Everwave User Agreement
Effective As Of May 3rd, 2022
THIS USER AGREEMENT is a binding legal agreement between you and Hexatonic LLC d/b/a Everwave, a Delaware limited liability company (“Company”, “our” or “us”) and is governed by our Terms of Service (“Terms”) located at everwave.xyz/terms. The Terms and this user agreement form the “Agreement”. Capitalized terms not defined in this user agreement shall have the same meaning as set forth in the Terms.
This Agreement covers your use of our Everwave Service in the creation or co-creation of those certain unique musical mixes (each, a” Version”) (which may be incorporated into one or more of our proprietary waves (each, a “Wave”)) which (i) incorporate User Content and User Activity, and (ii) are intended for distribution (alone or as part of a Wave) through (a) our Site and/or Service (including as an NFT sale (see, below)), and (b) via our distribution partners (collectively “Distributors”), and for any other uses of your User Content and User Activity by us and our licensees as described herein. For purpose of this Agreement, (a) “User Content” specifically means those Recordings (defined below) uploaded to the Everwave Service by you and recordings uploaded by other users of the Service (each, a “User); and (b) “User Activity” specifically means your Production Services (defined below) and those production services of other Users in the creation of Versions and Waves.
If you are entering into this Agreement on behalf of one or more other people, a group, or a company or other entity, then by accepting this Agreement you represent and warrant to us that you are duly authorized to do so on behalf of all such person(s)/entity(ies) and to bind them to this Agreement and that Company is fully entitled to rely on that fact (in which case, the term “you” includes all such people and entities) in our performance under this Agreement.
By clicking to agree to this Agreement, you are accepting the terms and conditions below, so please read and understand them completely before doing so. This Agreement will automatically become effective on the date you click to agree to this Agreement (the “Effective Date”).
WE DO NOT TAKE ANY COPYRIGHT OR OTHER INTEREST IN ANY OF YOUR RECORDINGS, ONLY A LIMITED LICENSE TO USE THOSE UPLOADED RECORDINGS AS INTEGRATED INTO ANY VERSION(S) OR WAVE(S), WHICH WE OWN.
ALL RECORDINGS MUST BE ORIGINAL OR UNDER YOUR COMPLETE CONTROL. PLEASE UNDERSTAND THAT YOU MUST OWN OR OTHERWISE HAVE THE LEGAL RIGHT TO REPRODUCE AND DISTRIBUTE 100% OF THE RIGHTS TO THE RECORDINGS YOU INTEND TO UPLOAD TO THE EVERWAVE SERVICE, INCLUDING THE RIGHT TO MAKE AND DISTRIBUTE DIGITAL DOWNLOADS AND ELECTRONIC TRANSMISSIONS (INCLUDING, WITHOUT LIMITATION, VIA STREAMING SERVICES), AS NECESSARY.
YOUR RECORDINGS ARE INTENDED TO BE INCORPORATED INTO VERSIONS AND WAVES WHICH WE WILL OWN, AND YOU AGREE YOU SHALL NOT BE ENTITLED TO ANY INDEPENDENT CLAIM IN ANY VERSIONS OR WAVES (OR THE UNDERLYING MUSICAL COMPOSITIONS IN ANY VERSIONS OR WAVES). AS SUCH, YOU MAY NOT UPLOAD COMPLETED MUSICAL SOUND RECORDINGS, REMIXES, OR RECORDINGS THAT INCLUDE SAMPLES.
THE EVERWAVE SERVICE AND YOUR RECORDINGS
The Everwave Service enables you to upload to our servers, digital files containing audio-only sound recordings (collectively, “Recordings”) for use in the creation of one or more Versions which may be incorporated into one or more Waves, all of which we shall have the right to distribute across our Site and/or Service, as well as through our Distributors to customers and end users (“Customers”).
By uploading your Recordings to the Service, you hereby grant us the non-exclusive, perpetual, world-wide, sub-licensable right and license to:
authorize users of our Service and our other third-party partners and/or licensees the right to edit, manipulate, produce, change, and/or otherwise modify your Recordings and combine your Recordings with the User Content of other Users to create Versions for us, and to incorporate those Versions into our Waves.
use, reproduce and distribute the Versions and Waves (incorporating your Recordings) across our Site and Service and via Distributors by any and all applicable distribution methods (i.e., digital and physical formats, configurations, technologies and methods (including, without limitation, permanent downloads, temporary or “tethered” download, interactive and non-interactive streaming, “scan and match” services, “cloud” services, digital jukeboxes, digital and online/wireless karaoke services, business establish background services, home exercise background and audiovisual services, and other audiovisual services)) to any and all capable devices, in each case as now or hereafter known. Without limiting the foregoing, you acknowledge that the foregoing rights include the rights to allow us and our Distributors and/or their users to synchronize the Versions and Waves in timed relation with visual images, and any necessary rights of performance and reproduction required to do so;
collect all income derived from the use of the Versions and Waves; and
notify Distributors and other third parties of our rights and relationship per this Agreement, and to include your name and logo (if you have one) in any listing of our Distributors and licensees.
