LICENSE SERVICES AGREEMENT FOR CREATORS OF USER GENERATED CONTENT

Last Modified on June 16, 2022

This License Services Agreement for Creators of User Generated Content (the “Agreement”) constitutes a binding legal agreement between PretzelAux, Inc. a Delaware Corporation (“Pretzel,” “We,” “Us” or “Our”), and the individual identified in the Pretzel Customer Account used to access and to opt-in to this Agreement (“You” or “Your”)(collectively, the “Parties,” and each, a “Party”).

WHEREAS, Pretzel represents the rights to a catalog of sound recordings (“Sound Recording(s)”) and the musical works (“Composition(s)”) embodied in those Sound Recordings (each combination of Sound Recording and Composition, a “Cleared Music Track”), and is able to license such Cleared Music Tracks for use in user generated content (“UGC Content”) and otherwise; and

WHEREAS, You are a creator of UGC Content (a “UGC Creator”) who desires to include Cleared Music Tracks in Your “UGC Projects” (as defined below) and to post Your UGC Projects on Your “UGC Channel(s)” (as defined blow) on “Qualifying UGC Platforms” (as defined below); and

WHEREAS Pretzel desires to offer You the service by which Pretzel authorizes UGC Creators to include Cleared Music Tracks in their UGC Projects (the “UGC Creators License Services,” or “Services); and

WHEREAS, You desire to secure authorization from Pretzel to so use Cleared Music Tracks in Your UGC Projects;

NOW THEREFORE, in consideration of the mutual promises contained in this Agreement, and for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to the following terms and conditions:

Incorporation by Reference.
The Pretzel Terms of Use and the Pretzel Privacy Policy are hereby incorporated into and made a part of this Agreement. To the extent there is a conflict between this Agreement, the Pretzel Terms of Use, the terms of this Agreement shall control. Any capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Pretzel Terms of Use.
This Agreement addresses certain additional rights and responsibilities associated with the License Services for Creators of User Generated Content.
Your Acceptance of this Agreement; Pretzel’s Right to Modify this Agreement.
1. Please read this Agreement carefully. This Agreement governs Your use of the UGC Creators License Services. You must accept all of the terms and conditions contained in this Agreement before accessing and using the Services. If You do not accept this Agreement, You will not be authorized to download or stream any Cleared Music Tracks from the Site or to include any Cleared Music Tracks in Your UGC Projects. Your checking the box marked “READ AND ACCEPT” or “ACCEPT”, presented to You on the “Site” (as defined below) at the time You create your Pretzel Customer Account and opt-in to the UGC Creators License Services, indicates Your acknowledgment that You have read, understand, and accept this Agreement. The “Effective Date” of this Agreement shall be the date on which You opt-in to the Services.
2. The “Term” of this Agreement shall commence on the Effective Date and continue thereafter until terminated by either Party as provided in Section 7, below.
3. Pretzel may modify this Agreement from time to time by posting the modified version on the Site. Our right to modify this Agreement includes the right to add, remove or amend the terms hereof. When this Agreement is modified, We will also modify the "Last Modified as of" date set forth at the beginning of this Agreement.
  1. If and when We modify this Agreement, We will send You Notice, pursuant to Section 14, below, of such modification at least five (5) calendar days prior to its effective date. If You do not accept any modification We have made, Your only recourse is to terminate Your subscription to the UGC Creators License Services, by sending an email Notice of Termination to legal@pretzel.rocks, within five (5) days of Our having sent You Notice of such modification. You must include in the subject line of Your email “Termination of UGC Creators License Services.” Alternatively, You may terminate this Agreement by using the means provided for such purpose on the Site.
  2. Your failure to terminate Your subscription to the UGC Creators License Services pursuant to Section 2(c)(i), above, or Your use of the UGC Creators License Services after the “Last Modified as of” date of any modification We may make to this Agreement, constitutes Your agreement to be bound by all such modifications.
