This OpenPlay Master Subscription Agreement (this “Agreement”) governs access to and use of the OpenPlay Platform, which is owned and operated by OpenPlay, Inc. (“OpenPlay”). By selecting and paying for a subscription to to OpenPlay products and services, subscriber ("Subscriber”) agrees to the terms and conditions of this Agreement.
1. DEFINITIONS. The OpenPlay Platform is the proprietary intellectual property of OpenPlay or its suppliers who retain exclusive title to their intellectual property rights in the OpenPlay Platform. Subscriber’s rights to the OpenPlay Platform are limited to those expressly granted below and OpenPlay reserves all rights not expressly granted in this Agreement.
1.1 “Affiliate” means an entity that a party directly or indirectly controls, is controlled by, or is under common control with a party. For purposes of this definition, “control” means the possession, directly or indirectly, or control of more than 50% of the voting securities of an entity.
1.2 “Agreement” means this Agreement and any exhibits, addenda attached or incorporated into this Agreement by reference.
1.3 “Confidential Information” means confidential information concerning the OpenPlay Platform, OpenPlay Products, OpenPlay, Subscriber or any other Subscriber or Service Provider, and any trade secrets, technical information and business information transmitted to or acquired in the course of performance of this Agreement or the use of the OpenPlay Platform.
1.4 “Documentation” means the user documentation, in written, electronic or other format, which describes the OpenPlay Platform and its operation, which OpenPlay makes generally available to its Subscribers for use with the OpenPlay Platform.
1.5 “Electronic Signature” means a unique electronic identification to be attached to each action undertaken on the OpenPlay Platform.
1.6 “OpenPlay Network” means the network of Service Providers on the OpenPlay Platform.
1.7 “OpenPlay Platform” means the web-based technology platform comprised of the Software Services that enables enterprises to collaborate, transact and manage their global digital and physical content supply chains.
1.8 “Subscriber” means the individual and/or the company they are authorized to represent that has selected a Subscription Plan during sign up for the the OpenPlay Platform.
1.9 “Subscriber Data” means all data transmitted by Subscriber to the OpenPlay Platform.
1.10 “Service Provider” means a third-party service provider and its Affiliates, i.e. distributor, meta-data services provider, vendor, etc., authorized by Subscriber to receive and transmit Subscriber’s data on behalf of and for the benefit of Subscriber on the OpenPlay Platform.
1.11 “Software Services” means the services that are available through the OpenPlay Platform on a subscription basis, including without limitation, OpenPlay Music, OpenPlay Music Enterprise, OpenPlay Distributor, OpenPlay Workflow, InTune, and other applications created by OpenPlay.
1.12 “Subscription Plan” means the plan incorporated into this Agreement by reference which sets forth the Software Services a Subscriber subscribes to under this Agreement and may include additional terms and conditions governing use of the subscribed Software Services.
1.13 “Subscription Term” means the period of time that OpenPlay agrees to provide Subscriber access to the subscribed Software Services.
2. THE OPENPLAY PLATFORM.
2.1 OpenPlay Platform. Use of the OpenPlay Platform is available on a subscription-only basis.
2.2 Subscription. Subscriber shall become a subscriber of the OpenPlay Platform by entering into this Agreement when selecting a Subscription plan during signup for the OpenPlay Platform. Third parties whom Subscriber appoints or authorizes to act on its behalf (i.e. an agent) may also use the OpenPlay Platform (“Authorized Users”), provided that Subscriber shall cause such Authorized Users to comply with the terms and conditions of this Agreement and the applicable end-user terms of service, and such use shall be at Subscriber’s sole risk.
2.3 Service Providers. Subscribers have access to a network of Service Providers on the OpenPlay Platform. The Service Providers will enter into separate agreements with Subscribers and the provision of the services will be governed solely by the terms of such agreements.
2.4. Subscription to Software Services. Subscriber will subscribe to Software Services by selecting a Subscription Plan through the OpenPlay Platform which sets forth a Subscription Term, fees, and any other additional terms and conditions governing the use of the subscribed Software Services.