Additionally, and in no way limiting any rights granted by you herein above, you hereby grant to us a direct license to publicly perform your Recordings as incorporated into any Versions or Waves via all media and means and in the event you are affiliated with a performing rights society, performing rights organization or other collection society (“PRO”) to which you have granted the right to administer the public performance rights in and to your Recordings, you agree to notify each such PRO, in accordance with the requirements of your applicable PRO membership agreement(s), of your agreement to grant us a direct public performance license pursuant to this Section and as otherwise provided in this Agreement.
You agree and acknowledge your Recordings, when uploaded to the Service and as incorporated into any Versions or Waves, do not embody any underlying musical compositions, and you are not independently entitled to seek or obtain any rights or royalties associated with any compositions embodied in the Waves. In the event you are deemed to have rights in any compositions embodied in the Recordings and/or Waves you hereby grant us a perpetual, non-exclusive, world-wide, direct license to use and such rights in their entirety to the maximum extent permitted by law for the duration of any copyright term, including any extensions or renewals, and to collect all monies derived from such use. You hereby warrant and represent that no third-party (i.e. a music publisher) has or will have any claim of rights over the compositions and in the event you are affiliated with a PRO to which you have granted the right to administer the public performance rights in and to the underlying composition embodied in the Recordings, you agree to notify each such PRO, in accordance with the requirements of your applicable PRO membership agreement(s), of your agreement to grant us a direct public performance license pursuant to this section and as otherwise provided in this Agreement.
We can currently accept Recordings in WAV and AIFF (16 or 24 bit, 44.1 or 48khz). We and/or the Digital Stores may require different formats or file sizes from time to time, and we reserve the right to convert audio files of the Recordings as necessary.
When uploading each Recording, you may provide us with accompanying data, metadata, information, and any other materials all of which shall be included in the definition of “Recordings.”
Once you have uploaded a Recording to our Service, you can delete it at any time. However, once a Recording has been integrated into a Version or Waves our licensed rights (see, above) to use the Recording may not be terminated.
THE EVERWAVE SERVICE AND YOUR USER ACTIVITY (PRODUCTION SERVICES)
Among other User Activity, the Everwave Service enables you to edit, modify, manipulate and create Versions along with other Users (“Production Services”), created entirely from User Content including your Recordings.
You agree that your Production Services and the resulting Versions and Waves created therefrom are made as a work made for hire for our benefit, as such term is defined under U.S. Copyright Law, and that we shall own all Versions and Waves resulting from your Production Services in their entirety from inception as a contribution to a collective work. If for any reason any part of the Production Services or resulting contribution to the Versions or Wave) is not deemed to be a work made for hire, then you shall be deemed to have irrevocably assigned to us, and our successors and assigns, all right, title and interest in and to your Production Services for the full period of copyright protection and any and all extensions and renewals thereof in the United States and throughout the universe, including without limitation, the copyright in and to all Versions and Waves from the date of inception. Without limiting our rights, all such Production Services, Versions and Waves shall be entirely our property in perpetuity, throughout the universe, free of any claim whatsoever by you, or by any persons deriving any rights or interests therefrom. You hereby waive any claim to any moral rights in the Versions or Waves and will cause any assignments or other documents required or contemplated by this Section to contain similar waivers of moral rights. Further, you hereby irrevocably appoint us as your attorney-in-fact solely for the purpose of executing any assignments or documents in your name(s), should you fail to do so within five days from our request.
You hereby grant us the non-exclusive right to display and otherwise use your name and logo (if you have one) and approved likenesses provided by you (“Materials”), on our Site and/or Service, with Distributors, and in any marketing, advertising or promotional materials for our Service or for the Distributors. Without limiting the foregoing, we and our Distributors may (but shall have no obligation to) create editorial content regarding you and your User Content and User Activity.
When you register for our Service, you will establish a username and password that will provide access to an online user dashboard for your account on our Site. Please keep your username and password safe and secure, as you will be solely responsible for any User Content and other content uploaded and for all financial transactions and other activity conducted through your account. We will not be responsible for any activity transacted via or through your account.
