THIS AGREEMENT (“Agreement”) is made between Pannotation Limited and You the user who uploads Your Work/s, uses Pannotation Limited’s online service, and/or Pannotation Limited’s software (hereinafter referred to as “the Service”). In this Agreement, Pannotation Limited and You are collectively referred to as the “Parties.”
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU ACCEPT THE AGREEMENT. BY CLICKING THE ACCEPTANCE BUTTON, SIGNING THIS AGREEMENT, UPLOADING YOUR WORK, INDICATING YOUR ACCEPTANCE VIA EMAIL OR OTHERWISE, OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF PANNOTATION LIMITED [Click here to access]. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CONTINUE WITH THIS SUBSCRIPTION PROCESS AND DO NOT CLICK THE ACCEPTANCE BUTTON, WHEREIN PANNOTATION LIMITED WILL PROMPTLY CANCEL THIS TRANSACTION AND YOU MAY NOT UPLOAD, ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
1. Terms and Limitations of Upload
a. You agree to upload your musical score/arrangement or other Work (hereinafter called “Your Work”) to Pannotation’s Online Service.
b. You agree that you are the owner of the copyright and other intellectual property rights in Your Work and all underlying Works, or alternatively that You have the requisite license for the adaptation of any underlying Work/s and/or the license to upload the work for commercial sale.
c. You agree that Your Work is your original creation or alternatively that You have the requisite assignment for Your Work and/or You are permitted to offer Your Work for commercial sale.
d. You agree to grant to Pannotation Limited a worldwide, non-exclusive, sublicensable and transferable license in Your Work to use, reproduce, distribute, prepare derivative works of, display, and/or offer for commercial sale Your Work in connection with Pannotation Limited’s Service (and its successors and affiliates), including without limitation for promoting and redistributing part or all of Your Work (and derivative works thereof) in any media formats and through any media channels. Upon sale of Your Work to third parties, You also hereby grant each user of Pannotation’s Service who purchases Your Work or permits Pannotation Limited to grant a non-exclusive license to access Your Work through Pannotation’s Service to use Your Work. The above licenses granted by You may be terminated by either Party to this Agreement upon giving the other Party three (3) months’ notice in writing. You understand and agree, however, that Pannotation Limited may retain, but not display, distribute, or perform, server copies of Your Work that has been removed or deleted.
e.You acknowledge and agree that Pannotation Limited does not control whether Your Work is purchased and from whom Your Work may be purchased if at all.
f. You acknowledge and agree that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Pannotation Limited may undertake from time to time; or (iii) causes beyond the control of Pannotation Limited or which are not reasonably foreseeable by Pannotation Limited. You acknowledge and agree that Pannotation will take all reasonable steps to ensure that Your Work is not subject of Copyright infringement as a result of Pannotation Limited’s Service, however you acknowledge and agree that such infringement may be out of Pannotation Limited’s control and warrant not to take any legal action against Pannotation Limited for any breaches that may occur.
g.You shall be responsible for the creation of Your Work and for providing, maintaining and ensuring compatibility of Your Work with the Service and all hardware, software, electrical and other physical requirements of the Service including, programs and services required to access and use the Service.
a. You acknowledge and agree that Pannotation Limited will not be responsible and/or held liable for any breaches of the security of the Service. Pannotation Limited undertakes to ensure as far as is possible, that the security of the Service is maintained.
b. When reasonably practicable, Pannotation Limited will attempt to respect Your privacy in the use of the Service. Pannotation Limited may not monitor, edit, or disclose any personal information about You or Your account, including its contents or Your use of the Service, without Your prior consent unless Pannotation Limited has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any governmental authority; (ii) protect and defend the rights or property of Pannotation Limited; (iii) enforce this Agreement; (iv) protect the interests of other Users of the Service other than You or any other person; or (v) operate or conduct maintenance and repair of Pannotation Limited’s services or equipment, including the Service as authorized by law. You acknowledge that You have no expectation of privacy with respect to the Internet generally. Your IP address is transmitted and recorded every time You use the Service. You agree that Pannotation Limited may provide certain information in aggregate form collected from and relating to You to third persons including but not limited to advertisers and sponsors.
3. Sale of Works and Profit Sharing
a.You acknowledge and agree that Pannotation Limited may be liable to pay a Collective Management Organization and/or a Composer a percentage of all sales of Your Work for the requisite license to adapt any underlying Works in Your Work.
b. You acknowledge and agree that Pannotation Limited will also deduct a percentage of all sales of Your Work for Pannotation Limited’s overheads and/or administrative fees and/or online transaction fees and/or taxes and/or any other deductions that may be necessary for Pannotation Limited to carry out the Service.
c. You acknowledge that you will receive the percentage of all monies received from all sales of Your Work after the deduction of all relevant charges/fees referred to in this Agreement. You acknowledge and agree that Pannotation Limited cannot guarantee the percentage of sales to be paid to You.
d.You agree that all payments from Pannotation Limited to You of all monies received from all sales of Your Work will be paid to you at the end of Pannotation Limited’s financial year. If Pannotation Limited desires to make payments to you at any other time during the year, you acknowledge that Pannotation Limited will make such payment when Pannotation Limited deems appropriate in its sole discretion. Pannotation Limited agrees to endeavor to provide to you an account of the sales of Your Work through Pannotation’s Service and the amounts/percentages that were deducted including taxes that may apply. Pannotation Limited expressly reserves the right to change its Fees and the percentage which it deducts from the sale price of Your Work at any time.
e. Collection and Taxes. All Fees, Taxes and other charges shall be deducted from all monies received from all sales of Your Work including but not limited to all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by any entity including governmental entities.
