These terms and conditions of service are entered into by and between you (“You” or the “Artist”) and Audio Ember Ltd.. (“Audio Ember” or “us”). The following terms together with any documents they expressly incorporate by reference (collectively, “Terms of Service”), govern the its access to and use of https://audioember.com/, including any content, functionality, and services offered on or through https://audioember.com/ (the “Platform”), as well as the relationship between you and Audio Ember with respect to its use of the Platform and its submission of any Works (as hereinafter defined) to Audio Ember.
Please read the Terms of Service carefully before you start to use the Platform. By using the Platform or by clicking to accept or agree to the Terms of Service when this option is made available to you, you accept and agree to be bound and abide by these Terms of Service and our Privacy Policy, found at https://audioember.com/tos, incorporated herein by reference. If you do not want to agree to these Terms of Service or the Privacy Policy, you must not access or use the Platform.
This Platform is offered and available exclusively to users who 18 years of age or older. By using this Platform, you represent and warrant that you are at least 18 years of age and are legally capable form a binding contract with Audio Ember. If you do not meet all of these requirements, you must not access or use the Platform.
Audio Ember may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when Audio Ember posts them, and apply to all access to and use of the Platform thereafter. Its continued use of the Platform following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Artist Works; Distribution; Removal of Works.
From time to time, an Artist may upload musical compositions, audio files, writings, images, photographs, or other works of art (collectively, the “Works”) to the Platform. The submitting Artist must have worldwide distribution rights to any and all Works submitted to the Platform and all Works submitted on the Platform must be an original work of the submitting Artist. Upon submission of a Work to the Platform, the Artist will be required to provide certain information about the submitted Work, including, without limitation, a title for the Work, contributor information for the Work, any additional materials that are to be submitted to online stores in connection with such Work (such as cover artwork), and the
Online Stores (as hereinafter defined) which the Artist would like the Works distributed to.
By agreeing to these Terms of Service, the Artist hereby engages Audio Ember to: (i) process the Works into a format which makes the Works distributable to certain online distribution platforms or stores with which Audio Ember has a relationship (such distribution platforms or stores, collectively, the “Online Stores”); and (ii) enter into agreements on behalf of the Artist with the Online Stores selected by the Artist (the “Selected Stores”) in order to distribute the works through such Selected Stores. While Audio Ember will provide the Artist with the option to select which Online Stores the Artist would like to submit its Works to, Audio Ember makes no guarantee that any Online Store will accept the Artist’s Works. The ultimate decision as to which Selected Stores the Artist’s work will be submitted to will be made in the sole discretion of Audio Ember. Furthermore, it is understood and agreed that Audio Ember may, in its sole and absolute discretion, to reject any Works submitted by the Artist at any time for any reason or for no reason. All decisions made by Audio Ember with respect to any Work, including, without limitation, which Selected Stores to submit the Work to and any decision to reject any Work, shall be final and binding.
If the Artist wishes to have any of its uploaded Works removed from the Platform, the Artist may deliver written notice to Audio Ember of its request to have its Works removed from Audio Ember’s services and the Selected Stores. Audio Ember shall endeavor to have all identified Works removed within (14) days of Audio Ember’s receipt of such a request.
Audio Ember reserves the right to remove any Work submitted by an Artist from the Platform and/or any Selected Stores for any reason or for no reason, including, without limitation, any violation by the Artist of these Terms of Service.
Subscription Based Accounts.
Artists can find a description of the subscription-based services options offered by Audio Ember on Audio Ember’s website https://audioember.com/pricing (the description of each listed plan, a “Service Plan Description”). Each Artist will select a subscription option when they create an account on the Platform. Certain options are provided to you free-of-charge. The service option that does not require payment is currently referred to as the “Free Subscription” Other options require payment (the “Paid Subscription”, and, together with the Free Subscription, collectively the “Service Plans” and individually a “Service Plan”), and generally will increase the Artist Royalties (as hereinafter defined) paid to Artists in connection with the distribution of the Artist’s Works. Paid Subscriptions
are divided into multiple tiers, with a higher subscription fee being charged for higher-tier Paid Subscriptions. Audio Ember reserve the right to modify, terminate or otherwise amend our offered Service Plans and/or Service Plan Descriptions at any time in accordance with these Terms of Service. Full details of the pricing and benefits of each of the Service Plans can be found in the Service Plan Descriptions
If the Artist elects to participate in a Paid Service Plan, the Artist shall be charged the amount ascribed to such Paid Service Plan in the applicable Service Plan Description (such fee, the “Subscription Fee”). The Subscription Fee shall be charged to the Artist on the terms described in the Service Plan Description or as may otherwise be agreed to by Audio Ember and the Artist in writing. If at any time the Artist fails to make any payment (or any portion of any payment) of its Subscription Fee, Audio Ember shall be entitled to recoup any shortfall amount from the Artist Royalties payable to the Artist. Failure to make any payment when do, or any failure to provide a valid payment method, may result in the termination of the Artist’s account with Audio Ember.
