YOU MUST READ ALL OF THIS LICENSE AGREEMENT CAREFULLY AND AGREE TO ALL ITS TERMS BEFORE DOWNLOADING ANY FILES FROM THIS WEBSITE. BY DOWNLOADING OR RE-RECORDING ANY FILES FROM THIS WEBSITE, YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, (2) YOU ARE AT LEAST THE AGE OF MAJORITY IN THE STATE IN WHICH YOU ENTER INTO THIS AGREEMENT TO ENTER INTO A LEGALLY BINDING AND ENFORCEABLE CONTRACTUAL AGREEMENT WITH BEATCAN.COM, AND (3) YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU HAVE NAMED AS THE LICENSOR, AND TO BIND YOURSELF OR THAT LEGAL ENTITY TO EACH AND EVERY TERM OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS AGREEMENT, YOU ARE NOT GRANTED A LICENSE HEREUNDER TO DOWNLOAD OR UTILIZE ANY OF THE FILES AVAILABLE ON THE BEATCAN.COM WEBSITE, FOR ANY PURPOSE WHATSOEVER. REMEMBER, YOUR DOWNLOADING OF ANY FILE(S) FROM THE BEATCAN.COM WEBSITE SIGNIFIES YOUR AGREEMENT TO COMPLY WITH EACH AND EVERY TERM OF THIS LICENSE AGREEMENT.
This Non-Exclusive Royalty Free License Agreement (the “Agreement”) is made by and between Audiocan, LLC, a California Limited Liability Company, licensed to do business in the State of Florida, d/b/a Beatcan.com (“Licensor”) and the you, the subscriber (“Licensor”). In consideration of these presents and for other good and valuable consideration exchanged between the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensor and Licensee agree to the following terms.
1. Licensor grants to Licensee the non-exclusive right to re-edit and use all, or any partof, the audio clips (“Stems”) and other material provided to and downloaded by Licensee from Licensor’s website, Beatcan.com (“Licensed Material), for commercial or non commercial use within the territory of the world (the “Territory.”). No download of any Licensed Material shall be deemed to be a sale, and Licensor shall retain all copyrights in the Licensed Material, subject to the rights granted by this License Agreement. By any use whatsoever by Licensee of the Licensed Material, Licensee thereby accepts all of the terms of this License Agreement, without limitation. Provided that the Licensee complies with each and every term of this Agreement, any license granted hereunder shall be non-revocable.
2. Licensee may cause the Licensed Material to be re-recorded in digital form or media, on tape or in any other medium, now known or hereafter created. Licensee may edit said Licensed Material as desired, and may use the Licensed Material, and/or portions thereof, and/or re-recordings of the Licensed Material, and/or portions thereof in perpetuity, within the territory, without payment of royalties to Licensor, from the date of this License.
3. Licensee may use the Licensed Material for any commercial or non-commercial use, in any medium whatsoever, now or in the future known, including but not limited film, tape, digital recording, multimedia and internet media, however any use of the Licensed Material must incorporate it into a Derivative Work, as hereinafter defined. “Derivative Work” shall mean a work created by Licensee in which the Licensed Material is incorporated into the work with substantial modification (and only with substantial modification) so that the Derivative Work is not in a form which is substantially similar to the Licensed Material and is not in a form which permits a third party to decompile or extract the Licensed material from Licensee’s work. Any and all such work shall be deemed to meet the definition of a “Derivative Work,” under United States Law.
4. Licensee shall not sub-license, sell or otherwise distribute to any third-party the Licensed Material, or any of it, except in a form for which rights have been granted hereunder to Licensee and only then as part of a Derivative Work, which shall not be decompiled to enable the Licensed Material to be used in any work other than the Derivative Work in which it was a part. Any form of the Licensed Material which is provided to a third-party as a component of Licensee’s work product shall not be reused in any other form by the third-party, and said third-party’s rights to the Licensed Material shall exist only as it is embodied the Derivative Work.