3. USE OF THE OPENPLAY PLATFORM.
3.1. Use of the OpenPlay Platform and Fees. In exchange for payment to OpenPlay of the fees referenced in the selected Subscription Plan, and subject to Subscriber’s compliance with the terms and conditions of this Agreement, OpenPlay hereby agrees to provide Subscriber with access to, and use of, the subscribed Software Services within the OpenPlay Platform on a nonexclusive, non-transferable basis, solely during the Subscription Term, solely for the subscribed usage rights for Subscriber’s internal business purposes.
3.2. Conditions. The rights granted to Subscriber in Section 3.1 are conditional upon Subscribers compliance with the following obligations:
3.2.1. Subscriber will not copy the OpenPlay Platform or Documentation, in whole or in part, except as expressly authorized in this Agreement.
3.2.2. Subscriber will not transfer, assign, lease, lend or rent the OpenPlay Platform or Documentation, use them to provide service bureau, time-sharing or other services, or otherwise provide or make the functionality thereof available to third parties except as expressly authorized in this Agreement.
3.2.3. Subscriber will not disassemble, decompile, reverse engineer, modify or create derivative works of the OpenPlay Platform or Documentation nor permit any third party to do so, except to the extent such restrictions are prohibited by mandatory local law.
3.2.4. Subscriber will not allow access or use of the OpenPlay Platform by, and will not display the OpenPlay Platform user interfaces to anyone other than Authorized Users without OpenPlay’s prior written consent.
3.2.5. Subscriber will not disclose to any third party any comparison of the results of operation of the OpenPlay Platform with other products or services.
3.2.6. Subscriber will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the OpenPlay Platform as delivered by OpenPlay. Subscriber will reproduce such notices on all copies Subscriber is authorized to make of the OpenPlay Platform or the Documentation.
3.2.7. Subscriber will not knowingly use the OpenPlay Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious content, media, assets, malicious code, or material in violation of third-party privacy rights or copyright law.
3.2.8. Subscriber will not attempt to gain unauthorized access to the OpenPlay Platform or its related systems or networks.
3.2.9. Subscriber shall be responsible for the accuracy, quality and legality of Subscriber Data and of the means by which it acquired such. Subscriber shall use the OpenPlay Platform for lawful purposes only and in compliance with all applicable laws and regulations, including, without limitation, copyright, intellectual property, trademark, and anti-corruption laws and regulations of the United States and other jurisdictions.
3.3. Feedback and Analytics. Subscriber may choose to, but is not required to, provide suggestions, data, feedback and other information to OpenPlay regarding possible improvements in the operation, functionality or use of the OpenPlay Platform and related OpenPlay products or services (“Feedback”). Subscriber hereby grants to OpenPlay a non-exclusive, perpetual, irrevocable, royalty-free and fully paid up license to use, copy, display, modify, create derivative works of and distribute any Feedback, and to make, have made, use, lease, sell, offer for sale, import, export or otherwise transfer any OpenPlay product or service offering covered by any intellectual property rights in such Feedback solely for the purpose of (i) improving the operation, functionality or use of OpenPlay’s existing and future product and service offerings and commercializing such offerings; and (ii) publishing aggregated statistics about OpenPlay Platform transaction data, provided that no data in any such publication can be used to specifically identify Subscriber, subject to the terms of the OpenPlay Privacy Policy.
4. WARRANTIES.
4.1. OpenPlay Warranties. OpenPlay warrants it has validly entered into this Agreement and has the legal power to do so.
4.2. Subscriber Warranties. Subscriber warrants it has validly entered into this Agreement and has the legal power to do so.
4.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PARTIES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
5. PROFESSIONAL SERVICES. If OpenPlay provides any professional services to Subscriber, a separate written professional services agreement must be entered into.
6. TERM AND TERMINATION.
6.1. Term. This Agreement, including all exhibits and addenda hereto, is effective until the Subscription Plan has expired or has been terminated by written notice from OpenPlay, which termination will not affect any payment obligations Subscriber has to OpenPlay or any other obligation Subscriber may owe to OpenPlay.
6.2. Termination. OpenPlay may terminate this Agreement at any time and for any reason. Subscriber may terminate this Agreement prior to the end of Subscription Term if: OpenPlay breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of same.