The Artist may, at any time, upgrade the Subscription Plan it has selected (i.e. a Artist may elect to go from the Free Subscription to any Paid Subscription or move up one or more service tiers in the Paid Subscriptions). An Artist may not, however, downgrade its Subscription Plan without the prior written consent of Audio Ember (i.e. the Artist cannot move to a lower tier of Paid Subscription or move from any Paid Subscription to the Free Subscription). Any change in the Service Plan selected by an Artist must be made through the Platform and will be effective immediately upon Audio Ember’s confirmation of receipt of such change.
Payment of Subscription Fees.
If the Artist elects to purchase a Paid Subscription, the Artist will pay a subscription fee (the “Subscription Fee”) in advance on a monthly basis or some other recurring interval set forth in the applicable Service Plan Description (the “Pre-Paid Period”). Audio Ember may change the price for the Paid Subscriptions, including recurring subscription fees, and / or the Pre-Paid Period (for periods not yet paid), from time to time and will communicate any price changes to the Artist in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. Subject to applicable law, the Artist accepts the new price by continuing to use the Paid Subscription after the price change takes effect. If the Artist does not agree with a price change, it has the right to reject the
change by unsubscribing from the Paid Subscription prior to the price change going into effect.
In addition to the Subscription Fees (if applicable), the Artist shall be responsible for the payment of all fees and costs described in the Service Plan Description for the Artist’s applicable Service Plan, as well as an addition fees charged by third parties which are associated or related to the payment of the Artist Royalties (collectively, the “Service Fees”). These Service Fees include may include, but are not limited to, a servicing fee equal to a percentage of all Artist Royalties (the “Administrative Fee”), any and all fees charged by Online Stores and/or third parties, and a wire transfer fee ranging from forty ($40) to one hundred ($100) dollars for wire transfers. The precise fees to be charged to an Artist will be disclosed in the payment options the Artist selects on the Platform, and will be visible on the Artists account. Audio Ember may, at its option, elect to charge any Service Fees directly to the Artist or offset any such Service Fees against Artist Royalties due to the Artist.
Unless Audio Ember has elected to offset such amounts against Artist Royalties due to the Artist, all payments of Subscription Fees and Service Fees must be made through the Platform. Payment options can be accessed through its account settings. Audio Ember accepts debt cards, credit cards, and PayPal as forms of payment.
In addition to the Subscription Fees and Services Fees, in consideration of its services hereunder, Audio Ember shall be entitled to retain the proportion of the Total Royalties which is not paid to the Artist as Artist Royalties.
Royalties.
The Artist shall be entitled to a percentage of all royalties (the “Artist Royalties”) actually received by Audio Ember from the Selected Stores as a direct result of the Selected Stores’ commercialization of the Artist’s Works (the “Total Royalties”). The Artist Royalties allocated the Artist shall be determined in accordance with the Artist’s Service Plan (as described in the applicable Service Plan Description). The Artist Royalties are calculated after the payment of any processing and/or transaction fees that may have been applied to the payment prior to Audio Ember’s receipt of the Total Royalties. The Artist Royalties shall be paid to the artist by the valid method indicated by the Artist in their account settings on the Platform. Valid payment are listed on the Platform, and are subject to change in the discretion of Audio Ember. In the event a previously valid payment option is removed, Audio Ember will make commercially reasonable efforts to inform the Artist thirty (30) days prior to such removal in order for the
artist to revise its payment preferences. In the event Audio Ember receives any payment, or is required to make any payment in a currency other that United States Dollars, Audio Ember will apply to such payment the exchange rate as of the time the payment was received, or sent, by Audio Ember.
