THIS END USER AGREEMENT GOVERNS THE END-USERS ACCESS TO AND USE OF THE SOFTWARE, CONTENT, INFORMATION, PRODUCTS, AND/OR SERVICES CONTAINED IN THE COMPANY’S PLATFORM (THE “SERVICES”). BY USING OR OTHERWISE ACCESSING THE SERVICES PROVIDED BY THE COMPANY OR BY CONFIRMING THE ORDER AS PART OF THE DOWNLOADING OR ORDERING PROCESS, THE END-USER (“YOU”, “END-USER”) AGREES TO THE TERMS OF THIS END-USER AGREEMENT WHICH WILL BIND IT AND ITS EMPLOYEES IF APPLICABLE. THIS END USER AGREEMENT FORMS PART OF THIS AGREEMENT BETWEEN THE END-USER AND THE COMPANY IN RELATION TO THE SERVICES. YOU SHOULD ENSURE THAT YOU CAREFULLY READ THESE TERMS.
IF YOU ARE ENTERING INTO THIS END-USER AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS END-USER AGREEMENT, IN WHICH CASE THE TERM END-USER SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS END-USER AGREEMENT, YOU MAY NOT USE OR ACCESS THE SERVICES. IF YOU DO NOT INTEND TO BE LEGALLY BOUND TO THE TERMS AND CONDITIONS OF THIS END-USER AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SERVICES AND DO NOT CLICK “ACCEPT” OR OTHERWISE ASSENT TO THIS END-USER AGREEMENT.
1.1 The definitions and rules of interpretation in this Clause and in Clause 17 apply in this End User Agreement.
“Agreement”, this End User Agreement;
“Artificial Intelligence”, the use of machines/computers, aided by online and/or offline tools, that learn from experience, adjust to new inputs, and perform human-like tasks for the purpose of creating and/or distributing music.
“Artificial Music Generator”, Artificial Intelligence music composer that creates original and/or personalized music and/or creates variations of existing music.
“Authorised Users”, (i) where the End-user is an entity other than an individual: those employees, agents and independent contractors of the End-user and those employees, agents and independent contractors of End-user’s affiliate(s) and partners who are authorized by the End-user to use or access the Services, and (ii) where the End-user is an individual, the End-user.
“Business Day”, any day which is not a Saturday, Sunday, or public holiday in Ireland;
“Company” means MUSUITE, a limited company with offices at Tecualiapan 36, Cuadrante de San Francisco, Coyoacan, 04320, Mexico;
“Company Data”, the information and data used in or in conjunction with the Software or Services that is proprietary of, or licensed by third parties to, the Company;
“Confidential Information”, information that is proprietary or confidential and is either clearly labeled as such, identified as confidential information, or any information that the End-user ought to reasonably regard as confidential;
“Content” means data provided by the End-user or the Authorized Users to the Company under this Agreement, including and without limitation music recordings, images, videos, metadata, names, photographs and likenesses, artwork images and biographical information as well as lyrics, text, etc.;
“Consumer Stores” means digital services providers such as music download portals, music, and video streaming services, mobile music platforms, digital (and terrestrial) radio stations and television networks, and mobile networks that enable the purchasing, streaming, or downloading of Content;
“Data Protection Legislation”, all laws relating to the processing of Personal Data, privacy, and information or data security including the European Union General Data Protection Regulation, “GDPR” and all applicable laws and regulations relating to the processing of personal data, including the opinions, guidance, advice, directions, orders, and codes of practice issued or approved by a data protection regulator in the European Economic Area;
“Deductions” means the deductions from the Income that is not retained by the Company, its authorized distributors, or its partners, including but not limited to money transfer costs, bank exchange costs, and other deductions as may be applied from time to time;
“Fee” means the fee the End-user agrees to pay the Company, its authorized distributors, or its partners, for providing the Services as referred to in Clause 7.3 below;
“Income” means income actually received by the Company from time to time on behalf of the End-user from the Consumer Stores in respect of Content provided to the Consumer Stores less any fee, deduction or other charge levied by the Consumer Stores;
“Intellectual Property Rights”, all intellectual property rights of whatever nature, including patents, copyright (present and future), trademarks, business names, trade names, domain names, rights in get-up, goodwill, and the right to sue for the passing off or unfair competition, rights in computer software, design rights, rights to inventions, database rights, rights in performances, (whether or not any of these is registered and including any applications for registration of any such rights), rights to preserve the confidentiality of information (including trade secrets and know-how) and any other intellectual property rights and including all applications, or rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
“Net Income” means the Income less the Fees and Deductions;
“Normal Business Hours”, 8.00 am to 6.00 pm local Irish time, each Business Day;
“Robotic Means”, machines/computers capable of performing human functions required in the creation and/or distributing of musical works.
