Thematic Creator Agreement
This agreement (“Agreement”) represents a legal contract governing the terms by which Thematic, Inc. (“Thematic”, “us”, “our” and “we”), a Delaware corporation, makes musical works (“Works”) as further defined below available to you, the registered user of our service, (you being referred to “you”, and “your” hereunder) from Thematic’s music catalog (“Catalog”) via the Thematic website (“Website”) and the terms of your use of such Works. By clicking on “I Accept” or otherwise signifying your acceptance to the terms of this agreement, including by your downloading of any Works from Thematic’s Catalog, and in consideration of the promises hereunder, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, you and Thematic agree to the following terms:
1. Definitions.
a. “Account” means the user account of those registered users of the Website.
b. “Artist” means the author and/or owner (or authorized administrator) of the Works, including but not limited to the performer(s) of, musician(s) appearing on, and/or composer(s) of, the Works.
c. “Catalog” means a catalog of the Works owned and/or controlled via license or otherwise by Thematic for use by registered users pursuant to the terms of this Agreement and the Website Terms of Use.
d. “Channel” means a Creator’s specific Platform channel or similar account, as registered to, or otherwise controlled by, the Creator with such Platform and as registered with Thematic in the Creator’s Website registration profile and/or their Account.
e. “Content” means audiovisual properties, including customary videos and audiovisual content, and podcasts, uploaded to and broadcast on a registered user’s Channel through such registered user’s Platform account, as identified in a user’s registration profile.
f. “Creator” means the creator of the Content who legally owns and/or controls the Channel such Content is made available on.
g. “Credits”/”Credit” means those items of Artist attribution and meta data required, or otherwise provided, by each contributing Artist of the Works as delineated via the Website.
h. “Platform” or “Platforms” – means a specific media platform (or platforms) authorized for a Creator’s use by Thematic as listed in the attached Schedule “A” of Thematic Platforms as updated from time to time, for which a Creator is a registered user and/or owner, with authorized Works use on such Platforms based on Subscription Services/Paid Services tier authorization in each instance. Thematic reserves the right, in its sole discretion, upon notice to you, to modify, including adding or removing, available Platforms at its discretion, including but not limited to where directed by a Platform or where such Platform ceases operations or limits its terms of use, service offerings, etc.
i. Privacy Policy” means our privacy policy as posted on our Website and updated from time to time.
j. “Service” means Thematic’s licensing and music/talent collaboration service as provided by our Website.
k. “Term” means that one (1) year period commencing from a Website user’s (Creator’s) Account registration and Thematic approved account commencement and ending one (1) year thereafter, or upon notice of termination by Thematic, whichever comes first, unless otherwise extended by Thematic in its sole discretion, or where the Creator utilizes Thematic’s Subscription Services and Paid Services as further defined below, said Term shall be the period of Thematic authorized use under such Subscription Services and/or Paid Services the specific Creator/registered user has purchased (e.g., monthly, annual, etc.) and is authorized to use the Works for by Thematic, unless otherwise terminated by Thematic as provided for hereunder.
l. “Terms of Use” means Thematic’s terms of use and guidelines, where posted on the Website, including but not limited to community rules and restrictions registered users must agree to in order to create an Account, access our Website and download and utilize the Works. Terms of Use may be added where not available as of the date of your registration and updated at a future date without notice to you.
m. “Territory” means the World.
n. “Website” means our website hellothematic.com and any other sites owned and/or controlled by Thematic and its affiliates, licensees and assigns.
o. “Works” mean sound recordings and the underlying musical compositions of such sound recordings (including vocals, arrangement, and lyrics), as coupled together, and actually featured in the Thematic music Catalog. Each individual sound recording and underlying musical composition as coupled in the Catalog to be referred to as a “Work”.