The term of this Agreement (the “Term”) will begin on the Effective Date and will continue until you terminate your Account or ask us to terminate your account. We also reserve the right to terminate your account if you discontinue use to the Site and/or Services for a period of more than twelve (12) months
We may also terminate the Term for any reason, including but not limited to (i) if we reasonably believe that you or any of your Recordings or other User Content have violated this Agreement or the terms and conditions of any Distributor, (ii) you or your User Content infringe the intellectual property or other rights of any person or entity, and/or (iii) you are otherwise abusing our Service or engaging in fraudulent or illegal activity.
After the end of the Term, any Recordings that have been incorporated into a Version or Wave shall remain under license to us in perpetuity, as shall your right to receive any compensation as set forth in Section 7, below. Notwithstanding, our rights shall cease as to any new uses of your Recordings following the date of termination.
You are solely responsible for and must have obtained all necessary rights, licenses, waivers, clearances and permissions, including without limitation all third party rights and licenses in order to license us the rights to your Recordings in Versions and Waves. Your uploading of Recordings and delivery of any other Materials shall be your unqualified warranty and representation to us that you have obtained any and all such rights required and necessary for us and our Distributors to sell, distribute, publicly perform, promote, and otherwise exploit the Versions and Waves as contemplated under this Agreement, including the waiver of all so-called “moral rights”, under the laws of any jurisdiction, on your behalf as well as on behalf of any and all contributors involved in any manner with the creation and delivery of your Recordings.
Without limiting anything in this Agreement, you are solely responsible for and shall timely pay any third party for whom you owe money in connection with the Recordings and agree we shall have no such obligation on your behalf. If any portion of your Recordings are now or in the future administered in any territory(ies) by any PRO, you are obligated to notify such third party PRO(s) of this Agreement. You understand and acknowledge that we will not be making any such payments on your behalf or otherwise. WE DO NOT AND CANNOT PROVIDE YOU WITH LEGAL ADVICE REGARDING YOUR OBLIGATIONS TO THIRD PARTIES, SO PLEASE CONSULT A QUALIFIED LAWYER BEFORE ENTERING INTO THIS AGREEMENT AND UPLOADING ANY RECORDINGS TO OUR SERVICE.
In consideration for the rights set forth in this Agreement you will be entitled to a percentage of the compensation derived from the use and distribution of any Versions or Waves containing your Recordings and/or Production Services as set forth in this Section 7 (the “Compensation”).
In order to receive Compensation, as part of your Account on the Service you will set up a digital wallet (“Wallet”) and provide us through your Account with information necessary for us to credit your Wallet. You agree that you may not change your Wallet at any time. If your wallet becomes inactive for any reason, you agree and understand we may not be able to provide you with any further Compensation, and you agree that we shall have no liability (including any liability to provide further payments) in the event your Wallet becomes inactive or is improperly listed in your Account on the Service.
If any Versions created using your Recordings or Production Services are incorporated into a Wave, you shall be entitled to Compensation in the form of a prorated amount of cryptocurrency ($WVE token) based on all Users participating in the Wave. The amount of crypto currency shall be at our discretion per Wave and shall be deposited into your Wallet.
If any Version or Wave featuring your Recordings and/or Production Services is sold to a Customer as a Non Fungible Token (NFT) through the Service, you shall be entitled to Compensation in the form of a prorated amount equal to ninety percent (90%) of the NFT sale in cryptocurrency ($WVE token) based on all Users participating in the creation of the Version or Wave. You may also receive additional Compensation on resale of an NFT under the same terms as the original sale, provided such resale is made through a participating marketplace. Any Compensation owed from the sale or resale of the NFT will be directly deposited into your Wallet via blockchain technology.
If we elect to distribute a Version featuring your Recordings and/or Production Services, through normal retail channels via a Distributor or if we license or otherwise receive payment for use of the Version via distribution that does not rely on blockchain technology, you shall be entitled to Compensation in the form of a prorated amount of all “net revenue” converted into crypto currency ($WVE token) received from any use, distribution and exploitation of a Version containing one or more of your Recordings and/or Production Services. The Compensation will be prorated based on the number of other Users contributing to the Version. For purposes of this Agreement, “net revenue” shall mean gross revenues actually received by us from the use, distribution and exploitation of a Version after recoupment of all production, distribution, licensing, promotional, advertising, marketing fees, administration and other actual and documented third-party fees. You understand and acknowledge Distributors may retain for themselves a portion of income they receive from Customers and may deduct or withhold sums from the amount that they pay to us. Sums retained or withheld by Distributors may include, without limitation, taxes and tariffs, administration fees, royalties or fees paid to third parties, wire transfer fees, and credit card processing fees and chargebacks. We shall be entitled to rely on payments and accountings received from Distributors. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and/or lawsuit commenced) no later than one (1) year after the date the statement is rendered, and you waive any longer statute of limitation that may be permitted by law. You shall have no right to inspect or audit our books and records, or those of a Distributor.
