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CDB Video Creator Agreement

CDB Video Creator Agreement

Last updated: February 2, 2024

Welcome to the CDB Video Creator Agreement (together with any and all applicable addenda the “Agreement“), between you and CD Baby (a division of Audio and Video Labs, Inc., along with our licensees, partners and affiliates collectively referred to in this Agreement as “us,” “we,” and “CD Baby“). This Agreement contains the general terms and conditions under which CD Baby offers the “Services” (as defined below) located at cdbaby.com, members.cdbaby.com, and the related domains and subdomains of CD Baby and its affiliates and partners (“Site”). You must be 13 years of age or older to use the Services available via the Site. By continuing to use such services, you are warranting that you are at least 13 years old and you have the authority to enter into this Agreement.

THIS AGREEMENT, WHEN ACCEPTED BY YOU, WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, BAND, GROUP OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, BAND, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING “I AGREE.” THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “I AGREE” BUTTON BELOW.

We reserve the right to add, delete and/or modify any of the terms and conditions contained in this Agreement pursuant to the provisions below. Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and CD Baby that arose prior to the date of such modification. In the event of substantive changes to the terms of this Agreement, we will notify you by changing the date at the top of this Agreement. Your continued use of the Site or Services constitutes agreement with and acceptance of any such amendment or other changes.

1. SERVICES:

CD Baby provides the CDB Video Creator and underlying proprietary technology that enables automatic generation and creation of videos (“Services”) incorporating one or more videos, photographs, text or items of graphic artwork uploaded by you (“User Content”) and/or one or more videos, photographs, text or items of graphic artwork selected by you from our image library (“CD Baby Image Content”). The final videos created by the Services at your request are “CD Baby Video(s)”.

2. USER IMAGE CONTENT:

You retain ownership of all rights you hold in any User Content which are used in the creation of any CD Baby Video.

You irrevocably grant to CD Baby a non-transferrable, non-exclusive license to use, edit, format and arrange your User Content in any way to create one or more CD Baby Videos (“User License”).

Without limiting the foregoing, Users also hereby irrevocably and unconditionally waive in perpetuity any and all moral rights with respect to all User Content and undertake not to commence or support any action for infringement in any such moral rights.

Please note that audio or musical work or image and video content forming part of any User Content may be protected by copyright (even if not marked with the © symbol) and if you are not the creator of such User Content then you must first get permission from the creator of that content or the copyright holder before uploading that content as User Content to the Site.

Additionally, if you want to upload or publish any User Content depicting or portraying someone other than yourself, you must get permission from such individual(s) before uploading to the Site. Do not upload any User Content that is confidential or proprietary. We assume no liability with respect to the disclosure or use of confidential or proprietary information uploaded to our Site. Prior to uploading any User Content to the Site, you must ensure that you have all permissions and rights necessary to grant the User License above and for such User Content to be lawfully included in a CD Baby Video.

3. REPRESENTATIONS AND WARRANTIES:

You represent and warrant that all User Content uploaded by you, either from your own computer or another site/server, is either created and owned entirely by you or you have the necessary licenses, rights, and permissions to use the User Content and to grant to us the rights granted hereunder. You further represent and warrant that the use of the User Content, in connection with the creation of CD Baby Videos do not infringe the intellectual property rights, including, but not limited to, copyrights, trademarks, trade secrets, and name/image/likeness rights, of any third party.

4. CD BABY VIDEO LICENSE:

Subject to the User paying the relevant fee, CD Baby grants each user in respect of final edited and rendered version of each CD Baby Video ordered through the Site a revocable perpetual right to download that CD Baby Video and use that CD Baby Video for personal use or exploiting, commercializing, or promoting the CD Baby Video on social media accounts and online streaming platforms such as YouTube and Spotify or other broadcasting or media platforms (CD Baby License).

Users shall not be entitled to modify, cut, edit, or rearrange such CD Baby Videos or any of the CD Baby Image Content which is comprised in such CD Baby Videos.

5. USE OF THE SERVICES:

You agree that we have no responsibility or liability for the deletion or failure to store any User Content or CD Baby Videos maintained or transmitted on or through the Site. The accounts of our users operate on shared resources. Excessive use or abuse of these shared network resources by one User may have a negative impact on all other users. Misuse of network resources in a manner that impairs network performance, including excessive consumption of CPU time, memory, disk space, and session time, is prohibited. You acknowledge that we have the right, at our sole discretion, to terminate your account, limit the number of transmissions you may send or receive through the Site, or limit the amount of storage space, bandwidth, or other resources you may use. You are solely responsible for making backup copies of any and all of your User Content. Do not rely upon the Site as a primary storage space for your content. You should preserve backup copies of any digital data, information or other materials that you have uploaded.

6. NO ENDORESEMENT:

We do not pre-screen or monitor and therefore do not endorse (and we expressly disclaim any and all liability in connection with) CD Baby Videos, uploaded User Image Content, or any other materials uploaded to the Site or exhibited or otherwise exploited by users. We reserve the right in our sole discretion to remove any content of any kind that, in our judgement, does not comply with this Agreement and any other rules of user conduct for the Site, or is otherwise harmful, objectionable, inaccurate, or illegal. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content.