2. Grant of Rights.
a. Subject to the terms and conditions of this Agreement, the Website Terms of Use, and Privacy Policy, Thematic hereby grants you a non-exclusive non-transferable worldwide right and license to make copies of the Works when available in the Catalog solely for use in your Content and synchronize the Works (when available in the Catalog) in your Content where selected via the Website. You shall have the right to utilize such Works in your Content for the duration such Content is uploaded to your Channel on the Thematic authorized Platforms with such authorization based on the Subscription Services and/or Paid Services and respective user tier (e.g. free, paid, pro, etc.) you are subject to. Thematic reserves the right, upon notice to you in its sole discretion, to modify, remove or add to the Schedule “A” Platform offerings, including but not limited to where directed by a Platform or where such Platform ceases operations or limits its terms of use, service offerings, etc.
Notwithstanding the foregoing, you shall only utilize Works in connection with your Content when such Works are actively available and listed on the Website and in the Catalog. When a Work ceases to be available from the Catalog, no future use or broadcast of the Work in new Content, regardless of creation date, may be made by you. For the avoidance of doubt, a Work used and posted in Content on your Channel when such Work was available from the Catalog, may not be used for other Content at a later date where such Work is no longer available from the Catalog.
b. With respect to each use of the Works, you shall have the non-exclusive right to access the Catalog and utilize the Works in synchronization with your Content as noted above, and publish and publicly transmit and broadcast such Content on the internet solely on your Channel. Thematic shall have the non-exclusive worldwide right to utilize your name, image and likeness, information provided by you to Thematic in your Account, and any artwork or other marketing and promotional materials provided to Thematic by you (“Creator Materials”) for all purposes in connection with the Website, Service, Works, and Content during the Term and extending beyond such Term, with respect to Creator Content, Website, Service, and Works, as long as one or more items of Content are uploaded or otherwise are made available on the Platform by you, with such right to cease within a reasonable time upon your notice to us of a request to cease use and confirmation of your removal of all said Content from the respective Platform(s).
c. All license grants hereunder to include the Works in your Content, and access the respective Platforms as authorized under your account, shall be subject to your maintaining an active Account, and remitting as required any payment for Subscription Services / Paid Services as applicable to you, such Works being available in our catalog for use, and your agreement to the terms herein and your agreement and compliance with our Terms of Use where posted and our Privacy Policy. Upon expiration of the Term, other than those items of Content being broadcast during the Term coupled with the Works, you shall make no further use of the Works in any form, including with respect to Content.
d. All rights granted under this Agreement are non-exclusive, non-assignable, and non-transferable and shall not be sub-licensed by you unless otherwise expressly provided for under this Agreement (e.g. Platform license grant).
e. Notwithstanding any term of this Agreement, the number of actual Works and Schedule “A” Platforms available to you to use with respect to your Content shall at all times be determined by Thematic and in accord with your Website user status. For example, a user who uses the Service on a free/gratis basis shall have more limited access to Platforms and different Works than a user who signs up for a paid subscription account (e.g. Subscription Services / Paid Services). For the avoidance of doubt, at no time does Thematic guarantee a minimum number of Works or Platforms will be available to any Creator at any time.
3. License Restrictions.
a. You shall not utilize the Works on, or in connection with, any content properties or other intellectual properties other than the Content on your Channel and such Content shall be solely distributed on your Channel on the respective Platform(s) and pursuant to your Subscription Services / Paid Services terms. Notwithstanding any term of this Agreement, you shall not make use of any Work where it has been removed or is no longer available from the Catalog, including where you have coupled such Works with Content when such Work was available. Once a Work has been removed or is otherwise unavailable on the Catalog, no new use (e.g. no coupling of such Work with a Content not currently on your Channel upon the date of such removal and/or unavailability of the Work) shall be made of such Work, including where such Work has been used in prior Content available on your Channel prior to such removal or unavailability regardless of when said Content was created. Notwithstanding the foregoing, where you have downloaded a Work from our Catalog, and such work has been removed from the Catalog by us prior to your use of the Work, you shall have thirty (30) days from the notice of such removal, within which to use the Work in Content pursuant to the terms herein. Further, where Content is removed from your Channel for any reason, it shall be your responsibility to review the Catalog offerings to assure said Works are still available for licensing and use, should you wish to repost such Content incorporating the same Work after said Content has already been posted on your Channel, as the Work may have been removed from the Catalog, thereby terminating any future right to post, broadcast or otherwise make the Work available in Content on your Channel.