“Services”, the services provided pursuant to this Agreement, as more particularly described on the Company website, and including the Company Data;
“Software”, any software provided or used by the Company in the provision of the Services;
“Start Date”, when the End-user clicks “Accept”;
“Streaming Inflation”, any activity which artificially inflates usage counts and/or doesn’t reflect genuine user listening intent, including any instance of attempting to manipulate DSPs by using automated processes (bots or scripts);
“Virus”, anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network, or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
2.1 The Company will provide the End-user with use of and access to the Services in accordance with the terms of this Agreement.
2.2 In relation to the Authorized Users, the End-user undertakes that each Authorized User shall keep a secure and confidential password for his use of the Services and that each Authorized User shall comply with good industry practice in respect of password security.
2.3 The End-user shall not knowingly access, store, distribute or transmit any Viruses, or any material, data or Content during the course of its use of the Services that, in the sole opinion of the Company:
2.3.1 Is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially or ethnically offensive;
2.3.2 violates or infringes any Intellectual Property Rights or other rights of third parties;
2.3.3 facilitates illegal activity;
2.3.4 depicts sexually explicit images;
2.3.5 promotes unlawful violence;
2.3.6 is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or
2.3.7 causes damage or injury to any person or property, and the Company reserves the right, without liability to the End-user, to disable the End-user’s access to any material that breaches the provisions of this Clause 2.3.
2.4. The End-user shall not and shall ensure that the Authorized Users do not:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software or Services (as applicable) in any form or media or by any means including any part of the Company Data, the data models or screens and any data that has been entered by the Company or one of its agents; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;(c) access all or any part of the Services or Software in order to build a product or service which competes with the Software and/or the Services;(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Software or the Services available to any third party except the Authorized Users; or(e) attempt to obtain, or assist third parties in obtaining, access to the Software or the Services other than as provided under this Agreement;
2.5. The End-user shall not, and shall ensure that the Authorized Users do not, do any of the following while using or accessing the Services or the Software:
2.5.1. disable, hack, circumvent or otherwise interfere with security-related features of the Software or the Services;
2.5.2. use any metadata, meta tags, or other hidden text utilizing the Company name, trademark, URL, or product name;
2.5.3. upload, submit, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes, or any other form of solicitation;
2.5.4. forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Services or the Software to send altered, deceptive, or false source-identifying information;
2.5.5. attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Services or the Software;
2.5.6. collect or store Personal Data about any third party except in accordance with the Data Protection Legislation; or
2.5.7. misrepresent or impersonate its affiliation with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud.
2.6. The End-user shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify the Company.
2.7. The Company may amend the Services in its sole and absolute discretion from time to time on notice to the End-user.
3.1 The End-user shall submit all Content at its sole expense in the format(s) required by the Company or the Consumer Stores. Technical descriptions of such format(s) will be provided to the End-user on request. In the event that Content is provided by the End-user in the incorrect format, the End-user shall be liable to pay any resubmission or similar fees levied by the Consumer Stores in respect of any such Content provided by the Company to the Consumer Stores.
3.2 The End-user hereby grants to the Company, during the term of this Agreement and for a reasonable period thereafter, a non-exclusive, royalty-free, irrevocable and worldwide license (including without limitation the right to sub-license all of these rights) to:
3.2.1 use the Content to provide the Services;
3.2.2 sell, copy, display, distribute and otherwise exploit the Content by all means and media (whether now known or existing in the future) through any and all Consumer Stores or the Company website (including for permanent download by End-users);
3.2.3 to supplement any artwork provided for use with the Services;
3.2.4 to make and perform clips of any Content of up to thirty (30) seconds in length via streaming or download free of charge, for the purposes of promotion of the Content, the relevant artists, or the Services;
3.2.5 to use the Content in connection with the Company’s business purposes; and
3.2.6 to collect all income deriving from the activities specified in this clause 3.2.
