Date Updated: 13th November 2014
CLOUDMAESTRO IP: all IPRs subsisting in or relating to the Service including the structure, design and architecture of the Service, screen lay-outs, screen designs and other system elements, interfaces and functionalities of the Service, the computer code that operates the Service, APIs used or provided in connection with the Service, any artistic work used in the Service, any data communicated, generated or captured through the Service including any Generic Data captured, created or delivered by or through the Service (including any databases that include such Generic Data) and the trade marks CLOUDMAESTRO and CLOUDMAESTRO.US and any other trade marks, trading names, logos, slogans and other signs or trade dress adopted and used from time to time by CLOUDMAESTRO in connection with the Service including any domain names or any user or account names or addresses used by CLOUDMAESTRO on any digital service or online social network relating to the Service, the get-up and the 'look and feel' of the Service and any goodwill or other rights attaching thereto. CM Commission: the amounts payable to CLOUDMAESTRO in consideration of the use of the Service by Subscribers and in further consideration of the collection of Licence Fees by CLOUDMAESTRO from Resellers on behalf of the Subscriber. Content Licence Agreement: the Licence Agreement between Subscribers and Selected Resellers by which a Subscriber grants Selected Resellers and their End-Users the right to distribute, access, download and install Subscriber Content through the Service and the right to publicly perform the Subscriber Content at the End-User's premises. Content Licence Terms: the terms on which a Subscriber grants Selected Resellers a licence for the distribution of the Subscriber Content to End-Users and for the exploitation of the Subscriber Content by End-Users. The Content Licence Terms shall comprise the terms stipulated in the Content Licence Agreement together with the Licence Fees set by the Subscriber on the Service. End-Users: customers of Resellers that acquire the right from Resellers to use the Service to select and publically perform Subscriber Content at the End-User's premises. Generic Data: any data in a form that does not include Personal Data relating to the use of the Service, the use and distribution of Subscriber Content or relating to any other aspect of the Service. Intellectual Property Rights (or IPR): all industrial and intellectual property rights, whether now existing or coming into existence at some future date, including patents, petty patents, utility models, copyright, database rights, design rights, registered and unregistered designs, design patents, trade marks, trading names, internet domain names, rights in the get-up of products (including the screens and user interfaces of software products) and other signs and indications of origin, and rights in technical know-how, data and confidential information, in each case whether registered or not and including pending applications and the right to apply for any of the foregoing and other rights of the same or similar effect anywhere in the world. Licence Fees: the fees charged by the Subscriber for the exploitation of Subscriber Content and payable by Selected Resellers under the Licence Terms. Personal Data: data relating to a living individual in a form that enables that individual to be identified. Resellers: third parties that use the Service to obtain access to and select Subscriber Content, license the rights from the Subscribers under the Licence Agreement and distribute the Subscriber Content to End-Users for public performance at the End-User's premises. Resellers will pay the Licence Fees to CLOUDMAESTRO, which shall act as the Subscriber's agent solely for the purpose of collecting the Licence Fees from Resellers and distributing them to the Subscribers (after deduction of the CM Commission). Selected Resellers: Resellers selected by a Subscriber for the distribution of the Subscriber Content through the Service. The Service allows Subscribers to select Resellers by territory, category and by selecting specific Resellers (all as may be available through the Service). Subscriber Account: the account created on the Service for use by the Subscriber. Subscriber Content: sound recordings in digital form uploaded to the Service by Subscribers.
CLOUDMAESTRO shall be entitled (but not required) to apply security measures to protect the Service and the CLOUDMAESTRO IP and shall be entitled to block and Subscriber Accounts, IP addresses or Access Keys identified or suspected as being misused including for disrupting or gaining unauthorised access to the Service or for causing it any damage or abuse to the Service or to gain any data or Subscriber Content held on the Service. CLOUDMAESTRO will apply reasonable measures to protect the security of the information provided by the Subscriber at Registration and to protect the Subscriber Content stored on the Service against unauthorised access. It is acknowledged and agreed that the Service relies on the communication and storage of data and Subscriber Content through telecommunication systems, remote access servers, the internet and Wi-Fi and other local area networks, which are vulnerable to security breaches, misuse, fraud and unauthorised use. While CLOUDMAESTRO will use reasonable efforts to protect the security of the Service, the Subscriber Content and Personal Data provided by the Subscriber against abuse, CLOUDMAESTRO cannot guarantee that all potential misuse, unauthorised use or abuse by third parties can be prevented. The Subscriber acknowledges the risk of third party abuse of the Service and by agreeing to use the Service and to upload Participant Content to the Service the Subscriber agrees to assume such risk.