Definitions.
Unless otherwise defined in the context in which they are used, the following terms shall have the meanings indicated:
1. “Qualifying UGC Platform(s)” are those “UGC Platforms” (as defined below) that are listed on the Site, as such list may be amended by Pretzel from time to time.
2. “Site” shall mean the Pretzel UGC licensing platform located at www.pretzel.rocks, and any other or future web site(s) and/or digital applications controlled or operated by Pretzel or its affiliates.
3. “Territory” shall mean the World.
4. “UGC Channel” shall mean a channel on a UGC Platform designated for the posting of UGC Content by a single individual.
5. “UGC Platforms” shall mean Internet platforms that accept UGC Content including, but not limited to, Twitch and YouTube, and any similar service or technology whether now known or existing in the future, using the means provided for and as permitted on the Site.
6. “UGC Project(s)” shall mean audio-only and/or audio-visual works and live streams created by Pretzel Customer(s) in which Cleared Music Tracks are copied, reproduced, streamed/downloaded (as applicable based on Pretzel Customer Paid Tier (defined below)) and exploited pursuant to authorization available through this Agreement, including but not limited to live streaming.
7. To “Whitelist” shall mean to designate a UGC Channel, where possible, to be free from advertisements served by the operator of the applicable Qualifying UGC Platform.
Your Pretzel Customer Account.
1. Contemporaneously with opting-in to this Agreement, and using the means provided for such purpose on the Site, you must establish an account (a “Pretzel Customer Account,” and each holder of a Pretzel Customer Account, a “Pretzel Customer”), which will include completing the information that You are required to provide as prompted on the Site in connection with the Pretzel Customer Account registration process (collectively, such information shall be the “Pretzel Customer Account Registration Form”). If provided for on the Site, You may also be required to create Your own unique password that will be used to access Your Pretzel Customer Account. In lieu of creating such a password, You may link Your Pretzel Customer Account to a Twitch or Google account, if You have one, that may be used to log into Your Pretzel Customer Account. There is no charge to establish a Pretzel Customer Account
2. You shall be solely responsible for:
  1. maintaining the confidentiality of Your password, and/or third party login, and all activities that occur under Your Pretzel Customer Account;
  2. immediately notifying Pretzel of any actual or suspected unauthorized use of Your password or Pretzel Customer Account or any other breach of security relating thereto; and
  3. not using the password or Pretzel Customer Account of another Pretzel Customer at any time and not disclosing Your password to any third party. You are solely responsible for any and all use of Your Pretzel Customer Account.
3. Pretzel Customer Accounts and the UGC Creators License Services are strictly limited to individuals acting on their own behalf. You may not create or use a Pretzel Customer Account or access or use the Services on behalf of any business entity.
Pretzel UGC Creators License Services.