Artist Royalties shall be paid on or about the tenth (10th) day of each month (or in the event the 10th day of a month falls on a holiday or weekend, the first business day thereafter) in accordance with acceptable instructions provided by the Artist. Monthly payments of Artist Royalties shall represent the Artist’s share of the Total Royalties associated with the Artist’s works actually received by Audio Ember in the immediately preceding reporting period. Typically, a reporting period will be a one-month period ending ninety (90) days prior to the date on which the associated payment will be made to the Artist. However, this period may be longer or shorter depending on the policies of the Selected Stores, and when the applicable Total Royalties are remitted to Audio Ember. In any event, Audio Ember will endeavor to make all payments of Artist Royalties due to the Artist within ninety (90) days of receiving the applicable royalty report and Total Royalties from the applicable Online Store. All payments of Artist Royalties are contingent upon Audio Ember’s receipt of the Total Royalties directly associated therewith from the Selected Stores. From time to time Audio Ember may receive lump sum payments from Online Stores that are not allocated to specific Artists. In the event this occurs, Audio Ember will take commercially reasonable steps to work with the Online Store to determine which Artists such amounts should be allocated to. If it is not commercially reasonable or possible to make such an allocation, the amounts shall be retained by Audio Ember. In the event payment to any Artist fails due to an error in the instructions provided by the Artist due to the Artist not providing instructions and/or the instructions being inaccurate or invalid, then: (i) Audio Ember shall not re-attempt payment until the next payment cycle; and (ii) the Artist may be charged a failed payment fee by Audio Ember’s payment processor. Audio Ember has the right to withhold all applicable withholding taxes and reports them to the IRS. If applicable, Audio Ember will provide necessary income tax forms to the Artist, including, without limitation, any From 1099-MISC, W8BEN, and/or W8BEN-E, as applicable, within one hundred and twenty (120) days of the end of each calendar year.
All Artist Royalties shall be accompanied by a written accounting statement regarding the Artist Royalties due to the Artist (a “ Royalty Statement”). Royalty Statements will be available for download on the Platform and will include a receipt including any transaction fees charged to the Artist as well as any
amounts withheld by Audio Ember. The Artist shall be notified by e-mail when a Royalty Statement is ready. The Artist understands that Online Stores take a portion of the income they receive from the use of the Artists Works and may deduct or withhold sums from the amount that they pay to Audio Ember. These deductions may include but are not limited to, taxes and tariffs, administration fees, royalties or fees paid to third parties or payment processing fees. The Artist has the right, through the use of the Platform, to access all of the royalty statements containing information on the amount of royalties paid to the Artist.
The Artist shall have no right to inspect or audit any document other than the Royalty Statements, including, without limitation, the books and records of Audio Ember and/or any Online Stores.
In the event the submitting Artist wishes to split its User Royalties amongst multiple parties, the Artist can elect to do so through its account settings by identifying such individuals (“Split Artist”) through the Artists account settings on the Platform. All Split Artists will be sent an invitation to accept their portion of the User Royalties by the Platform, and shall have ten (10) days to respond to the request. If any Split Artist party does not respond to the request, the percentage of the User Royalties allocated to such person shall be sent to the original submitting Artist. To the extent any Split Artist is receiving User Royalties pursuant to a split described by this Section 4(d), the Split Artist will not be charged an Administrative Fee on their allocation of such User Royalties. All Split Artists will be required to consent to these Terms of Service prior to receiving any portion of the Artist Royalties. Audio Ember disclaims any and all liability arising from or out of any “splits” of Artist Royalties. The Artist takes sole responsibility for ensuring that all royalty splits provided to Audio Ember are accurate and that any “Split Artist” accepts its invitation to the Platform
In order to receive their Artist Royalties, the Artist must provide Audio Ember with a form W-9 and any other tax documentation that Audio Ember may require from time to time for each party receiving any portion of the Artist Royalties (the “Tax Documentation”). All Tax Documentation will be provided to the payment processor then in use by Audio Ember. In the event Audio Ember does not have the Artist’s Tax Documentation at the time a payment of Artist Royalties is to be made, Audio Ember shall withhold such Artist Royalties until all applicable Tax Documentation has been received. Any withheld Artist Royalties shall be paid to the Artist alongside with the Artist’s next regularly scheduled payment of Artist Royalties after Audio Ember’s recipe of all Tax Documentation. If the Artist has not provide Audio Ember with Tax Documentation prior to the termination of the
Artist’s account or within twelve (12) months from the initial request, the Artist will be deemed to have forfeit any previously accrued Artist Royalties.