3.3 The Company shall make the Content available ‘as is’ through the Services and shall not be liable for any reliance placed by the End-user or any third party on the Services, Software, or Content.
3.4 The Company engages the services of third-party providers who also provide backup services for data stored in or entered into the Software, including Content. In the event of any loss or damage to Content, the End-user’s sole and exclusive remedy shall be for the Company to use reasonable commercial endeavors to have its service providers restore the lost or damaged Content from the latest back-up of such Content maintained in accordance with the archiving procedure described in the relevant backup policies. The Company shall not be responsible for any loss, destruction, alteration, or disclosure of Content caused by any third party (except those third parties sub-contracted by the Company to perform services related to Content maintenance and back-up or the Company’s duly authorized contractors or agents).
3.5 The End-user warrants and represents that:
3.5.1 It has the authority to enter into this Agreement;
3.5.2 It is the owner or licensee of the Content and is permitted to provide the rights to the Content as specified in this Agreement to the Company and the Consumer Stores; and
3.5.3 the use and exploitation by the Company or any of the Consumer Stores of Content as contemplated by this Agreement shall not infringe the Intellectual Property Rights of any third party.
3.6 For clarity, the End-user shall be solely responsible for obtaining and paying for any licenses from the owners of any Intellectual Property Rights in Content required in connection with the use or exploitation of Content by the Company or the Consumer Stores as contemplated in this Agreement.
3.7 The End-user acknowledges that in providing the Services and payments hereunder, the Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores shall be within the sole discretion of the Company.
3.8 Nothing in this Agreement shall require the Company, and the Company does not guarantee, that it will use or exploit any Content or upload it to any Consumer Stores.
3.9 The End-user will not use Artificial Intelligence, Artificial Music Generator(s), or any other artificial and/or Robotic Means.
4. Data Protection
4.1 If the Company processes any personal data on the end-user’s behalf (and the End-user is an entity or an individual other than a Data Subject) when performing its obligations under this Agreement, the parties record their intention that the End-user shall be the data controller and the Company shall be a data processor (where “Controller” and “Processor” have the meanings specified in the GDPR), and in any such case:
4.1.1 for the purposes of this Clause 4.1.1, the terms “Personal Data”, “Data Subject” and “Processing” (and “Process” and “Processed” shall have a corresponding meaning) shall have the same meanings as in the GDPR;
4.1.2 Schedule 1 set out the scope, nature, purpose, duration of Processing by the Company and the types of Personal Data and categories of Data Subject to be Processed;
4.1.3 the End-user will ensure that at all times there is a legal basis in place to enable the Company to Process the Personal Data in order to provide the Services, provide Content to Consumer Stores and the Company’s other obligations under this Agreement;
4.1.4 the End-user acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the End-user and the Authorized Users are located in order to provide/make available the Services, provide Content to Consumer Stores and the Company’s other obligations under this Agreement;
4.1.5 the End-user permits the Company to subcontract its Processing functions as it deems necessary in order to provide/make available the Software and the Company’s other obligations under this Agreement to any of the third parties listed at Schedule 1;
4.1.6 the Company shall, in relation to any Personal Data Processed under this Agreement:
a) Process that Personal Data only on the written instructions of the End-user unless the Company is required to do so by European Union law or the laws of any member of the European Union applicable to the Company, and in such a case the Company will inform the End-user of such were permitted. The End-user hereby instructs the Company to Process Personal Data contained in the Content for the purposes of providing the Services, providing Content to Consumer Stores, and complying with the Company’s other obligations under this Agreement;
b) implement appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful Processing or accidental loss, destruction, damage, alteration or disclosure, having regard to the state of technological development and the cost of implementing any measures;
c) ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential;
d) assist the End-user, at the End-user’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;
e) notify the End-user without undue delay on becoming aware of a Personal Data breach;
f) at the written direction of the End-user, delete or return Personal Data and copies thereof to the End-user on termination of this Agreement unless required by European Union or European Union Member State Law to store the Personal Data; and
g) at the cost of and upon reasonable notice from the End-user, provide all information necessary to demonstrate the Company’s compliance with its obligations under the GDPR and allow for and contribute to audits or inspections conducted by the End-user or any auditor acting on the authority of the End-user to carry out an audit or inspection (subject to the End-user or such auditor signing a confidentiality agreement proposed by the Company) provided however that any information obtained in connection with or in the course of any such audit or inspection shall be used solely for the purposes of ensuring that the Company is complying with its obligations as a Processor under the Data Protection Legislation, maintained in the strictest confidence and shall not be used or disclosed for any other purpose.