6.3. Effect of Termination. Upon termination or expiration of this Agreement, OpenPlay will immediately cease providing access to the OpenPlay Platform, and all rights to use Confidential Information that are granted hereunder and thereunder shall terminate. Upon termination of this Agreement or expiration of the Subscription Term, Subscriber will: (a) promptly return to OpenPlay or destroy the applicable OpenPlay Confidential Information and all copies and portions thereof, in all forms and types of media; and (b) promptly pay all fees owing up to the date of termination.
6.5. Survival. Sections 1, 3.2, 3.3, 4.3, 6.3, 6.4, 6.5, 7.4, 8, 9, 10, and 12, will survive the termination or expiration of this Agreement.
7. INDEMNIFICATION.
7.1. Subscriber Indemnification. Subscriber agrees to defend OpenPlay, its officers, directors, employees, agents, authorized representatives and Affiliates (collectively, “OpenPlay Parties”) against any third party claim, demand, suit or proceeding arising out of, related to, or alleging: (a) infringement of any intellectual property rights of a third party caused by Subscriber’s Data or Subscriber’s use of the OpenPlay Platform in breach of this Agreement; (b) a violation of applicable law and/or regulation including, without limitation, copyright, intellectual property, and anti-corruption laws and regulations of the United States and other jurisdictions, caused by Subscriber’s Data or Subscriber’s use of the OpenPlay Platform in breach of this Agreement; or (c) Subscriber’s failure to maintain secure access to the OpenPlay Platform or Software Services in breach of this Agreement (“Claim Against OpenPlay”). Subscriber shall indemnify and hold OpenPlay Parties harmless for any damages, attorney fees and costs finally awarded against OpenPlay as a result of, or for any amounts paid by OpenPlay under a court-approved settlement of, a Claim Against OpenPlay; provided that OpenPlay: (i) provides Subscriber with prompt written notice of the Claim Against OpenPlay; (ii) gives Subscriber sole control of the defense and settlement of the Claim Against OpenPlay (provided Subscriber may not settle any Claim Against OpenPlay unless the settlement unconditionally releases OpenPlay of all liability); and (iii) provides Subscriber all reasonable assistance as requested by Subscriber, at Subscriber’s expense.
7.2. OpenPlay Indemnification. OpenPlay agrees to defend Subscriber, its officers, directors, employees, agents, authorized representatives and Affiliates (“Subscriber Parties”) against any third party claim, demand, suit or proceeding arising out of, related to, or alleging that the use of the OpenPlay Platform or Software Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Subscriber”), and shall indemnify Subscriber Parties for any damages, attorney fees and costs finally awarded against Subscriber as a result of a court-approved settlement of, a Claim Against Subscriber; provided that Subscriber: (A) provides OpenPlay with prompt written notice of the Claim Against Subscriber; (B) gives OpenPlay sole control of the defense and settlement of the Claim Against Subscriber (provided that OpenPlay may not settle any Claim Against Subscriber unless the settlement unconditionally releases Subscriber of all liability); and (C) provides to OpenPlay all reasonable assistance. In the event of a Claim Against Subscriber, or if OpenPlay reasonably believes that the OpenPlay Platform or a Software Service may infringe or misappropriate the intellectual property rights of a third party, OpenPlay may in its discretion and at no cost to Subscriber: (aa) modify the OpenPlay Platform and/or the Software Service so that it no longer infringes or misappropriates, without breaching OpenPlay’ warranties hereunder, (bb) obtain a license for Subscriber’s continued use of the OpenPlay Platform and/or the Software Service in accordance with this Agreement, or (cc) terminate Subscriber’s subscription to the OpenPlay Platform and/or the affected Software Service(s) upon thirty (30) days’ written notice and refund to Subscriber any prepaid and unused fees covering the remainder of the term of such subscription after the effective date of termination.
7.3. Exclusions. Notwithstanding the terms of Section 7.2, OpenPlay will have no liability for any infringement or misappropriation action or claim of any kind to the extent that it results from: (a) modifications to the OpenPlay Platform or Software Service made by a party other than OpenPlay, if the infringement or misappropriation would not have occurred but for such modifications; (b) Subscriber’s failure to use updated or modified access to the OpenPlay Platform or Software Services provided by OpenPlay to avoid infringement or misappropriation; (c) OpenPlay’s compliance with any designs or specifications provided by Subscriber; and (d) Subscriber’s use of the OpenPlay Platform or Software Service other than as authorized by this Agreement.