5. Licensor acknowledges that Licensee may upload a Derivative Work incorporating Licensed Material. Licensee specifically understands and acknowledges that YouTube may reject Licensee’s Derivative Work, and that Licensor has no control over such denial. It shall be Licensee’s sole responsibility and obligation to resolve any such denial, and Licensee acknowledges and agrees that Licensor shall have no obligation to do so and shall incur no liability for any failure to resolve any such denial. Lessee acknowledges and agrees that because YouTube and similar audio and video sharing entities are not controlled by Licensor, Licensor does not guarantee success in resolving any such denial to Licensee’s satisfaction.
6. If credit for the Licensed Material is required by a website or other use, said credit shall be given to Licensor, in substantially the following form: “©Beatcan.com” Use of the Licensed Material in Derivative Works for public performance is specifically authorized, however Licensor makes no warranty, express or implied that any particular performing rights organization will accept Licensee’s use of the Licensed Material in any work created by Licensee, and the burden of satisfying any requirements of any performing rights organization for use of any or all of the Licensed Material shall rest solely on Licensee.
7. Licensee shall pay any and all sales taxes, use taxes, value added taxes and any and all other taxes and duties imposed by any jurisdiction as a result of the license granted hereunder, and Licensee hereby agrees to indemnify, defend and hold harmless Licensor for any and all claims made against Licensor for such taxes.
8. Licensee shall not use, import, or transfer the Licensed Material in an manner contrary to United States federal and state statutes, codes, laws and regulations, and including but not limited to the Patriot Act and also including but not limited to statutes, codes, laws and regulations promulgated by the United States Department of Commerce and the United States Department of the Treasury and any applicable statute, code, law or regulation of the jurisdiction in which Licensee resides and/or transacts any matter related to the subject matter of this Agreement.
9. ALL LICENSED MATERIAL IS DELIVERED TO LICENSEE “AS IS, WHERE IS.” BEATCAN.COM MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FO A PARTICULAR PURPOSE, AND EXPRESSLY DISCLAIMS ANY WARRANTY THAT ANY OF THE LICENSED MATERIAL IS SUITABLE FOR ANY PARTICULAR PURPOSE, OR THAT ANY OF THE LICENSED MATERIAL IS OF A PARTICULAR QUALITY OR LEVEL OF COMPATIBILITY WITH ANY HARDWARE OR SOFTWARE, HOWEVER, AT ANY TIME, OCCURRING. THE LICENSED MATERIAL IS SOLD WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE. LICENSOR DISCLAIMS ANY LIABILITY UNDER THE LAW, IN TORT OR OTHERWISE, FOR DAMAGES, DIRECT OR CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR PERSONAL INJURIES, WRONGFUL DEATH, PROPERTY DAMAGE AND LOSS OF USE OF EQUIPMENT, RESULTING FROM ANY MALFUNCTION OR FROM ANY DEFECT IN DESIGN, MATERIAL, WORKMANSHIP OR MANUFACTURING OF THE LICENSED FILES, WHETHER CAUSED BY NEGLIGENCE ON THE PART OF THE LICENSOR, OR ANY MANUFACTURER OF ANY PART, ACCESSORY OR COMPONENT OF THE LICENSED MATERIAL. BUYER, BY USE OF THE LICENSED MATERIAL AND/OR BY ALLOWING IT TO BE USED BY OTHERS TO THE EXTENT PERMITTED BY THIS LICENSE, WAIVES ANY LIABILITY ON THE PART OF THE LICENSOR FOR PERSONAL INJURIES, WRONGFUL DEATH, LOSS OF CONSORTIUM, PROPERTY DAMAGE AND LOSS OF USE OF EQUIPMENT, LOST PROFITS, AND ANY AND ALL OTHER DAMAGES FORESEEN OR UNFORESEEN. LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO DELIVER ANY LICENSED MATERIAL TO LICENSEE. LICENSOR MAKES NO GUARANTEE OR WARRANTY THAT ANY SPECIFIC STEM OR OTHER PORTION OF THE LICENSED MATERIAL WILL BE AVAILABLE OR DELIVERED TO LICENSEE, EVEN IF SAID FILE IS SELECTED BY LICENSEE FOR DOWNLOAD OR OTHER USE. LICENSOR SHALL NOT BE RESPONSIBLE FOR DELAYS OR FAILURE TO DELIVER THE LICENSED MATERIAL, OR ANY PORTION THEREOF, CAUSED BY TECHNICAL DIFFICULTIES OR FAILURE OF LICENSOR’S STORAGE AND DELIVERY SYSTEM, OR ANY PART OR COMPONENT THEREOF. LICENSEE ACKNOWLEDGES AND AGREES THAT NEITHER BEATCAN.COM, NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, REPRESENTATIVES OR AGENTS SHALL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL, OR OTHERWISE OCCURRING ARISING OUT OF, OR AS A RESULT OF, ACCESSING, DOWNLOADING, USE OR NONUSE OF ANY OR ALL OF THE LICENSED MATERIAL, INCLUDING BUT NOT LIMITED TO DAMAGE TO ANY COMPUTER OR COMPONENT THEREOF.