5. Third-Party Providers
6. The Company’s Obligations
6.1 The Company warrants that the Services and any Software: (i) will be performed in accordance with reasonable skill and care, and (ii) does not infringe any third party Intellectual Property Rights.
6.2 The warranty at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company’s instructions, or modification or alteration of the Services or the Software by any party other than the Company or the Company’s duly authorized contractors or agents. If the Services or the Software do not conform with the warranty at Clause 6.1 above, the Company will, at its expense: (i) use reasonable commercial endeavors to correct any such non-conformance promptly, or provide the End-user with an alternative means of accomplishing the desired performance; or (ii) re-perform the relevant Services (as applicable). Such correction, substitution, or re-performance constitutes the End-user’s sole and exclusive remedy for any breach of the warranty set out in Clause 6.1. Notwithstanding the foregoing, the Company:
6.2.1. does not warrant that the end-user’s use of the Services or the Software will be uninterrupted or error-free, nor that the Software or the information obtained by the End-user through the Services will meet the End-user’s requirements; and
6.2.2.is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the End-user acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. The Company shall use commercially reasonable endeavors to prevent and/or minimize any such delays or loss of data resulting from the transfer of data over communications networks and facilities to the extent that such matters are within the Company’s control.
6.3 Nothing in this Agreement shall prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products, and/or services that are similar to those provided under this Agreement.
7.1 The Company shall pay or arrange payment to the End-user the Net Income within 30 days of the end of the month in which the related income is received from the Consumer Store(s). Net Income shall be applied to the End-user’s Company account, which can be accessed through the Services. For the avoidance of doubt, the Company shall only pay or arrange payment to the End-user the Net Income which is actually received by the Company prior to the date on which payment is specified to occur in this Clause 7.1.
7.2 The Company shall not be responsible for the payment of any income tax or corporation tax or comparable taxes levied on the End-user or the Company in respect of the Net Income or Income. If any withholding tax is incurred under income tax or corporation tax enforced in Ireland or elsewhere, the Company shall be entitled to deduct the statutory amount of withholding tax from the payments due to the End-user.
7.3 The Company (on its own behalf or, where applicable, on behalf of its authorized distributors or partners) shall be entitled to deduct the Fee from any Income prior to applying the Net Income to the End-user’s account.
7.4 To the extent that the End-user elects to use Content to distribute free to any third parties (by whatever means), the End-user agrees that it will be solely responsible for any fees or charges levied by Consumer Stores or taxes in respect of such distribution.
7.5 In the event that the Company determines, in its sole discretion, that the End-user’s Company account has been subject to and/or involved in fraudulent or infringing activities, the Company reserves the right to discontinue the application of Net Income to the End-user’s Company account and block the End-user’s ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of the Company. The End-user agrees that any Net Income obtained as a result of the End-user’s fraud or infringement of third-party Intellectual Property Rights shall be forfeited to the Company. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and the End-user agrees that it is its responsibility to investigate such policies and such policies shall be binding on the End-user hereunder.
7.6 To the extent that any Net Income applied to the End-user’s Company account bears any interest prior to the withdrawal by the End-user of such Net Income, the End-user agrees that it will not receive interest or other earnings on the Net Income. In consideration for the end-user’s use of the Services, the End-user transfers and assigns to the Company any ownership rights the End-user may have in any interest or other earnings that may accrue on Net Income prior to its withdrawal by the End-user.
