THESE SUBSCRIBER TERMS OF SERVICE (“AGREEMENT”) GOVERN THE SERVICES TO BE PROVIDED BY ROCKBOT, INC. (“ROCKBOT”) TO THE CUSTOMER (THE “CUSTOMER”) IDENTIFIED ON ANY ORDER FORM REFERENCING THIS AGREEMENT. By using the Services (as defined below), Customer acknowledges that it has read, understood, and agrees to be bound by this Agreement.
If you are using the Services on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” shall refer to such entity and its affiliates.
1 SERVICES AND SUPPORT
1.1 Rockbot provides subscriptions to the following services that it delivers to business establishments and events:
“Rockbot Music” is Rockbot’s branded background music service that includes millions of songs, curated playlists and the ability to create custom playlists.
“Audio Messaging” is an add-on to Rockbot Music that allows customers to instantly deliver audio messages from Rockbot’s turnkey library, upload their own messaging, or have Rockbot’s voice team produce messaging (additional production fees apply).
“Rockbot Request” is Rockbot’s branded add-on subscription to Rockbot Music that allows guests of Rockbot customers to explore playlists, request songs, and interact with the customer’s brand in various ways.
“Rockbot TV” is Rockbot’s branded television service that distributes video programming on connected televisions and other devices.
“Rockbot Digital Signage” is Rockbot’s branded service that enables the display of images, videos, slideshows, URLs, social media, and other content to connected screens.
Any one or combination of these Rockbot branded services, as well as any other services set forth in an Order Form, individually and collectively comprise the “Services”. Businesses and events to which Rockbot provides Services pursuant to an Order Form are referred to as “Premises”. Subject to the terms and conditions of this Agreement, Rockbot will use reasonable efforts to provide the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Rockbot account (“Account”).
1.2 Subject to the terms of this Agreement, Rockbot will use reasonable efforts to provide Customer with support services, through email, telephone or online, in accordance with Rockbot’s standard practice.
2 STANDARD LICENSES; RESTRICTIONS AND RESPONSIBILITIES
2.1 Rockbot and Customer grant to each other, during the Term (defined in Section 6.1 below) and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-assignable, worldwide, royalty-free, revocable license to use the other party’s name, web site address, logo, trademarks, copyrights and trade names, solely as necessary for the delivery of the Services in accordance with this Agreement, and for the parties’ respective advertising, marketing and promotional purposes.
2.2 Any software that may be made available by Rockbot in connection with the Services (including, without limitation, mobile applications and software that may be embedded on hardware or storage cards associated with the Services, (the “Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, Rockbot hereby grants Customer a limited, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of the Software solely in connection with the Services. Any rights not expressly granted herein are reserved. Rockbot shall have a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, incorporate into and otherwise exploit in connection with the Software or Services any suggestions, enhancement requests, recommendations, or other feedback by Customer related to the Software or Services.
2.3 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Software, documentation or data related to the Services; modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or (except as expressly permitted by this Agreement) otherwise for the benefit of a third party; hack, manipulate, interfere with or disrupt the integrity or performance of the Services or otherwise attempt to gain unauthorized access to the Services, Software, Hardware (as defined below) or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or remove or obscure any proprietary notices or labels of Rockbot or its suppliers. Rockbot shall own and retain all right, title and interest in and to (a) the Services and Software and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
2.5 Customer may purchase specific hardware from Rockbot, including but not limited to, digital media players (individually and collectively, “Hardware”). Warranties for all Hardware are provided by the manufacturer. Rockbot does not manufacture any Hardware and is not liable for, and Customer hereby expressly waives and releases Rockbot from, any claims arising from any personal injury or damage to Customer or any of its property resulting from use of any Hardware. For Hardware purchased via Rockbot, Rockbot shall ensure all warranties from the Hardware manufacturer flow through to the Customer. Upon Customer’s receipt of Hardware, Customer solely and exclusively bears the entire risk of loss, theft, damage or destruction of the Hardware from any cause whatsoever.
2.6 In addition to the Hardware, Customer shall be responsible for obtaining and maintaining any other equipment and ancillary services needed to connect to, access or otherwise use the Services, including without limitation, internet/network connections, mobile devices, televisions/monitors, hardware, servers, software and operating systems (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Rockbot’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer’s Account, passwords and files, and for all uses of Customer’s Account or the Equipment with or without Customer’s knowledge or consent.