7. CODE OF CONDUCT FOR USER CONTENT:

You agree to obey all applicable laws in using the Site and agree that you are responsible for the contents and/or communications you upload to or initiate via the Site, including User Content, and any CD Baby Videos created therefrom. You agree that you are responsible for everything that you post or transmit to the Site, and you agree (in relation to the Site and all User Content):

  • Not to upload content or participate in any form of activity via the Site which is in the opinion of CD Baby immoral, unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, profane, sexually oriented, racially offensive or otherwise includes objectionable material;
  • Not to use the CD Baby Videos in any manner or on platforms, broadcasts or media, which exhibit, promote, or are associated with, any illegal activities or other activities or purposes which CD Baby may find objectionable for any reason;
  • Not to upload content which you do not have the right to use;
  • Not to publish your own contact details or those of anyone else to any third party;
  • Not to upload content that contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
  • Not to upload content that contains anything which could be used to determine or alter the architecture of the Site, or could be used to decompile, disassemble, or reverse engineer the Site; and,
  • Not to upload content intended to be used for a commercial purpose of any kind, other than for promotional purposes relating directly to content in which you own all relevant rights.

8. PRICES AND PAYMENT:

Prices posted on the Site are subject to change without notice. All prices are in US Dollars. Prices do not include any applicable import duties that may be added by authorities in a destination country. All prices are inclusive of sales tax and/or VAT unless otherwise stated. Please note that downloadable content may be subject to data charges imposed by your internet or mobile phone provider and you will be responsible for payment of any such charges.

9. REFUNDS:

Due to the nature of downloadable products and online services, any refunds made are at the sole discretion of CD Baby.

10. LIABILITY:

You agree that the liability of CD Baby to you hereunder shall be limited to the amount you have actually paid to CD Baby for its products or services hereunder. Except as set out herein, CD Baby shall not be liable for any indirect or consequential loss of any kind in contract, tort or otherwise arising out of your use of the Site or Services or in relation to the goods and/or services that we provide.

11. WARRANTIES:

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW IN YOUR TERRITORY, ALL CD BABY PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS 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, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CD BABY, AS WELL AS ANY PROVIDER, MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY YOU FROM THE SITE, FROM US, OR FROM ANY THIRD PARTIES’ WEBSITES TO WHICH THE SITE IS LINKED, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. THE USE OF THE SERVICES, THE UPLOADING OF USER CONTENT OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR CONTENT THROUGH THIS SITE OR THROUGH THIRD PARTIES’ OR PROVIDER’S WEBSITES, IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

12. INDEMNITY:

  • (a) You hereby agree to indemnify, defend, and hold harmless CD Baby and licensees and customers of licensees exercising rights consistent with the grant of rights set forth in this Agreement and any applicable addenda from and against any and all damages, claims, liabilities, costs, losses, and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims“) arising out of any breach or alleged breach of any of the warranties, representations, covenants or agreements made by you in this Agreement and any applicable Addenda, including, but not limited to, any Claims made by
    • (i) Any contributor to your User Content;
    • (ii) Any other party for any use or misuse of any other forms of intellectual property or proprietary rights in your User Content, including, but not limited to, trademark rights and invasions of the right of privacy or publicity, and any Claims arising out of or relating to any act, error or omission committed by you or any person or entity acting on your behalf or under your direction or control; and,
    • (iii) Your User Content and any use or exploitation thereof as contemplated under this Agreement or any applicable Addenda. You agree to reimburse us, on demand, for any payment made by us at any time with respect to any Claims to which the foregoing indemnity applies. Pending the resolution of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this Section.
  • (b) If we make an indemnification request to you under this Section, we may permit you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by CD Baby or any Licensee or customer of a Licensee or imposes any conditions or obligations on CD Baby or a Licensee or customer of a Licensee (the “Indemnified Parties”) other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to the Indemnified Parties. If the Indemnified Parties, in their reasonable and good faith judgment conclude that you are not capable of defending the interests of one or more of the Indemnified Parties against any Claims, then the Indemnified Parties, either individually or collectively, shall have the option to control the defense in any matter or litigation through counsel of their own choosing to defend against any such Claim for which you owe the Indemnified Parties an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.

13. TERMINATION:

CD Baby may at any time terminate this legal Agreement (including without limitation the CD Baby License), if in our sole discretion without prior notice to you and without reimbursement, we believe that you may have breached (or acted in a manner indicating that you do not intend to or are unable to comply with) any term herein, or if we are legally required to do so by law, or if continuation is likely to be no longer commercially viable. You acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.

14. TRADEMARKS:

The brands, products and service names used in the Site and the Services (including without limitation, “CD Baby”) are trademarks or trade names of CD Baby or its trading partners unless otherwise stated.

15. HACKING:

You agree and undertake not to attempt to damage, deny service to, hack, crack, reverse-engineer, or otherwise interfere (collectively, “Interfere”) with the Site and/ or the Services in any manner. If you in any way interfere with of these, you agree to pay all damages we incur as a result. CD Baby will cooperate with the authorities in prosecuting any User who interferes with the Site, the Services or otherwise attempts to defraud CD Baby or any other parties through your use of the Site, the Services or any services provided hereunder. CD Baby reserves the right to deny any or all access or service to any User for any reason, at any time, at our sole discretion. You agree that we may block your access, and at our sole discretion to disallow your continued use of the Site and/or the Services. We reserve the right to take any action we may deem appropriate in our sole discretion with respect to violations or enforcement of the terms of this Agreement, and we expressly reserve all rights and remedies available to us at law or in equity.

16. MISCELLANEOUS:

This Agreement will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Oregon without reference to conflict of law principles. This Agreement will not be assignable or transferable by you without the prior written consent of CD Baby. CD Baby may freely assign or transfer any rights granted by you to CD Baby under this Agreement. This Agreement (including all of the policies and other agreements and addenda described in this Agreement, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under the Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and CD Baby are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect. The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.