Terms & Agreements
TERMS AND AGREEMENTS
A. NEWMUSIC TEN STORE TERMS AND CONDITIONS
THE LEGAL AGREEMENT BETWEEN YOU AND THE SAMPLEBANK INC, (“THE SAMPLEBANK”) SET OUT BELOW GOVERNS YOUR USE OF THE SAMPLEBANK and NEWMUSIC TEN STORE SERVICE (“SERVICES”). IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SERVICE.
NEWMUSIC TEN STORE SERVICE
The SampleBank is the provider of the Service, which permits you to purchase or rent digital content (“Products”) for end user use under the terms and conditions set forth in this Agreement.
REQUIREMENTS FOR USE OF THE SERVICE
This Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. We do not knowingly collect personal information from children under 13. If we learn that we have collected the personal information of a child under 13 we will take steps to delete the information as soon as possible.
Use of the Service requires compatible devices, Internet access, and certain software (fees may apply); may require periodic updates; and may be affected by the performance of these factors. High-speed Internet access is strongly recommended for regular use. You agree that these requirements, which may change from time to time, are your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Service.
As a registered user of the Service, you may establish an account (“Account”). Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify NewMusic Ten of any security breach of your Account. The SampleBank shall not be responsible for any losses arising out of the unauthorized use of your Account.
You agree to provide accurate and complete information when you register with, and as you use, the Service (“Registration Data”), and you agree to update your Registration Data to keep it accurate and complete. You agree that The SampleBank may store and use the Registration Data you provide for use in maintaining and billing fees to your Account.
The SampleBank may collect information regarding and related to your account and combine it with aggregated information from The SampleBank libraries of other users, your The SampleBank Store purchase history data, aggregated purchase history data from other SampleBank Store users, and other information obtained from third parties, to:
• Create personalized playlists for you from your SampleBank library.
• Provide you with recommendations regarding media and other products and services that you may wish to purchase.
• Provide recommendations regarding products and services to other users.
PAYMENTS, TAXES, AND REFUND POLICY
The Service accepts these forms of payment: credit cards issued by Canadian banks, The SampleBank Cards, The SampleBank Store Gift Certificates and Content Codes. If a credit card is being used for a transaction, The SampleBank may obtain preapproval for an amount up to the amount of the order. Billing occurs at the time of or shortly after your transaction. When making purchases, content credits are used first, followed by Gift Certificate, The SampleBank Card; your credit card is then charged for any remaining balance.
You agree that you will pay for all products you purchase through the Service, and that The SampleBank may charge your credit card for any products purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your Account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING THE SAMPLEBANK WITH A VALID CREDIT CARD FOR PAYMENT OF ALL FEES. All fees will be billed to the credit card you designate during the registration process. If you want to designate a different credit card or if there is a change in your credit card account status, you must change your information online in the Account Information section of The SampleBank; this may temporarily disrupt your access to the Service while The SampleBank verifies your new payment information.
Your total price will include the price of the product plus any applicable sales tax; such sales tax is based on the bill-to address and the sales tax rate in effect at the time you download the product. We will charge tax only in jurisdictions where digital goods are taxable.
All sales and rentals of products are final.
Prices for products offered via the Service may change at any time, and the Service does not provide price protection or refunds in the event of a price reduction or promotional offering.
If a product becomes unavailable following a transaction but prior to download, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by The SampleBank.
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
The SampleBank is not responsible for typographic errors.
The SampleBank reserves the right to change content options (including eligibility for particular features) without notice.
USE OF PURCHASED OR RENTED CONTENT
You agree that the Service and certain Products include security technology that limits your use of Products and that, whether or not Products are limited by security technology, you shall use Products in compliance with the applicable usage rules established by The SampleBank and its licensors (“Usage Rules”), and that any other use of the Products may constitute a copyright infringement. Any security technology is an inseparable part of the Products. The SampleBank reserves the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason-or to attempt or assist another person to do so. Usage Rules may be controlled and monitored by The SampleBank for compliance purposes, and The SampleBank reserves the right to enforce the Usage Rules without notice to you. You agree not to access the Service by any means other than through the website provided by The SampleBank for accessing the Service. You shall not access or attempt to access an Account that you are not authorized to access. You agree not to modify the software in any manner or form, or to use modified versions of the software, for any purposes including obtaining unauthorized access to the Service. Violations of system or network security may result in civil or criminal liability.
