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Orfium

End-User Licensing Agreement

Last revised on: 06/08/2016

 

This End-User Licensing Agreement (also referred to as the “license agreement” or “micro-license agreement”) between you (“you” or “your” or “Licensee”) and Hexacorp Ltd., a Delaware corporation (“Hexacorp Ltd.” or “The Platform” or “Orfium” or “Orfium.com” or “The Service Provider” or “us” or “our” or “we”) entered into as of the date you license Digital Media from us through The Platform (the “Effective Date”) is a contract and applies to the Licensed Digital Media, as defined below. This Licensing Agreement operates in conjunction with The Platform’s Terms of Service and Content Provider Agreement applicable to The Service and available at www.orfium.com/legal. In the event of any inconsistency between this License Agreement and the Terms of Service and/or The Content Provider Agreement, the terms of this License Agreement shall govern but only to the extent to resolve the conflict. If you do not agree to the terms of this License Agreement and our Terms of Service then do not license Digital Media from us. By purchasing a license from us, you agree to accept the terms of this agreement.

 

Section 1. Definitions

_      1.1 The Platform: Includes all websites, web apps, desktop apps, mobile apps, phone apps, and software(s) that are owned by The Service Provider or its subsidiaries or controlled by The Service Provider or its subsidiaries or over which The Service Provider or its subsidiaries exert significant influence.

_      1.2 Digital Media: Includes all types of digital text and digital files including audio files, video files, and image files and all copyrights embedded or attached to the digital text and digital files including Musical Assets and Visual Assets.

_      1.3 Musical Asset: any sound recording, underlying musical composition, audio copyright, or musical copyright embedded within Digital Media, including but not limited to music notes, music lyrics, stock music, production music, music cues, production elements, sound effects and the like (each one a “Music Asset” and together “Musical Assets”).

_      1.4 Visual Asset: any picture, image, artwork, animation, video, visual content, or visual copyright embedded within Digital Media.

_      1.5 Music Video Asset: Any creative work containing a recorded performance of a Musical Asset for the primary purpose of entertainment, emphasizing the Musical Asset as a core component of the work, and is enhanced by synchronized actions, such as dramatic interpretations of the lyrics and/or mood and/or a series of visual images.

_      1.6 Substantially Featured Musical Work: A creative work in which any individual type, in its entirety, of embedded Musical Asset (such as the entirety of all embedded sound recordings or separately the entirety of all embedded compositions) is fifty percent (50%) or more comprised of components from the Licensed Digital Media.

_      1.7 Content Provider: Any person or entity or their agent or the like who uploads Musical Assets to The Platform and opts-in their Digital Media to then micro-licensing service.

_      1.8 The Service: Any content, licenses, and services made available by The Service Provider through The Platform to The Content Provider or consumer. The Service includes Content Hosting and Monetization Services.

_      1.9 Micro-Licensing: Licenses, usually worth $500 or less and standardized for all Uses, are sold on a flat-rate, subscription, and/or metered-Use basis for the purpose of using music in non-consumer capacities, including but not limited to computer and mobile apps, advertising, television, film, theatre, radio, and video game productions.

_      1.10 Royalty Free Licensing: The Micro-Licensing of copyrighted material or intellectual property for a one time fee without the need to pay royalties or license fees for each Use or per volume sold, or some time period of Use or sales.

_      1.11 Use: to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of.

_      1.12 Direct Revenue: All revenue generated as a result of Use of content in which Licensed Digital Media is Used, in part or whole, including from: all sales of the content and of goods and services bundled with the content and revenue generated from advertisements to users of such, derived in the course of Use of the content or derived in the course of making the content available for Use.

_      1.13 Production Budget: All monies spent on creating, managing, and/or distributing content for which the Licensed Digital Media is Used, in part of whole.

_      1.14 Advertising Budget: All monies spent on the promotion, directly or indirectly, of any content in which the Licensed Digital Media is Used, in part of whole.

_      1.15 Standalone File: Any Digital Media file itself, separate from the project or end Use.