As between the parties, CLOUDMAESTRO is the sole owner of and has the exclusive right to exploit, use, license, sell, reproduce, modify or adapt any and all parts of the Service and the CLOUDMAESTRO IP. The Subscriber agrees and acknowledges that it shall not acquire and it irrevocable disclaims any right, title, interest, licence or user right in or to or under any of CLOUDMAESTRO IP, except the limited right to access and use the Service during the Term in accordance with the Contract. Other than for the purpose of accessing and using the Service in accordance with the Contract (or otherwise with CLOUDMAESTRO's prior written consent), and except to the extent permitted under sections 50A, 50B, 50BA and 296A of the Copyright, Designs and Patents Act 1988 (UK), or under any mandatory statutory provisions amending or substituting those provisions which are applicable in the United Kingdom including under European Union legislation, the Subscriber shall not and shall not assist, procure or authorise any other person to do any of the following, that is: (1) use the Service or the Subscriber Account for the benefit of any third party, lend, lease, transfer, or grant the Service (or the functionality of the Service) or the Subscriber Account to any third party, or cause or permit any use, display, transfer of possession, sublicensing, publication, or other dissemination of the Service or the Subscriber Account, in whole or in part, to or by any third party; or (2) modify, amend, reverse engineer, decompile, disassemble, re-engineer or otherwise re-create or attempt to re-create the code or the structural framework for part or all of the Service or reproduce, make adaptations or derivative works to the Service or CLOUDMAESTRO IP; (3) reproduce, adapt, access, distribute, make available to the public, communicate to the public, extract, re-utilize or otherwise exploit the Service or any of CLOUDMAESTRO IP or the Subscriber Account, or (4) remove or change any proprietary or copyright notices, trade marks or trading names or other indications of source or ownership (of CLOUDMAESTRO or any third party) that are included in the Service.
The Subscriber shall have the facility to select Resellers, channels and territories for the distribution of the Subscriber Content and the Licence Fees to be charged for the use and distribution of Subscriber Content by Selected Resellers and End-Users. Each Reseller shall be advised of which Subscriber Content is available to it (or available in certain territories or through certain channels), the copyright information provided by the Subscriber relating to the Subscriber Content, the identity of the Subscriber and the Licence Terms and Licence Fees applicable to such Subscriber Content. Except the information required by Selected Resellers for the licensing and distribution of Subscriber Content as referred to above, the parameters set by the Subscriber for the distribution of the Subscriber Content and other Personal Data provided by the Subscriber in the course of Registration shall not be published by CLOUDMAESTRO and shall not be made available to Resellers. Subscribers shall be required to accept the Content Licence Agreement by which the Subscriber will license Selected Resellers selected by the Subscriber the right to distribute the Subscriber Content to End-Users. Selected Resellers who wish to distribute the Subscriber Content shall be required to accept the Content Licence Agreement. Upon its acceptance by a Selected Reseller in relation to any Subscriber Content of the Subscriber, the Content Licence Agreement shall become a legally binding agreement as between the Subscriber and the Selected Reseller.
The Subscriber shall be entitled at any time (through the ingestion tool) to withdraw from the Service Subscriber Content previously uploaded by the Subscriber on the Service (including single sound recordings or 'collections'). Upon withdrawal by the Subscriber of any Subscriber Content or collection: (1) a copy of the Subscriber Content or the collection shall be kept on the Service for audit and archive purposes but such copy shall be identified as "expired"; (2) Selected Resellers and End-Users that already use such Subscriber Content or collection shall continue to have access to the Subscriber Content or collection for an additional period of up to 90 days (subject to the payment of Licence Fees and on the terms of the Content Licence Agreement). Thereafter the Subscriber Content shall no longer be made available through the Service to those Selected Resellers and End-Users; (3) Resellers and End-Users that do not already use the 'expired' Subscriber Content or collection at the time the Subscriber withdraws such Subscriber Content or collection shall have no access to 'expired' Subscriber Content or collections through the Service with immediate effect from the date of such withdrawal. 12. Personal Data and Generic Data CLOUDMAESTRO shall implement appropriate technical and organisational measures to protect Personal Data collected or held by CLOUDMAESTRO on the Service against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and shall process such data lawfully. CLOUDMAESTRO shall be entitled to use the Subscriber's Personal Data for the purposes of communicating with the Subscriber, administrating the Service, enforcing its rights, providing security, improving the functionality of the Service, performing analytics and obtaining statistical data and extracting Generic Data out of such Personal Data. CLOUDMAESTRO shall be entitled to capture, generate and use Generic Data from the Service (and to capture Personal Data and extract Generic Data from it) relating to the use of the Service and the use of any Subscriber Content by Resellers and End-Users. All Generic Data shall be the sole property of CLOUDMAESTRO which shall have the exclusive right to generate, access, use, sell and otherwise monetise the Generic Data.