b. You shall not make or in any manner distribute audio only copies of the Works, including lyric Content, nor edit, modify, arrange, remix, create derivative works of, or otherwise change or alter the Works in any way other than linear edits to adjust and edit the length of the Works to comport with Content length (e.g. setting start and stop points, establishing fade-in/fade-out points, etc.).
c. You shall not sell, distribute, license (other than to the Thematic authorized Platforms for the right to broadcast your Content and the Works coupled therein on your Channel), sublicense, assign or otherwise transfer, or permit access to the Works by any means to any third party or uncouple the Works from the Content for any audio only or non-Content uses, and said use of such Works shall be expressly limited to Content distributed on your Channel. Further, you shall not place any Work on, or in, any platform, application or product other than on your Channel and agree that the Works shall at no time be utilized in any commercial or public manner uncoupled from your Content.
d. You shall strictly follow the required Artist attribution guidelines and provide Credits associated with the Works pursuant to this Agreement and our Terms of Use. All Credit requirements shall be with respect to the uploading and posting of Content on your Channel, and you shall have no right to utilize, in any manner, an Artist’s name, image, likeness, trademark and/or brand except as provided for herein. All such rights, including but not limited to, the rights to any Artist’s name, image, likeness, trademark, and/or brand, wholly reserved by the Artist. Any failure to provide proper Credit attribution shall allow us the right to terminate this Agreement and any future use of the Work or Works by you, upon notice to you, and you shall immediately take down such Content upon such notice.
e. Any use of the Works in breach of the terms of this Agreement or in any way not expressly authorized hereunder or in breach of the Terms of Use may constitute copyright infringement. Such infringement by you or any third parties enabled by you shall entitle us, and the respective Artist who owns and/or controls the Works (or their licensees and/or assigns) to exercise all rights and remedies available in law and in equity, including an action for monetary damages for copyright infringement. You shall be responsible for any such damages and infringements.
f. As a user of our Website you shall neither make, nor monetize or otherwise collect revenue from each respective Platform or any other third party for, any audio only uses of the Works in Content, including lyric Content, or otherwise.
g. As a user of our Service and the Website, you agree, acknowledge and understand that not all Platforms may be available to you, with your use of the Works on different Platforms available based on the Subscription Services / Paid Services level, account payment plan or tier you have signed up and paid for. Any “free” accounts shall only be granted the right to utilize the Works in connection with your YouTube Channel(s).
4. Works/Intellectual Properties/Performing Rights.
a. Our Website functions as a marketplace and exchange for Artists and Creators to work with the Works in our Catalog for Content placement on a registered Website user’s Channel. Thematic does not own the Works or any elements thereof, as such we make no representation or warranty that any Work is provided royalty free, subject to the warranties noted in Section 7 below. By using the Website and/or the Works, you understand and agree that you are not granted any right or interest in or to the trademarks, brands, tradenames or service marks of Thematic or the Artist. The Artist, its licensees, and/or assigns shall be the sole owner of all of their Works as featured in the Catalog, on an exclusive worldwide basis, subject only to the limited license for use in Content granted hereunder and the required Credit attribution. Use of such Works does not convey any right or license to you to use an Artist’s name, image or likeness, or other information, except as expressly provided for, or otherwise directed (e.g. Credit), in this Agreement and the Terms of Use, such rights wholly reserved by the Artist on an exclusive worldwide basis.