_      1.16 Licensed Digital Media: All Digital Media that is licensed by you from The Service.

 

Section 2. License

·            2.1 Aside from the expressed rights licensed by The Service to you, all rights, including title and copyright, in and to the Licensed Digital Media will be retained by the Content Provider, and no title or copyright is transferred or granted in any way to you or any third party except as provided in this License Agreement and the Terms of Service.

·            2.2 The Service offers three (3) types of licenses: Standard, Extended, and Premium. The limitations for each license type is determined by the aggregated total amount of the Production Budget and Advertising Budget or the Direct Revenue of the project in which the Licensed Digital Media is Used or associated.

·            2.3 If the aggregate total amount of the Production Budget and Advertising Budget or the Direct Revenue exceeds the permitted threshold of the licensed purchased by you, you are required to purchase the appropriate license tier. In the event the aggregated Production Budget and Advertising Budget or the Direct Revenue amount exceeds the Premium license allowance, you will be required to purchase a supplemental license from The Service. In this instance, please contact support@orfium.com.

·            2.4 Any commercial use of a Substantially Featured Musical Work requires a Premium license, and has an additional limitation (from section 2.3) of two thousand dollars ($2,000) in Direct Revenue. In the instance Direct Revenue exceeds this limit, please contact support@orfium.com for a supplemental license from The Service.

·            2.5 You may Use the Licensed Digital Media in any way that is not restricted (see sections 2.2-2.4; 2.7-2.19 for restricted Uses).

·            2.6 All licenses purchased by you shall be non-exclusive. The Service has the right to license the Licensed Digital Media to others.

·            2.7 All licenses purchased by you are perpetual. There is no expiration date or end date on your rights to Use the content. The only exception to perpetual Use is if you are in violation of this agreement or you are not current on additional monies owed by you to The Service in connection with the Use of the Licensed Digital Media (See Section 2. 3).

·            2.8 You are not permitted to Use any Licensed Digital Media for unlawful purposes. You may not Use any Licensed Digital Media in a pornographic, defamatory, or other unlawful manner.

·            2.9 You are not permitted to Use any Licensed Digital Media in anyway that allows others to download, extract, or redistribute Licensed Digital Media as a Standalone File.

·            2.10 You are not permitted to Use any Licensed Digital Media as part of a trademark, design mark, trade name, business name, service mark, or logo.

·            2.11 You are not permitted to Use Licensed Digital Media content to manufacture, distribute, or sell records, compact discs, jukeboxes, or any other audio-only products that is not synchronized or combined with other audio or musical content.

·            2.12 You are not permitted to falsely represent that you are the original creator of any Licensed Digital Media.

·            2.13 All Licensed Digital Media is non-transferable and non-sub-licensable, except if you are purchasing on behalf of your employer or client, in which you have their permission to license Digital Media and have the authority to bind your employer or client to this license agreement.

·            2.14 For all creative commons Licensed Digital Media that is marked as “Attribution CC BY,” you are permitted to distribute, remix, tweak, and build upon the Licensed Digital Media, even commercially, as long as you credit the original creator for their original creation. This is the most accommodating of creative commons licenses offered. For more information, please visit https://creativecommons.org/licenses/by/4.0/legalcode.

·            2.15 For all creative commons Licensed Digital Media that is marked as “Attribution CC BY-SA,” you are permitted to remix, tweak, and build upon the Licensed Digital Media even for commercial purposes, as long as you credit the original creator and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on the original creator’s work will carry the same license, so any derivatives will also allow commercial use. For more information, please visit: https://creativecommons.org/licenses/by-sa/4.0/legalcode.

·            2.16 For all creative commons Licensed Digital Media that is marked as “Attribution CC BY-ND,” you are permitted to redistribute, commercially and non-commercially, as long as the Licensed Digital Media is passed along unchanged and in whole, with credit to the original creator. For more information, please visit: https://creativecommons.org/licenses/by-nd/4.0/legalcode.

