Last Updated: August 2023
CRUNCH DIGITAL TEMPO SERVICES AGREEMENT
This CRUNCH DIGITAL TEMPO SERVICES AGREEMENT (“Agreement”) is an agreement between you (“you” or “user”) and Entertainment Council LLC dba Crunch Digital (“Crunch”, “we”, “us”, or “our”). This Agreement shall become immediately effective as of the time and on the date that you submit a request for a user account for access and use of the Tempo service (defined below) (“Effective Date”).
The following shall constitute the entire agreement between you and us regarding your nonexclusive subscription to use our “Tempo” product (“Tempo”) and related functionality (the “Service”) under the conditions and restrictions of your user Service Tier subscription to the Service at your then-current subscription level.
This Agreement incorporates by reference the terms, conditions and promises of the “terms of use” currently available at Terms of Use as the terms of use may be modified or amended (“Terms of Use”). Our Privacy Policy is incorporated in the Terms of Use.
Now, therefore, for good and valuable consideration, the adequacy and receipt of which you hereby acknowledge, you and we agree as follows:
1. Term
Provided we have not suspended or terminated your account, the term of this Agreement shall commence on the Effective Date and shall continue for as long as you have a user account. We shall have the right to suspend or terminate your user account at any time and for any reason, with no advanced notice to you (“Term”). Those provisions that survive the termination of the Term are set forth below.
2. Service Signup (Free Service Tier and Premium Service Tier)
Provided that your account is not suspended or terminated, your free or premium subscription allows you to access the Service during the Term by means of an online platform using such user accounts as you are authorized to create under your Free Service Tier or Premium Service Tier, utilizing such credentials as we may provide to you from time to time by means of a signup link created and generated by us specific to a Group Account set up for you. User accounts may only be created using the signup link we generate through the dashboard we create for your Group Account. Any suspension or termination of your Group Account will also suspend or terminate all associated user accounts. You agree that neither you, nor any person authorized by you, shall use or otherwise access the Service in a manner that exceeds the terms of your authorized use or the number of user accounts that were set up by us for your Group Account. The access, services, and features of a Free Service Tier or Premium Service Tier account are subject to change at any time at Crunch’s sole discretion. Crunch reserves the right at its sole discretion to decline to set up any user account for the Service.
(a) Signup For Service: Following your acceptance of the terms of this Agreement, we shall provide you with a signup link to establish the Group Account and the user account you are permitted to create for your Group Account under your Free Service Tier or Premium Service Tier. When we create your Group Account you may inform us of each Existing License that you have then entered into and the repertoire subject to each license. A “License” is an agreement between you and a rightsholder (such as a record company or music publisher) that permits you to use specific songs or sound recordings in your own service according to the license terms.
(b) User Accounts: After we create your Group Account, you will be provided with a user signup link for your account and you will have the ability to create the permitted user account that is associated with your Group Account. You may only create one user account as are permitted under your Fee Service Tier. All user accounts, including your Group Account, are subject to our security requirements. User accounts will only be in effect during the Term, and shall be disabled following the suspension or termination of the Term. You shall be solely responsible for your user account established hereunder. No user accounts shall be shared with a third party and your user account shall remain under your exclusive control at all times. You may not share or otherwise reveal the passwords or details of the security protocols applicable to your accounts, and you are responsible for the actions of any person using any of your accounts with or without your permission or knowledge. We can terminate any or all of your accounts or suspend access to your account(s) in order to protect you, us or our data partners from identity theft, hacking, spoofing or fraudulent activity. We are not obligated to extend the Term or increase the maximum search results available to you due to suspensions of any of your accounts. If the device by which you access the Service is compromised, sold, lost or stolen, you shall notify us immediately of the user name of that user account and you shall be solely responsible for deactivating that device.
(c) Existing Licenses: As and when we create a user account, you can inform us of Licenses you have with record companies and music publishers as of the Effective Date (“Existing Licenses”) that you would like to have set up in your Group Account. The Existing Licenses will be set up in your Group Account as active licenses and are limited to a total of ten (10) in the Free Service Tier. If you terminate or add a License, we will not be responsible for any search queries using Tempo returning data from such terminated or new license unless and until we agree that we are able to confirm that an update is reflected in your Group Account. Updates to Existing Licenses of a user account is at the sole discretion of Crunch for Free Service Tier accounts. You represent and warrant that you have entered into each of the Licenses that you indicate. This Service is limited to US rights only unless otherwise indicated.