(i) You shall be authorized to use Products only as specified by the download agreement.
SUBMISSIONS TO THE SERVICE
The Service offers interactive features that allow you to submit materials (including links to third-party content) on areas of the Service accessible and viewable by the public. You agree that any use by you of such features, including any materials submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree that you have obtained all necessary rights and licenses. You agree to provide accurate and complete information in connection with your submission of any materials on the Service. You hereby grant The SampleBank a worldwide, royalty-free, nonexclusive license to use such materials as part of the Service, and in relation to Products, without any compensation or obligation to you. The SampleBank reserves the right to not post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability.
The SampleBank has the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Agreement, and to take any action that The SampleBank in its sole discretion deems appropriate, including, without limitation, termination hereunder or under The SampleBank’s Copyright Policy. Change this to upload agreement?
Certain content, Products, and services available via the Service may include materials from third parties. The SampleBank may provide links to third-party websites as a convenience to you. You agree that The SampleBank is not responsible for examining or evaluating the content or accuracy and The SampleBank does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that The SampleBank is not in any way responsible for any such use by you. We encourage you to learn about the privacy practices of those third parties.
You understand that by using the Service, you may encounter material that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit material. Nevertheless, you agree to use the Service at your sole risk and The SampleBank shall have no liability to you for material that may be found to be offensive, indecent, or objectionable. Product types and descriptions are provided for convenience, and you agree that The SampleBank does not guarantee their accuracy.
You agree that the Service, including but not limited to Products, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Service, contains proprietary information and material that is owned by The SampleBank and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with this Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
Notwithstanding any other provision of this Agreement, The SampleBank and its licensors reserve the right to change, suspend, remove, or disable access to any Products, content, or other materials comprising a part of the Service at any time without notice. In no event will The SampleBank be liable for making these changes. The SampleBank may also impose limits on the use of or access to certain features or portions of the Service, in any case and without notice or liability.
All copyrights in and to the Service (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by The SampleBank and/or its licensors, who reserve all their rights in law and equity. THE USE OF ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
The SampleBank, NewMusic Ten, The SampleBank logo, NewMusic Ten logo, The SampleBank, NewMusic Ten and other The SampleBank trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of The SampleBank in Canada and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
If you fail, or The SampleBank suspects that you have failed, to comply with any of the provisions of this Agreement, The SampleBank, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination; and/or (ii) terminate the license to the software; and/or (iii) preclude access to the Service (or any part thereof).
The SampleBank reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and The SampleBank will not be liable to you or to any third party should it exercise such rights.
DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION
a. THE SAMPLEBANK WARRANTS THAT IT WILL PROVIDE THE SERVICE WITH REASONABLE CARE AND SKILL AND SUBSTANTIALLY IN ACCORDANCE WITH THIS AGREEMENT. EXCEPT AS PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, CONDITIONS OR PROMISES ABOUT THE SERVICE, EXPRESSED OR IMPLIED, AND ALL SUCH WARRANTIES, CONDITIONS AND PROMISES ARE EXCLUDED TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITATION TO THE FOREGOING:
(i) THE SAMPLEBANK DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME THE SAMPLEBANK MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU;
(ii) THE SAMPLEBANK DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE SAMPLEBANK DISCLAIMS ANY LIABILITY RELATING THERETO. PRODUCTS CAN ONLY BE DOWNLOADED ONCE; AFTER BEING DOWNLOADED, THEY CANNOT BE REPLACED IF LOST FOR ANY REASON. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY PRODUCTS PURCHASED FROM THE SAMPLEBANK STORE THAT ARE STORED IN YOUR SYSTEM.