1. The UGC Creators License Services offers You the opportunity to access Cleared Music Tracks available on the Site based on the tier of service in which You choose to participate, as further described below
2. The UGC Creators License Services offers certain tiers of service as described below, and as available on the Site (at Pretzel’s sole discretion):
  1. a “Pro Subscription Tier;” (known on the Site as “Pro”). The Pro Subscription Tier allows Pretzel Customers to access all Cleared Music Tracks available on the Site, and to select from among them any and all Cleared Music Tracks you wish to include in Your UGC Projects, which includes live streaming delivery. Under the Pro Subscription Tier, You may create as many UGC Projects containing Cleared Music Tracks as you wish. The Pro Subscription Tier also includes access to all stations (“Stations”) and curated playlists (“Playlists”) provided on the Site that include Cleared Music Tracks, as well as other Pro functionalities provided for on the Site;
  2. a “Premium Streaming Subscription Tier;” (known on the Site as “Stream”). The Premium Streaming Subscription Tier allows Pretzel Customers to access certain (not all) Cleared Music Tracks available on the Site, and to select from among those certain Cleared Music Tracks those that you wish to include in Your UGC Projects, which includes live streaming delivery. The Premium Streaming Subscription Tier only provides for streaming of those certain Cleared Music Tracks, and does not include downloads of those Cleared Music Tracks. Under the Premium Streaming Subscription Tier, You may create as many UGC Projects containing those certain Cleared Music Tracks as you wish. The Premium Streaming Subscription Tier also includes access to all Stations and Playlists provided on the Site that include Cleared Music Tracks, as well as other Premium functionalities provided for on the Site;
  3. a “Premium Download Subscription Tier;” (known on the Site as “Download”). The Premium Download Subscription Tier allows Pretzel Customers to access certain (not all) Cleared Music Tracks available on the Site, and to select from among those certain Cleared Music Tracks those that you wish to include in Your UGC Projects, which includes limited live streaming delivery for certain Stations and downloads of those certain Cleared Music Tracks. The Premium Download Subscription Tier provides for streaming of those certain Cleared Music Tracks, and downloads of those Cleared Music Tracks for use in UGC Projects. Under the Premium Download Subscription Tier, You may create as many UGC Projects containing those certain Cleared Music Tracks as you wish. The Premium Download Tier also includes access to certain Stations and Playlists provided on the Site that include Cleared Music Tracks, as well as other Premium functionalities provided for on the Site; and
  4. a “Free Tier.” The Free Tier allows Pretzel Customers access to certain Stations provided on the Site that include Cleared Music Tracks. Under the Free Tier, You shall not have access to or the right to select or use any Cleared Music Tracks yourself. You shall only be able to access and use Stations that include Cleared Music Tracks in Your UGC Projects.
    Contemporaneously with opting-in to this Agreement, and using the means provided for such purpose on the Site, You will be registered for the tier of service in which you choose to participate (Pro, Stream, Download or Free). If You want to subscribe to the Pro Subscription Tier or the Premium Streaming or Premium Downloads Subscription Tiers of the Service, you must indicate such upon registering and opting-in to this Agreement, using the means provided for such purpose on the Site. If you choose the Free Tier of Service, you will also have the opportunity, at any time, to subscribe to the Pro Subscription Tier or the Premium Streaming or Downloads Subscription Tiers of the Service, using the means provided for such purpose on the Site. In the manner provided for on the Site for certain of the tiers, You will be given the opportunity to identify all of Your UGC Channels on all Qualifying UGC Platforms. In order for Pretzel to Whitelist Your UGC Channel under the Pro Subscription Tier or the Premium Streaming or Downloads Subscription Tiers of the Service, you will need to identify all of Your UGC Channels on all Qualifying UGC Platforms to which You will post UGC Projects containing Cleared Music Tracks pursuant to this Agreement. You acknowledge and agree that the posting of Your UGC Projects to UGC Channel(s) that are not Qualifying UGC Platforms shall be deemed not authorized under this Agreement and shall be subject to the rights and remedies provided by law, including copyright, and equity.
3. Free Tier: There is no charge to You for use of the Free Tier of Service. However, in consideration for Your use of the UGC Creators License Services You agree to provide chat attribution for use of all Stations (i.e., mandatory chat attribution), and any other credit or attribution as provided for on the Site from time to time.
4. Paid Subscription Tiers: The Pro Subscription Tier, the Premium Streaming Subscription Tier and the Premium Downloads Subscription Tier are referred to together as the “Paid Subscription Tiers”. The Paid Subscription Tiers of Service require You to pay a “Subscription Fee,” and, under the applicable paid tier, You are a “Paid Subscriber”. Under the Paid Subscription Tiers of Service, where possible with the respective Qualifying UGC Platform, Pretzel will not instruct or cause a Qualifying UGC Platform operator to serve advertisements and the Qualifying UGC Platform operator, where possible, will not serve advertisements to those of Your UGC Channels which You have Whitelisted hereunder. Payment of the Subscription Fee allows You to Whitelist one (1) of Your UGC Channels on each Qualifying UGC Platform. If the means to do so is provided for on the Site, You may Whitelist more than one (1) of Your UGC Channels on each Qualifying UGC Platform by paying additional Subscription Fee(s). None of Your UGC Projects uploaded to Your UGC Channels on a Qualifying UGC Platform when you no longer are a Paid Subscriber will be Whitelisted and instead will be treated in accordance with the Free Tier of Service.