8. End-User’s Obligations
8.1 The End-user shall:
8.1.1. provide the Company with all necessary:
a. co-operation in relation to this Agreement; and
b. access to such information as may be required by the Company,
in order to render the Services and other Company services as may be available from time to time and in relation to security and configuration services;
8.1.2. comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3. carry out all other End-user responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the End-user’s provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4. ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement;
8.1.5. obtain and maintain all necessary licenses, consents, and permissions necessary for the Company, its contractors, and agents to perform their obligations under this Agreement;
8.1.6. ensure that its network, systems, and devices comply with the relevant specifications provided by the Company from time to time and with good industry practice; and
8.1.7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Company’s systems, and all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the End-user’s network connections or telecommunications links or caused by the internet.
8.2 End-user shall not (and shall ensure that any person whom it allows access to its account shall not) undertake or engage or encourage any person to undertake any activity which artificially inflates usage counts of its distributed content. If stream counts are deemed fraudulent by MUSUITE and/or any of its distribution networks, MUSUITE shall have all rights to remove all content associated with the user, in addition to disabling access to the platform.
8.2.1 The factors used to determine whether any particular consumption or marketing activity is Streaming Inflation will vary according to the specific circumstances of each case and the examples and descriptions of Streaming Inflation set forth herein are not intended to be exhaustive.
8.2.2 Outlets that use your Releases may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to become aware of and follow such policies, and such policies shall be binding upon you hereunder.
8.3 In the event that MUSUITE has, in its good faith discretion, a reason to suspect that your account or Recordings have been subjected to, involved in, or generated revenue from violating the Terms of Service; fraud; infringement of copyright, trademark, right of publicity or any other intellectual property right; failure to comply with any third-party license requirement; or Streaming Inflation (collectively, “Improper Conduct”), MUSUITE reserves the right to (i) discontinue the posting of income, including any Net Income or other payments to your account, (ii) block your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of MUSUITE is obtained. You further agree that such revenues will be forfeited by you if such determination is made, in its good faith discretion, that your account has been subjected to, involved in, or generated revenue from Improper Conduct.
8.4. You further agree to the following:
You agree to provide MUSUITE with any information reasonably requested by MUSUITE as part of its investigation into Improper Conduct.
You agree that if an Outlet notifies MUSUITE that any of your Recordings have generated revenue, plays, or streams as a result of Improper Conduct, such notice will serve as sufficient evidence for MUSUITE to determine, in its good faith discretion, that such revenues or plays are the results of Improper Conduct.
Upon MUSUITE’s determination that your account or Releases have been subjected to, involved in, or generated revenue from Improper Conduct, you agree that all revenue in your account that has been frozen by MUSUITE is forfeited, regardless of whether it was generated from any specific Release(s) or Outlet(s).
You agree that MUSUITE’s good faith determination of Improper Conduct can be based on streaming or other activity that is the same or similar to cases that the Company has previously determined involved Improper Conduct.
The payment of revenues to you by MUSUITE does not constitute MUSUITE’s acknowledgment that such revenues were not the result of Improper Conduct.
Company has no duty to investigate Improper Conduct unless and until it freezes revenues in your account.
If MUSUITE determines that revenues generated to your account are the result of Improper Conduct, and such revenues have already been paid out to you, you agree to return such revenues to MUSUITE.
You agree that you will not be entitled to reimbursement for any fees paid by you to MUSUITE in the event MUSUITE disables access to your account, your Releases and/or any other materials you provide to MUSUITE, or to any revenues forfeited by you as set forth in the preceding sentence.
To the extent that MUSUITE, in its good faith discretion, determines that any Improper Conduct was caused by you or your affiliates’ actions or omissions or by any third party acting on your behalf or at your direction, any costs incurred by MUSUITE (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by MUSUITE from any monies otherwise payable to you.
If in MUSUITE’s reasonable business judgment it elects to engage an attorney to review potential Improper Conduct or review and/or respond to any third-party allegation of Improper Conduct by you or associated with your account or Recordings, MUSUITE shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to Company (such as a PayPal account, credit card or debit card) (each a “Payment Method”) the cost of such engagement, but at a minimum Five Hundred Dollars ($500), to offset the costs of associated legal fees and expenses.