b. IN NO CASE SHALL THE SAMPLEBANK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY THE SAMPLEBANK, ITS EMPLOYEES OR AGENTS WHERE:
(i) THERE IS NO BREACH OF A LEGAL DUTY OF CARE OWED TO YOU BY THE SAMPLEBANK OR BY ANY OF OUR EMPLOYEES OR AGENTS;
(ii) SUCH LOSS OR DAMAGE IS NOT A REASONABLY FORESEEABLE RESULT OF ANY SUCH BREACH;
(iii) ANY INCREASE IN LOSS OR DAMAGE RESULTS FROM BREACH BY YOU OF ANY TERM OF THIS AGREEMENT.
THE SAMPLEBANK WILL NOT BE LIABLE FOR ANY LOSS OF INCOME, BUSINESS OR PROFITS, OR FOR ANY LOSS OR CORRUPTION OF DATA IN CONNECTION WITH YOUR USE OF THE SERVICE.
c. THE SAMPLEBANK SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICE, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND THE SAMPLEBANK HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
WAIVER AND INDEMNITY
BY USING THE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD THE SAMPLEBANK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY THE SAMPLEBANK AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM THE SAMPLEBANK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF THE SAMPLEBANK’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
The SampleBank reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof.
This Agreement constitutes the entire agreement between you and The SampleBank and governs your use of the Services, superseding any prior agreements between you and The SampleBank. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The SampleBank’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. The SampleBank will not be responsible for failures to fulfill any obligations due to causes beyond its control.
The Services are operated by The SampleBank from its offices in Canada. You agree to comply with all local, provincial, territorial and federal laws, statutes, ordinances, and regulations that apply to your use of the Services. All transactions on the Services are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to its conflict of law provisions. Your use of the Services may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with The SampleBank or relating in any way to your use of the Services resides in the courts of Ontario. No The SampleBank employee or agent has the authority to vary this Agreement.
The SampleBank may notify you with respect to the Services by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by posting on the Services. Notices shall become effective immediately.
The SampleBank reserves the right to take steps The SampleBank believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that The SampleBank has the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as The SampleBank believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to The SampleBank’s right to cooperate with any legal process relating to your use of the Services and/or Products, and/or a third-party claim that your use of the Services and/or Products is unlawful and/or infringes such third party’s rights).
You understand that by using any of the External Services, you may encounter content that may be deemed to be offensive, indecent, or objectionable, and which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the External Services at your sole risk and that neither the Licensor nor The SampleBank Canada shall have any liability to you for content that may be found to be offensive, indecent, or objectionable.
Certain External Services 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 External Services, you acknowledge and agree that neither the Licensor nor The SampleBank Canada is 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. The Licensor, The SampleBank Canada, The SampleBank Canada’s officers, affiliates and subsidiaries 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 External 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.
Financial information displayed by any External Services is for general informational purposes only and should not be relied upon as investment advice. Before executing any securities transaction based on information obtained through the External Services, you should consult with a financial or securities professional who is legally qualified to give financial or securities advice in your country or region. Location data provided by any External Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time delayed or incomplete location data may lead to death, personal injury, or property or environmental damage. Neither the Licensor nor The SampleBank Canada or any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information, location data or any other data displayed by any External Services.
You agree that the External Services contain proprietary content, information, and material that is owned by Licensor, The SampleBank Canada and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information, or materials in any way whatsoever except for permitted use of the External Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or The SampleBank Canada. No portion of the External Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and you shall not exploit the External Services in any unauthorized way whatsoever, including, but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and that neither Licensor nor The SampleBank Canada is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External Services.
In addition, External Services and Third Party Materials that may be accessed from, displayed on, or linked to from The SampleBank Devices are not available in all languages or in all countries or regions. Licensor makes no representation that such External Services and Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such External Services and Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such External Services. Licensor may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
f. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
g. The laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, provincial, territorial, federal or international laws.