3. Service Functionality and Search Results
(a) Functionality of Service: Subject to the Crunch Disclaimer set forth below, and based on criteria you provide to us and the features and Existing Licenses setup for your Group Account, you may use the Service only to:
(1) Compare a list of sound recordings or musical compositions to the works that are subject to Existing Licenses and contained in the Tempo Database that are shown in the search results as those works that are available to be used by you under one (1) or more Existing License(s), subject to any restrictions set forth in the Existing Licenses that are not factored in any search results of the Service;
(2) Search for a list of sound recordings by artist name, sound recording title, International Standard Recording Code (“ISRC”), genre (as defined by us), duration, and or beats per minute (“BPM”) to determine if the works in the list or playlist are available under your Existing License(s) as contained in the Tempo Database, subject to any restrictions set forth in the Existing Licenses that are not reflected in any search results of the Service;
(3) Review playlists created by us or 3rd parties for repertoire that may be available under your Existing Licenses with rights holders, subject to any restrictions set forth in the Existing Licenses that are not reflected in any search results of the Service.
(a) Search Results: Searches you conduct by means of the Service are subject to the Crunch Disclaimer and to the following:
(i) Searches you conduct on the Service may return search results from our Tempo Database enumerating sound recordings and musical works that both satisfy your search criteria and are included in the repertoire available to be used on your service based on the Existing Licenses subject to any restrictions set forth in the Existing Licenses that are not factored in any search results of the Service. Each time you, or any person using an account created by you, retrieve viewable search results, all of those results are applied against and reduce your account’s aggregate validation maximum search results for the applicable month or billing period that were set up for your Free Service Tier or Premium Service Tier (“Maximum”). Validations in your search results means that a single query search in the search fields on Tempo, or a music service user playlist has been compared to repertoire available under your Existing Licenses in the Tempo Database. Each viewable search result counts against the Maximum number of Validations for your user account irrespective of the results of the search conducted. Search results are not available in excess of the monthly Maximum for the Free Service Tier and are reset on the 1st of each calendar month to the Maximum. By way of example, and without limitation, if your Maximum for your Group Account is set at 100 for the month, you will have 100 search results available to you on the first day of each calendar month. If you use all 100 search results at any point during a calendar month during the Term, it will reset to the Maximum in the following month as set forth in your Free Service Tier.
(ii) You may submit batch searches on Tempo using a file format that we will specify from time to time. The number of rows in the file you submit for each batch search are set based on your Free Service Tier or Premium Service Tier. The results of a batch search can be saved to in formats, such as .txt, .csv, and .xlsx and they will display the availability of the work in the results. Each title included in a batch search is applied against and reduces the Maximum. At a minimum, the spreadsheet shall include columns A, B and C corresponding to ISRC, Artist Name, and Track Title. A batch search can be conducted without the ISRC included.
(iii) If your Maximum has any unused searches as of the last day of the Term, all such unused searches are forfeited.
4. Tempo Database
(a) Selected Data: Without limiting the generality of any provision of this Agreement including the “Limitation on Liability” set forth herein, you acknowledge and agree that you shall have access to our proprietary Tempo Database subject to such limitations that we may establish from time to time. The Tempo Database contains metadata that we have selected, coordinated and arranged in a compilation based on our determination of the most popular songs and recordings in the U.S. market that we have been informed are claimed to be owned by record labels and by music publishers that claim 100% of the U.S. copyright (in the aggregate if a composition is co-owned or jointly administered) in those compositions or are claimed to be owned by record companies that claim 100% of the copyright in those sound recordings. The Tempo Database is a particular subset of all possible songs that we have compiled and that we may update from time to time.
(b) Potential Matching Errors: There may be errors in search results due to data matching or incomplete or inaccurate data submitted by you (including misspellings or non-ASCII text characters, alphabets other than the Latin alphabet, umlauts, accents, or other diacritic characters, languages other than English, misplaced commas or apostrophes and the like). Crunch relies on exact matching between your search query and the corresponding metadata in the Tempo Database, therefore search results may not be accurate. For example, due to the exact matching requirement, if your search query does not exactly match the corresponding metadata in the Tempo Database your search results may indicate that songs are not available under your Existing Licenses that may actually be available. When a validation is performed it means that a single query search in the search fields on Tempo, or a music service user playlist has been compared to repertoire available under your Existing Licenses in the Tempo Database. A particular master or song may be in the Tempo Database but has restrictions that would otherwise prevent your use of the master or song. Such restrictions may not be reflected in the search results and availability of use of sound recording or song based on Existing Licenses is subject to your own determination of whether a sound recording or song is restricted under your Existing Licenses.