  1. The first thirty (30) day period following a Pretzel Customer’s opt-in to the Paid Subscription Tiers shall be deemed a “Free Trial Period.” All terms and conditions of this Agreement shall apply during the Free Trial Period; provided, however, if a Pretzel Customer submits a Notice of termination to Pretzel UGC Creators License Services, as provided in Section 7, below, before the thirty (30) day Free Trial Period ends, the Pretzel Customer shall not be required to pay any Subscription Fee.(ii) The amount of the Subscription Fee for each paid subscription tier shall be set forth on the Site. The Subscription Fees shall be payable, together with any associated sales, value added, use and/or other taxes and government charges required to be collected by Pretzel, in advance commencing on the date You specify the Subscription Tier of Service and continuing thereafter on the anniversary of that date until You either change to the Free Tier of Service, by using the means provided for such purpose on the Site, or this Agreement is terminated. Subscription Fees are nonrefundable and non-pro-ratable. Pretzel reserves the right in its sole discretion and from time to time to change the amount of the Subscription Fee; provided however, that no such change shall affect the Subscription Fee already paid for a specific period.
  2. You shall tender payment of the Subscription Fee via credit card, or other method of payment as may be made available on the Site by the means provided for that purpose on the Site.
  3. In order to provide continuous service, Pretzel will automatically renew your subscription on the date the subscription expires. The renewal term shall be for the same duration as the previous subscription term. Your subscription will automatically renew, unless you choose to cancel your subscription as set forth below. All fees paid and charges made prior to termination are non-refundable. Termination of your subscription shall not relieve you of any obligation to pay accrued and outstanding charges. However, except in the event of fraud or violation of the terms of this Agreement, you will be entitled to use the Services for the period for which you have paid in advance, even if you terminate your subscription early.
  4. You may cancel your subscription at any time by following these instructions in our FAQ. Cancellation will cease automatic renewal of your subscription. However, subscription fees are non-refundable except where required by law.
Grant of Rights.
1. Subject to the limitations set forth in Sections 6(b), (c), (d), (e), and (f), below, Pretzel hereby grants You a limited, non-exclusive, non-transferable license, during the Term, and throughout the Territory, to: (i) copy and reproduce the Cleared Music Tracks by downloading and/or streaming them, as applicable, from the Site; (ii) copy and reproduce the Cleared Music Tracks, in whole or in part, including to synchronize the Cleared Music Tracks in timed relation with audio-only and/or audio-visual content You provide, in the creation of Your UGC Projects, but not otherwise; (iii) create audio-only and/or audio-visual derivative works based on the Cleared Music Tracks by copying and reproducing the Cleared Music Tracks, in whole or in part, including synchronizing the Cleared Music Tracks in timed relation with audio-visual content, into Your UGC Projects, but not otherwise; and (iv) to copy, reproduce, and distribute the Cleared Music Track(s) together with and as part of your UGC Projects by digital transmissions, including online and mobile transmissions, but by no other means or method now known or hereafter devised, or through any other platform or media. The grants in this Section 6 are explicitly limited to the uses of Cleared Music Tracks as described in Section 5, subject to the tier of service You choose. In no way does this grant supersede the limitations provided in Section 5.
2. No copies or reproductions of the Cleared Music Track are to be made, manufactured, sold, licensed, exhibited, publicly performed, communicated to the public, digitally transmitted or otherwise used separately or apart from Your UGC Projects in substantially their entirety and as authorized pursuant to this Agreement.