Disclosure to Third Parties
At times The SampleBank may make certain personal information available to strategic partners that work with The SampleBank to provide products and services, or that help The SampleBank market to customers. Personal information will only be shared by The SampleBank to provide or improve our products, services and advertising; it will not be shared with third parties for their marketing purposes.
The SampleBank shares personal information with companies who provide services such as information processing, extending credit, fulfilling customer orders, delivering products to you, managing and enhancing customer data, providing customer service, assessing your interest in our products and services, and conducting customer research or satisfaction surveys. These companies are obligated to protect your information and may be located wherever The SampleBank operates.
It may be necessary – by law, legal process, litigation, and/or requests from public and governmental authorities within or outside your country of residence – for The SampleBank to disclose your personal information. We may also disclose information about you if we determine that for purposes of national security, law enforcement, or other issues of public importance, disclosure is necessary or appropriate.
We may also disclose information about you if we determine that disclosure is reasonably necessary to enforce our terms and conditions or protect our operations or users. Additionally, in the event of a reorganization, merger, or sale we may transfer any and all personal information we collect to the relevant third party.
Protection of Personal Information
The SampleBank takes precautions — including administrative, technical, and physical measures — to safeguard your personal information against loss, theft, and misuse, as well as against unauthorized access, disclosure, alteration, and destruction.
The SampleBank online services such as The SampleBank Online Store and The SampleBank Store use Secure Sockets Layer (SSL) encryption on all web pages where personal information is collected. To make purchases from these services, you must use an SSL-enabled browser such as Internet Explorer , Firefox, Chrome or Safari. Doing so protects the confidentiality of your personal information while it’s transmitted over the Internet.
When you use some The SampleBank products, services, or applications or post on a The SampleBank forum, chat room, or social networking service, the personal information you share is visible to other users and can be read, collected, or used by them. You are responsible for the personal information you choose to submit in these instances. For example, if you list your name and email address in a forum posting, that information is public. Please take care when using these features.
Integrity and Retention of Personal Information
Access to Personal Information
You can help ensure that your contact information and preferences are accurate, complete, and up to date by logging in to your account. For other personal information, we make good faith efforts to provide you with access so you can request that we correct the data if it is inaccurate or delete the data if The SampleBank is not required to retain it by law or for legitimate business purposes. We may decline to process requests that are unreasonably repetitive, require disproportionate technical effort, jeopardize the privacy of others, are extremely impractical, or for which access is not otherwise required by local law. Access, correction, or deletion requests can be made to the regional Privacy email addresses.
SAMPLE REPRESENTATION AGREEMENT
This Sample Representation Agreement (the “Agreement”) is entered into on , by and between The SampleBank Inc., P.O. Box 47069, 10 Dundas Street East, Toronto, Ontario, Canada M5B 0A1 (“TSBI”), and , having an address at
WHEREAS TSBI owns and operates an online music sample licensing service known as The SampleBank™ (the “Service”);
AND WHEREAS the Owner desires to upload one or more sound recording sample(s) for licensing through the Service;
AND WHEREAS the Owner owns or exclusively controls all rights in and to the sound recording sample(s) uploaded by Owner for licensing through the Service and the excerpt(s) of the musical composition(s) embodied therein (such sound recording(s) and musical composition(s) are referred to collectively herein as the “Sample(s)”);
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, TSBI and Owner agree as follows:
1. Appointment of Licensing Agent: Owner hereby appoints TSBI as Owner’s non-exclusive licensing agent for the Sample(s), and authorizes TSBI during the Term and throughout the world to license the Sample(s) for use in third party sound recordings through the Service in accordance with the licensing and pricing policies established by TSBI from time to time. Owner acknowledges that such licenses through the Service are typically granted on a world-wide, perpetual, flat-fee/buy-out basis using an automated process, and permit the use of the licensee’s resulting recording in any manner or media, including, without limitation, in synchronization with audio-visual works, and may permit looping or other editing to comply with a licensed duration. TSBI shall have the right to reproduce and stream the Sample(s) on the website and applications relating to the Service for the purpose of promoting and making the Sample(s) available for licensing.