10. LICENSEE HEREBY WAIVES AND RELEASES ANY AND ALL CLAIMS OF WARRANTY, AGREEMENTS, GUARANTEES, CONDITIONS, DUTIES, OBLIGATIONS, REMEDIES OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM, WITH RESPECT TO LICENSOR’S PERFORMANCE HEREUNDER, AND LICENSEE AGREES THAT LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGE OR LOSS (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES) SUFFERED BY BUYER, DIRECTLY OR INDIRECTLY BECAUSE OF ANY DEFECT IN LICENSOR’S PERFORMANCE HEREUNDER. NO AGREEMENT OR UNDERSTANDING VARYING, ALTERING OR EXTENDING LICENSOR’S LIABILITY HEREUNDER SHALL BE BINDING ON LICENSOR UNLESS IN WRITING AND SIGNED BY LICENSOR’S AND LICENSEE’S DULY AUTHORIZED OFFICER OR REPRESENTATIVE.
11. LICENSOR SHALL NOT, IN ANY CASE BE LIABLE TO LESSEE IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT RECEIVED BY LICENSOR FOR LICENSEE’S SUBSCRIPTION COSTS PAID TO BEATCAN.COM, OR ITS DULY AUTHORIZED REPRESENTATIVES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THE LAWS IN SUCH JURISDICTION(S) APPLY TO LICENSEE, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY, AND LICENSEE MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSOR AND LICENSEE.
12. Licensor represents to Licensee that to the best of Licensor’s knowledge and belief, Licensor possesses or has obtained all rights to the Licensed Material necessary for the grant of this Non-Exclusive License, and that the rights granted hereunder will not infringe upon any rights of any person or entity.
13. Upon notice from Licensor, or upon Licensee becoming aware that any Licensed Material is subject to a threatened, potential or actual claim of infringement of another's right for which Licensor or Licensee may be liable, Licensee must immediately and at Licensee’s own expense (I) stop using the Licensed Material; and (ii) delete or remove the Licensed Material from use and electronic storage in any manner by Licensee; and (iii) ensure that any third-party storing or using the subject Licensed Material in Licensee’s Derivative Work does the same. Licensee agrees that Licensee’s sole remedy for such threatened, potential or actual claim of infringement shall be to replace the subject material with replacement Licensed Material which, in Licensor’s sole judgment, be deemed to replace the subject Licensed Material. The replacement Licensed Material shall be subject to the further terms and conditions contained in this Agreement.
14. Licensor retains all right, title, and interest and United States and International copyright protection in and to the Licensed Material which is not expressly granted by Licensor to Licensee. Licensor retains any and all rights to trademark or service mark of the Licensed Material, and Licensee shall not claim any proprietary or intellectual property rights in the Licensed Material, or any part thereof, except as may be incorporated in Licensee’s works.
15. Licensee agrees to defend, indemnify, and hold harmless the Licensor from and against all claims, losses, costs, liabilities, and expenses of any kind, including reasonable attorney’s fees arising out of the use of the Licensed Material by Licensee, or by Licensee’s breach of any of the covenants or warranties Licensee has made herein. Licensee hereby releases Licensor and its successors and assigns from any and all claims, demands, losses, damages, rights, and actions of any kind, including but not limited to personal injury, death and property damage which is directly or indirectly related to, or arises from the Licensed Material, or any use or non-use thereof. If Licensee is a California resident, to any and all extent applicable to the terms and intent of this Agreement Licensee expressly waives the provisions of California Civil Code §1542, which states that “(a) general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
16. As a condition precedent to the rights granted to Licensee hereunder, Licensee shall have a registered account with Beatcan.com at the time any Licensed Material is downloaded by Licensee. The foregoing notwithstanding, provided that at all times during which the License Agreement is in effect Licensee complies with all terms of the License Agreement, the license to use the Licensed Material granted to Licensee hereunder shall remain in effect in perpetuity for any and all Licensed Material downloaded by Licensee during any period in which any license granted to Licensee hereunder was in effect.