License.
The Artist hereby grants to Audio Ember, during the Term (as defined below), a non-exlcuisve, fully transferable, sublicensable right and license in the throughout the world, to reproduce, publicly perform, display, transmit, and distribute the Works, including, without limitation, the right to translate, alter, modify, and create derivative works of the Works, in any and all media whether now or hereafter known or devised and by any and all technologies and means of delivery whether now or hereafter known or devised, for the purpose of carrying out the intended services to be rendered by Audio Ember under these Terms of Service. In addition to the foregoing, in the event the User elects to include Youtube Content ID, Facebook, or any other Online Store with “fingerprinting” requirements, the User hereby confirms that the license granted above is an exclusive worldwide license with respect to the Works submitted to such Online Stores. The Artist irrevocably waives, or has obtained, as set out in the attached an irrevocable written waiver by each creator of the Works, of, to the extent permitted by applicable law, all rights of paternity, integrity, attribution, disclosure, withdrawal, and any other rights that may be known as “moral rights” (“Moral Rights”) with respect to the use of the Work pursuant to this Agreement. To the extent this waiver is not permitted by applicable law, the Artist hereby agrees, or has obtained written agreements binding all holders of such Moral Rights agreeing, not to enforce such Moral Rights against Audio Ember and its permitted successors, licensees, and assigns.
Artist Infringement; Artificial Streams.
If at any point: (i) the Artist is discovered to have submitted Works for which it did not have the requisite license, authority or permission; (ii) if the Artist is discovered to have committed fraud, copyright or intellectual property infringement; or (iii) if Audio Ember or any Online Store has any reason to believe that the Artist is causing its works to be “artificially streamed” through the use of bots, abusive accounts, or otherwise; then Audio Ember reserves the right, in its sole and absolute discretion, to immediately terminate the Artists account, remove the Artist from any Online Stores, and / or permanently withhold any and all Artist Royalties owing to the Artist with respect to all of the Artist’s Works and in doing so shall not prejudice any other rights and remedies the Audio Ember may have at law, in equity or otherwise.
Artist Representations and Warranties.
The Artist hereby represents and warrants to Audio Ember that:
the Artist is at least eighteen years of age and has the full right, power, and authority to enter into this Agreement;
all Works submitted by the Artist are wholly original works of the Artist, and are not and will not be copied in whole or in part or based upon any other work;
no work submitted by the Artist infringes on any copyright, moral right, or other intellectual property right of any third party;
the Artist owns the full copyright to any and all Works submitted by the Artist to the Platform;
the Artist has is and shall solely be entitled to the use of its professional name and any other professional name now or subsequently utilized by the Artist in connection with the Works;
the Artist entering in to, and submitting Works pursuant to, these Terms of Service does not violate any law or any rights of any third party, including, without limitation, the intellectual property or moral rights or any parties performing any portion of the Works; and
the performance embodied in the Works do not contain any samples for which a license.
Except as contemplated by these Terms of Service or with the prior written consent of Audio Ember, the Artist, during the Term, shall: (i) ensure and preserve that the representations and warranties in Section made by the Aritst remain true and correct during the Term; (ii) promptly advise Audio Ember of any facts that come to its attention which would cause any of the Artist’s representations and warranties herein contained to be untrue in any respect; (iii) abide by the terms and conditions of any Online Stores.
Reliance on Information Posted.
The information presented on or through the Platform is made available solely for general information purposes. Audio Ember does not warrant the accuracy, completeness, or usefulness of this information. Any reliance the Artist places on such information is strictly at its own risk. Audio Ember disclaim all liability and responsibility arising from any reliance placed on such materials by the Artist or any other visitor to the Platform, or by anyone who may be informed of any of its contents. This Platform includes content provided by third parties, including materials provided by other users, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all
articles and responses to questions and other content, other than the content provided by Audio Ember, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Audio Ember. Audio Ember is not responsible, or liable to the Artist or any third party, for the content or accuracy of any materials provided by any third parties.
Term and Termination.
