CADENZA USER AGREEMENT
Last Revised: December 12, 2016.
These Terms of Service ("Agreement") are a contract between you or the business entity that you represent ("you") and Cadenza, Inc., a Delaware corporation (the "Company", "we" or "us"). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.beeroll.io ("Website") and our related mobile application ("Mobile App" and together with the Website, the "Service"). We may revise this Agreement at any time. If any such amendment results in a material change to this Agreement, as determined in our sole discretion, we will inform you of such changes via a notice on the Service or by sending you an email to the address you have registered with us. Any such changes shall be effective immediately, provided however, for existing account holders, such changes shall, unless otherwise stated, be effective thirty (30) days after posting. Continued use of the Service after the effective date of any revisions to this Agreement constitutes your acceptance of the revised Agreement.
BY AGREEING TO THESE TERMS ON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE SERVICE; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF ITS REPRESENTATIVES; AND (C) "YOU" AND "YOUR" AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY AND THE PERSONS THAT ACCESS THE PLATFORM ON ITS BEHALF.
THIS AGREEMENT INCLUDES: (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICE; AND (4) A PUBLICITY RELEASE ALLOWING US TO USE YOUR NAME, IMAGE AND LIKENESS IN CONNECTION WITH ANY MATERIALS YOU SUBMIT VIA THE SERVICE OR FOR ANY OTHER LAWFUL PURPOSE.
1. LICENSE AND USE
1.1 Website. Subject to your compliance with the terms and conditions of this Agreement, Company hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the Website, and download and install the App solely on devices that you own or control, in each case for your personal non-commercial use only, and subject to the limitations set forth below. This Agreement is limited to the intellectual property rights of Company and its licensors and does not include any rights to other intellectual property. We reserve any and all rights not expressly granted to you pursuant to this Agreement. The limited rights granted to you to access and use the Service comprise a limited license and do not constitute the sale of any software program.
1.2 Use Restrictions.
(a) Except as specifically permitted herein, you agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Service in any unauthorized manner; (ii) use the Service in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Service or any part thereof in any form or manner or by any means; (iv) harvest or scrape any content or data from the Service; (v) remove or alter any copyright or other proprietary rights' notice or restrictive rights legend contained or included in the Service; (vi) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Service (except as and only to the extent any foregoing restriction is prohibited by applicable law); (vii) use any means to discover the source code of any portion of the Service; (viii) otherwise circumvent any functionality that controls access to or otherwise protects the Service; or (ix) permit any third party to engage in any of the foregoing.
(b) Further, you agree that: (a) you will not use the Service if you are not fully able and legally competent to agree to this Agreement; (b) you will only use the Service in full compliance with the laws and regulations of the state in which you use the Service and all applicable federal laws; (c) you will not use the Service for sending or storing any material prohibited by the Law or for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct; and (d) you will keep secure and confidential your account password or any identification we provide you which allows you to use the Service.
1.3 Ownership. The Service and its content, including its "look and feel" (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that Company and/or our licensors own all right, title and interest in and to the Service (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of Company's (or its licensors') patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of this Agreement. Any and all: (a) suggestions for correction, change and modification to the Service and other feedback (including but not limited to quotations of written or oral feedback), information and reports your provide to Company (collectively "Feedback"); and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by Company or otherwise relating to the Service (collectively, "Revisions"), are and will remain the property of Company. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Service or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Company and Company may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At Company's request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
1.4 Changes. We reserve the right to do any of the following at any time and will not be liable to you or any third party for so doing: (a) change the Service, including terminating, eliminating, supplementing, modifying, adding to or discontinuing any content, functionality, promotion, data on or feature of the Service or the hours during which the Service is available, or (b) implement new fees or charges or change any existing fees or charges in connection with the use of the Service.
1.5 Our Enforcement Rights. We are not obligated to monitor access or use of the Service, but we have the right to do so for the purpose of operating the Service, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law.
1.6 Third Party Services and Materials. The Service may display, include or make available content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party web sites. By using the Service, you acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
2. YOUR CONTENT
2.1 Content Opportunities. The Company may, from time to time, make available via the Service certain opportunities for you to create and submit original digital advertising content, including videos, images, audio and other materials ("Content"). You acknowledge and agree that your participation in any such opportunities is completely voluntary, that the purpose of submitting Content is for the Company to offer such Content to its advertising clients for potential use in their general advertising efforts, and that such clients will own all Content that you submit.
2.2 Your Content. You shall only submit to the Company, via the Service or otherwise, Content that you exclusively own, and you hereby assign all right, title and interest in and to such Content, including all intellectual property rights therein, to the Company.
2.3 Prohibited Content. You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. The Company reserves the right to investigate and take appropriate legal action against any account holders who violate this Section. Specifically, you represent and warrant that none of your Content: (a) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (b) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (c) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail", "spam", "chain letters", "pyramid schemes", "contests", "sweepstakes", or any other form of solicitation; (d) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (e) in the sole judgment of the Company, is objectionable or which may expose the Company or its users or clients to any harm or liability of any kind.
2.4 Compensation. In consideration of your submission of Content, the Company will pay you the Content Fees set forth on the website for each piece of Content you submit that meets the criteria and minimum level of quality specified by Company and does not violate any of the terms or conditions of this Agreement, as determined in the Company's sole discretion. In addition, if your Content is selected for submission to a client of Company or included in a client's campaign, you may be eligible for additional Content Fees as set forth on the website. You acknowledge and agree that the Company may from time to time in its sole discretion revise the Content Fees applicable to any Content you submit.