4. Your Representations
You represent and warrant to Pannotation Limited that: (a) You are over the age of eighteen (18) and have the mental capacity, power and authority to enter into and perform Your obligations under this Agreement; (b) all information provided by You to Pannotation Limited is truthful, accurate and complete; (c) You shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth at Section 5; and (e) You have provided and will provide accurate and complete upload information, including, without limitation, Your rights in Copyright and other intellectual property rights in relation to Your Work.
5. Prohibited Uses
You are solely responsible for any and all acts and omissions that occur as a result of your ignorance and or negligence (whether willful or otherwise) regarding the Copyright and other intellectual property rights in Your Work. You agree not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) upload, disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) upload, disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, malicious or in contravention of any law whether known to you or not; (c) upload, disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) upload information which can be construed as an attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export, import, or copyright law, regulation or restriction, or without all required approvals, licenses or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other Works by other users of the Service or any other computer network; (g) upload, disseminate, store or transmit viruses, trojan horses or any other malicious code or program; or (h) engage in any other activity deemed by the Pannotation Limited to be in conflict with the spirit or intent of this Agreement.
This Agreement is effective upon Your acceptance as set forth herein and shall continue in full force until terminated. You may terminate this Agreement for any reason upon three (3) months prior notice to Pannotation Limited. Pannotation Limited reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of Your Work; (b) suspend Your access to or use of all or any portion of Your Work on the Service; and (c) terminate this Agreement.
7. Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT YOUR SOLE RISK. PANNOTATION LIMITED DOES NOT WARRANT THAT THE SERVICE INCLUDING THE UPLOAD OF, PURCHASE OF AND/OR DOWNLOAD OF YOUR WORK WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES PANNOTATION LIMITED MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. PANNOTATION LIMITED MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL PANNOTATION LIMITED BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING THE BREACH OF ANY COPYRIGHT OR OTHER INTELLECTUAK PROPERTY RIGHTS, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, TO YOUR USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL PANNOTATION LIMITED’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY YOU THE USER TO PANNOTATION LIMITED HEREUNDER. IF YOU THE USER IS DISSATISFIED WITH THE SERVICE, YOU THE USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR YOU THE USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THIS AGREEMENT.
You agree to indemnify, hold harmless and defend Pannotation Limited, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) the Upload and/or sale of Your Work and/or use of the Service, including any data or work transmitted or received by You; and (c) any unacceptable use of the Service, including, without limitation to the upload of Your Work, any statement, data or content made, transmitted or republished by You which is prohibited as unacceptable under this Agreement.
a.Independent Contractors. The parties to this Agreement and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. b.Amendment. Pannotation Limited shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to You by the email at the address provided to Pannotation Limited by You. Your access to or use of the Service after the date such amended terms are delivered to You shall be deemed to constitute acceptance of such amended terms.
11. Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Trinidad and Tobago. You agree that any dispute shall be deemed to have arisen when either Party to this Agreement notifies the other in writing to that effect (hereinafter referred to as a “Dispute”). If a Dispute arises, any Party to such Dispute may initiate the resolution process by giving notice to the other Party to such Dispute. The Parties shall exclusively and finally resolve any Dispute between them first using direct negotiations between the Parties. The disputing Parties shall endeavour to resolve the Dispute within ninety (90) days or such longer period as mutually agreed between the Parties, from the receipt of a notice of Dispute through direct negotiations between the Parties. If direct negotiations between the disputing Parties does not resolve the Dispute within ninety (90) days or such period as mutually agreed between the Parties, the parties shall seek to settle the dispute via mediation. Should mediation between the disputing Parties not resolve the Dispute, the Dispute shall be settled via arbitration in accordance with the Arbitration Act of Trinidad and Tobago Chapter 5:01. The Parties shall abide by the award and shall expressly commit to abide by the award of any tribunal in any jurisdiction for the enforcement of the arbitration award.
Neither this Agreement nor any terms hereof may be changed, amended, modified, waived, discharged or terminated except by an instrument in writing, agreed by both Parties.
This Agreement shall not be assigned by either Party without the prior written consent of the other Party. The Party assigning shall remain expressly liable and entirely responsible to the other Party under this Agreement except to the extent expressly agreed in writing by the other Party.
No waiver by either Party to this Agreement of any provision or obligation herein contained shall operate or be construed as a waiver of any future default whether of a like or different character
The headings contained in this Agreement are for convenience of reference only and shall not be taken into account in the interpretation or construction of this Agreement.
If any of the provisions of this Agreement are held to be invalid or unenforceable under the applicable law of any jurisdiction, the remaining provisions shall not be affected, and any such invalidity or unenforceability shall not invalidate or render unenforceable that provision in any other jurisdiction. In that event, the Parties agree that the provisions of this Agreement shall be modified and reformed so as to effect the original intent of the Parties as closely as possible with respect to those provisions that were held to be invalid or unenforceable.
17. Entire Agreement
This Agreement sets forth the entire agreement and understanding of the Parties in respect of the transactions contemplated hereby and supersedes any and all prior agreements, arrangements, and understandings relating to the subject matter hereof. No promise, inducement or statement of intention has been made by either Party which is not set forth in this Agreement, and the Parties shall not be bound or liable for any alleged promise, inducement, or statement of intention not so set forth.