(c) Bulk Validations: In addition to single song searches, you may use Tempo to conduct bulk searches from a file of sound recording or song titles in a format approved by us. You are solely responsible for spelling errors, or grammatical or punctuation variations in song titles included in bulk validation song titles. As with all searches of the Tempo Database, search results from bulk validation searches conducted by us shall be applied against the Maximum search results applicable to your account and may cause you to exceed that aggregate number of search results. In such an event, a notice will appear on Tempo to inform you that you have exceeded the Maximum.
5. Free Service Tier and Premium Service Tier
A Free Service Tier Account and a Premium Service Tier Account allow you to search to determine if a sound recording or musical work is available under the Existing Licenses subject to any restrictions set forth in the Existing Licenses that are not factored in any search results of the Service and subject to the search Maximum. Other available features of a Free Service Tier account or Premium Service Tier account are subject to change at any time. Features currently available are shown on the Crunch Digital website under the section applicable to Tempo. When a search validation results in the indication of “Available”, it means that subject to any use restrictions and the rights granted under Existing Licenses, a sound recording or song appears to be available based on the company names and interests associated with the Existing Licenses set up for your Group Account at the time the search was conducted. Since rights owners’ information is subject to change at any time, the search results only represent the rights owners information provided to us contained in the Tempo Database at the time the search validation was performed.
6. Music Service
The Service is currently configured to function with the Spotify music service. We anticipate adding other music services in the future. You will be solely responsible for maintaining an account with the applicable music service at no cost to us and for complying with all the terms and conditions of your account. We will not store any of your selected music service account information.
7. No Reverse Engineering
Crunch owns all right, title and interest in and to Tempo, the Service and the [Crunch Database and Tempo Database] (“Crunch Property”), and any copyrights, database rights, patents or pending patents, websites, and any other knowhow, intellectual property and/or proprietary rights relating to any or all of the Crunch Property. You may not and you agree not to, or to enable others to, decompile, reverse engineer, translate, disassemble, attempt to derive the source code of, produce a source code statement of, decrypt, modify, or create derivative works of the Crunch Property or any services provided by us, or any part thereof. Further, you shall not, nor enable any third party (whether or not for your benefit or otherwise) to, reproduce, extract, modify, create derivative works from, publicly display, perform, publish, distribute, disseminate, reutilize, broadcast or circulate to any third party (including, without limitation, on or by means of a third-party website or platform), Crunch Property or any or all of information contained therein.
8. Limited Rights
You acknowledge and agree that the rights granted to you in this Agreement are limited and are nonexclusive. No rights are granted in and to the any Crunch Property or any sound recording title, song title, writer name, artist name, publisher or other rights holder name whose works are included in any search results retrieved and viewed by you or other users of your Group Account. Without limiting the generality of the foregoing, you shall not have the right to use the name and likeness or logo of any artist, the name or logo of any music publisher of the applicable musical compositions or of any record company releasing any recording, or any references to any of them, except as expressly permitted in this Agreement. You shall not have the right to resell or otherwise reproduce, distribute or transmit any search results retrieved by you or any data provided by us as part of the Service, whether or not such data is Crunch Property.