3 MUSIC/CONTENT RIGHTS; EXPLICIT CONTENT
3.1 Subject to the terms and conditions of this Agreement, the Services include a license that covers all copyright royalties owed to the relevant rights owners (ASCAP, BMI, Entandam, Global Music Rights (“GMR”), and SESAC, collectively, the performing rights organizations or “PROs”) as are necessary for any sound recordings delivered via the Services to Premises located within the United States, its territories, military bases or possessions, Canada, Mexico, and New Zealand (each a “Covered Jurisdiction”), and used in compliance with this Agreement (the “Rockbot License”). Provided that Customer uses the Services in accordance with this Agreement, Customer is not responsible for the payment of any copyright royalties covered by the Rockbot License, as these are included in the Fees (defined in Section 4.1 below). However, with respect to the Premises, the Rockbot License does not cover any instructed fitness classes or other activities where music is integral to the activity (e.g. a skating rink, dance club, instructed group fitness, etc.), or music sources other than the Services (CDs, DJs, live music or terrestrial radio, TV, etc.); and in such case, Customer shall be responsible for payment of any and all copyright royalties relating to performance rights (including but not limited to the PROs), and/or for any sound recordings. In addition, Customer is responsible for payment of all royalties due during any free trial subscriptions to the Services. The Rockbot License does not include coverage outside of the Covered Jurisdictions; and Customer represents, warrants, and covenants that it will provide the actual physical address of each Premises covered by an Order Form, and shall be solely liable for any copyright royalties incurred for Services delivered to any location outside of a Covered Jurisdiction, or not accurately identified in an Order Form.
3.2 Customer represents, warrants, and covenants that it has all necessary rights and permissions to distribute, display, publish, transmit, broadcast or otherwise disseminate any material, including, but not limited to, audio, video or other content it provides to Rockbot for use in the Services, and/or submits directly through the Services if Customer purchases a service plan that allows direct submission, including, but not limited to, Audio Messaging and Rockbot Digital Signage (“Customer Content”). Customer further represents, warrants, and covenants that Customer Content shall not infringe or violate any third party’s intellectual property rights or require Rockbot to obtain any licenses from or make any payments to any third party.
3.3 Customer represents, warrants, and covenants that it shall not (a) amplify, transmit, retransmit, or publicly display the broadcast or transmission of the Services outside the Covered Jurisdictions, or so as to be audible outside any Premises (beyond ordinary patio or other outdoor speaker usage), (b) transmit the Services outside any such Premises, (c) use Services for any physical activity where music is integral or event or entertainment at the Premises for which an admission fee is charged to hear the Services, or (d) transmit, retransmit, rebroadcast, alter, redistribute, record or reproduce the content available via the Services (or permit any of the foregoing) other than as expressly permitted under this Agreement.
3.4 Some content available via the Services may include explicit language, images, or other content, which may not be appropriate for Customer’s patrons (“Explicit Content”). Customers may enable or disable explicit lyrics through the administrative tools included in the Services; however, it is Customer’s responsibility to generate appropriate playlists or impose listening restrictions that Customer considers appropriate for its Premises. Rockbot cannot guarantee that all Explicit Content will be effectively blocked by the administrative tools, regardless of the settings that Customer enables. In addition, the blocking of Explicit Content will not affect the images displayed on the end users’ mobile application, which are subject to the end user terms and conditions. Rockbot’s administrative tools for managing Explicit Content within the Service are subject to change.
4 PAYMENT OF FEES
4.1 Customer will pay Rockbot the then-applicable fees for a subscription to the Services and any other fees set forth in an applicable Order Form (the “Fees”). Rockbot reserves the right to change the Fees and to institute new charges and Fees at the end of the initial term indicated on the Order Form or then current renewal term. Rockbot may charge additional fees to upgrade or provide additional Services elected by Customer (e.g., advanced reporting, ad-free subscription plans, etc). Rockbot shall notify Customer of any changes or additional Fees in writing at least sixty (60) days prior to the applicable renewal term. If Customer selects an ad-based subscription plan, Customer hereby authorizes Rockbot to insert into and display advertisements within the Services, and Customer acknowledges and agrees that Rockbot will retain all revenue with respect to such advertisements. If Customer believes that Rockbot has billed Customer incorrectly, Customer must contact Rockbot no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Rockbot’s Customer Support team.
4.2 Rockbot may bill through an invoice, in which case, full payment for invoices must be received by Rockbot thirty (30) days after the date of the invoice, or the Services may be suspended or terminated. Unpaid invoices are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Rockbot’s net income.
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use or divulge to any third person any such Confidential Information (except in performance of the Services or as otherwise permitted herein). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of this Agreement, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and upon request to certify the return or destruction of all such Confidential Information and embodiments thereof.
5.3 Rockbot may collect and analyze data relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Rockbot will be free to (1) use such information and data (during and after the Term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Rockbot offerings, and (2) disclose such data in a manner that does not identify Customer in connection with its business. In addition, Rockbot reserves the right to inform the PROs and/or any other music royalty collection organization or licensor of copyrighted works used in connection with Customer’s subscription to the Services and of Customer’s name and address, as well as provide a copy of this Agreement to any such entity that so requests, for the purpose of confirming whether Customer is responsible for the payment of music royalties with respect to the Services.