2. Owner Legally Bound: OWNER SHALL LEGALLY BOUND BY ALL THIRD PARTY LICENSES ISSUED BY TSBI THROUGH THE SERVICE WITH RESPECT TO THE SAMPLE(S).
3. Exclusive Licenses: TSBI shall not issue any exclusive license with respect to the Sample(s) without the Owner’s prior written approval.
4. Term: The term of this agreement (the “Term”) commences on Owner’s acceptance of this agreement and continues for an initial period of one (1) year. Thereafter, the Term shall automatically renew for successive one (1) year periods until terminated by either party no less than sixty (60) days prior to the then current contract year. Notwithstanding the foregoing, TBSI shall have the right, upon notice to you, to terminate the Term at any time or remove one or more Sample(s) from the Service in its absolute discretion (including, without limitation, upon receipt of any so-called take-down notice). Upon expiration of the Term, TBSI will remove the Sample(s) from the Service and cease any further licensing thereof. The expiration or termination of the Term shall not affect licenses issued prior thereto.
5. Revenue Sharing: TSBI shall pay to Owner sixty percent (65%) of the gross revenue (net of any applicable sales taxes) earned and actually received by TSBI from the licensing of the Sample(s).
6. Accounting: TSBI shall account to Owner and pay royalties owing on a quarterly basis, within 60 days following each calendar quarter during which royalties were earned. Where the amount owing by TSBI to Owner for a particular quarter is less than $100.00, TSBI shall not be required to make payment, but shall instead carry such amount forward to the next month until the amount payable is more than $100.00.
7. No Rights in Third Party Work: Owner acknowledges and agrees that it shall have no claims to an ownership, copyright or authorship interest in any third party sound recording or musical work that makes use of the Sample(s) licensed through the Service, and expressly disclaims any such interest.
8. No DRM. Owner acknowledges and agrees that TSBI may make the Sample(s) available without embedded digital rights management or technical protection measures, and that TBSI shall not be responsible for the unauthorized reproduction or other use of the Sample(s) by third parties.
9. Limited Representations and Warranties: Owner represents and warrants only that (a) it has the right and authority to enter into this Agreement, (b) the Samples are original to the Owner, are owned or controlled entirely by the Owner and do not infringe upon the intellectual property or contractual rights of any third party, (c) the consent of no other person, firm or corporation (including any publisher, record company, producer, mixer, performer, musician, songwriter, etc.) is or will be required to authorize TSBI’s licensing of the Sample(s) as described herein, (d) neither TSBI nor any of its licensees shall be obligated to make payments to any person, firm, corporation, union or guild as a result of their use of any Sample licensed through the Service, and (e) TSBI’s licensing of the Sample(s) as provided herein shall not infringe upon the intellectual property rights of any third party or otherwise result in liability to any person.
10. Indemnity: Owner shall indemnify and hold TSBI and its licensees and their respective directors and officers harmless from and against any and all damages and costs (including reasonable legal costs) arising as a result of any third party claim or demand based on a breach of Owner’s representations and warranties hereunder. TSBI agrees to notify the Owner of any claim to which the foregoing indemnity applies, and the Owner shall have the right to participate in the defence thereof at the Owner’s expense.
11. Disclaimer: TSBI makes no representations or warranties with respect to the Service, including, without limitation, with respect to the security of the Service or the results that may be obtained from TSBI’s representation of the Sample(s) through the Service.
12. Limitation of Liability: SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL TSBI, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES OR LICENSEES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, TSBI’S REPRESENTATION OF THE SAMPLE(S) HEREUNDER, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, EVEN IF TSBI OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF TSBI TO THE OWNER IN CONNECTION WITH THIS AGREEMENT OR THE SAMPLE(S) EXCEED THE GROSS REVENUE EARNED AND RECEIVED BY TSBI WITH RESPECT TO THE SAMPLE(S).