b. The performance of any Work featured in Content for those Works affiliated with performing rights organization (e.g. ASCAP, BMI, SESAC, etc.) as listed in our Catalog shall be permitted only where each Platform respectively maintains the required licensing from such performing rights organizations. In any event where a respective Platform is not a party to performing rights licenses and such are required, the Works shall be subject to your clearance of the performing rights from the respective performing rights societies (or directly from the Artist) pursuant to their customary practices and the payment of customary fees. This Agreement shall not supercede any clearances with respect to any Works licensed for use to you hereunder as required by performance right societies in such portion of the territory as is outside of the United States and its possessions, which shall be in accordance with their customary practices and the payment of their customary fees to the extent required.
Thematic shall have the right in its sole discretion, to limit Creator access to Works within its Catalog, including but not limited to, placing Works in some but not all non-subscriber available and/or limited access subscriber based Catalog library offerings on our Service, and at any time for any reason, without notice, the right to remove Works from any part of the Catalog and/or Service, as well as place Works in restricted areas and limited subscriber Work access tiers on our Service, increasing or limiting Work availability, as Thematic determines in its sole discretion.
5. Termination/Expiration.
a. In the event that you breach any of the terms of this Agreement and/or the Terms of Use, including but not limited to your unauthorized use of the Works, including without limitation the posting of lyric videos or content, audio only content (other than podcasts), use of the Works off authorized Platforms, provide improper or missing Credit attribution and placement, etc., Thematic shall, notwithstanding any term of this Agreement, have the right to automatically terminate your account (and respective use of the Works, including future uses) immediately upon sending notice to you and you shall take down any Content using the Works subject to the notice of termination as directed by us. Upon notice of such termination, to be sent to the email address listed in your Account, any further use of the Works, where approved by the Artist, shall automatically be subject to Artist claims for monetization (which Thematic and/or Artist shall have the right to facilitate – e.g. turn on monetization/claim) under each respective Platform’s user use guidelines, terms and conditions and protocols posted on the Platform websites respectively. In addition to any other remedies Thematic may have, upon such notice of breach, during the Term and any time thereafter, Thematic (including any of our authorized assigns) may put a formal claim on such Works/Content and/or a content-id match may be automatically applied to Content using the Works. For the avoidance of doubt, such claim may be put on said offending Content without termination of this Agreement. This guarantees that, where Thematic or such Artist or third party allow further licensing, as the case may be, the Artist receives a requisite percentage of the audio portion of the advertising earnings from Content views while their Works are used in your Content. Notwithstanding the foregoing, at Thematic’s request, you shall take down said Content incorporating the Works (e.g. remove said Content from your Channel) noted in the termination notice immediately upon notice of such termination and cease all further use of such Works in connection with such Content.
b. Any unauthorized uses of the Works outside of their placement in coupled form with your Content on your Channel, including the use of Works in lyric videos and content and/or audio only videos or content (other than podcasts), will be actionable as acts of copyright infringement of the Artist’s (or its licensees and/or assigns) copyright(s), and the Artist, its licensees and/or assigns, shall have all legal remedies at law and in equity to redress such infringement against you directly. Upon notice of termination you shall immediately cease utilizing any Works in connection with new Content after the date of said notice.
c. Thematic shall have all rights in law and in equity, and any remedies provided for hereunder shall not be exclusive to our availability and use of all, or any other, remedies available to us in a court of competent jurisdiction. All obligations of the parties of a continuing nature, including without limitation those concerning the authenticity of your Account information, copyright, warranties and indemnities, remedies, and venue/law, shall survive the termination or expiration of this Agreement.
d. Upon the natural expiration of the Term, or our termination noted above, you shall cease using the Works in connection with any Content uploaded after the expiration (or termination) date of said Term. Provided you are not in breach of the terms of this Agreement, a said breach requiring your automatic removal of Content featuring any Works upon notice, you may keep such Content posted to your Channel coupled with Works during the Term on your Channel on an ongoing basis after the expiration date of the Term until such time as you remove the such Content from your Channel. Once you remove a piece of Content that uses the Works from your Channel after the expiration of the Term, you must re-license said Works, at your own expense, from the original owners of the Works directly should you wish to repost any Content incorporating one or more of the Works, including the original Content posted. Thematic makes no guarantee or warranty that any Works will be available for licensing outside of the license granted under this Agreement. Further, Thematic makes no guarantee or warranty that all Platforms offered by Thematic will be available during the entire Term.