·            2.17 For all creative commons Licensed Digital Media that is marked as “Attribution CC BY-NC,” you are permitted to remix, tweak, and build upon the Licensed Digital Media non-commercially, and although your new works must also acknowledge the original creator and be non-commercial, you don’t have to license their derivative works on the same terms. For more information, please visit: https://creativecommons.org/licenses/by-nc/4.0/legalcode.

·            2.18 For all creative commons Licensed Digital Media that is marked as “Attribution CC BY-NC-SA,” you are permitted to remix, tweak, and build upon the Licensed Digital Media non-commercially, as long as you credit the original creator and license your new creations under the identical terms. For more information, please visit: https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode.

·            2.19 For all creative commons Digital Media that is marked as “Attribution CC BY-NC-ND,” you are only permitted to download the Licensed Digital Media and share the Licensed Digital Media with others as long as you credit the original creator, but you cannot change the Licensed Digital Media in any way or use it commercially. For more information, please visit: https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.

·            2.20 This agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing Use of the Licensed Digital Media and deleting or destroying any copies of Licensed Digital Media. The Service may terminate this agreement at any time if you fail to comply with any of the terms. In such an event, you are required to cease Using the Licensed Digital Media, delete or destroy all copies of Licensed Digital Media, and if requested, confirm to The Service in writing you have complied with these requirements.

·            2.21 If you Use the Licensed Digital Media on a social media platform (including but not limited to: Facebook, reddit, twitter, and instagram) or any other third party website, and the platform or website Uses, or plans to Use, the Licensed Digital Media for its own purpose or in anyway that is contrary to this agreement, this agreement shall immediately terminate.

·            2.22 All purchases are final. There are no refund or returns. In the event there is a technical issue with Licensed Digital Media purchased by you, please contact support@orfium.com.

 

Section 3. Warrants and Representations

·            3.1 The Service warrants that your Use of the Licensed Digital Media in accordance with this agreement, the Terms of Service, and in the form delivered by us will not infringe on any copyright, moral right, trademark, or other intellectual property right and will not violate any right of privacy or publicity, and all necessary rights required for Use have been obtained by us.

·            3.2 While The Service has made every reasonable effort to correctly categorize, keyword, and title content, The Service does not warrant the accuracy of such information or any metadata provided with the Licensed Digital Media.

·            3.3 Except as provided in sections 3.1 and 3.2 above, The Licensed Digital Media is provided “as is” without representation, warrant, or condition of any kind, expressed or implied, including, but not limited to, implied representations, warranties or conditions of fit or suitability for a particular purpose. The Service does not warrant that the Licensed Digital Media will meet your requirements or that its Use will be uninterrupted or error free.

·            3.4 Provided that the Licensed Digital Media is Used in accordance with this agreement and the Terms of Use agreement, and you are not otherwise in breach of this agreement or the Terms of Use agreement, The Content Provider agrees to defend, indemnify, and hold harmless you, your corporate parent, subsidiaries, and affiliates, and each of your respective officers, directors, and employees from all damages, liabilities, and expenses (including reasonable legal fees) arising out of or in connection with any breach or alleged breach by The Service of its warranty in section 3.1 above. This indemnification does not apply to the extent any damages, costs, or losses arise out of or are a result of modifications made by you to the Licensed Digital Media or the context in which the Licensed Digital Media is Used by you. This indemnification also does not apply to your continued Use of the Licensed Digital Media following notice by The Service, or upon your knowledge, that the Licensed Digital Media is subject to a claim of infringement of a third party’s rights.

·            3.5 You agree defend, indemnify, and hold harmless The Service and its parent, subsidiaries, affiliates, and Content Providers, and each of their respective officers, directors, and employees from damages, liabilities, and expenses (including reasonable legal fees) arising out of or in connection with any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this agreement of the Terms of Use agreement.

·            3.6 The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the party covering the costs) agrees to cooperate in any way reasonably requested indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought. In the event that you are attempting to provide notice to The Content Provider, giving adequate notice to The Platform will qualify as sufficient notice for The Content Provider.

