MusicMark

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MusicMark Terms of Use Agreement

"MusicMark" is a collaboration among the American Society of Composers, Authors and Publishers ("ASCAP"), Broadcast Music, Inc. ("BMI") and the Society of Composers, Authors and Music Publishers of Canada ("SOCAN" and with ASCAP and BMI, "we," "our," or the "Societies"). MusicMark was established to develop common online tools, methodologies and services through which the Societies can receive and process musical composition registrations from rights owners on behalf of all Societies.

Please read this Terms of Use Agreement ("Agreement") carefully as they constitute a legally binding agreement and they apply to your use of (a) www.musicmark.com and all corresponding domains, subdomains, web pages and websites associated therewith (the "Site"), (b) the file transfer protocol server ("FTP Server"), database processes, protocols, API, tools and ancillary services (the "Platform") and (c) any other information, content, applications, features, functionality and services made available on or through the Site, FTP Server and/or Platform, including without limitation Musical Composition Information (as defined below) ((a), (b) and (c) are collectively referred to herein as the "Services") and apply to you whether you are accessing the Services as a registered User (as defined below), member of one of the Societies or otherwise.

  1. Acceptance of Terms/Eligibility

    By using the Services, you acknowledge and agree that you shall comply with this Agreement and any additional terms and conditions that the Societies may provide to you in connection with the Services, including, without limitation, the ASCAP MusicMark Works Registration Terms and Conditions and ASCAP's Terms of Use of Agreement, Terms of Use for BMI Online Services and SOCAN's Terms of Use (collectively, "Additional Terms"). The Privacy Policy and any such Additional Terms are hereby incorporated into this Agreement by reference as though fully set forth herein. To the extent that there is a conflict between this Agreement and the Additional Terms, the Additional Terms shall govern. You further represent, warrant and covenant to the Societies that you: (a) are only using the Services for their intended purpose (e.g., to provide relevant details related to your musical compositions), (b) will comply with all applicable laws, rules and regulations in connection with your use of the Services and (c) are a member or affiliate of, or are acting on behalf of a member or affiliate of, one of the Societies or are a member or affiliate of, or are acting on behalf of a member or affiliate of, another collective rights management organization or rights administrator that is affiliated with one of the Societies.

  2. Other Agreements

    You may have other agreements ("Other Society Agreement") with the Societies, such as an affiliation agreement or member agreement. This Terms of Use Agreement is independent of such Other Society Agreement and does not limit either party's rights (including rights with respect to any copyrighted works, data, intellectual property and other proprietary rights) or obligations under such Other Society Agreement. The disclaimers, limitations of liability and indemnification obligations set forth in this Agreement are supplemental to, and not in lieu of, any other disclaimers, limitations of liability and indemnification obligations set forth in any Other Society Agreement. In addition, your warranties and representations in this Agreement are supplemental to, and do not limit, any warranties or representations you make in any Other Society Agreement. In the event of any conflict between any Other Society Agreement and this Agreement, the terms of the Other Society Agreement shall control but solely to the extent of the conflict.

  3. Term and Termination; Modification

    This Agreement shall remain in effect while you use the Services. Except as otherwise expressly set forth in any agreement between you and the Societies, you may terminate your use of or access to the Services at any time, for any reason, and a Society may terminate your use of or access to the Services at any time for any reason. For the avoidance of doubt, such termination of access to or use of the Services does not terminate, amend, or alter any provision of any Other Society Agreement. Even after your use of and/or access to the Services is terminated, your obligations under this Agreement and the Privacy Policy, including, without limitation, any indemnifications, warranties and limitations of liability, shall remain in effect. We may modify this Agreement from time to time in our sole discretion. If we do so in any material respect, we will provide you with advance notice of such modifications via the email address associated with your User Account and/or by posting the revised Agreement on the Services via your folder on the FTP Server and/or Site. Any such changes become effective as of the date contained in such notice or as specified in the revised Agreement, as applicable. By continuing to use the Services following such date, you are agreeing to be bound by the revised Agreement. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.