6. Subscription Services/Fees.
For certain paid services, namely Thematic’s subscription offerings (“Subscription Services”), Thematic will automatically bill you in regular intervals (such as monthly or annually) unless you disable auto-renewal or cancel your subscription which you can do at your election. Subscription Services shall be subject to the following terms:
a. Subscription Services. You will be able to access Thematic’s Subscription Services by submitting a fee payment when selecting your choice of Subscription Services via the Website (such services, “Paid Services”). The Paid Services will remain in effect until they expire naturally, are cancelled or otherwise terminated, in accordance with this Agreement and the respective Subscription Services/Paid Services plan. Thematic will inform you about fees for Paid Services before charging you and you shall elect those fees upon your selection of any Paid Service as noted above. You may cancel Paid Services at any time through the manage subscription page accessed through your Thematic account. If you do not pay for Paid Services on time or your payment transaction fails, Thematic reserves the right to suspend or cancel your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and Thematic will inform you of those fees before charging you. The fee for Paid Services appear on a confirmation that Thematic provides when you sign up for and elect such Paid Services, within your Payment Processor account(s) and/or on a mobile app store invoice, unless otherwise indicated. Please note that different Paid Services have different fees and payment schedules, and canceling one Paid Service may not cancel all your Paid Services.
b. Taxes. Unless expressly stated otherwise, all fees are exclusive of applicable national, provincial, state, local or other taxes (“Taxes”). You are responsible for all applicable Taxes, and Thematic will charge Taxes in addition to the fees for the Services when required to do so. If you are exempt from such Taxes, you must provide us with valid tax exemption documentation. Thematic reserves the right to determine if the documentation provided is valid. Contingent upon our approval of such tax documentation, exemption from Taxes will, only apply from and after the date Thematic receives such documentation. Where Thematic has a legal obligation to pay or collect indirect Taxes (such as value-added tax or goods and services tax) on the sale to you under the laws of your country (where you are established, have a permanent address or usually reside), you shall be liable for payment of any such indirect Taxes. You may be required to self-assess Taxes where Thematic does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to you, under the applicable laws of your country (where you are established, have a permanent address or usually reside).
c. Automatic Subscription Renewals and Refunds. To ensure uninterrupted service, Thematic automatically bills you for your selected Paid Services from the date you submit your initial selection/payment and on each renewal period or amount afterwards until cancellation. Your renewal period will be equal in time or amount to the renewal period of your current subscription. For illustration, if you are on a monthly subscription plan, each billable renewal period will be for one (1) month. Thematic will automatically charge the applicable amount to you using the payment method you have on file with Thematic and by agreeing to this Agreement, you authorize Thematic to facilitate these transactions. Thematic will let you know in advance if you’re purchasing a Paid Service that includes auto-renewal payments. You can disable auto-renewal at any time via the Website. While you may cancel any Paid Services at any time, you won’t be issued a refund except in our sole discretion, or if legally required. Some of the Paid Services offer a free trial so you can try out your subscription. Please note applicable statutory rights of cancellation may not result in a refund, as Thematic does not charge for this trial period.
d. Fee Changes and Chargebacks. Thematic may change Thematic’s fees for Paid Services at any time. Thematic will provide advance notice of these fee changes prior to applying any such new fees. New fees will not apply retroactively. You shall have the right to reject any fee change by canceling the applicable Paid Service before your next payment date where you do not agree to such fee change. If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to Thematic (“Chargeback”), Thematic may automatically terminate your Account. If you have questions about a payment made to us, Thematic encourages you to contact Thematic before filing a Chargeback.
