ULTIMATE SUPERSTAR TERMS OF SERVICE
1. ACCEPTANCE OF TERMS OF SERVICE.
Welcome to Ultimate Superstar! Ultimate Superstar! is owned and operated by Brooklyn Boy Music. Brooklyn Boy Music owns and operates several web pages including Ultimate Superstar! (sometimes referred to herein as the "Website"). The provision of our service to you is subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. In addition, when using our various services, you may be subject to additional guidelines or rules applicable to such services, as same may also be posted from time to time. All of those guidelines or rules are hereby incorporated by reference into these TOS.
2. SERVICE DESCRIPTION.
Through our Website, we provide you with the opportunity to: (1) submit your music to be performed via our Ultimate Superstar! Website and other means as we may elect from time to time; (2) we may have you to submit materials in order to create a user profile ("User Profile Page") to be displayed in connection with such performances and/or sales or otherwise accessed by others; (3) interact with members in our community; and (4) listen to, purchase, rank, rate and review music available on the Website (the “Service”). If you are submitting music and other material, you are sometimes referred to herein as an "Artist". If you are submitting material to create a User Profile Page in order to interact with other members in our community and listen to and/or purchase music available on the Website you are sometimes referred to herein as a "Member". And, finally, if you are visitor to the Website who is listening to and/or purchasing music available on the Website then you are sometimes referred to herein as a "Visitor". In addition, you understand that other writers, musicians, producers and members of the entertainment industry will frequently be asked to adjudge or critique the music provided on this website and it implies, by no means, that either the producer, musician or artist commenting is obligated or committed to any predisposed, or otherwise, business arrangement with you. You understand and agree that the Service may include advertisements and that these advertisements are necessary for us to continue to provide the Service. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that we assume no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access may involve third party fees (such as fees to an Internet service provider or fees for airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3. AGE REQUIREMENTS FOR USE OF SERVICE.
The Service is available to individuals aged fourteen (14) years or older. If you are fourteen (14) years or older but under the age of eighteen (18) years, then a parental consent or guardianship will be required prior to your accessing membership. You should review these terms and conditions with your parent or legal guardian to make sure that you and your parent or legal guardian understand these terms and conditions.
4. YOUR REGISTRATION OBLIGATIONS.
No one is obligated to formally register with us. However, Visitors, Members and Artists must register with us and, in addition, Artists must accept the terms and conditions of our Artist Agreement which may be reviewed at any time, and is available by clicking on the “Artist Agreement” link that appears in the bottom navigation on every page of our site. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract (or if you are not, that you have obtained the informed consent of your parent or legal guardian to your assent to these terms and conditions) and that you are not a person barred from receiving or using the Service under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or which we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account with us and refuse any and all current or future use of the Service (or any portion thereof).
5. OUR PRIVACY POLICY.
Registration Data and certain other information about you is subject to our Privacy Policy. For more information, see our full Privacy Policy, which is available by clicking on the “Privacy Policy” link that appears in the bottom navigation on every page of our site.
6. MEMBER ACCOUNT, PASSWORD AND SECURITY.
Once you have registered with us, you will receive a password and account designation. You shall be responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 6 or any other provision of this TOS.
7. USE OF THE SERVICE.
You are hereby granted permission to access all information, data, text, software, music, sound, photographs, video, messages or other material ("Content") on the Website in whole or in part, solely for your personal, non-commercial use.
You understand that any Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from when such Content originated. This means that you, and not us, are entirely responsible for all Content that you upload, submit, post, email, transmit or otherwise make available via the Service. We do not control the Content submitted or posted via the Service and, do not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to: upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; harm minors in any way; impersonate any person or entity, including, but not limited to, anyone from our company, a moderator, personality or host, or falsely state or otherwise misrepresent your affiliation with any person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service; submit, upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights of any party; submit, upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation; submit, upload, post, email, transmit or otherwise make available any material that 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; interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; "stalk" or otherwise harass another; or to collect or store personal data about other users.