7.4. THIS SECTION 7 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION.
8. CONFIDENTIALITY. Subscriber and OpenPlay shall use commercially reasonable efforts, no less than such party exercises for its own confidential or proprietary information, and to require its employees, consultants and authorized representatives to retain in confidence, except as necessary to carry out obligations under this Agreement, all Confidential Information of the other party and the other Subscribers or Service Providers, where disclosed or accessed hereunder. Subscriber and OpenPlay recognize that its disclosure of Confidential Information of either party or other Subscribers or Service Providers could give rise to irreparable injury to either party or other Subscribers or Service Providers, inadequately compensable in damages and that, accordingly, each party or such other Subscriber(s) or Service Providers would be entitled to seek injunctive relief against the breach of the undertakings of confidentiality contained herein, in addition to any other available legal remedies. Confidential Information shall not include information that: (a) is already known to a party free of any obligation to keep it confidential; (b) becomes publicly known through no wrongful act of a party; or (c) is received by a party from a third party without any restriction on confidentiality. Notwithstanding the definition of Confidential Information in Section 1, any disclosure of a party hereto marked “Confidential” or the like or otherwise confirmed in writing as such within thirty (30) days of a disclosure, or if unmarked, where the recipient should reasonably understand the disclosure to be confidential or proprietary, shall be deemed Confidential Information.
9. PROPRIETARY RIGHTS. The OpenPlay Platform and Software Services are proprietary to OpenPlay and all right, title and interest thereto remains with OpenPlay. All proprietary and intellectual property rights of any nature regarding the OpenPlay Platform, Software Services and any and all parts, copies, modifications, enhancements, improvements and processes included therein, and derivative works created therefrom are owned by, and shall remain the property of OpenPlay. Subscriber acknowledges that the OpenPlay Platform, Software Services and related materials were developed, compiled, prepared, arranged and created by OpenPlay through expenditure of substantial time, effort and money and constitute valuable intellectual property and trade secrets of OpenPlay. If Subscriber or a third party acting on its behalf creates applications or program code for use with the OpenPlay Platform, Subscriber authorizes OpenPlay to host, copy, transmit, display and adapt such applications and program code, solely as necessary for OpenPlay to carry out its obligations under this Agreement. Subject to the foregoing, unless otherwise agreed by the parties in writing, OpenPlay acquires no right, title or interest from Subscriber under this Agreement in or to such applications or program code, including any intellectual property rights therein.
10. LIMITATION OF LIABILITY.
10.1. Cap on Liability. IN NO EVENT SHALL OPENPLAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT OF SOFTWARE SERVICE FEES PAID OR OWING BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT.
10.2. Exclusion of Damages. NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, LOST REVENUES, LOST PROFITS, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY).
10.3. Exclusions. Notwithstanding anything to the contrary contained herein, this Agreement does not limit liability due to death or personal injury caused by gross negligence, liability due to fraudulent misrepresentations or willful misconduct; or obligations or liabilities set forth in (i) Section 3.2 Conditions, (ii) for third party claims set forth in Section 7 Indemnification, (iii) Section 9 Proprietary Rights; or Subscriber’s payment obligations to OpenPlay in connection with Subscriber’s use of the OpenPlay Platform.
10.4. Commencement of Claims. Except for actions for non- payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
11. TRADEMARKS.
OpenPlay, OpenPlay Platform, OpenPlay Music, OpenPlay Workflow, and the OpenPlay logo are trademarks or registered trademarks of OpenPlay, Inc. in the U.S. and/or other countries.
12. GENERAL.
12.1. Publicity and Press Release. Subscriber grants OpenPlay a perpetual right to list Subscriber as part of the “OpenPlay Label Ecosystem” on its website and in its marketing materials.
12.2. Governing Law. This Agreement shall be governed by the laws of the State of California, without giving effect to the conflict of laws principles thereof. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act (“UCITA”) are specifically excluded from application to this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, that fail to be amicably settled between the parties shall be settled in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
12.3. Third Party Disputes. Because OpenPlay is not responsible for Subscriber-to-Service Provider dealings, in the event that a Subscriber has a dispute with one or more Service Providers (except in the case where a dispute arises as a result of OpenPlay's willful misconduct, or gross negligence) Member releases OpenPlay and its Affiliates from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
12.4. Force Majeure. Neither party shall be liable for any failure or delay in performance due to acts of force majeure, including without limitation, any governmental acts, terrorism, internet failure, acts of God, war or civil unrest, acts or omissions of third parties, equipment or power interruption, market or banking conditions, or other circumstance beyond the party’s reasonable control.
