless you cancel your Paid Subscription before the end of the then-current subscription period by clicking here or by calling us at (971) 260-0201. The cancellation will take effect the day after the last day of the current subscription period. We do not provide refunds or credits for any partial subscription periods. For customer support with account-related and payment-related questions ("Customer Support Questions"), please contact us at hello@trackclub.com or by telephone at (971) 260-0201. We will use reasonable endeavors to respond to all Customer Support Questions within a reasonable time frame but we make no promises that any Customer Support Questions will be responded to within any particular time frame and/or that we will be able to answer any such queries.
5. Termination. Notwithstanding anything herein to the contrary, you agree that Track Club shall have the right, in its sole and absolute discretion, to deactivate your account or otherwise terminate your use of the Track Club service if it believes that you have (a) failed to pay any subscription fees, (b) breached this Agreement and/or violated or acted inconsistently with any STU, or (c) infringed the intellectual property rights of a third party. You agree that any deactivation or termination of your access to the subscription service for the foregoing reasons may be made without prior notice to you and without compensation, and that Track Club will not be liable to you nor any third party for any termination of your account. IN THE EVENT OF ACCOUNT DEACTIVATION UNDER THIS SECTION, ALL PREVIOUS LICENSES OF CONTENT SHALL BE TERMINATED AND DEEMED VOID AND YOU MAY BE SUBJECT TO CLAIMS OF COPYRIGHT INFRINGEMENT. NOTHING IN THESE SUBSCRIPTION TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these STU shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect.
6. Privacy.
Our privacy policy may be found here. The privacy policy addresses the following:
(a) What information is collected by Track Club.
(b) How Track Club uses information you provide.
(c) Whether and with whom Track Club shares the information you provide and other data received from your use of the Service.
(d) Details surrounding the storage and maintenance of your data.
7. General Provisions.
(a) Track Club reserves the right to amend these STU at any time and without notice, and it is your responsibility to review these Subscription Terms for any changes. Your use of the subscription service following any amendment of these Subscription Terms will signify your assent to and acceptance of its revised terms. No waiver of any term of these STU shall be deemed a further or continuing waiver of such term or any other term, and Track Club’s failure to assert any right or provision under these STU shall not constitute a waiver of such right or provision. YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT MUST COMMENCE WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(b) Track Club will be excused from any failure or delay caused by or the result of causes beyond its reasonable control, including, but not limited to, acts of God, fire, flood, earthquake, hurricane or other natural catastrophe, pandemic, epidemic, terrorist actions, civil unrest, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, and failure of any third party operating systems, platforms, applications and networks.
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