Once payment of Compensation has been credited to your Account through your Wallet, you will be able to withdraw the amounts at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals. Any sums that we receive in currency will be converted into crypto currency ($WVE token) at either the same rate received by us, or current spot exchange rate at the time of a transaction, or from us to you before deposit into your Wallet. For the avoidance of doubt, your payment is an “all-in” pay-through payment, from which you are solely responsible for paying and accounting to all applicable taxes, tariffs, licensors and other third parties. We cannot offer any legal, tax, accounting and other advice; please consult your own advisors regarding those matters.
f. If required by applicable law, we may withhold payments to you, in whole or in part, pending receipt of your correctly completed Form W-9 (if you are a US resident for tax purposes), Form W-8 (if you are a non-US resident for tax purposes), updated at our request, or any other applicable tax-related forms evidencing that no withholding is required. If any information provided on such tax forms is incomplete, incorrect or misrepresented, we reserve the right to withhold sums due to you until all appropriate and correct information is submitted to and received by us that relieve withholding. We also reserve the right to withhold sums due to you if, based on appropriate and correct information that is timely submitted to and received by us, withholding is required under applicable law. You agree to indemnify us and you will be responsible for any costs, expenses and liabilities we may pay or incur as a result of any incorrect, inaccurate or misrepresented tax or financial information provided by you.
g. If we receive a claim or notice or otherwise reasonably suspect that any of your Recordings or Materials or your use of our Site or Service breaches any agreement, infringes any third party rights, violates this Agreement or any law, rule or regulation, that there is a dispute regarding the Recordings or Materials (including without limitation as to ownership or payment of monies), or that your activities involve misrepresentation, misconduct, deception, fraud, or other inappropriate conduct, then in addition to any other available rights and remedies, we may suspend or terminate the distribution of your Recordings and/or the Term of this Agreement and/or withhold payment to you in an amount reasonably attributable in our discretion to such Recording(s), Material and activity until and unless any and all claims or other conduct are favorably resolved to our reasonable satisfaction, and we may deduct from your payments our related attorneys' fees and legal costs in connection. You will forfeit any monies that are attributable to your fraud, infringement or other illegal activity.
8. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
a. You represent and warrant to us that: (i) you are at least 18 years of age and have the legal capacity, right and authority to enter into this Agreement; (ii) you own or are otherwise fully vested of the necessary copyrights and other rights in order to make the grant of rights, licenses and permissions herein, and that the exercise of such rights, licenses and permissions by us or our Distributors and other licensee, and our and their respective permitted successors and assigns shall not violate or infringe any applicable law, rule or regulation or the rights of any third party; (iii) you have secured all third-party grants of rights, consents, licenses and permissions necessary to grant all rights and licenses and otherwise fully perform all obligations hereunder, and shall make all payments and otherwise comply with all of your obligations under this Agreement; (iv) your Recordings and Materials do not and will not, and the authorized use thereof by us, our Distributors and licensees and their Customers shall not, infringe any copyright, trademark or other intellectual property or other rights (including without limitation rights of publicity, privacy or moral rights), of any third party, or violate any applicable treaty, statute, law, order, rule or regulation; (v) the files containing the Recordings and Materials that you upload or otherwise provide to us do not and will not contain any bugs, viruses, trojan horses or other defects or harmful elements or digital rights management restrictions; (vi) there are no actual or threatened claims, litigation, administrative proceedings or other actions regarding any Recordings or Materials or otherwise adverse to full exploitation of all rights and licenses granted hereunder; (vii) all data and information provided by you under or in connection with this Agreement is and will be true, accurate and complete, and you agree to update the same promptly as necessary during the Term; (viii) you will make, and we will not be responsible for, any payments other than those specified in Section 7.a above in connection with the Recordings and Materials; (ix) you will use the Site and Service only in accordance with this Agreement and not for any fraudulent, infringing or inappropriate purposes; (x) any sale, assignment, transfer, mortgage or other grant of rights in or to your interest in any of the Recordings or Materials shall be subject to our rights hereunder and the terms and conditions hereof; (xi) there is no existing agreement, and you will not enter into any agreement or perform any act, which materially interferes or is inconsistent with the rights granted to us hereunder; (xii) you covenant and agree not make any claim or bring any legal action related to this Agreement, against any Distributor or licensee so long as such entities are not in violation of the rights you have granted to us hereunder; and (xiii) you have read and understand this Agreement and have had the opportunity to consult with independent legal counsel in connection with them.