12.5. Electronic Access. As required by OpenPlay in connection with the use of certain Software Services, Subscriber shall arrange for each of its employees, agents, and authorized representatives to adopt unique Electronic Access Credentials. Subscriber shall maintain sufficient security procedures to protect against unauthorized use of the OpenPlay Platform. Subscriber shall be responsible for any such unauthorized use and agrees to notify OpenPlay immediately if it becomes aware of same.
12.6. Suspension of Platform Access. OpenPlay may, in its sole discretion and with written notice to Subscriber, suspend Subscriber’s access to the OpenPlay Platform in connection with Subscriber’s violation of applicable law or regulation, a breach of this Agreement, including non-payment of any fees due and owing under this Agreement (but excluding fees which Subscriber disputes reasonably and in good faith), or if Subscriber is listed on any “blacklist” published by the United States Government which identifies certain entities with whom U.S. companies are prohibited from doing business.
12.7. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without the consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any permitted assignment by OpenPlay or Subscriber requires written notice to the other party and shall not amend the subscription rights granted in an applicable Subscription Plan without both party’s written consent thereto. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
12.8. Privacy and Data Security. All Subscriber Data belongs to Subscriber and OpenPlay makes no claim to any right of ownership in it, subject to the limited rights granted by Subscriber hereunder. All Subscriber Data shall be kept confidential and handled in accordance with OpenPlay’s privacy policy found at: http://openplay.co/legal/#privacy (the “Policies”). OpenPlay aggregates Subscriber transaction data with that of other OpenPlay Subscribers for benchmarking, statistical analysis and other similar purposes (the “OpenPlay Data”). OpenPlay reserves all rights in the OpenPlay Data, including but not limited to the right to commercialize OpenPlay Data as the sole and exclusive property of OpenPlay in accordance with the Policies.
12.9. OpenPlay Policy and Agreement Updates. OpenPlay reserves the right to change its policies or practices and the terms of this Agreement at any time. When OpenPlay intends to make material changes to its policies or this Agreement, OpenPlay will post the changes on the applicable policy’s or terms of services page(s) and such changes are effective immediately upon posting. Subscriber’s use of the OpenPlay Platform following any posted change(s) to the applicable policy or terms of service will be deemed acceptance of such change(s).
12.10. Notices. All notices required or permitted under this Agreement will be in writing. Notices will be effective upon delivery if delivered in person and upon mailing if delivered by courier service, overnight delivery services or by a form of certified or express mail. Notices affecting this Agreement as a whole will be sent to the addresses set forth above, if any, or to such other address of a party as such party may identify in writing; notices related to a particular transaction will be sent to the primary corporate addresses set forth in the OpenPlay services billing portal or to such other address as Subscriber or OpenPlay may notify the other party in writing.
12.11. Export Control. Subscriber agrees to comply fully with all relevant export laws and regulations, including those of the United States and the Subscriber States of the European Union. These laws include restrictions on destinations, end-users and end use. Subscriber will ensure that neither the OpenPlay Platform, Software Services nor the Documentation, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of applicable export laws; or (b) used for any purposes prohibited by applicable export laws, including but not limited to nuclear, chemical, or biological weapons proliferation. Subscriber will, at OpenPlay’s request, demonstrate compliance with all such applicable export laws, restrictions, and regulations.
12.12. Entire Agreement, Modification and Interpretation. This Agreement (and the documents referenced herein or documents otherwise agreed to by the parties as being incorporated into this Agreement) represents the entire understanding between the parties regarding Subscriber’s access and/or use of the OpenPlay Platform. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may not be modified, amended or waived except by a written instrument duly executed by both parties. No oral modification or waiver of any provisions of this Agreement shall be binding on either party. Subscriber agrees that additional or different terms on Subscriber’s purchase order, if any, shall not apply. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
Subscription Agreement Last Updated — June 10, 2022
