MySeat Media Software As A Service License Agreement
Description of MySeat and of Talent App and Services
MySeat.com Media Inc. (USA), a corporation incorporated under the Laws of the State of Delaware, with its principal place of business at 1209 Orange Street, Wilmington, DE 19801 (hereinafter “MySeat” or “us” or “we” or “our”) is a multimedia fan engagement application software company that provides to its clients a fan engagement platform (the “Platform”) to publish, on Android and IOS App stores approved by us (each, an “App Store”) a personalized version of our fan engagement application software (the “Talent App”) and related services (the Platform, the Talent App and such related services being, together, the “Services”) to be used by our clients as their business showcase, enabling them to engage their fan base, capture real time data to profile fans and other users (together, “Users”) and generate revenues by serving Users and selling direct-to-Users exclusive content, offers, promotions and live experiences.
Subscription and Account
In order to access to, and use the Services, you must:
Subscribe to the Services through the creation of your account (“Account”) by:
• filing all information requested on Stripe (the “Subscription”);
• selecting the subscription plan (i.e. “Lite”, “Start”, “Grow” or “Pro”) to which you want to subscribe (“Subscription Plan”);
• selecting the duration of your subscription period, (i.e. one month or one year) (the “Subscription Period”), and
• click “I agree”, when prompted to do so after completing your subscription, thereby confirming your agreement with these Terms and the MySeat Subscription Plan to which you are subscribing, and representing the truthfulness of all information provided in your completed subscription.
Following the initial launch of your Talent App there will be ongoing scheduled releases, from time to time, to enhance fan engagement and monetization features over the entire duration of our agreement and ongoing business relationship.
Once you will have subscribed to our Services, we will:
• personalize an instance of the Talent App to create your own official version thereof A (your “Official App”) to leverage the power of our cloud-based user engagement framework that will let you engage Users with an exclusive mix of free and premium content, to create most memorable experiences; capture invaluable fan engagement demographics and psychographic data; and let you extend to Users relevant and highly targeted offers, invitations, promotions, advertising and sponsorships
• host your Official App and related data on servers owned or controlled by us or our subcontractors;
• publish and launch your Official App in the App stores;
• license you the Services and your Official App for their use by you in accordance herewith, including to allow you to make your Official App available for download by users on App Stores;
• provide reasonable support to assist you in the successful initial deployment of your Official App on the App Stores., and
• provide reasonable online support for diligent attention on any critical issues affecting the availability or use of your Official App that may arise during the term of this Agreement.
You may monetise exclusive content, offers, promotions and various experiences through your Official App (“Monetisation”) through the monetisation functionality that could be implemented into your Official App using the monetisation tools we may provide you based on the subscription plan you selected.
For greater certainty, you are responsible for collecting and paying any taxes that may apply in relation to Monetisation made through your Official App.
Revenue from in-app monetization
Revenue means the revenues payable to the talent based on Gross Proceeds minus third-party fees charged to and paid by MySeat for mobile (and online) transactions or diffusion of content on platforms such as (without limitation) Google Play, Stripe, Apple or Shopify fees.
Revenues payment will be transferred electronically to the account of Talent, via Stripe on a monthly basis after payments have been received by MySeat along with a monthly statement sent via email. Standard practice for Google Play and Apple App Store is to issue payments four to six weeks following in-App purchase transactions.
To enable Monetisation payments, you must create a Stripe account through the Financial admin feature accessible directly from the Talent App, complying with all applicable Stripe’s requirements, terms and policies, to connect your Stripe account to your MySeat Account. For greater certainty, you are totally free to decide whether or not you agree to create a Stripe Account, it being understood that you cannot enable Monetisation on your Official App unless and until you have such an account.
Talent shall have the right, once per year, at its own cost to inspect and audit all accounting reports, books or records which concern the share of revenues to the parties.
Your subscription period will begin as of the date when your 30-day trial period ends. Your 30 day trial period starts once you receive the link to downloaded your Talent App trial to your device, by complying with the subscription conditions and process outlined above and will thereafter automatically renew for additional subscription periods having the same duration as the Subscription Period selected (each, an “Additional Subscription Period”), unless you cancel your subscription to the services at least fourteen (14) days prior to the beginning of the next Additional Subscription Period.