b. You shall indemnify and hold harmless, and upon our request, defend, us and our affiliates, sublicensees (including any Distributors and their Customers), successors and assigns, and the respective directors, officers, shareholders, members, managers, employees, agents and representatives of the foregoing, from and against any and all claims, suits, proceedings, disputes, controversies, losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees and costs) resulting from: (i) a breach or alleged breach of any of your warranties, representations, covenants or obligations under this Agreement; (ii) any claim that the Recordings, Materials, Production Services, data or information provided or authorized by you or on your behalf hereunder or the use thereof by us, Distributors and licensees violates or infringes the rights of another party; or (iii) any other act or omission by you or any of your licensors, agents or representatives. You will promptly reimburse us and any other indemnified parties on demand for any amounts subject to indemnification. We shall notify you of any such claim and shall control the defense thereof, though you may participate in such defense at your own expense. You may not settle any claim for which we may be liable without our prior written consent, which we will not withhold unreasonably. If any facts, claims, proceedings or other circumstances arise that would be subject to indemnification, then we, in addition to any other right or remedy, shall have the right to withhold from any payments otherwise due to you an amount reasonably related thereto until the claim, proceeding or circumstance has been finally resolved, settled or fully adjudicated and the judgment satisfied, or that the statute of limitations on such claim has run, or when you have provided reasonable and adequate security for the claim. We reserve the right to charge you (or deduct from monies payable to you) for any legal fees incurred by us as a result of your violation of this Agreement.
9. NO WARRANTIES; LIMITATION OF LIABILITY
a. THE SITE AND SERVICE ARE OFFERED AND PROVIDED TO YOU AS-IS. WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION AS TO THE AMOUNT OF INCOME THAT MAY BE EARNED BY OR PAYABLE TO YOU HEREUNDER, OR AS TO THE CONDITION, QUALITY, CONTINUITY OF OPERATION, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF OUR SITE OR SERVICE. WE DO NOT GUARANTEE THAT ACCESS TO OR USE OF THE SITE OR SERVICE WILL BE CONTINUOUS, UNINTERRUPTED, ERROR-FREE OR SECURE. ANY AND ALL WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER US NOR ANY OF OUR AFFILIATES, EMPLOYEES, OWNERS, EMPLOYEES, REPRESENTATIVES OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOST SALES, LOSS OF DATA OR LOSS OF GOODWILL, FOR ANY ACTS OR OMISSIONS OF DISTRIBUTORS, LICENSEES OR THEIR CUSTOMERS, OR FOR YOUR USE OF OR ACCESS TO THE SITE OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUMS ACTUALLY DUE TO YOU IN ACCORDANCE WITH SECTION 7.a ABOVE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN US AND YOU.
b. A party's waiver of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement. If any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, such determination shall not affect any other provision hereof, and the unenforceable provision shall be limited solely as necessary or replaced by an enforceable provision that most closely meets the commercial intent of the parties.
c. Hexatonic will not be liable for a curable breach of this Agreement unless you provide us with written notice specifying the alleged breach that we confirm receipt of, and we fail to cure such breach within ninety (90) days thereafter.
d. We may direct all notices and communications to you via the email address or street address associated with your account and/or via your dashboard account on the Site. All notices to Hexatonic shall be sent to us at email@example.com.
e. You may not assign, transfer or delegate any of your rights or obligations hereunder without our prior written consent, and any purported attempt otherwise will be null and void ab initio. We may assign, delegate, pledge, encumber, sublicense and otherwise transfer, this Agreement and/or any or all of our rights and obligations in order to operate the Service and Site. This Agreement will be binding on and inure to the benefit of the parties and their respective assigns and successors in interest.
f. We reserve the right to modify, discontinue or terminate the Service at any time and without prior notice. We are under no obligation to provide the Service continuously, or at all.
g. The relationship between the parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, employee, or representative.
h. This Agreement shall be construed and enforced exclusively in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a state or federal court of competent jurisdiction located in Delaware, and the parties irrevocably consent to the in personam jurisdiction and venue of said courts. You agree that service of process by us to you by one of the methods designated above for the giving of notices will be deemed effective as personal service within Delaware, and hereby consent to service of process by such methods.