In no event shall CLOUDMAESTRO be liable to the Subscriber under this Contract or in connection with its performance or breach, or in connection with any warranties hereunder, or in connection with the Service, including for its negligence, for any indirect, incidental, consequential or special damages, including any loss of profits or savings or anticipated profits or savings, loss of data, loss of opportunity, loss or reputation, goodwill or business, even if CLOUDMAESTRO has been advised of the possibility of such damages in advance. CLOUDMAESTRO shall have no liability whatsoever for any damage, liability or loss (including loss of revenue) that the Subscriber may incur, or to any other undesirable consequences, resulting from any suspension or disruption of the Service, or the Subscriber's inability to use the Service or the Subscriber Account, including where such suspension or disruption results from CLOUDMAESTRO's negligence. CLOUDMAESTRO's maximum aggregate liability for any single event (or a series of related events) giving rise to a claim in connection with this Contract or in relation to the Service, either for breach of contract, breach of warranty, misrepresentation or negligence shall be limited to the higher of: (a) a sum equal to the CM Commission earned by CLOUDMAESTRO out of the distribution of the Subscriber's Subscriber Content during the last full calendar quarter before the occurrence of the event, and (b) an amount of GBP 50. CLOUDMAESTRO shall not be in breach of the Contract, nor liable for any failure or delay in performance of any of its obligations under the Contract (save for the obligations to pass on to the Subscriber the Licence Fees after the deductions referred to in clause 13) where such failure or delay arises from or is attributable to acts, events, omissions or accidents beyond its reasonable control including an act of God, fire, flood, earthquake, windstorm or other natural disaster, explosion or accidental damage, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, shortage of raw materials or supplies, industrial action or strike, power cuts electronic or communication network breakdowns or failures, malfunctions or disruptions affecting third party services ("Force Majeure Events"). If a Force Majeure Event prevents the proper performance of CLOUDMAESTRO's obligations under this Contract and such disruption continues for a continuous period of more than 7 days, either party can terminate this Contract by giving the other 3 days' prior written notice which shall take effect on the expiry of such notice period.
The Subscriber is free at any time to close the Subscriber Account and to cease use of the Service. Upon closure of the Subscriber Account, this Contract shall be deemed terminated. CLOUDMAESTRO shall be entitled to terminate the Service and the Contract by written notice to the Subscriber: (1) with immediate effect, if the Subscriber is in breach of any of his/her obligations or warranties under this Contract; or (2) without cause, on giving 7 days' notice. Upon the expiry or termination of this Contract, the Subscriber's right to use the Service and the Subscriber Account shall terminate with immediate effect. Following the expiry or termination of the Contract: (1) a copy of the Subscriber Content or the collection shall be kept on the Service for audit and archive purposes but such copy shall be identified as "expired"; (2) Selected Resellers and End-Users that already use such Subscriber Content or collection on the date of termination shall continue to have access to the Subscriber Content or collection for an additional period of up to 90 days (subject to the payment of Licence Fees and on the terms of the Content Licence Agreement). Thereafter the Subscriber Content shall no longer be made available through the Service to those Selected Resellers and End-Users; (3) Resellers and End-Users that do not already use the Subscriber's Subscriber Content at the time of termination or expiry of the termination of the Subscriber Account shall have no access to the Subscriber's Subscriber Content or collections through the Service with immediate effect from the date of termination; (4) the data provided by the Subscriber on Registration shall be kept by CLOUDMAESTRO solely for the purposes of meeting CLOUDMAESTRO's surviving obligations to and enforcing its rights against the Subscriber and Selected Resellers, maintaining adequate business records and for tax and legal purposes; (5) The provisions of clause 13 shall continue to apply in relation to any Licence Fees and CM Commissions which remain outstanding on the date of termination and in relation to the exploitation of Subscriber Content by End-Users and Selected Resellers after the date of termination in accordance with paragraph 2 above. The termination or expiry of this Contract shall not affect any accrued rights or liabilities of any party and shall not affect any provision of this Contract intended to have effect after termination or necessary for its interpretation or enforcement and in particular it shall not affect the indemnities, warranties or intellectual property provisions hereunder or the general provisions below.
Nothing in this Contract shall create, or be deemed to create, a partnership or joint venture and shall not be construed as giving rise to the relationship of principal and agent between the parties. If any provision of this Contract is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction or any other jurisdiction of any other provision of this Contract. A person who is not a party to this Contract shall have no rights to enforce the provisions of this Contract under the Contracts (Rights of Third Parties) Act 1999. No omission or delay on the part of either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative with and not exclusive of any right or remedies provided by law. This Contract is governed by English law and the parties submit to the exclusive jurisdiction of the courts of England in relation to any dispute between them arising out of the subject matter of this Contract.