You acknowledge that, at our election, we may or may not pre-screen Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to refuse, remove or return any Content that is submitted to us and made available via the Service. Without limiting the foregoing, we and our designees shall have the right to remove any Content that violates the TOS or, if applicable, the Artist Agreement, or is otherwise objectionable in our sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not and shall not rely on any Content created by us or submitted to us, including without limitation information in any of our public forums, and in all other parts of the Service.
You acknowledge, consent and agree that we may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of our users and the public as well as our employees.
You understand that the technical processing and transmission of the Service, including any Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or any content providers who provide any materials utilized by the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
8. USE OF ULTIMATE SUPERSTAR! ONLINE.
Use of the Service requires a compatible device and Internet access. To ensure high-quality music streams we highly recommend broadband service (such as DSL or Cable Modem). You may not record or permanently store any music accessed on the Ultimate Superstar! to your computer hard drive or other storage device without the express written consent of the copyright owner.
9. SPECIAL ISSUES FOR USAGE OUTSIDE THE UNITED STATES.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
10. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE.
With respect to any and all Content that you submit, post, upload, email, transmit or otherwise make available via the Service in any area of the Website, including, without limitation, User Profile pages, message boards, review pages, and blogs, you shall grant to us and our licensees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, irrevocable right to use, perform, and display such Content on the Website for any purpose whatsoever, commercial or otherwise, without compensation to you. This license will terminate at the time either party hereto removes such Content from the Website. We will not return to you any copies of Content submitted by you and you agree that you have and shall at all times retain at least one copy of each item of Content and do hereby release us from any and all liability for loss or other damage to any copies of Content submitted by you. Notwithstanding the foregoing, music and related materials submitted to us by an Artist shall be subject to the terms and conditions of the Artist Agreement.
11. INDEMNITY.
You agree to indemnify and hold us, and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
12. NO RESALE OF SERVICE.
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your Ultimate Superstar! I.D.), use of the Service, or access to the Service.
13. GENERAL PRACTICES REGARDING USE AND STORAGE.
You acknowledge that we may establish general practices and limits concerning use of the Service, including, without limitation, the maximum number of days that uploaded Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that we have no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that we reserve the right to log off accounts that are inactive for an extended period of time and to remove accounts entirely that are not active for an extended period of time. You further acknowledge that we reserve the right to modify these general practices and limits from time to time.
14. MODIFICATIONS TO SERVICE.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
15. TERMINATION.
You agree that under certain circumstances and without prior notice, we may immediately terminate your account and access to the Service. Cause for such termination shall include, but not be limited to; (a) breaches or violations of the TOS or, if applicable, the Artist Agreement, or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions); (d) discontinuance or material modification to the Service (or any part thereof); (e) unexpected technical or security issues or problems; and (f) extended periods of inactivity. Termination of your account includes: (x) removal of access to all offerings within the Service, including but not limited to the American Idol Underground Online Radio Player, Mail, Groups, Messenger, Blogs, Domains, Personals, Lists, Message Boards, Greetings, Alerts and Games; (y) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof); and (z) barring further use of the Service by that account.. Further, you agree that all terminations for cause shall be made in our sole discretion and that we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service.
16. DEALINGS WITH ADVERTISERS OR THIRD PARTIES.
Your correspondence or business dealings with, or participation in promotions of, advertisers or any third party found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third parties on the Service.
17. LINKS.
The Service, Members, Artists, or third parties may provide links to other World Wide Web sites or resources. You acknowledge and agree that we are not responsible in any way for the availability of such external sites or resources, and that we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
18. OUR PROPRIETARY RIGHTS.
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
We grant you a personal, non-transferable and non-exclusive right and license to use the object code of our Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service.
19. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
b. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
c. WE MAKE NO WARRANTY THAT
i. THE SERVICE WILL MEET YOUR REQUIREMENTS,
ii. THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
iii. THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE,
iv. THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND/OR THAT
v. ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
d. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
e. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
f. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE -- DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
20. LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
21. EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
22. NOTICE
You agree that we may provide you with notices, including those regarding changes to the TOS, by either email, regular mail, or postings on the Service.
23. TRADEMARK INFORMATION.
You acknowledge and agree that the Ultimate Superstar! Logo, Brooklyn Boy Music and any and all other related materials and product and service names are our trademarks or the trademarks of our licensors and, without our express prior permission, you agree not to display or use them in any manner.
24. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who may be repeat infringers of such intellectual property. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent (as set forth in detail below) with a notice concerning the following information:
a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. A description of the copyrighted work or other intellectual property that you claim has been infringed;
c. A description of where the material that you claim is infringing is located on the Website;
d. Your address, telephone number, and email address;
e. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Our Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Brooklyn Boy Music
13600 Marina Pointe Drive
Marina del Rey, CA 9291101
By Email:
Brooklynboymusic.com
25. MISCELLANEOUS PROVISIONS.
The TOS constitute the entire agreement between you and us and governs your use of the Service, superceding any prior agreements between you and us. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party Content or third-party software.
You agree that, except as may be otherwise expressly provided in our TOS, there shall be no third party beneficiaries to this Agreement.
The TOS and the relationship between you and us shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and we agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Los Angeles, California.
Our failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
26. VIOLATIONS.
Please promptly report any violations of the TOS to Brooklynboymusic.com
Copyright, Brooklyn Boy Music, 2005. All rights reserved.
“ULTIMATE SUPERSTAR”
Please read this Agreement carefully.
This Agreement describes the legal relationship and contract between you (an individual, or corporation representing yourself, or if applicable, acting as a legal representative for a minor, band, group, company or corporation) and Brooklyn Boy Music (collectively with our licensees and assignees sometimes referred to in this Agreement as "we" and "us") the owner and operator of the web pages at "www.ultimatesuperstar.com" (the "Brooklyn Boy Music Website"). Brooklyn Boy Music is a California Corporation with offices at 13600 Marina Pointe Drive located in Marina Del Rey, California 90292. This Agreement supersedes any and all previous agreements or arrangements between the parties relating to this subject matter.
Through Brooklyn Boy Music’s “Ultimate Superstar,” we provide a unique and different service and opportunity to the artistically inclined musician, singer and performer. Through the competition created on our site, we will guarantee a winner who becomes the “Ultimate Superstar” in our online competition. Through the “Ultimate Superstar” website we encourage the best of your artistic expressions while offering you additional and valuable promotional and informational services through our affiliate sites and designs. We accomplish our goals by creating an online competition in which your materials are heard by others, including radio, record and film executives, throughout the entertainment industry. Your materials are heard often and exchanged among the executives with connections into every facet of the industry. So even if you don’t win the “Ultimate Superstar” competition, you have an opportunity to win a potential deal with a record company, producer or placement on a soundtrack. There will also be a number of meaningful consolation prizes in the competition. In order to effectively promote and advertise your materials as part of the “Ultimate Superstar” competition, you will need to grant us certain non-exclusive rights to use your music and other content you submit to us. Accordingly, we ask that you please read this Agreement carefully, consult with an attorney if necessary, and don’t hesitate to contact us at www.ultimatesuperstar.com should you have any questions.
Definitions:
As used herein: (a) any and all master recordings that are submitted by you are referred to as "Masters"; (b) any and all musical compositions that are embodied in the Masters are referred to as "Compositions"; (c) any and all photographs, artwork, biographical information (whether concerning you, artist or any member of artist, producers and/or songwriters (collectively the "Participants")), track titles and credits, logos and any other materials submitted by you are referred to as "Related Materials"; and (d) all Masters, Compositions, and Related Materials shall be referred to collectively as "Submitted Content".
Authorization:
During the Term you hereby grant to us and our licensees the non-exclusive, worldwide right to: Reproduce, distribute, perform, and/or display the Masters, in whole or in part, as individual tracks or coupled with other master recordings, as both non-interactive and on-demand digital audio streams.
Reproduce, distribute and/or display the Related Materials in connection with uses of the Masters as provided for herein.
Perform the Masters via internet or satellite radio transmission.
Edit, reproduce and/or perform up to thirty (30) second samples ("Samples") of each Master and make such Samples available by streaming to promote the Masters.
Perform and/or display the Masters, Samples and/or Related Materials during or in conjunction with the display of any audio or audio-visual third party advertisements on the “Ultimate Superstar” website.