3. Anything to the contrary herein notwithstanding, Your UGC Projects may not include the use of Cleared Music Tracks either on a standalone basis or in any compilation or combination together with other Music Track(s) (including other Cleared Music Tracks), without live streaming in a UGC Platform and/or including substantial other and additional, audio, video, audio-visual, or other content therein.
4. The Cleared Music Track(s) may not be copied, reproduced, distributed, publicly exhibited, publicly performed, communicated to the public, or digitally transmitted on a standalone basis or as part of any compilation, composed either exclusively or predominately of Music Tracks, through any music streaming platforms including, but not limited to Apple Music, Spotify, Pandora, or for use in creating any such streaming platform.
5. Cleared Music Tracks that You downloaded from the Site and included in Your UGC Projects that were fully produced during the Term may be used or exploited by You as provided in Section in Section 6(a)(iii) and (iv), above, in perpetuity. Cleared Music Tracks that You downloaded from the Site during the Term but not include in Your UGC Projects that were fully produced during the Term, may not be exploited by You in any manner whatsoever following termination of this Agreement.
6. You acknowledge and agree that any use or exploitation whatsoever of Cleared Music Tracks outside of, or beyond the scope of the grant of rights, or other terms and conditions of this Agreement, are not and shall not be authorized hereunder, and that any such use or exploitation may subject You to rights and remedies provided by law, including copyright law and equitable actions.
7. As between You and Pretzel, all rights to, in and under the Cleared Music Track(s) not expressly granted to You pursuant to this Agreement are expressly reserved by and to Pretzel.
Termination.
1. Pretzel, in its sole discretion, may terminate this Agreement and Your access to and use of the Site and the UGC Creators License Services at any time, for any or for no reason, upon Notice to You. In no event shall We be liable to You or to any third party should We exercise this right from time to time. If Pretzel terminates this Agreement, We will refund to You a pro rata portion of the most recent Subscription Fee payment You made to Pretzel, if applicable.
2. You may terminate this Agreement and Your subscription to the Services at any time, for any reason, by sending an email Notice of Termination to legal@pretzel.rocks. You must include in the subject line of your email “Termination of Subscription to Pretzel UGC Creators License Services.” Alternatively, you may terminate your subscription to the Services by using the means provided for such purpose on the Site.
3. You acknowledge and agree that any termination pursuant to this Section 7, shall render any copy, reproduction, exhibition, public display, public performance, digital transmission, and/or other use of any Cleared Music Track by You made subsequent to such termination as unauthorized and subject to the rights and remedies provided by law, including copyright, and equity.
4. The rights and obligations of Pretzel and You set forth in Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 15, 16 and 18, and any right or obligation either party may have in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, shall survive any such termination or expiration.
Your Representations and Warranties.
You hereby represent, warrant and covenant, that, at all relevant times:
1. Your Pretzel Customer Account Registration Form is complete and correct in all respects, and You will maintain the completeness and correctness of the information contained therein;
2. the information You provided in connection with Your subscription to the UGC Creators License Services is complete and correct in all respects, and You will maintain the completeness and correctness of such information;
3. You are 18 years of age or older (or, where the age of majority is under 18, you are the age of majority in your country of residence); or, if You are between the ages of 13 and 18 (or the age of majority in the minor’s country of residence), you have obtained the permission of a parent or guardian and such parent or guarding is supervising your use of the Site; and Your parent or guardian agrees to be bound by this Agreement;
4. Your use of the UGC Creators License Services does not violate any applicable law, rules, regulations, orders, or agreements with third parties;
5. You have all right, power and authority to enter into this Agreement and to carry out the terms and provisions of this Agreement;
6. You have consulted with legal, financial, tax and other advisors regarding the implications of opting-in to the UGC Creators License Services or have knowingly waived your right to do so, and You enter into this Agreement with full knowledge and understanding of the legal, financial, tax and other consequences thereof; and
7. You shall comply with all applicable laws, rules, regulations and orders (as they may be amended from time to time.
Pretzel's Representations and Warranties; Disclaimers
1. Pretzel represents and warrants that Pretzel has all right, power and authority to enter into this Agreement and to carry out the terms and provisions of this Agreement applicable to Pretzel.