9. Crunch Disclaimer
Crunch cannot and does not guarantee that the Services will meet any of the objectives you may have, whether known or unknown to Crunch. You understand and agree that Crunch cannot and does not guarantee that all rightsholders’ interests can be determined. Crunch cannot and does not guarantee that any source of information, including rightsholders and Licensees will provide sufficient information to validate any search query or playlist based on the contents of the Tempo Database or otherwise, which could have a material adverse effect on Crunch’s ability to provide the Services. Accordingly, Crunch makes no representations or warranties (whether express or implied) as to the availability of information from rightsholders or any other source that is necessary for Crunch to receive in order to provide the Services. You understand and acknowledge that Crunch’s Tempo database or other databases it maintains may not be complete, does not contain the complete available repertoire under any or all of the Licenses, could misidentify copyright ownership or administration interests, and is subject to change at any time. You acknowledge that Crunch’s metadata may be provided to Crunch by third parties, and that because of errors inherent in the procurement of information and human factors involved in the compilation of the metadata, Crunch’s metadata will contain a degree of error. Further, Crunch cannot control when or if any rightsholder may refuse, discontinue, or not provide to Crunch metadata associated with sound recordings or musical compositions they own or control. You acknowledge that Crunch may not have any metadata in its system for a sound recording or a musical composition that is available to you under a License or that Crunch is (1) unable to identify the song publisher interests of a sound recording, or (2) Crunch is unable to identify the record label owner of a sound recording. Crunch relies solely on the information it receives from rightsholders or other sources without making an independent verification as to the accuracy of the information before it is made available for you to search, which could lead to errors as related to the Services provided, and such errors, if any, will not be deemed a breach by Crunch of any of the terms and provisions of this Agreement. Crunch may cease offering the Tempo service and any of the Services at any time.
10. Limitation of Liability
CRUNCH SHALL NOT BE LIABLE TO THE USER OR ANY OTHER PARTY FOR SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CRUNCH BE LIABLE TO THE USER FOR DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF DATA, LOSS OF PROFITS OR REVENUE, OR LOSS OF USE OF THE SERVICES OR DATA OR REPORTS. IN NO EVENT SHALL THE LIABILITY OF CRUNCH TO THE OTHER PARTY (OR TO ANY THIRD PARTY AFFILIATED WITH THE OTHER PARTY) FOR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EXCEED THE AGGREGATE OF THE FEES PAID OR ARE OTHERWISE PAYABLE BY YOU TO CRUNCH UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS ON LIABILITY AND DAMAGES APPLY REGARDLESS OF ANY FORM OF THE CLAIM OR THEORY OF LIABILITY ADVANCED BY THE PARTY SEEKING DAMAGES, INCLUDING A CLAIM THAT ANY WARRANTY GRANTED IN THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
11. Governing Law
THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS. IF ANY PROVISION OF THIS AGREEMENT IS FOR ANY REASON FOUND TO BE UNENFORCEABLE, THE REMAINDER OF THIS AGREEMENT WILL CONTINUE IN FULL FORCE AND EFFECT.
12. Arbitration
Any dispute between the parties, including but not limited to one concerning the validity, interpretation, effect, or alleged violation of this Agreement, shall be submitted to final and binding arbitration before a single arbitrator under the auspices of JAMS, Inc. The arbitration shall take place in the County of Los Angeles and may be compelled and enforced according to the California Arbitration Act (Code of Civil Procedure §§ 1280 et seq.). The arbitrator may not modify or change this Agreement in any way. Judgment on the award the arbitrator renders may be entered in any court having jurisdiction over the parties.
13. Attorneys’ Fees
In the event that any civil action, litigation, arbitration, or other proceeding is instituted to remedy, prevent, or obtain relief from a breach of this Agreement, or arising out of a breach of this Agreement, the prevailing party shall recover reasonable costs, including but not limited to attorneys’ fees, costs and expenses, incurred by such party in each and every such civil action, litigation, arbitration, or other proceeding, including but not limited to any and all appeals or petitions therefrom, in addition to any award of damages to such party.
14. Notices; Notice and Cure
Any notices under this Agreement will be sent by certified or registered mail, return receipt requested, to the address specified below or such other address as the party specifies in writing. Such notice will be effective upon its mailing as specified.
15. Assignment
We may assign this Agreement without your consent. Any attempt to assign any rights, duties or obligations under this Agreement by you shall be null and void.
16. Complete Understanding; Modification
This Agreement constitutes the complete and exclusive understanding and agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
17. Force Majeure
In the event that Tempo is unavailable due to any fire, epidemic, pandemic, disease, casualty, lockout, riot, war, act of God, riot, labor strike, insurrection, natural catastrophe, or the exercise of authority of either the federal or state government or any political subdivision thereof, or any event beyond either party’s reasonable control (“Force Majeure Event”) that renders our performance hereunder, in whole or in part, impossible, this Agreement will automatically terminate and we shall no further obligation of any kind and accept no liability of any kind.