3. PUBLICITY RELEASE
3.1 Permission to Film, Photograph and Record. You hereby grant the Company, its clients, and those acting for the Company or its clients with their respsective authority and permission, the absolute right and permission to film, photograph and record (in any medium, including in any Content you submit to the Company via the Service or otherwise) your name, likeness, or image, including the right to use the same worldwide in any and all media, whether now known or hereafter devised, in whole or in part, in perpetuity, for any lawful purpose whatsoever without any restriction or compensation.
3.2 Permission to Publish. You also grant the Company and its clients a non-exclusive, irrevocable, worldwide, royalty-free license to reproduce, distribute, and publicly display your name, likeness, and image in any and all media (including the Content), in any locale, in perpetuity, for any purpose whatsoever, without any restriction or compensation, save only that the Company shall not utilize these rights in any way to intentionally and maliciously subject you to ridicule or indignity. You agree that you will not sue or hold the Company, its clients, or anyone who is acting for the Company or its clients with their respective authority and permission, responsible for any liability resulting from the use of your name, image, and likeness. You further agree that the Company and its clients shall be without liability to you for any distortion or illusionary effect resulting from the publication of your picture, image, or likeness.
3.3 Editorial Control. This agreement does not obligate the Company to use your name, likeness, image or Content in any manner. The Company retains the right to edit the Content subject to this agreement.
3.4 Third Party Clearances. You shall be solely responsible for securing any and all necessary third party rights, clearances, releases, consents and approvals from any third parties who appear in, or may otherwise have rights in connection with the Content.
4. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
4.1 Warranties. You represent and warrant that (a) you exclusively own all Content that you submit to the Service, (b) your Content does not violate Section 2.2 or any other terms or conditions of this Agreement, (c) you own all intellectual property rights that relate to your name, likeness, and image and are able to grant the publicity release in Section 3, (d) you are 18 years of age or older and have the right to enter into this Agreement, and (e) you have obtained all necessary third party clearances in accordance with Section 3.4
4.2 Disclaimer. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, AND COMPANY MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE WEBSITE.
By agreeing to this Agreement and using the Service, you agree that you shall defend, indemnify and hold Company, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) your use of the Service and any information and/or Content submitted to the Service by you or from your account; (b) your violation or breach of any term or condition of this Agreement (including the representations and warranties you make under this Agreement) or any applicable law or regulation; (c) your violation of any rights of any third party; (d) any unauthorized use of the Service; or (e) your negligence or willful misconduct.
6. LIMITATION OF LIABILITY
NEITHER COMPANY, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE EXCLUSIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
7. DISPUTE RESOLUTION
7.1 Informal Process First. You agree that in the event of any dispute between you and Company, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under this Agreement.
7.2 Binding Arbitration. Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 2.1, except for disputes relating to the infringement of our intellectual property rights or the access or use of the Website in violation of this Agreement (a "Claim"), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in Suffolk County, Massachusetts if your Claims qualify.
7.3 No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
7.4 Arbitrator and Rules. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer¬ Related Disputes. These rules can be found on the AAA website at www.adr.org.
7.5 Starting an Arbitration. To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: email@example.com. We will send any notice of dispute to you at the contact information we have for you.
7.6 Format of Proceedings. The arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
7.7 Fees. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA's Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, the Company will pay all other AAA and arbitrator's fees and expenses.
7.8 Individual Basis; Jury Trial Waiver. To the fullest extent permitted by applicable law, you and Company each agree that any proceeding to resolve a Claim will be conducted only in the respective party's individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action ("Class Action"). If for any reason a Claim proceeds in court rather than in arbitration, you and Company each waive any right to a jury trial. You and Company expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
7.9 Limitation Period. In no event will any Claim or any other action or proceeding by you (including arbitration under this Section 2) be instituted more than one (1) year after the cause of action arose.
7.10 Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
7.11 Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Company each agree to the exclusive jurisdiction of the Federal and State courts located in [Boston, Massachusetts], and you and Company each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
7.12 Opting Out. If you do not want to arbitrate disputes with Company and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use the Service.
8.1 Assignability. You may not assign this Agreement or any of your rights or obligations hereunder without our prior written consent. Company may freely assign this Agreement. Any attempted assignment or transfer in violation of this Section 3.1 will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
8.2 Entire Agreement. This Agreement set forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
8.3 Governing Law. This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions.
8.4 Modifications. We may modify this Agreement at any time. Modifications become effective immediately upon your first access to or use of the Website after the "Last Revised" date at the top of this Agreement. If we make changes that are material, we may use reasonable efforts to attempt to notify you, including by email or placing a prominent notice on the Website. Your continued access or use of the Website after the modifications have become effective will be deemed your conclusive acceptance of the modified Agreement. If you do not agree with the modifications to the Agreement, then please do not access or use the Website.
8.5 Notices; Consent to Electronic Notice. You consent to the use of electronic means to deliver any notices pursuant to this Agreement. Notices will be given: (a) via email (in each case to the email address that you provide when registering your account); (b) via the Service; or (c) by you via email to email@example.com.
8.6 No Waiver. The failure or delay of Company to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect Company's right to later enforce or exercise it, unless Company issues an express written waiver, signed by a duly authorized representative of each party.
8.7 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law by a court of competent jurisdiction, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.
8.8 Contact Us. If you have any questions about this Agreement or the Service, please contact us at Cadenza, 2530 Independence Ave, Apt 3B. Bronx, NY 1046 or at firstname.lastname@example.org.