2. YOU ACKNOWLEDGE AND AGREE THAT THE SITE, ALL SERVICES PROVIDED OR PERFORMED BY PRETZEL AND, AS BETWEEN PRETZEL (ON THE ONE HAND) AND YOU (ON THE OTHER HAND), THE CLEARED MUSIC TRACKS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, RULES, REGULATIONS OR ORDERS (EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9(a)), PRETZEL EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL AND WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE RELIABILITY OR PERFORMANCE OF THE SITE OR THE SERVICES PROVIDED OR PERFORMED BY PRETZEL, THE RELIABILITY, PERFORMANCE, ACCURACY OR COMPLETENESS OF THE CLEARED MUSIC TRACKS OR ANY INFORMATION OR MATERIALS PROVIDED BY PRETZEL OR AVAILABLE ON THE SITE, OR ANY PUBLICATION, PERFORMANCE OR OTHER USE, COMMERCIALIZATION OR EXPLOITATION OF THE CLEARED MUSIC TRACKS BY YOU OR ANY THIRD PARTY. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM PRETZEL SHALL CREATE ANY WARRANTY ON BEHALF OF PRETZEL IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS, SOLELY TO THE EXTENT PROHIBITED BY THE APPLICABLE LAWS OF SUCH JURISDICTIONS.
3. ALTHOUGH PRETZEL WILL IN GOOD FAITH ENDEAVOR TO REMEDY ERRORS IN THE SITE OR PRETZEL’S SERVICES, PRETZEL SPECIFICALLY DOES NOT WARRANT THAT THE CLEARED MUSIC TRACKS, THE SITE OR PRETZEL’S SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR THAT ALL ERRORS IN THE CLEARED MUSIC TRACKS, THE SITE OR PRETZEL’S SERVICES WILL BE CORRECTED. PRETZEL SHALL HAVE NO LIABILITY ASSOCIATED WITH ANY INOPERABILITY, PERFORMANCE OF OR INABILITY OR DELAY IN ACCESS BY YOU TO THE SITE OR THE SERVICES. PRETZEL WILL NOT BE RESPONSIBLE FOR ANY LOSS OR ANY MISAPPROPRIATING, INFRINGING OR WRONGFUL USE OF THE CLEARED MUSIC TRACKS OR ANY OTHER MATERIALS SUFFERED BY YOU BECAUSE OF THE SITE, PRETZEL’S SERVICES OR ANY OTHER ACT OR OMISSION OF PRETZEL, A THIRD PARTY, OR OTHERWISE.
Indemnification.
1. You shall indemnify, defend and hold harmless Pretzel and its affiliates, and all officers, directors, employees, agents, owners and representatives of any of the foregoing (collectively, “Related Parties”) from and against any and all claims, actions, demands, losses, liability, damages, costs and expenses, including reasonable attorneys' fees (collectively, “Claims”), arising out of or related to any breach of any of the representations, warranties or covenants made in this Agreement by You.
2. Pretzel shall defend, indemnify and hold You harmless, from and against any and all claims, actions, demands, losses, liability, damages, costs and expenses, including reasonable attorneys' fees (collectively, “Claims”), arising out of or related to any breach of any of the representations, warranties or covenants made in this Agreement by Pretzel.
Limitations on Liability.
