1. What Does This Agreement Cover?
This Agreement governs your use of Widget.fm’s fan engagement platform, consisting of the services, widgets, APIs, and tools provided by Widget.fm, (collectively, the “Uploader Tools and Services”) for the delivery of files owned or controlled by you that you wish to distribute through Widget.fm (each a “File” and collectively the “Files”). At your election, you may elect to use or not use Widget.fm’s services hereunder.
2. How Does a Widget.fm User Begin Using Widget.fm’s Uploader Tools and Services?
To use the Uploader Tools and Services, you are not required to create an Uploader Account. In order to preview Widget.fm’s basic services, widgets, and tools, simply upload the desired Files into Widget.fm and the Files will be automatically stored and converted into an .zip archive (the “.Zip File”) as well as an associated widget. Although unregistered users will be able to embed the created widget and preview the Uploader Content Management
System (the “Uploader CMS”), distribution functionality via the created widget requires that Uploaders create an Uploader Account containing valid contact information. After creating an account, Uploaders have a variety of
pay-as-you-go options including Pre-Paid and Stored Credit Information opportunities.
You may designate members of your management team and others, such as band members and designers, as authorized users of your Uploader Account. Those authorized users will have full rights to access your Uploader
Account and to take any actions that you are authorized to take under this Agreement. However, you are solely responsible for any activity that occurs on your Uploader Account (except for activities expressly identified in this
Agreement as provided by Widget.fm), for maintaining the confidentiality of your Uploader Account password, and for keeping current your account information.
3. What Rights Does An Uploader Grant to Widget.fm for the Uploader Tools?
3.1 License Grant.
Widget.fm will not have any ownership rights in your Files or Artwork (defined below). We need only the following license to distribute your Files: you hereby grant to Widget.fm for as long as you are using the Uploader Tools and Services, a worldwide, non-exclusive, royalty-free right to (i) use, display and otherwise perform the Uploader Tools and Services on your behalf (e.g., use, display, perform, publish, and reproduce your Files along with all artistic or copyrightable works and materials you have uploaded through the Uploader Tools and Services (“Artwork”) for that purpose), (ii) Transmit, feature, promote, market, or otherwise distribute the Files and Artwork to customers on or through the Uploader Tools and Services; (iii) use and publicly display, and to permit others to use and publicly display, the name(s), trademarks, likeness, biographical materials and similar proprietary rights of you and all other members of
your band or group, in connection with the Uploader Tools and Services (but we shall not use your names or likenesses in any other context without your consent), and (iv) use all other information you provide to us.
3.2 Customer and Uploader Information.
To the extent generally available using the Premium Uploader Tools and Services, Widget.fm will provide you access to customer data (i.e., name, address, email) for customers who download your files; such customer data will be available to both Uploader and Widget.fm or in the alternative owned solely by you if so selected (via the Premium option). Notwithstanding the forgoing, you acknowledge and agree that Widget.fm may (i) use customer and user data (including your data) in an aggregate, anonymous form, (ii) use, supply to third party chart reporting organizations, and publish your sales data for chart reporting purposes, and (iii) supply to other third parties with your express permission. Notwithstanding the foregoing, if so selected via the Premium option, will not target communications to your customers without your express consent.
4. What Assurances and Commitments Does an Uploader Make to Widget.fm?
4.1 Representations and Warranties.
You are entirely responsible for the Files and Artwork that you make available for distribution through the Uploader Tools and Services, and you will ensure that you comply with any third party requirements based on the use of your Files and Artwork, including payment of any money owed to those third parties (such as royalties). You represent and warrant (and you will demonstrate to Widget.fm’s full satisfaction upon its request) that:
You own, control, or have all licenses, rights, consents, and permissions to use and authorize Widget.fm to use each and every image and sound contained or embodied in the Files or the Artworks to enable use, display, and distribution of the Files and Artwork through the Uploader Tools and Services. You have the written consent, release, and/or permission to use the name or likeness of each and every identifiable individual person and to include and use such individual’s name or likeness in the Files or Artwork to enable use, display, and distribution through the Uploader Tools and Services. The use, sale, or other promotion or distribution of the Files or Artwork on or through the Uploader Tools and Services or otherwise does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity. You have full authority to act on behalf of any and all owners
or licensees of any right, title or interest in and to any Files or Artwork. You will perform your obligations hereunder in compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance. You will not knowingly collect personal information from children 13 years of age or younger, and if you become aware that you have inadvertently collected the personal information of a child 13 years of age or younger, you will immediately delete such information.