You may, at any time, change your Subscription Period by sending to us, at email@example.com, a notice to that effect at least fourteen (14) days prior to the beginning of the next subscription period.
If you have an annual subscription (meaning your subscription period is 12 months or longer), we will try to provide you with at least 30 days’ notice before your subscription renews.
You may cancel your subscription to the Services and close your Account at any time by sending to us, at firstname.lastname@example.org, a notice to that effect”. Your access to the paid services will continue until 23:59 on the final day of your subscription period. You must cancel your access to the paid services at least fourteen (14) days prior to the beginning of the next Additional Subscription Period so as to avoid automatic renewal. Your access to the Services will then continue until 23:59 on the final day of your then ongoing subscription period.
We will automatically collect the fees, plus any applicable taxes, payable for the Subscription Plan and the duration of subscription periods you have subscribed to on the “App Creator portal” (the “Subscription Fees”), at the start of each subscription period.
Depending on the type of subscription you purchase, you may be subject to certain limitations in monetization features available and caps, such as a cap on the total number of Users to whom you can sell subscriptions to your Official App.
Your access to the Services and right to access, use and make available your Official App and related data will continue for as long as you pay the Subscription Fees or until this Agreement is terminated.
If the payment of your Subscription Fees for any subscription period is declined or we receive a chargeback or other rejection, we may try to collect the Subscription Fees at a later time, or suspend your Account until such Subscription Fees are paid. You may not be able to access the Services until you pay any outstanding Subscription Fees.
You may make changes to your subscription plan, at any time by sending to us, at email@example.com, a notice to that effect, at least fourteen (14) days prior to the beginning of the next subscription period, in which case we will update your plan and related fees at the beginning of the next subscription period.
You may requires us to carry out additional services beyond the scope of those set forth in this Agreement (the “Additional Services”) by sending to us a notice to that effect, at firstname.lastname@example.org, describing in reasonable details the nature and scope of such Additional Services (an “Additional Services Request”) If we agree to provide such Additional Services, we will send you, at the email address provided on the App Creator Portal, a notice describing the nature and scope of the Additional Services we would agree to provide (which may be the same or different from those described in the Additional Services Request), the estimated fees and, as the case may be, costs involved for their provision, the terms and conditions for their payment, and the estimated time to complete their performance and to provide you with any resulting deliverable (the“Additional Services Proposal”). We will not begin the performance of such Additional Services unless and until we will have received a written confirmation, by you, of the acceptance of our Additional Services Proposal (the “Additional Services Acceptance”). We will submit an invoice by email to you at the email address provided for any Additional Services so provided referencing the applicable Additional Services Acceptance and the invoice shall be paid by you, with all applicable taxes, within 7 days of transmission to you.
You shall further reimburse us any reasonable out-of-pocket expenses, plus applicable taxes, including transportation, lodging, mileage, and meals incurred by us in rendering Additional Services, provided such expenses are included in the applicable Additional Services Proposal or, if not, we have obtained your prior written authorization before incurring the same. All expense reimbursement shall be paid within 7 days of transmission of our invoice to you at the email address provided. All Expense reimbursements shall be made at our direct out-of-pocket costs, without any markup for overhead, administrative costs, or otherwise.]
Any amount not paid on its due date by you will bear interest at the rate of ten percent (10%) per year compounded monthly.
Each of you and us (the “Terminating Party”) shall have the right to terminate this Agreement upon the occurrence of any of the following events, such termination to be effective upon written notice thereof to the other party (the “Terminated Party”):
a. The Terminated Party commits a material breach of any of its obligations, covenants, representations or warranties set forth in this Agreement, which breach have not been remedied or cured by Terminated Party within fourteen (14) days after written notice thereof from the Terminating Party, provided, however, that if the breach complained of is incapable of remedy or cure as determined by the Terminating Party, in its reasonable discretion, the Terminating Party may then terminate this Agreement immediately upon written notice to the Terminated Party.
b. The appointment of a trustee, receiver or other similar custodian for all or any part of the Terminated Party’s property; the insolvency of the Terminated Party; the filing of a petition by or against Terminated Party, or an answer not denying jurisdiction, in bankruptcy; the execution by terminated Party of an assignment for the benefit of creditors; or if any action is taken by or against the Terminated Party under any law the purpose or effect of which is to relieve such party from any of its debts or to extend the terms of payment to which it is otherwise subject.
c. Any applicable federal, state/provincial, local, or other governmental or administrative law, regulation, rule, or order prohibits or materially impairs the execution of this Agreement.