These Terms of Service shall apply when the Artist clicks to accept and thereafter shall continue unless and until terminated by either the Artist or Audio Ember in accordance with the Terminations provisions herein (the “Term”). Any such termination shall be effective immediately after the terminating party gives notice to the other party of its intent to terminate as set forth above. In the Audio Ember terminates this Agreement as a result of the Artist has breaching these Terms of Service or in the event that Audio Ember has reason to believed that the Artist has submitted Works that are either not original works of the Artist or infringe on the intellectual property or other rights of a third party (including, without limitation, copyrights and/or moral rights), Audio Ember shall have the right to withhold all accrued and unpaid Artist Royalties due to the Artist.
Copyright Infringement
Audio Ember take claims of copyright infringement seriously. Audio Ember will respond to notices of alleged copyright infringement that comply with applicable law. If an Artist (or any other person) believe any materials accessible on or from the Platform infringe such person’s copyright, the applicable party may request removal of those materials (or access to them) from the Platform by submitting written notification to Audio Ember’s copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
Its physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Platform a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which Audio Ember can contact you (including its name, postal address, telephone number, and, if available, email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Hamdi Dabash
Chief Executive Officer
Audio Ember Ltd..
906 – 38 9th street NE , Calgary AB T2E 7X9 West Hollywood, California 90069-4109 US E-Mail: copyright@audioember.com
If you fail to comply with all of the requirements of Section 512(c)(3) of the
DMCA, its DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing its copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. It is the policy of Audio Ember to terminate the user accounts of repeat infringers.
Disclaimer of Warranties
The Artist understand that Audio Ember cannot and does not guarantee or warrant that files available for downloading from the internet or the Platform will be free of viruses or other destructive code. The Artist is responsible for implementing sufficient procedures and checkpoints to satisfy ita particular
requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, Audio Ember WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT THE ARTIST’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO THE ARTIST’S USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO THE ARTIST’S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY PLATFORM LINKED TO IT.
THE ARTIST’S USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT THE ARTIST’S OWN RISK. THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER Audio Ember NOR ANY PERSON ASSOCIATED WITH Audio Ember MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER Audio Ember NOR ANYONE ASSOCIATED WITH Audio Ember REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT Audio Ember’S SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET THE ARTIST’S NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, Audio Ember HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability; Remedies
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF Audio Ember AND ITS AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT THE ARTIST HAS PAID TO Audio Ember FOR THE APPLICABLE CONTENT OR SERVICE IN THE LAST TWELVE MONTHS OUT OF WHICH
LIABILITY AROSE. The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
In no event shall the Artist be entitled to seek or obtain any injunctive relief with respect to the exercise by Audio Ember of any rights granted to Audio Ember hereunder, it being agreed that the only remedy of the Artist shall be an action for an accounting or for damages.
Indemnification.
The Artist agrees to defend, indemnify, and hold harmless Audio Ember, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to its violation of these Terms of Service or the Artist’s use of the Platform, including, but not limited to, the Artist’s Works and any claim that such Works infringe on the intellectual property, moral, or other rights of any third party (including, without limitation, any copyright), any use of the Platform’s content, services, and products other than as expressly authorized in these Terms of Service, or the Artist’s use of any information obtained from the Platform.
Nature of Relationship; Tax Filing Requirements.
The relationship between the Artist and Audio Ember is that of independent contractors. Nothing herein creates a partnership, joint venture, employer/employee, agency or other relationship between the Parties other than that of independently contracting parties. In connection with the foregoing, the Artist acknowledges its responsibility to pay all taxes, premiums, contributions or charges, statutory or otherwise, in respect of the Artist Royalties and other amounts paid to the Artist pursuant to these terms of Service.
Account Security; Access to the Platform.
Audio Ember reserves the right to withdraw or amend this Platform, and any service or material Audio Ember provides on the Platform, in our sole discretion without notice. Audio Ember will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, Audio Ember may restrict access to some parts of the Platform, or the entire Platform, to users, including registered users. The Artist are responsible for both:
Making all arrangements necessary for you to have access to the Platform.
Ensuring that all persons who access the Platform through its internet connection are aware of these Terms of Use and comply with them.