1. IN NO EVENT SHALL PRETZEL OR ANY OF ITS RELATED PARTIES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, OR LOSS OF GOODWILL, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE, EVEN IF PRETZEL OR ANY OF ITS RELATED PARTIES HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
2. REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF PRETZEL IS FOUND TO BE LIABLE, THE AGGREGATE LIABILITY OF PRETZEL FOR CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE LESSER OF ONE HUNDRED DOLLARS ($100.00) OR THE FEES ACTUALLY PAID TO AND RETAINED BY PRETZEL FOR USE OF THE SITE AND THE SERVICES IN CONNECTION WITH THE CLEARED MUSIC TRACK(S) GIVING RISE TO THE LIABILITY.
3. YOU HEREBY ACKNOWLEDGE AND AGREE THAT PRETZEL DOES NOT CREATE OR ENDORSE, AND PRETZEL SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO, THE CLEARED MUSIC TRACKS OR ANY USE OR EXPLOITATION OF THE CLEARED MUSIC TRACKS BY YOU OR ANY THIRD PARTY.
U.S. Export Controls.
Software available in connection with the Site and/or the Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Site or from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
Legal Disputes; Governing Law; Venue. PLEASE READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
You agree that any claim or dispute that may arise between you and Pretzel with respect to this Agreement will be resolved in accordance with this Section 13.
1. Applicable Law. You agree that, except to the extent inconsistent with or preempted by federal law, this Agreement and any claim or dispute that may arise between you and any Related Party under it shall be construed under the laws of the State of California, without regard to its conflict of laws rules.
2. Agreement to Arbitrate. You and Pretzel agree that any and all claims and disputes arising between us pursuant to this Agreement and your use of the Site or the Services shall be resolved exclusively through final and binding arbitration. Alternatively, you may assert your claims and disputes in small claims court, if the claim or dispute so qualifies, so long as the claim or dispute remains in small claim court and advances on an individual (non-class) basis. The Federal Arbitration Act shall govern this agreement to arbitrate.
  1. Class and Representative Actions Prohibited. You and Pretzel agree that each of us (or any other Related Party) may bring claims and disputes against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Pretzel agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims or disputes or preside over a representative or class proceeding. The arbitrator may award relief only to the individual bringing the action and any relief awarded may not affect other users.
  2. Arbitration Procedures. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable) as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. The AAA’s rules shall govern the number of arbitrators assigned to conduct the arbitration. The party intending to seek arbitration shall send to the other, by certified mail, notice of the dispute. Such notice should be sent to PretzelAux, Inc, 2701 Ocean Park Blvd, Suite 220, Santa Monica, CA, 90405, Attn: Legal. Pretzel shall send any notice to you at the email address on file associated with your Pretzel Customer Account. If you and Pretzel are unable to resolve any of the claims or disputes described in such notice within 30 days after such notice is received, either party may initiate arbitration proceedings. The form for initiating arbitration is available at www.adr.org, and the party initiating arbitration must both file this form with the AAA and mail a copy of the completed form to the other party at the same addresses as set forth earlier in this paragraph. Any settlement offer made by you or Pretzel shall not be disclosed to the arbitrator. The arbitration hearing shall be held in a mutually agreed location. The arbitrator’s award shall be consistent with this Agreement and final and binding, and judgment shall be entered in any court having jurisdiction thereof. Payment of all filing, administration and arbitrator fees shall be governed by AAA’s rules.
  3. Invalidity. With the exception of Section 13(b)(i) above (“Class and Representative Actions Prohibited”), if an arbitrator or court decides that any portion of this Section 13 is invalid or unenforceable, all other portions of this Section 13 shall continue to apply. If an arbitrator or court decides that Section 13(b)(i) is invalid or unenforceable, then the entirety of this Section 13(b) and its subparts shall be null and void, but the rest of this Section 13 shall continue to apply.