e. Payment Processor. Thematic utilizes third party payment processors (each, a “Payment Processor”) to charge you for Paid Services through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, in addition to this Agreement. Except for payments made through mobile app stores, where available, our current Payment Processor is Stripe, and your payments are processed by Stripe in accordance with Stripes terms of service and privacy policy. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms. You agree to make payment using the payment method you provide with your Account. Thematic shall have the right to correct, or to instruct Thematic’s Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received.
7. Representations and Warranties.
a. Thematic warrants and represents that: i) all Artists and other third parties (e.g. Artist’s labels, licensees and/or assigns) providing the Works directly to us have warranted and represented that they own and/or control the copyrights in the Works (including the with respect to both master sound recording and composition copyrights) such that they have granted to Thematic the right to sublicense the rights granted to you under this Agreement (“Artist Warranty”) and ii) Thematic has relied on such Artist Warranty and the further representations by each Artist that any such uses by you solely with respect to use of the Works in your Content as uploaded and broadcast on your Channel, does not infringe upon the rights of any third parties and that all the respective rights required for the performance of such Content on your Channel have been cleared by the Artist, and granted to Thematic, as a condition of uploading the Works to our Catalog and making them available for use by you on the each Platform respectively.
b. You warrant and represent that: i) you have the full right and authority to enter into this Agreement and perform all obligations required therein; ii) all Account information provided to us by you when registered on the Website for the use of our Service is true, accurate and legally verifiable, including but not limited to all information relating to your legal identity, contact information, payment information, Channel information and other data requested by us, and you agree to timely update such information and your Account, and inform us of such updates, so Thematic may always maintain accurate and complete Account user information; iii) you are of legal age to enter into binding and enforceable agreements; and iv) neither content you have created for the Content, nor Creator Materials, infringe upon the rights of any third parties.
c. You warrant and represent that, as a registered user of the Website, you are the individual who is accessing our Catalog and uploading and utilizing the Works in connection with your Content on your Channel. You further consent to the receipt of all communications and notices to you by us hereunder via electronic communications (e.g. email) and you agree that all notices, agreements, disclosures, agreement amendments, and other communications provided to you by us satisfy any legal requirement that such communication be in writing.
d. You warrant and represent that all Works used by you in your Content, and your Content and Channel, will be in complete compliance with each respective Platform’s express terms and conditions for video, content channel and platform use, as amended and/or updated by each Platform from time to time. You further agree that Thematic has no control over your right to upload or otherwise exploit Content on the respective Platform, such rights wholly subject to each Platform’s terms and conditions and user guidelines and restrictions.
8. Disclaimer.
a. Our Website, Service, Catalog and the included Works, are provided “as is” without any warranty of any kind, either express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement or title, all of which are expressly disclaimed. Thematic disclaims any representation or warranty that the Works, Website or Service will meet your requirements or that their use will be uninterrupted or error free or that performing rights or similar fees will not be payable by you. Through use of the Works, Website and Service, you assume the entire risk as to the quality and use of the Works, Website and Service. Should any of the Works prove defective or payment of performing rights or other similar fees or licenses be required, you and not Thematic, shall assume the entire risk and cost of all necessary payments. Your rights under this provision may vary from state to state as certain jurisdictions do not allow the exclusion of implied warranties.