·            3.7 The Service will not be liable to you or any other person or entity for any punitive, special, indirect, consequential, incidental, or other similar damages, costs, or losses arising out of this agreement, even if The Service has been advised of the possibility of such damages, costs, or losses.

 

Section 4. Miscellaneous

·            4.1 You are responsible for maintaining the security of all account information and account passwords. In the event that there is an unauthorized Use or breach of your account, you are required to notify The Service immediately. You agree to take full responsibility for all activity that takes place on your account. You permit The Service to monitor downloads and your activity to ensure compliance of this agreement, and agree that The Service may suspend your account if you are suspected or found in breach of this agreement.

·            4.2 If feasible, you agree to provide credit to the Content Provider of the Licensed Digital Media Used by you.

·            4.3 The title of all Substantially Featured Musical Works must contain the original unmodified title of the Licensed, but you may add additional text to the beginning or end of the title. Additionally, you must credit the original artists of the Licensed.

·            4.4 If applicable, you agree to comply with the report requirement of Performance Rights Organizations (PROs), such as ASCAP, BMI, and SESAC.

·            4.5 This agreement is personal to you and is not assignable or transferable by you without the written consent of The Service. The Service many assign this agreement, without notice or consent, to any corporate affiliate or to a successor in interest, provided that such entity agrees to be bound by these terms.

·            4.6 Upon reasonable notice, you agree to promptly provide to The Service sample copies of projects, or end Uses that contain Licensed Digital Media, including by providing The Service with free of charge access to any pay-walled or otherwise restricted access website or platform where Licensed Digital Media is being Used. In addition, and at the discretion of The Service, either directly or through a third-party, audit your records directly relating to this agreement and your Use of Licensed Digital Media in order to verify compliance with the terms of this agreement and the Terms of Use agreement.

·            4.7 You agree to retain the name of The Service, the Licensed Digital Media’s identification number, and any other information that may be embedded in the electronic file containing the original Licensed Digital Media, and to maintain appropriate security to protect the Licensed Digital Media from unauthorized Use by third parties.

_      4.8 This Agreement shall be governed by and construed in accordance with the laws of the state of California without giving effect to the laws of your actual state or country of residence. You agree that ALL claims or disputes you have against The Platform must be resolved exclusively through binding arbitration, and you agree to waive your right to jury trial and to participate in class actions. This agreement to arbitrate is intended to be broadly interpreted and covers all controversies, disputes, and claims. You agree that any arbitration under this agreement will take place on an individual basis. Class arbitrations and class actions are not permitted. You agree that any arbitration will be initiated by you through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed upon by the parties, and in any such case, must take place in Los Angeles, California; (c) any judgment on the award rendered by the arbitrator must initially be entered into a state or federal court of law located in Los Angeles County, California. All claims you bring against The Platform must be resolved in accordance with this Legal Dispute Section. All claims filed or brought contrary to the Legal Dispute Section shall be considered improperly filed. Should you file a claim contrary to the Legal Dispute Section, The Platform may recover attorney’s fees and costs up to $2,000, provided that The Platform has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

_      4.9 If one or more of the provision in this agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions should not be affected.

_      4.10 No actions of either party, other than expressed written waiver, may be construed as a waiver of any provision of this agreement.

_      4.11 All notices required to be sent to The Service under this agreement should be sent to support@orfium.com. All notice to you will be sent via email to the email provided in your account.

_      4.12 You agree to pay all and be responsible for any and all sales taxes, Use taxes, value added taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your Use of the Licensed Digital Media.

 

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE, IN ADDITION TO THIS LICENSE AGREEMENT, READ AND AGREED TO THE TERMS OF SERVICE AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. _BY LICENSING DIGITAL MEDIA FROM THE PLATFORM AND/OR USE OF THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN, AS APPLICABLE, AND GRANT HEXACORP LTD. THE RIGHTS SET FORTH HEREIN.

 

 

 

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