To access the Platform or some of the resources it offers, the Artist may be asked to provide certain registration details or other information. It is a condition of its use of the Platform that all the information the Artist provides on the Platform is correct, current, and complete. The Artist agree that all information it provides to register with this Platform or otherwise, including, but not limited to, through the use of any interactive features on the Platform, is governed by our Privacy Policy https://audioember.com/tos policy, and you consent to all actions Audio Ember takes with respect to its information consistent with our Privacy Policy.
If the Artist chooses, or is provided with, a user name, password, or any other piece of information as part of our security procedures, the Artist must treat such information as confidential, and you must not disclose it to any other person or entity. The Artist also acknowledge that its account is personal and agrees not to provide any other person with access to this Platform or portions of it using its user name, password, or other security information. The Artist agrees to notify Audio Ember immediately of any unauthorized access to or use of its user name or password or any other breach of security. The Artist also agree to ensure that you exit from its account at the end of each session. The Artist should use particular caution when accessing its account from a public or shared computer so that others are not able to view or record its password or other personal information.
Audio Ember the right to disable any user name, password, or other identifier, whether chosen by any Artist or provided by Audio Ember, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
Confidentiality.
Prior to and in connection with these Terms of Service, the Artist may learn trade secrets and confidential information with regard to Audio Ember that is now, previously, or hereafter used in or in relation to the business of Audio Ember and
any information about Audio Ember’s business that is not known to the general public which gives Audio Ember an opportunity to obtain an advantage over competitors (collectively, the “Confidential Information”). The Artist acknowledges that Audio Ember and its clients have invested substantial time, effort, and financial and other resources in the development of such Confidential Information. During and after the Term, the Artist agrees that it shall not, directly or indirectly, use, disclose or communicate to any person or entity any Confidential Information of Audio Ember (or its clients) without the prior written consent of Audio Ember. This limitation shall apply for a period of three (3) years after disclosure of such Confidential Information. The term “Confidential Information” shall not include information that (i) is or becomes generally available to the public other than as a result of disclosure thereof by the Artist, (ii) becomes available to the Artist on a non-confidential basis from a source (other than Audio Ember) which is not prohibited from disclosing such Confidential Information to the Artist by a legal, contractual, or fiduciary obligation to Audio Ember, (iii) was within the possession of the Artist prior to its being furnished by or on behalf of Audio Ember pursuant to these Terms of Service, or (iv) is required to be disclosed by the Artist by law, subpoena or other process of law.
This provision shall survive the termination of these Terms of Service.
Assignment.
These Terms of Service shall enure to the benefit of and be binding upon the respective successors and permitted assigns of Audio Ember and the Artist. The Artist shall not be entitled to assign, transfer or convey these Terms of Service or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Audio Ember. Audio Ember shall have the right to assign these Terms of Service, in whole or in part, provided that it provides substantially contemporaneous (but not necessarily prior) notice thereof to the Artist.
Governing Law.
All matters relating to the Platform and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including
non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the Province of Alberta without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Platform shall be instituted exclusively in the federal courts of Canada or the courts of the Province of Alberta, in each case located in the City of Calgary. The Artist waives
any and all objections to the exercise of jurisdiction over it by such courts and to venue in such courts.
Waiver and Severability
No waiver by Audio Ember of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Audio Ember to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
Legal Review.
Audio Ember encourages the Artist to obtain independent legal advice in order to better understand its rights and obligations under these Terms of Service.
Further Assurances.
At Audio Ember’s cost, the Artist shall use all reasonable efforts to promptly execute such documents and perform such acts, with any necessary third party, as may reasonably be required for the purpose of giving full effect to these Terms of Service.
Entire Agreement.
The Terms of Service, and our Privacy Policy constitute the sole and entire agreement between the Artist and Audio Ember regarding the Platform and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Platform.
Notice
Any notice, consent or approval required or permitted to be given in connection with these Terms of Service (a “Notice”) shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by e-mail if sent on a business day during normal business hours of the recipient, and on the next business day if sent on a non-business day or after normal business hours of the
recipient on a business day; or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, to:
(i) in the case of a Notice to Audio Ember to:
Audio Ember Ltd..
411 – 7 Christopher Court, Guelph, Ontario, N1G4V6 Email: admin@audioember.com
(ii) in the case of the Artist to the email address of record.
Any Party may, from time to time, change its address by giving Notice to the other Party in accordance with the provisions of this Section.