As you and us, you retain all ownership and intellectual property rights in and to your data, name (real and publicly known), image, likeness, music, copyrights, tradenames, trademarks, and all other intellectual property (“Your Property”).
As between you and us, we retain all ownership of all rights, including intellectual property rights, to the Platform, Services all MySeat programs, including the Talent App, and in and to any development, creation, improvement, modification, adaptation, derivative work and application relating to any part thereof such as ideas for products and services, designs, concepts, projects, policies, proposals, plans, business plans, business opportunities, pricing policies, marketing plans and strategies, product development plans and techniques, algorithms and software (collectively, the “MySeat Property”)).
We further retain all ownership of all rights to the designs, illustrations, branding and other personalization created for your Official App and anything else created, developed and/or delivered under this Agreement (collectively the “MySeat Developments”).
You (including your Users) may not copy, imitate, modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the MySeat Property and MySeat Developments (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs as well as the sequence, structure and/or organization of the Platform and of any MySeat program), or access or use the Platform and the Services, including any MySeat program, in order to build or support, and/or assist a third party in building or supporting, products or services competitive to any MySeat Property or MySeat Development.
You (including your Users) may not use the Platform, the Services and the Official App to upload, post, email, transmit, or otherwise make available any content that:
• infringes any copyright, trademark, right of publicity, or other proprietary rights or confidential information of any person or entity;
• is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another's privacy, or promotes violence, or
• discloses any sensitive information about another person, including that person's email address, postal address, phone number, credit card information, or any similar information.
• You hereby grant us and our sublicensees a non-exclusive, perpetual, royalty-free, freely sublicensable license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, advertise, publicly display, publicly perform, and otherwise use or exploit (including for profit) Your Property and any content of any nature made available through your Official App (“Your Content”) and all intellectual property and moral rights therein in any way and in any jurisdiction, in each case, by or in any means, methods, media or technology now or hereafter known or conceived. This license also allows any of our other users to redistribute such Your Property and Your Content through our products, services and applications. By making any of Your Property or of Your Content available through your Official App, you represent and warrant to us that it is your original creation (or that you otherwise have the right to provide and license it in accordance herewith), that you have all rights necessary to grant such license and that Your Property or of Your Content and its use by us and our sublicensees as permitted by this Agreement does not and will not infringe or misappropriate the right, including the intellectual property or moral rights, of any person or contain any libelous, defamatory or obscene material.
Notwithstanding the foregoing, we may use Your Property and Your Content after the Term, but only limited to promotional purposes.
You agree to defend, indemnify, and hold us and our officers, directors, employees, subsidiaries, affiliates, agents, partners, licensees, and licensors (each an “Indemnified Party”) harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or any of the representations or warranties given in this Agreement or your access to, use, or misuse of any MySeat Property, MySeat Development, or of your Official App. We shall provide notice to you of any such claim, suit, or proceeding and you shall assist any Indemnified Party, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
We do not guarantee that the MySeat Properties, MySeat Developments, or of that your Official App will be error-free or uninterrupted, or that we will correct all errors. You acknowledge that we do not control the transfer of data over wired or wireless communications facilities, including the Internet, and that access to and/or use of the Platform, the Services or your Official App may be subject to limitations, delays and other problems inherent in the use of such communications facilities. We are not responsible for any delays, delivery failures, or other damage resulting from such problems.
EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW, WE MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS RELATING TO ANY MYSEAT PROPERTY, MYSEAT DEVELOPMENT, OR TO YOUR OFFICIAL APP . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS, SUCH AS IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
By virtue of this Agreement, you and us may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, the Platform’s and MySeat programs’ source code and logic, your data residing in the Servicesenvironment, and all information clearly identified as confidential at the time of disclosure. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. Each party agrees to hold the other party’s confidential information in confidence indefinitely. Also, each party agrees to disclose confidential information only to those of its employees or agents who need to know such confidential information to allow such party to perform its obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement.
Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. OUR MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO MYSEAT FOR THE SERVICES UNDER THE AGREEMENT THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic, epidemic, electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Talent obligation to pay for the App and Platform as provided herein.
Protection of personal information
Parties must comply with all applicable legal requirements regarding confidentiality and protection of personal information.
We may collect, use, transfer, disclose and otherwise process individual fan data, including personal information, but only to the extent permitted in the App user license.
The data generated through the use of your Official App (hereinafter referred to as “Your Data”) will remain the sole and exclusive property of you and/or of your fans, as the case may be. In performing the Services, we will treat Your Data as confidential information of you or of your fans.
We reserve the right to provide the Services from, and host Your Data in any locations, and/or via subcontractors, worldwide.
We are hereby granted a non-exclusive, worldwide, perpetual, royalty-free, sublicensable and irrevocable license to:
• use and copy the Your Data to create data sets on condition that they are aggregated and anonymized;
• perform various levels of data analysis;
• compile statistical and other information relating to the performance, operation and use of the Official App and the Platform, and/or any other system or subsystem integrated or used in conjunction therewith, and
• use this information in aggregate form, for security, analysis and operations management, to create statistical analyzes and improve the Talent App and the Platform, and/or any other system or subsystem integrated or used in conjunction therewith, and for research and development purposes,
provided however that such uses do not incorporate Your Data in a form that could serve to identify you or your fan.
We retain all rights and to any data and intellectual property as may result from any such authorized uses.
Third Party Web Sites, Content, Products and Services
The Platform, Services and the Official App may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. We are not responsible for any third-party Web sites or third-party content provided on or through the Platform, Services or Official App and you bear all risks associated with the access and use of such Web sites and third- party content, products and services.
In the event we receive a takedown notice alleging third party copyright infringement subject to the laws of the United States of America, the DMCA rules will apply.
Subject to our other rights and remedies hereunder, you agree that we may remove from our Platform and Services (including from your Official App) any of Your Property or of Your Content if we receive any notice or other claim alleging that the same infringes any right of anyone or is otherwise illegal, in which case you also agree that we shall incur no liability to you for such removal.
You agree that we may identify you as a user of our Platform and Services, including of the Talent App, and use your name, likeness and trademarks in sales presentations, marketing materials and press releases, and to develop a brief customer profile for use by us for promotional purposes.
Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, employer, employee or agent of the other and shall not bind nor attempt to bind the other to any contract.
This Agreement set forth the entire agreement between the parties hereto with respect to the subject matter hereof, supersede all prior agreements relating thereto, and may not be modified except by a written agreement signed by the parties hereto. The parties may execute this Agreement in counterparts, each of which shall constitute an original for all purposes, including any copies of same, and all duplicate counterparts will be construed together and constitute one agreement.
The parties agree to exercise their best efforts to promptly settle any question, dispute, controversy, claim, or other matters of difference arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, arbitrability, interpretation, performance, breach (threatened, alleged or actual), enforcement or termination, as well as non-contractual claims and any damages resulting from any of the above (each being a “Dispute”). To this end, they agree that executives of each party who have authority to settle the Dispute will discuss and negotiate with each other, diligently and in good faith and understanding of their mutual interests, to reach a just and equitable solution satisfactory to both parties.
If the parties do not reach a solution as provided above within fifteen (15) calendar days following the date that either Party is informed in writing by the other Party that a Dispute exists (the “Notice of Dispute”), then upon written notice by any party to the other (the “Arbitration Notice”), the Dispute must be finally settled by arbitration before a single arbitrator under the auspices of the American Arbitration Association (the “Arbitration Center”) in accordance with its International Arbitration Rules which rules the parties hereto expressly state to be known to them and are herein incorporated by reference. The arbitration will be held in New York City. All decisions of the arbitrator shall be in writing, shall set forth detailed findings of fact and conclusions of law, shall be final, binding and conclusive upon the Parties and will not be subject to any appeal.
This Agreement shall be construed and controlled by the internal laws of the state of New York without reference to conflict of laws provisions. Subject to the provisions hereof regarding arbitration of Disputes, Courts sitting in the District of New York having jurisdiction over the relevant Dispute shall have jurisdiction over such Disputes.