9. Proprietary Rights
9.1 The End-user acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Software and the Services. Except as expressly stated herein, this Agreement does not grant the End-user any rights to, or in, any Intellectual Property Rights.
9.2 The End-user shall ensure that all titles, logos, trademarks, copyright, and other notices applied by the Company to the Software or any materials provided or produced by the Company or the Software in connection with this Agreement shall be reproduced and not deleted or removed.
10.1 The End-user may be given access to Confidential Information from the Company in the course of the provision of the Services under this Agreement. The Company’s Confidential Information shall not be deemed to include information that:
10.1.1.is or becomes publicly known other than through any act or omission of the End-user;
10.1.2. was in the End-user’s lawful possession before the disclosure;
10.1.3.is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4.is independently developed by the End-user, which independent development can be shown by written evidence; or
10.1.5.is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.
10.2 The End-user shall hold the Company’s Confidential Information in confidence and, unless required by law, not make such Confidential Information available to any third party, or use the Company’s Confidential Information for any purpose other than the implementation of this Agreement.
10.3 The End-user shall take all reasonable steps to ensure that the Company’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 The End-user acknowledges that details of the Software and the Services constitute the Company’s Confidential Information.
10.5 This Clause 10 shall survive expiry or termination of this Agreement, however arising.
11.1 The End-user shall defend, indemnify on demand and hold harmless the Company and its authorized distributors or partners against any and all claims, actions, proceedings, losses, damages, fees expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the End-user’s and its Authorised Users’ use of the Services otherwise than as permitted under this Agreement, or (ii) any claim by any third party that the use or exploitation of Content by the Company or any of the Consumer Stores infringes a third party’s Intellectual Property Rights or other rights.
12. Limitation of Liability
12.1 Except as expressly and specifically provided in this Agreement:
12.1.1. the End-user assumes sole responsibility for results obtained from the use of the Services by the End-user, and for conclusions drawn from such use. the Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the End-user in connection with the Services, or any actions taken by the Company at the End-user’s direction;
12.1.2. all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law (with respect to the Services or otherwise) are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
12.1.3. the Services are provided to the End-user on an “as is” basis.
12.2 Nothing in this Agreement shall limit or exclude the liability of either party for a matter in respect of which it would be unlawful to exclude or limit liability.
12.3 Subject to 12.2:
12.3.1. NEITHER THE COMPANY NOR ITS AUTHORIZED DISTRIBUTORS OR PARTNERS SHALL BE LIABLE TO THE END-USER WHETHER, IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION, OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT.
12.3.2. THE COMPANY’S TOTAL AGGREGATE LIABILITY (AND THAT OF ITS AUTHORIZED DISTRIBUTORS OR PARTNERS) IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF THE FEES RECEIVED BY THE COMPANY PURSUANT TO THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12.4 For the purposes of Clause 12.3, the Company is acting on its own behalf and as an agent for and on behalf of its authorized distributors and partners, and accordingly the Company may enforce and rely on Clause 12.3 on its own behalf and/or in its capacity as agent of its authorized distributors and partners.
13. Term & Termination
13.1 This Agreement shall continue until terminated in accordance with this Agreement.
13.2 The Company may terminate this Agreement on 7 days’ notice to the End-user.
13.3 When the End-user purchases an annual MUSUITE subscription on the End-user’s MUSUITE Account, auto-renewal is automatically selected. At the end of the annual subscription period, MUSUITE will sign the End-user up and bill the End-user for an additional subscription term of one year at then-current pricing. The End-user may terminate this Agreement by unchecking the auto-renew box in the End-user’s MUSUITE Account prior to the end of the current subscription term, such termination to be effective upon the expiration of the current subscription.