Use the Compositions in the same manner as the use of the Masters is authorized. In that sense, you must specifically warrant and represent that you have obtained all the necessary rights, licenses and permissions from any and all third parties such as, without limitation, publishers and/or authors, as may be desirable or necessary to authorize use of each Composition as provided herein.
Use the Submitted Content as may be reasonably necessary or desirable to exercise any of the rights granted pursuant to this Agreement.
We and our licensees shall have the right to use the Submitted Content in the same manner as authorized herein in connection with the “Ultimate Superstar” website along with any other websites that are owned, controlled, affiliated with, or licensed by us or our licensees, including those of the Brooklyn Boy Music family. Notice is hereby provided for such use and should we decide to use the Submitted Content on any other website owned or controlled by us, you will have deemed to have waived your right to any claims involving notice and acceptance of such.
With respect to all uses of the Submitted Content as provided under Subparagraph 2(a), we shall have no obligation to make any payment of any kind (including, without limitation, any royalties) to you or any other person, firm or corporation, whether or not we and/or our licensees shall receive any monies or other consideration in connection with such uses.
You agree that we shall have the right to enter the Submitted Content on your behalf for inclusion in and otherwise in connection with any contests, sweepstakes or promotions that may be offered from time to time on the “Ultimate Superstar” website or any websites that are owned, controlled, affiliated with, or licensed by us or our licensees (herein the "Contests"). Your participation in any Contest shall be subject to the attendant rules of such Contest as shall be posted from time to time on the “Ultimate Superstar” website or such other website where the Contest is being offered. In the event you do not consent to participate in a particular Contest, you shall have the right to send us notice hereunder of your election not to participate in such Contest within five (5) days following our announcement of such Contest on the “Ultimate Superstar” website or any such other website owned or controlled by us or any other website where same is being offered.
Nothing herein shall obligate us to exercise any rights granted under this Agreement, and any use of Submitted Content shall be made at our sole election. We have the right to review, edit, alter, decline to post or remove any Submitted Content from the “Ultimate Superstar” website at our discretion.
You agree to be bound by the policies posted by us from time to time on the “Ultimate Superstar” website with respect to the services provided by us.
We are not able to return to you any copies of Submitted Content provided by you and you agree that you have and shall at all times retain at least one copy of each item of Submitted Content and do hereby release us from any and all liability for loss or other damage to any copies of Submitted Content.
You acknowledge that we have received and will be receiving a large amount of submitted material from third parties. You further acknowledge that we have had, and will continue to have access to materials that may be coincidentally similar to and/or identical to any item of your Submitted Content. You agree that you shall not be entitled to any compensation by reason of any use of any such similar or identical materials.
Your Obligations.
You shall obtain and pay for any and all necessary clearances and licenses that may be required in connection with the uses of Submitted Content as provided for herein. Specifically, you shall be responsible for and timely pay: (i) any royalties and other sums due to artists, authors, co-authors, copyright owners, producers and any other record royalty participants from performances or other uses of the Masters; (ii) all royalties and other sums (including, without limitation, mechanical royalties, print royalties, synchronization royalties, and performance royalties) payable to publishers and/or authors or co-authors from performances or other uses of the Compositions; (iii) all payments that may be required under collective bargaining agreements applicable to you or third parties; and (iv) any other royalties, fees and/or sums payable with respect to the delivery and use of Submitted Content hereunder.
If there is a change of circumstance as a result of which you reasonably believe that you do not have, or no longer have, the rights necessary to authorize us and/or any or our licensees to use any Submitted Content as provided herein, then you shall promptly provide us with notice hereunder of such fact, and we shall have the right to remove all or any of the Submitted Content and/or terminate the Term of this Agreement pursuant to Paragraph 6 below. Such removal and/or termination shall not relieve you of any of your obligations hereunder.
Names and Likenesses; Promotional Uses and Opportunities.
During the Term, we may use and authorize our licensees to use and publish the Related Materials, as well as the names and likenesses of the Participants, in connection with the marketing, promotion and advertising of the applicable Masters.
