Dear Hit Horizon Music Customer:
The following is a legal agreement between you and Hit Horizon (Brown Assets, LLC) ("Hit Horizon"). Please read this agreement carefully before downloading any Music. THIS IS A SINGLE SEAT LICENSE. IT AUTHORIZES ONE NATURAL PERSON TO LICENSE, DOWNLOAD AND USE MUSIC, ALL AS FURTHER PROVIDED BELOW.
The following terms shall have the meanings: i) "Music" means any musical compositions, master recordings, and any other recordings containing sounds or a series of sounds, in all formats, now known and hereinafter developed, which is available for license from Hit Horizon; and ii) "Production" means all versions of a single audio-visual project or all versions of a single audio-only project in which Music is synchronized to narration in the context of a podcast episode, radio documentary, radio ad, or other similar audio-only production.
Hit Horizon reserves the right to change this agreement at any time, and you agree to be bound by such changes. If and when changes are made to this agreement, an announcement will appear on your login page. Please make sure that you read and understand all such changes. If you do not agree to this agreement as same may be amended from time to time, do not download or use any Music.
The agreement in effect at the time you are billed will control your rights and obligations with regard to Music downloaded.
1. All Music on the Hit Horizon website is protected by United States and international copyright laws and treaties. Hit Horizon and/or the various artists and/or entities that provide Music to Hit Horizon ("Contributors") have the necessary rights in and to the Music. As between the parties, Hit Horizon and/or its Contributors reserve all rights in and to the Music not expressly granted to you by the terms of this license. Your rights to use any Music are subject to this license agreement and are conditioned upon your payment to Hit Horizon for your use of the Music. If you fail to make any payment to Hit Horizon when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent and your right to use any Music downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Hit Horizon's costs of collection, bank charges and credit card processing fees are received by Hit Horizon no later than fifteen (15) days from the date that Hit Horizon notifies you that your account is delinquent.
2. License. By this Agreement, Hit Horizon grants you a non-exclusive, non-transferable right to synchronize Music in a Production pursuant to the license you purchase (from among the two license types set forth below), and subject to the restrictions set forth in Section 3 hereof.
5. Music downloaded hereunder may be accompanied by a unique license code, called a RADKey©, which may be necessary for you to use the Music. Music with such code must be used in conjunction with such code on participating UGC networks.
6. Upon notice from Hit Horizon or if you learn that any Music is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Hit Horizon may be liable, or if Hit Horizon removes any Music for any reason, you will remove the Music from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed Music at your own expense. Hit Horizon shall provide you with comparable Music (which comparability will be determined by Hit Horizon in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this agreement.
7. When incorporating the Music in the type of Production in which copyright attribution is customary, you shall provide credit in substantially the following form:
"<Hit Horizon>, courtesy of HitHorizon.com"
8. You agree to indemnify and hold Hit Horizon (Brown Assets, LLC), its officers, employees, shareholders, directors and suppliers harmless against any damages or liability of any kind arising from any use of the Music other than the uses expressly permitted by this agreement. You further agree to indemnify Hit Horizon for all costs and expenses that Hit Horizon incurs in the event that you breach any of the terms of this or any other agreement between you and Hit Horizon.
9. Except as specifically provided herein, neither Hit Horizon nor any of its directors, officers, employees, partners, licensors, or agents shall be liable for any damages, whether direct, indirect, consequential, or incidental, arising out of the use of, or the inability to use, any Music.
10. This contract will be governed by and construed in accordance with the laws of the State of Alabama. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect these TOS. You hereby consent to the personal jurisdiction of the state and federal courts located within such state. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within the State, County and City of Birmingham and not elsewhere. You agree that service of process in any actions, controversies and disputes arising from or relating to this agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall limit the right to effect service of process in any other manner permitted by law. This agreement shall be construed neither against nor in favor of either of the parties, but rather in accordance with the fair meaning thereof.
11. Hit Horizon warrants and represents that it has the right to grant the rights granted in this agreement.
12. While Hit Horizon makes commercially reasonable efforts to ensure the accuracy of Music keywords and descriptions, as well as the integrity of our Music, Hit Horizon makes no warranties and/or representations regarding such keywords, descriptions or integrity.
13. Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with Hit Horizon, Hit Horizon shall defend, indemnify, and hold you harmless up to the "Limits of Liability" (as hereinafter defined). Such indemnification shall only apply to claims for direct damages directly attributable to Hit Horizon's breach of the express warranties and representations made herein, together with the expenses (including reasonable attorneys' fees), arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of Music downloaded and used by you pursuant to these TOS violate Hit Horizon's warranties contained herein. This indemnification is conditioned upon you notifying Hit Horizon, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., Hit Horizon Music ID Number, a link to the Music as used, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed or faxed to Hit Horizon at our primary email address or primary phone (go to our support page for these), with a hard copy to Hit Horizon, P.O. Box 59009, Birmingham, Alabama, 35259, Attention: Legal, via Certified Mail, Return Receipt Requested, or overnight courier, recipient's signature required. Hit Horizon shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with Hit Horizon in the defense of any such claim and shall have the right to participate in any litigation at your own expense. Hit Horizon shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
14. Notwithstanding anything to the contrary contained herein, Hit Horizon shall not be liable for any damages, costs or losses arising as a result of modifications made to Music or the context in which the Music is used by you.
15. Hit Horizon's total maximum aggregate obligation and liability to any one Customer for all claims shall be limited to One Thousand United States Dollars - US$1,000.00 - (the "Limits of Liability").
16. IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH HIT HORIZON, HIT HORIZON SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO HIT HORIZON'S OTHER RIGHTS AT LAW AND/OR EQUITY. CONTRIBUTORS ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, AND HAVE RIGHTS AND REMEDIES UNDER THIS AGREEMENT. YOUR RIGHTS UNDER THIS AGREEMENT SHALL IMMEDIATELY TERMINATE UPON YOUR CESSATION OF BUSINESS, INSOLVENCY, ASSIGNMENT OF ASSETS FOR THE BENEFIT OF CREDITORS, BANKRUPTCY OR APPOINTMENT OF A TRUSTEE FOR ALL OR A PORTION OF YOUR ASSETS. UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, YOU SHALL IMMEDIATELY CEASE ALL USE OF THE MUSIC IN ANY FORM AND IMMEDIATELY RETURN OR DESTROY ALL COPIES OF MUSIC IN YOUR POSSESSION OR UNDER YOUR CONTROL. ANY PROVISIONS IN THIS AGREEMENT THAT BY THEIR SENSE AND CONTEXT ARE INTENDED TO SURVIVE THE TERMINATION OF THIS AGREEMENT SHALL SURVIVE SUCH TERMINATION. ANY CAUSE OF ACTION THAT HIT HORIZON MAY HAVE AGAINST YOU FOR BREACH OF THIS AGREEMENT PRIOR TO THE DATE OF TERMINATION SHALL SURVIVE SUCH TERMINATION.
17. THE STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOUR RIGHTS UNDER THIS AGREEMENT MAY VARY FROM STATE TO STATE.
18. HIT HORIZON DOES NOT WARRANT THAT THE HIT HORIZON WEBSITES WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE.
19. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, HIT HORIZON SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE MUSIC, OR OTHERWISE, EVEN IF HIT HORIZON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL HIT HORIZON'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE HIT HORIZON WEBSITE AND/OR MUSIC CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.