17. This Agreement will commence on the date when Licensee first downloads any Licensed Material and will remain in effect as long as you maintain any Licensed Material or Derivative Work in Licensee’s possession. The license contained in this Agreement will terminate automatically without notice from Licensor if Licensee fails to comply with any provision of this Agreement, as it may be amended from time to time. If Licensee elects to terminate this Agreement, Licensee may do so at any time by notifying Licensor, in writing of Licensee’s election to do so. Licensee’s indemnity and payment obligations and Licensor’s limitations of liability and right to payment for Licensed Material as provided for in this Agreement, or elsewhere, and shall survive any termination or expiration of this Agreement, however occurring. Licensee’s license to use any Licensed Material in the manner provided for in this Agreement and the provisions of this Agreement governing such use shall also survive any termination of this Agreement. Each party’s right to enforce the surviving terms of this Agreement and the procedures contained herein for so doing shall also survive any termination or expiration of this Agreement.
18. This Agreement represents the entire understanding and agreement between the parties. All covenants, and representations, and agreements shall survive the execution of this Agreement. No waiver of any provisions of this Agreement shall be valid unless in writing and signed by the party against whom charged.
19. This Agreement may not be assigned, subcontracted, delegated, or otherwise transferred by Licensee without the express written consent of Licensor, and if Licensee does approve such assignment, the terms of this Agreement shall be fully binding upon the assignee(s).
20. Neither Licensor nor Licensor is an agent, employee or representative of the other.
21. This License is made and given at Miami, Miami-Dade County, Florida, United States of America and shall be construed and interpreted in accordance with the laws of the State of Florida, United States of America applicable to agreements entered into and wholly to be performed therein. The parties agree to the exclusive jurisdiction of the state courts of Miami, Miami-Dade County, Florida for the resolution of any interpretation, dispute or litigation related to the this Agreement and the subject matter hereof. Venue shall lie solely in the state courts of Miami-Dade County, Florida. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In addition to remedies at law which may be available to Licensor for damages for Licensee’s breach of this Agreement, or of any term herein contained, Licensee agrees that Licensor shall be entitled to equitable and other injunctive relief to enforce any and all terms of this Agreement, when appropriate.
22. In the event a dispute arises regarding interpretation or application of any of the terms of this License Agreement, and such dispute is litigated, the party prevailing in such litigation, in addition to any damages awarded, shall be entitled to recover from the losing party their reasonable attorneys’ fees and costs expended both in the trial and appellate courts.
23. This License Agreement may be modified or amended by Licensor at any time upon not less than thirty (30) days notice, which notice shall be posted on Licensor’s website. By any further downloading of any file by Licensor from the Beatcan.com website after said modification or amendment is posted on the website, Licensee shall be deemed to have actual knowledge or constructive knowledge of all such modifications and amendments, and Licensee agrees to be thereby bound. Licensee may further, from time to time, and at any time, require that Licensee agree to the Agreement and/or any and all modifications and amendments thereof then in effect before downloading further files from the Beatcan.com website. If Licensee, at any time, does not consent to comply with all terms of any modification or amendment, Licensee shall not download any further files from the Beatcan.com website, and no refund shall be made to License of any fees paid by Licensee to Licensor in furtherance of this Agreement and the subject matter hereof. Any further download shall be deemed to evidence Licensee’s full agreement to comply with each and every term of the License Agreement, as modified or amended. In the event of any conflict between this Agreement and any prior executed licensing agreement between the parties hereto, the terms of this License Agreement shall govern.
24. No failure of either party to exercise or enforce any of its rights hereunder shall serve as a waiver of such rights.
25. If any provision of this Agreement shall be prohibited by law, or by court decree, or by impossibility of performance, that provision shall be ineffective to the extent of such prohibition without in any way invalidating or affecting the remaining provisions of this Agreement.