During the Term, we and any of our licensees shall have the unrestricted, royalty-free right to market, promote and advertise the Submitted Content as we determine in our sole discretion, including, without limitation, the right to use the Submitted Content: (i) in promotional digital audio streams (which Masters may be used as individual tracks or coupled with other master recordings); and (ii) to market, promote, and advertise the “Ultimate Superstar” website or any other websites that are owned, controlled, affiliated with, or licensed by us or our licensees, in any and all media now or hereafter known (e.g., radio, internet, TV, print). Without limiting the foregoing, we and any of our licensees shall have the right to determine which master recordings, irrespective of any particular artist, record company or label affiliation, would best further our commercial purposes, and to promote such master recordings more than others.
Ownership.
As between you and us, and except as to any of our rights (whether pre-existing or under this Agreement), all right, title and interest in and to the Submitted Content shall remain your property, provided that under no circumstances shall we have any lesser rights than we would have as a member of the general public.
Termination, Modification and Effect of Termination.
Both parties shall have the right to terminate the Term of this Agreement at any time and for any reason by sending notice hereunder of their election to terminate the Term of this Agreement to the other party.
We reserve the right, in our sole discretion, to change, modify, add or delete all or part of the provisions of this Agreement, provided that notice hereunder of any amendments and/or modifications to this Agreement shall be sent to you prior to their effective date.
We agree to use commercially reasonable efforts to remove any and all Submitted Content from the “Ultimate Superstar” website and to direct our licensees to do the same within five (5) business days following the date of termination of the Term of this Agreement. Following termination of the Term of this Agreement by either party, Paragraphs 3, 5, 6, 7, 8 and 9 hereof shall remain in full force and effect.
Indemnification and Limitation of Liability.
You agree to indemnify and hold harmless, and upon our request, defend us and our licensees and affiliates (and their and our respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees and costs) arising out of a claim by a third party concerning a breach or alleged breach of any warranty, representation, covenant or agreement made by you under this Agreement, including, without limitation, any claim that any use of any element of the Submitted Content as authorized hereunder violates or infringes the rights of another party. Upon final adjudication or settlement of any such claim, you will reimburse us on demand for all sums with respect to any payments made or costs incurred in resolution of any claim that is subject to indemnification under this Subparagraph 7(a).
EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.
Further Representations and Warranties.
You represent, warrant and can prove that you are at least eighteen (18) years of age. A parent or guardian may enter into this Agreement on your behalf if you are not 18 years of age.
You represent and warrant that you have the full authority to act on behalf of any and all owners of any right, title and/or interest in and to any of the Submitted Content hereunder.
You represent and warrant that you have the full authority to enter into this Agreement and to fully perform your obligations hereunder and have obtained all necessary third-party consents, licenses and permissions necessary to enter into and fully perform your obligations herein.
You represent and warrant that you own or control the necessary rights, including, without limitation, the copyright in and to any element of the Submitted Content, in order to make the grant of rights, licenses and permissions herein, and that the exercise of such rights, licenses and permissions by us hereto shall not violate or infringe the rights of any third party.
You represent and warrant that the Submitted Content does not and will not violate any law or be defamatory, libelous, pornographic, or obscene.
General Provisions.
This Agreement is no agency or joint venture. You and we agree and acknowledge that the relationship between you and us is that of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, employee, or representative.
Entire Agreement, Modification, Waiver.
This Agreement contains the entire understanding of the parties relating to the subject matter hereof. A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
Binding on Successors.
This Agreement shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of the parties.
Notices.
Any notice, approval, request, authorization, direction or other communication given to you under this Agreement shall be in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail or regular mail to the addresses provided by you upon registration with the “Ultimate Superstar” website, or as properly updated. In the event we are unable to send any such notices to you because your addresses are, for example, inactive or incorrect, we shall have the right to refrain from using the Submitted Content hereunder until such time that you provide us with updated addresses. Any notice, approval, request, authorization, direction or other communication given to us under this Agreement shall be in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to www.ultimatesuperstar.com or by regular mail to our address provided at the beginning of this Agreement.
Governing Law.
This Agreement shall be governed and interpreted in accordance with the internal laws of the State of California applicable to agreements entered into and wholly to be performed therein, without regard to principles of conflict of laws.
Remedies.
To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the parties at law or equity.
Headings.
The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.
No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, expressed or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.