  4. User Registration

    In order to use the Services, you will be required to register for a user account and create a unique username and password combination ("User Credentials") and provide certain additional information including your name, business address, phone number, email address, performing rights organization affiliation and Musical Composition Information (collectively, "User Account"). "Musical Composition Information" shall mean the composition's title, writer and publisher names, ownership interests, IPI numbers, society affiliation, performer name and any additional information related to the rights associated with a musical composition. You represent, warrant and covenant that: (a) all registration and account information that you submit is truthful and accurate, (b) you will maintain and promptly update the accuracy of such information and the Musical Composition Information associated with musical compositions that you own and control and submit via the Platform (the "Submitted Musical Composition Information"), (c) you have the authority or right to upload, provide, manage and make available the Submitted Musical Composition Information and (d) you shall remain responsible for maintaining the confidentiality of your User Credentials and be responsible for ensuring that any person or entity using your User Credentials maintains its confidentiality, (e) you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. You agree to immediately notify the Societies of any unauthorized use of your User Credentials or User Account, or any other breach of security. You acknowledge and agree that the Societies are not liable for any loss you incur as a result of another person or entity (authorized or unauthorized) using your account. To the maximum extent permitted by law, you shall be fully responsible and liable for any losses due to any other person or entity's use of your User Credentials or for any other person or entity's use of the Services through your account, as though you had caused such losses yourself. We reserve the right to revoke, deny or deactivate access, use and registration privileges to any User of the Services suspected of fraudulent or otherwise improper submissions, registrations or uses or if we believe there is a question about the identity of the person trying to access any User Account or element of the Services or for any other reason.

  5. User Conduct

    The Services are to be used solely for the purpose of providing Submitted Musical Composition Information to the Societies and accessing Musical Composition Information submitted by other users via the Platform and for no other purposes. You are solely responsible for your conduct in connection with the Services and you may not:

    • Use the Services in any way other than for its intended use, including to modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use of the Services by any other User;
    • Alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, and/or modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person in doing so;
    • Except as expressly authorized by the Societies, you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third-party website or platform), or otherwise use, the Services, including, without limitation, the Musical Composition Information and any content contained in the Services (other than the Submitted Musical Composition Information), without the express, prior written consent of the Societies or the owner of the Musical Composition Information;
    • Use the Service to circumvent, modify, interfere with or disrupt any license fee payments due to or royalty payments payable by ASCAP, BMI and/or SOCAN;
    • Engage in or encourage conduct that: (a) would violate any applicable law or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of any Society or of any other third party, (b) affects adversely or reflects negatively on the Societies, its affiliates, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, and/or (c) discourages any person or entity from using all or any portion, features or functions of the Services, or from becoming a provider to us in connection with Musical Composition Information and/or the Services;
    • Impersonate any person or entity or falsely state or otherwise represent your affiliation with a person or entity;
    • Use the Services to register fully AI-generated works, i.e., works that are generated entirely using AI algorithms, without any human authorship; and/or
    • Solicit passwords or personally identifiable information for commercial or unlawful purposes from other Users or engage in spamming, flooding, harvesting of email addresses or other personal information, "spidering," "screen scraping," "phishing," "database scraping" or any other activity with the purposes of obtaining lists of other Users or other information.
  6. Ownership

    The Societies grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use and access the Services (including to upload Submitted Musical Composition Information in your folder on the FTP Server to the Platform) while you are in full compliance with this Agreement. Any use of the Services, including content contained in the Platform and Musical Composition Information (excluding the Submitted Musical Composition Information), other than as specifically authorized in this Agreement, without the prior written permission of the Societies, is strictly prohibited and will automatically terminate all licenses granted herein.

    As between you and the Societies, the Societies (and/or its licensors) own all right, title and interest in and to the Services, including, without limitation, the Platform and content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, software, data (other than the Submitted Musical Composition Information), user interfaces, database processes, protocols, API, the FTP Server, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services).

  7. Assignment

    This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by the Societies without restriction, notice or other obligation to you.

  8. Indemnity

    You agree to indemnify, defend and hold the Societies, their affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees), arising in any way out of or in connection with: (a) your use of the Services and the Musical Composition Information, (b) your breach or violation of this Agreement, and/or (c) the Submitted Musical Composition Information. The Societies reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.

  9. Disclaimer and Limitations of Liability

    THE SERVICES, AND ALL CONTENT, PRODUCTS, ADDITIONAL SERVICES AND MUSICAL COMPOSITION INFORMATION MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICES WILL BE AVAILABLE FOR USE, BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND ALL CONTENT, PRODUCTS, ADDITIONAL SERVICES AND MUSICAL COMPOSITION INFORMATION ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, MUSICAL COMPOSITION INFORMATION. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT THE SOCIETIES ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS OR MUSICAL COMPOSITION INFORMATION AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS OR DELIVERY OF SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.

    YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE SOCIETIES, THEIR AFFILIATES, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, OPERATORS, SUPPLIERS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE SOCIETIES SHALL HAVE NO LIABILITY WITH REGARD TO THE INFORMATION YOU UPLOAD, PROVIDE OR MAKE AVAILABLE THROUGH THE SERVICES, INCLUDING MUSICAL COMPOSITION INFORMATION VIA YOUR FOLDER ON THE FTP SERVER.

  10. User Support

    For assistance with technical issues and other questions, please contact us musicmark@musicmark.com.

  11. Governing Law; Miscellaneous

    This Agreement contains the entire understanding and agreement between you and the Societies concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. The failure of the Societies to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.

    This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State's conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, REGARDING YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.