You are responsible for all of your activity in connection with the Uploader Tools and Services. By way of example, and not as a limitation, you shall not (nor authorize anyone else to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any File, Artwork, or content on or through the Uploader Tools and Services, that: is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or tortious; infringes upon any third party’s right, title or interest; contains software viruses or any other technology that is designed or intended to disrupt, damage or interfere with the proper function of any software, hardware, or telecommunications equipment, system, data or other information; circumvent or manipulate our fee structure, the billing process; impose an unreasonable or disproportionately large load on Widget.fm’s (or its third party providers’) infrastructure (if you have a major launch or distribution, please notify us so we can plan accordingly); or interfere or attempt to interfere with the proper working of or activity on the Uploader Tools and Services.
You shall not (and you shall not permit anyone else to): (i) in any way reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Uploader Tools and Services, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Uploader Tools and Services, (iii) copy, rent, lease, distribute, or otherwise transfer any or the rights that you receive hereunder, or (iv) utilize the Uploader Tools and Services in a manner that Widget.fm, in its reasonable discretion, deems detrimental to Widget.fm’s business. You shall abide by all applicable local, state, national and international laws and regulations, including export laws.
4.5 Customer Communication.
You are responsible for your communications with customers, including communications through the Uploader Tools and Services, and for providing us with accurate and complete customer information so that the Uploader Tools and Services operate properly and efficiently. You agree that the information you provide will be generated from your interactions with your customers and will be maintained and updated by you (or someone you have authorized). You shall not use the Uploader Tools and Services (and shall not authorize anyone else) to take any action that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (e.g., running Maillist, Listserv, or any form of auto-responder) (“spamming”).
4.6 Website Terms.
5. How Can this Agreement Be Terminated?
5.1 Right to Terminate.
At any time, either party may terminate your Uploader Account and this Agreement for any reason (or no reason) upon ninety (90) days written notice to the other party. Widget.fm may also terminate or suspend your Uploader Account and your access to all or any part of the Uploader Tools and Services at any time if you breach this Agreement, but Widget.fm will notify you in advance if we intend to do so.
All provisions of the Agreement that by their nature should survive termination shall survive, including without limitation, dispute resolution, termination, warranty disclaimers (Sec. 15.3), indemnity (Sec. 15.1), and limitations of liability (Sec. 15.2).
15. What Other Legal Terms Apply to the Uploader Tools and Services?
If legal actions are taken against Widget.fm because you made a misrepresentation or breached any part of this Agreement, you (and not Widget.fm) are responsible for the damages. You shall be fully responsible and shall indemnify and defend Widget.fm and all of its agents, customers, affiliates and suppliers and employees, from all liabilities and expenses resulting from third party claims, including reasonable outside attorneys’ fees, that arise from or relate to (a) an actual or claimed violation of any intellectual property and proprietary rights of any person or entity, including without limitation, rights of publicity, by you or any person you authorize or permit to use your Uploader Account; and (b) your actual or claimed violation of any applicable laws, rules, regulations or your contractual obligations; and © your Files. Widget.fm reserves the right at any time to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Widget.fm in asserting any available defenses.
15.2 Limitation of Liability.
Widget.fm cannot guarantee the identity or information of any users with whom you interact in the course of using the Uploader Tools and Services. You will not hold Widget.fm responsible for actions or inactions of unaffiliated users, including anything they individually or collectively post. In no event shall Widget.fm, nor its directors, employees, agents, suppliers or customers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Uploader Tools and Services or any other subject matter of this Agreement (i) for any lost profits, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever or (ii) for any direct damages in excess of (in the aggregate) the Fees actually retained by Widget.fm. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.
15.3 Warranty Disclaimer.
The Uploader Tools and Services are provided “as is” and “as available” and are without warranty of any kind, express or implied, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, non-infringement or other warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
15.4 Dispute Resolution.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in New York State using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable outside attorneys’ fees and costs) incurred in connection therewith. Judgment upon the award
so rendered may be entered in a court having jurisdiction. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For the foregoing purposes, the parties consent to exclusive jurisdiction and venue in the United States District Courts of New York State.
This Agreement is the entire agreement between you and Widget.fm with respect to the Uploader Tools and Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Widget.fm with respect thereto. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Widget.fm shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Widget.fm’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). The Agreement is personal to you, and is not assignable, transferable or sub-licensable by you except with Widget.fm’s prior written consent. Widget.fm may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. All notices under the Agreement will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail to Widget.fm at firstname.lastname@example.org or to you at the address that you provide to us; or the day after it is sent, if sent for next-day delivery by recognized overnight delivery services. You agree that Widget.fm may list you as a client in its marketing materials, including Widget.fm’s website and blog, and in press releases. You agree to keep confidential all of the terms of this Agreement and not to disclose any terms, including without limitation, pricing, to any third party, except when required to do so by operation of law. We reserve the right, in our sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Uploader Tools and Services following the posting of any changes to this Agreement constitutes acceptance of those changes. You agree to keep confidential all of the terms of this Agreement and not to disclose any terms, including without limitation, pricing, to any third party, except when required to do so by operation of law.