  4. Opt-Out Procedure. If you are a new user, you can opt out of this agreement to arbitrate by mailing a written opt out notice postmarked no later than 30 days after the date you accept the terms of this Agreement for the first time. The opt out notice should be mailed to: PretzelAux, Inc., 2701 Ocean Park Blvd, Suite 220, Santa Monica, CA, 90405, Attn: Legal. The opt out notice should state that you are opting out of the agreement to arbitrate in the Pretzel License Services Agreement for Creators of User Generated Content and provide your name, address, phone number, Account information, electronic mail address, signature and date.
  5. Amendments to Agreement to Arbitrate. You and Pretzel agree that if Pretzel amends this agreement to arbitrate in the future, the amendment shall not apply to a claim or dispute filed by either party prior to the effective date of the amendment.
3. If the agreement to arbitrate does not apply to you, either because you opt-out or as a result of a decision by an arbitrator or court order, you agree that any claim or dispute that has arisen between you and Pretzel will be resolved exclusively by a state or federal court located in Los Angeles, California. You and Pretzel agree to submit to personal jurisdiction of the courts located in Los Angeles, California for purposes hereof.
Notices.
1. Unless otherwise specifically provided elsewhere in the context in which it applies, any Notice required or permitted to be given to any Party to this Agreement, or any other agreement between You and Pretzel, shall be in writing and shall
  1. if to Pretzel, be either personally delivered by hand, delivered by prepaid courier or sent by prepaid registered mail and shall be deemed received upon delivery, and
  2. if to You, either to the email address specified in connection with Your Account, or by being posted as a notification to Your Account.
2. Any such notice shall be delivered or sent:
  1. if to Pretzel, to 2701 Ocean Park Blvd, Suite 220, Santa Monica, CA, 90405, Attn: Legal, and
  2. if to You, to the email address specified in connection with Your Pretzel Customer Account.
3. The address at which notice may be given to Pretzel may be changed by Pretzel by giving you written notice as provided in this Section 14.
Force Majeure.
Pretzel shall not be liable for any delay or failure in performance resulting from acts or occurrences beyond the reasonable control of Pretzel, including, without limitation, (and whether similar or dissimilar) acts of God, acts of war, terrorism, riot, fire, flood, or other disaster or other natural occurrence, acts of government, strike, lockout, or power or Internet failure.
Assignment.
You may not assign or transfer any of Your rights or obligations under this Agreement, and any such attempted assignment or transfer shall be null and void. Pretzel shall have the right to assign or transfer this Agreement at its sole discretion, including in the event of merger, corporate reorganization, sale or acquisition of all or substantially all of its assets. This Agreement shall be binding on the Parties and their respective successors and permitted assigns.
Relationship of the Parties.
You and Pretzel enter into this Agreement as independent contractors, and neither Pretzel nor You shall be or construed to be a partner, joint venturer, agent or employee of the other Party.
General Provisions.
This Agreement, the Pretzel Terms of Use, and the Pretzel Privacy Policy, constitute the entire agreement between you and Pretzel regarding you access of the Site and use of the Services, operate to the fullest extent permissible by law and supersede all prior and contemporaneous agreements, understandings, proposals, and negotiations of any kind, whether oral or written, with respect to the subject matter hereof and thereof. The failure of Pretzel to exercise or enforce any right or provision shall not operate as a waiver of such right or provision. Headings are inserted for convenience of reference only and shall not be used for the purpose of interpreting this Agreement, the Pretzel Privacy Policy, or any other agreement between you and Pretzel. No party may create any obligation on behalf of any other party except as expressly set forth herein or in connection with any other agreement between you and Pretzel. If any provision of this Agreement, or any other agreement between you and Pretzel, is declared by a court of competent jurisdiction to be invalid, unlawful, void or unenforceable, such provision shall be severed from the agreement in question, and the other provisions shall remain in full force and effect, and that provision shall, to the fullest extent lawful, be reformed and construed as if such invalid, unlawful, void or unenforceable provision (or part thereof) had never been included herein or therein and to be valid, lawful and enforceable to the maximum extent possible.