13.4 Without prejudice to any other rights or remedies to which the parties may be entitled, the Company may terminate this Agreement without liability to the End-user if:
13.4.1. the End-user commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
13.4.2. an order is made or a resolution is passed for the winding up of the End-user, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
13.4.3. an order is made for the appointment of an administrator or examiner to manage the affairs, business, and property of the End-user, or documents are filed with a court of competent jurisdiction for the appointment of an administrator or examiner of the End-user, or notice of intention to appoint an administrator or examiner is given by the End-user or its directors or by a qualifying floating charge holder;
13.4.4. a receiver is appointed of any of the End-user’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the End-user, or if any other person takes possession of or sells the End-user’s assets;
13.4.5. the End-user makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
13.4.6. the End-user ceases, or threatens to cease, to trade;
13.4.7. the End-user (being an individual) is the subject of a bankruptcy petition or order; or
13.4.8. the End-user takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.5 On termination of this Agreement for any reason:
13.5.1. all licenses granted under this Agreement (subject to Clause 3.2) shall immediately terminate;
13.5.2. the End-user shall return and make no further use of any Software, property, documentation, and other items (and all copies of them) belonging to the other party;
13.5.3. the Company may destroy or otherwise dispose of any of Content in its possession unless the Company receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a written request for the delivery to the End-user of the then most recent back-up of Content. The Company shall use reasonable commercial endeavors to make available the back-up to the End-user within 30 days of its receipt of such a written request, provided that the End-user has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The End-user shall pay all reasonable expenses incurred by the Company in returning or disposing of Content; and
13.5.4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. Force Majeure
The Company shall have no liability to the End-user under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions, or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the End-user is notified of such an event and its expected duration.
15.1. The End-user shall not, without the prior written consent of the Company assign, sub-License, delegate, or transfer this Agreement or any of its rights under this Agreement to any other person, firm, or company. The Company may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement, with or without notice to the End-user.
15.2. All notices to or by the respective Parties shall be in writing in the English language and shall be deemed to have been duly given when (a) delivered by hand, (b) posted by recorded delivery post (postage prepaid), (c) sent by reputable overnight courier (d) sent by fax or (e) sent by email to the party to which such notice is required to be given under this Agreement addressed to the parties as provided for in this Agreement; or to such other address, fax number or email address as either party may subsequently notify to the other in writing.
15.3. Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Company’s rights pursuant to this Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Company’s rights to take subsequent action.
15.4. This Agreement supersedes any arrangements, understandings, promises, or agreements made or existing between the parties prior to the signing of this Agreement that constitutes the entire understanding between the parties hereto. Except as otherwise provided in this Agreement, no addition, amendment, or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of each party by a director or such other duly authorized officer as the case may be.
15.5. In the event that any or any part of the terms, conditions, or provisions contained in this Agreement or any Schedule hereto shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
16. Law & Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Ireland and the parties agree that any dispute relating to its terms or subject matter shall be subject to the exclusive jurisdiction of the Irish courts.
In this Agreement (except where the context otherwise requires): (a) any reference to a Clause or Schedule is to the relevant Clause or Schedule of or to this Agreement; (b) the Clause headings are included for convenience only and shall not affect the interpretation of this Agreement; (c) use of the singular includes the plural and vice versa; (d) use of any gender includes the other genders; (e) any reference to “persons” includes individuals, firms, partnerships, companies, corporations, associations, organizations, foundations and trusts (in each case whether or not having separate legal personality); (f) any reference in this Agreement to any statute, statutory provision, subordinate legislation, code or guideline (“legislation”) shall be construed as referring to such legislation as the same may from time to time be amended, modified, extended, varied, superseded, replaced, substituted or consolidated; (g) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any references to this Agreement includes the Schedules.
Processing, Personal Data & Data Subjects
1. Subject Matter
The Personal Data is the subject matter of the Processing in accordance with this Agreement.
The storage and processing of the Personal Data via the Software.
The Company will Process Data on behalf of the End-user in relation to the provision of the Services.
4. Type of Personal Data
4.1 Personal Data
The Personal Data as entered from time to time by the End-user into the Software, including files uploaded to the Software by the Company on request by the End-user.
4.2 Special Categories of Personal Data
Any special categories of personal data as entered from time to time by the End-user into the Software.
5. Categories of Data Subjects
Data subjects as identified via the personal data entered into the Software by the End-user.