6 TERM AND TERMINATION
6.1 This Agreement commences as of the Effective Date and will continue for so long as there is an Order Form in effect between the parties or for so long as Customer is using Services on an introductory trial basis, unless terminated pursuant to the terms of this Agreement. The initial term applicable to any subscription Services delivered pursuant to an Order Form shall commence on the “Subscription Start Date” indicated on the Order Form, shall continue until the end of the initial term indicated on the Order Form, and will automatically renew for successive terms of the same length as the initial term unless a party receives written notice from the other party of the notifying party’s intent to not renew at least sixty (60) days prior to the end of the then current term, or unless terminated as set forth below or as otherwise set forth in a valid Order Form. The initial term and successive terms are each referred to as “Term”.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement and any applicable Order Form if after providing written notice to the other party of a material breach of any of the terms or conditions of this Agreement, that party fails to cure such breach within thirty (30) days (or ten (10) days in the case of nonpayment).
6.3 Upon early termination, other than for Rockbot’s uncured, material breach, Customer shall be responsible for payment of all Fees for Services through the end of the then-current Term, as well as Fees for Hardware if not previously paid. All prepaid Fees are nonrefundable.
6.4 The following sections will survive termination or expiration of this Agreement: 2.3, 4 (to the extent amounts remain payable), 5, 6, the warranty disclaimers in Section 7, 8, 9, 10, and 11. Excluding any licenses applicable to any suggestions, enhancement requests, recommendations, or other feedback by Customer related to the Software or Services, all licenses granted herein will terminate upon any expiration or termination of this Agreement, and thereafter Rockbot shall no longer be responsible for any music royalties covered by the Rockbot License.
7 WARRANTY AND DISCLAIMER
7.1 Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
7.2 Rockbot shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Rockbot or by third-party providers, or because of other causes beyond Rockbot’s reasonable control, but Rockbot shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Rockbot’s control. HOWEVER, ROCKBOT DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR SOFTWARE. THE SERVICES AND SOFTWARE ARE PROVIDED AS IS AND OTHER THAN AS SET FORTH IN SECTION 7.1 ABOVE, ROCKBOT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
Each party shall defend, indemnify, and hold harmless the other party, its officers, employees, affiliates, agents, and assigns harmless from all claims, suits, judgments, losses, damages, fines or costs (including, without limitation, attorneys’ fees) resulting from any third-party claim arising from the indemnifying party’s (i) breach of any representation, warranty, or covenant in this Agreement; or (ii) negligence or more culpable conduct in connection with the performance under this Agreement. The obligation to defend and indemnify provided under this Section shall apply only if the indemnified party promptly notifies the indemnifying party in writing of any potential claim within a reasonable time (provided, however, that the failure to so notify an indemnifying party shall not affect the obligations of the indemnifying party hereunder unless and only to the extent that the indemnifying party is actually materially prejudiced by such failure). The indemnifying party shall assume the defense thereof by appointing a reputable counsel reasonably acceptable to the indemnified party to be the lead counsel in connection with such defense. The indemnified party shall provide the indemnifying party with reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense, for the defense and settlement of any claim. The indemnified party shall provide the indemnifying party with the exclusive right to control and the authority to defend and settle any claim, but the indemnifying party shall obtain the prior written consent of the indemnified party before entering into any settlement of a claim if as a result of such settlement, injunctive or other equitable relief will be imposed against the indemnified party, any intellectual property rights of the indemnified party shall be rendered invalid or unenforceable or if such settlement does not expressly and unconditionally release the indemnified party from all liabilities and obligations with respect to such claim, without prejudice.
9 LIMITATION OF LIABILITY
EXCEPT FOR INDEMNIFICATION OBLIGTIONS SET FORTH ABOVE, NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY, ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR LOSS, INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ROCKBOT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
10 U.S GOVERNMENT MATTERS
Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2 Except for assignment to a successor of substantially all of its business or assets, neither party may assign this Agreement without the non-assigning party’s prior written consent.
11.3 This Agreement, together with the Order Form(s), is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Any waiver, modification, or amendment to this Agreement must be in a writing signed by both parties.
11.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Rockbot in any respect whatsoever.
11.5 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Rockbot shall be entitled to injunctive relief in the event Customer uses the Services or Software in violation of the limited license granted herein or uses the foregoing in any way not expressly permitted by this Agreement.
11.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices by mail to Rockbot shall be addressed to: Rockbot, Inc., 1625 Clay Street, Ste. 500, Oakland, CA 94612, ATTN: Legal Dept. A copy of any notice to Rockbot must also be sent by email to email@example.com.
11.7 Customer agrees that Rockbot may list Customer’s name (including by displaying any Customer trademark) and identify the business relationship between the parties on the Rockbot website and in other marketing and advertising collateral, together with a list of other customers.
11.8 This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco in the State of California and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
11.9 The headings used in this Agreement are for convenience only and are not to be used to define or limit the provisions of this Agreement.