13. Assignment: This Agreement and the rights granted herein are personal to the Owner and may not be assigned by Owner without TSBI’s express written consent. Nothing in this Agreement shall limit or restrict TSBI’s right to assign, sell, license or otherwise transfer its rights or obligations under this Agreement. The terms and conditions of this Agreement shall be binding upon, and shall inure to the benefit of, the parties respective successors and assigns.
14. Notices: All notices hereunder shall be in writing and shall be given by personal delivery, courier, or by registered or certified mail, with all charges pre-paid, at the addresses first herein written, or to such other address as either Owner or TSBI may designate by notice to the other, and the date of such delivery or mailing shall be deemed to be the date of such notice.
15. Miscellaneous: This Agreement expresses the entire understanding of the parties hereto, and supersedes all prior and contemporaneous agreements and undertakings of the parties, with respect to the subject matter hereof. This Agreement cannot be amended other than by a written instrument duly executed by Owner and TSBI. No waiver by either party hereto of any breach of any agreement to be performed by the other party hereunder shall be deemed to be a waiver of any preceding or subsequent breach of the same or any other agreement hereunder. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario, and the federal laws of Canada applicable to contracts wholly made within the Province of Ontario. The parties hereby irrevocably attorn and consent to the exclusive jurisdiction of the Ontario courts located in the City of Toronto with respect to all disputes regarding this Agreement . If any part of this Agreement is determined to be void, invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of this Agreement shall continue in full force and effect.
To confirm the Owner’s acceptance of the foregoing terms and conditions, and proceed to the Sample Upload page, please type your name and title where indicated below, check all check-boxes, and click the “I Accept” button. Upon acceptance of these terms and conditions, the foregoing shall constitute a legally binding agreement.
SAMPLE LICENSE AGREEMENT
This Sample License Agreement (the “License”) is entered into on , by and between The SampleBank Inc., P.O. Box 47069, 10 Dundas Street East, Toronto, Ontario, Canada M5B 0A1 (“TSBI”), and , having an address at
WHEREAS TSBI owns and controls the musical compositions and master sound recordings comprising The SampleBank™ sample library (the “SampleBank”);
AND WHEREAS the Licensee desires to license one or more samples from the SampleBank for use in its creation of a new sound recording;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, TSBI and Licensee agree as follows:
16. Definitions: As used in this License:
a. “Licensed Sample(s)” means, collectively, the following sound recording sample(s) and the excerpts of the musical composition(s) embodied therein, which form part of the SampleBank:
b. “Licensed Use” means the use of the Licensed Sample(s) in the Recording solely as follows:
c. “Recording” means the new sound recording featuring the performance byof the new composition
17. Grant of Rights: Effective upon Licensee’s acceptance of these terms and conditions, and payment of the Fee, and subject to the Licensee’s full compliance with the terms and conditions set forth herein, TSBI hereby grants to the Licensee and its successors, assigns and licensees the following non-exclusive rights with respect to the Licensed Sample(s) throughout the world and in perpetuity:
a. The right to record and embody the Licensed Sample(s) in the Recording, solely in accordance with the Licensed Use.
b. The right to exploit the Licensed Sample(s) solely as embodied in the Recording created in accordance with subsection 2(a), in any and all manner and media, including, without limitation, in synchronization with audio-visual works.
18. All Other Rights Reserved: TSBI hereby reserves unto itself all rights of every kind and nature that are not expressly granted to Licensee herein with respect to the Licensed Samples(s). Nothing in this License shall be construed to grant to or confer upon the Licensee any ownership or copyright rights or interests, or any exclusive rights, in or to the Licensed Samples(s).
19. License Fee: As consideration for the rights granted herein, Licensee shall pay to TSBI a license fee in the amount of $(the “Fee”), plus applicable taxes, upon execution of this License. All rights granted to Licensee hereunder are conditional on TSBI’s timely receipt of the Fee.