b. Where a Work, due to no fault of Thematic, including but not limited to an Artist’s fraud, misrepresentation, or breach of contract in connection with providing Works to our Catalog, becomes subject to a rights ownership dispute and your continued use of the Work in connection with your Content is deemed an infringement of copyright (in Thematic’s reasonable discretion) or subject to legal action or any other claims, and thus unavailable for future legal broadcast or posting without risk of legal action, or becomes subject to additional rights clearances or required licenses we were not informed about by the Artist, we shall notify you and you agree to remove said Content from your Channel within a reasonable time from our notice to you, not to exceed ten (10) days from such notice, and we will work together with you to replace the respective Work in question with an alternative Work or other selection of music suitable to you, in good faith, prior to re-uploading the Content. You acknowledge and agree that Thematic shall have no duty to investigate or otherwise substantiate Artist claims with respect to their ownership interest in Works upon provision to Thematic and that Thematic wholly relies on the representations of such Artists in Thematic’s grant of rights to you hereunder and shall have no liability for any such Artist’s fraud, misrepresentation, mistake or negligence with respect to such representations.
c. In the event that a respective Platform and/or their subsidiaries or affiliates (if any) as a platform no longer allow for the uploading of Content utilizing the Works as customary as of the date of your acceptance of this Agreement, or Thematic ceases to do active business or suspends its business or Service, Thematic may terminate this Agreement upon notice to you, and the survival of all sections of this Agreement regarding termination, representations, warranties, indemnification, remedies, and miscellaneous provisions found in Sections 6-11, and all future rights with respect to your use of the Works may be subject to the Artist’s (or its licensees and/or assigns) rights and separate negotiation by you with such parties. For the avoidance of doubt, you shall continue to have the ongoing right as provided for herein, beyond any termination and/or suspension of Thematic’s business noted above, to utilize the Works as coupled with Content uploaded to your Channel prior to the date of any such termination and/or suspension subject to terms of this Agreement including but not limited to the requirements of proper Credit attribution and our (or our assigns) right to put claims on Content for use of the Works and/or request immediate removal of Content containing the Works, where your use of the Works is in breach of the terms of this Agreement.
9. Indemnification. Each party to this Agreement shall indemnify, hold harmless and defend the other party, its parent, subsidiaries, affiliates and the other party’s officers, directors, employees, agents and contractors, respectively, from any and all liabilities, actual loss, damages, costs and expenses, including reasonable attorney’s fees and court costs, incurred by the indemnified party that arises out of any claim, demand, suit or action brought by a third party with respect to a breach by the indemnifying party of any of the provisions of this Agreement or the negligence or willful misconduct of the indemnifying party. No legal action with respect to this Agreement and your use of the Works shall be brought by you more than one (1) year after the cause of action has accrued, which in the case of an indemnity obligation is deemed to be the date such original claim is made or litigation is commenced by you, whichever comes first.
10. Damages. Notwithstanding any term of this Agreement, Thematic shall not be liable to you or any third party for any incidental, indirect, punitive, exemplary or consequential damages of any kind, including damages for business interruption, lost profits, or any other pecuniary loss, in connection with any claim, loss, damage, suit, action or other proceeding arising out of or under this Agreement, including but not limited to, your use of, access to, reliance upon, or exploitation of the Works or any part thereof or any right granted to you under this Agreement, including where Thematic has been advised of the possibility of such damages, regardless of if such action is based on contract, tort, infringement of intellectual property rights, or otherwise. Further, Thematic’s total maximum aggregate liability under this Agreement and the Terms of Use, for all causes of action, for your use of the Website, Service, Catalog, and/or Works, regardless of the number of Works you have utilized in Content, or otherwise related to this Agreement, your information, and/or the Service provided to you, in any manner whatsoever, shall be limited, subject to applicable law, to an aggregate of one dollar ($1), including where we have been put on notice of the possibility of such damages.