20. Delivery: Following execution of this License and payment of the Fee, Licensee will be granted access to download the Licensed Samples(s) from the SampleBank website. It is a condition of this License that the Licensee shall not grant any third party the right to access or use the Licensed Sample(s), unless such third party is the licensee or assignee of Licensee’s rights under this License in accordance with section 11 below.
21. No Modification: The Licensee may not alter or re-record the Licensed Sample(s) in any manner without TSBI’s express prior written approval, except that Licensee may loop and/or edit the Licensed Sample(s) solely to comply with the Licensed Use.
22. Limited Representations and Warranties: TSBI represents and warrants only that (a) it has the right to grant this License and (b) the Licensee’s exercise of the rights granted herein, in accordance with this License and applicable law, shall not infringe upon the intellectual property rights of any third party. This License is given and accepted without any other representation, warranty or recourse, express or implied, all of which are expressly disclaimed by the TSBI.
23. Indemnity: TSBI shall indemnify and hold the Licensee harmless from and against any and all damages and costs arising as a direct result of any third party claim based on a breach of TSBI’s representations and warranties hereunder, provided such claim has been reduced to a final judgment adverse to the Licensee or has been settled with TSBI’s written consent. It shall be a condition to the foregoing indemnity that the Licensee shall have given TSBI prompt written notice of any claim to which the foregoing indemnity applies, and TSBI shall have the opportunity to control or participate in the defense thereof, at TSBI’s election.
24. Limitation of Liability: With the sole exception of TSBI’s indemnification obligation hereunder, in no event shall the total liability of TSBI to the Licensee in connection with this License or the Licensed Sample(s) exceed the amount of the Fee.
25. Breach & Cure: If Licensee or its assigns, licensees or sub-licensees breaches the terms of this License, and fails to cure such breach within thirty (30) days after written notice of such breach is given by TSBI to Licensee, then this License will automatically terminate, and will be deemed null and void from inception.
26. Assignment: This License and the rights granted herein may be transferred or assigned by Licensee without TSBI’s express written consent, provided however that Licensee shall remain primarily liable for the performance of all terms and conditions hereunder. Nothing in this License shall limit or restrict TSBI’s right to assign, sell, license or otherwise transfer its interest in the Licensed Sample(s). The terms and conditions of this License shall be binding upon, and shall inure to the benefit of, the parties respective successors and assigns.
27. Notices: All notices hereunder shall be in writing and shall be given by personal delivery, courier, or by registered or certified mail, with all charges pre-paid, at the addresses first herein written, or to such other address as either Licensee or TSBI may designate by notice to the other, and the date of such delivery or mailing shall be deemed to be the date of such notice.
28. Miscellaneous: This License expresses the entire understanding of the parties hereto, and supersedes all prior and contemporaneous agreements and undertakings of the parties, with respect to the subject matter hereof. This License cannot be amended other than by a written instrument duly executed by Licensee and TSBI. No waiver by either party hereto of any breach of any agreement to be performed by the other party hereunder shall be deemed to be a waiver of any preceding or subsequent breach of the same or any other agreement hereunder. This License shall be governed by, and construed in accordance with, the laws of the Province of Ontario, and the federal laws of Canada applicable to contracts wholly made within the Province of Ontario. The parties hereby irrevocably attorn and consent to the exclusive jurisdiction of the Ontario courts located in the City of Toronto with respect to all disputes regarding this License. If any part of this License is determined to be void, invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of this License shall continue in full force and effect.
To confirm the Licensee’s acceptance of the foregoing terms and conditions, and proceed to the Payment page, please type your name and title where indicated below, check all check-boxes, and click the “I Accept” button. Upon acceptance of these terms and conditions, and payment of the Fee, the foregoing shall constitute a legally binding agreement.
AGREED AND ACCEPTED on thisby
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The SampleBank Inc., P.O. Box 47069, 10 Dundas Street East, Toronto, Ontario, Canada M5B 0A1
Last updated 30 January 2012