11. Miscellaneous.
(a) The parties intend this Agreement, including any schedules and/or exhibits, as a final expression of their understanding and agreement with respect to the subject matter hereof and as a complete and exclusive statement of the terms thereof. Unless otherwise provided for herein, this Agreement may not be modified or amended except by a written instrument signed by each of parties hereto, or other act signifying acceptance by you including your continued use of the Service and/or Works after a notice of Agreement update, modification or amendment by Thematic has been provided to you. Nothing in this Agreement shall be construed to require the commission of any act contrary to law, and wherever there is a conflict between any provisions of this Agreement and any statute, law, ordinance, order or regulation contrary to which the parties hereto have no legal right to contract, such statute, law, ordinance, order or regulation shall prevail; provided that, in such event, (i) the provision of this Agreement so affected shall be limited only to the extent necessary to permit the compliance with the minimum legal requirements, (ii) no other provisions of this Agreement shall be affected thereby, and (iii) all such other provisions shall remain in full force and effect. The parties hereto shall negotiate in good faith to replace any invalid, illegal or unenforceable provision (the “Invalid Provision”) with a valid provision, the effect of which comes as close as possible to that of the Invalid Provision. Paragraph headings in this Agreement are included solely for the convenience of the parties and shall not be deemed to describe, limit, modify or in any way affect the scope or interpretation of the paragraph themselves.
(b) No failure by Thematic to perform any of Thematic’s obligations hereunder shall be deemed a breach of this Agreement, unless you have given Thematic notice of such breach in reasonable detail, and such breach has not been cured within 30 days after the giving of such notice; provided that if such breach cannot reasonably be cured within such period (e.g., due to reasons beyond Thematic’s reasonable control), Thematic shall not be in breach of this Agreement if Thematic cures such breach within a reasonable period of time. Thematic shall have no responsibility for any act or omission, or responsibility to cure any breach of contract, by any respective Platform, or their licenses and/or assigns, including but not limited to where a Platform removes, blocks, flags, strikes or otherwise takes action against your Channel, you or your Content and/or account.
(c) Notices to Thematic under this agreement shall be given in writing and deemed to have been made and received when i) personally delivered, ii) delivered by a commercially established courier service (e.g. Federal Express, UPS, etc.) and signed for by Thematic at its corporate office, iii) certified or registered mail return receipt requested, or iv) sent via email and a responsive email from Thematic evidences such receipt. Notices to you shall be sent to the email and/or the contact address listed in your registered user Account profile and deemed given when sent. You expressly agree to keep a current email contract address noted on your Account and we may terminate this Agreement and all rights hereunder where such email address is not kept current or “kicks back” for any reason.
(d) Notwithstanding any term of this Agreement and the Terms of Use, Thematic reserves the right to make changes to, or otherwise amend or modify, this Agreement and the Terms of Use at any time without notice to you. You will be subject to the terms of this Agreement and the Terms of Use in place at the time of your initial downloading of each Work from the Catalog. Uses of the Works in new Content uploaded to you each Thematic authorized Platform shall be subject to the revised and/or amended Agreement and Terms of Use only upon our notice to you of such revision, however, your continued use of the Website and Works after notification will indicate that you have read, understood and agreed to the current version of these revised terms.
(e) We shall have the right to assign this Agreement to any person or entity. You shall have no right to assign this agreement and the rights granted hereunder.
(f) This Agreement has been entered into in the state of California and the validity, interpretation and legal affect of this Agreement shall be governed by the laws of the state of California applicable to contracts entered into and performed entirely within the state of California. The courts located in the Country of Los Angeles (state and federal), only, will have jurisdiction of any controversy regarding this Agreement; any action or other proceeding which involves such a controversy will be brought in those courts, and not elsewhere.
11. Agreement. By selecting and clicking “I Accept” or otherwise demonstrating your acceptance of this Agreement, such as by previewing, accessing and/or downloading Works from the Catalog, and/or logging in, you acknowledge that you have read this Agreement, understand this Agreement, and agree to be bound by all of its terms and conditions. Additionally, you agree and acknowledge to be bound by the Terms of Use that govern the use of our Website and Service, including our Privacy Policy, and any other agreements that may be incorporated by reference herein and therein.
Last Updated 12-29-2022
Schedule “A”
Thematic Platform Inventory
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