Business Membership Policy
CASCADE. FM BUSINESS LICENSE AGREEMENT
This agreement (the “Agreement”) is made and entered into by and between Cascade.FM, Inc.,located at 2903 Ocean Avenue, Brooklyn, NY 11235(“Cascade”) and you, the party signing up for a Cascade.fm Business account.(“Company”). For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following:
1. Purpose: Cascade is in the business of providing curated music selections to restaurants, retail locations, and other public spaces (the “Services”) and otherwise selling music to customers. Cascade wishes to enter into an agreement with Company, on a non-exclusive basis,and Company hereby accepts such engagement, to provide Company the right to usecertain musical compositionsand sound recordings (together, the “Music”)for background music purposes at Company’s business and retail locations (the “Uses”).
2. Term: The term of this Agreement (the “Term”) willbe for one (1) year, commencing upon execution of this Agreement, and thereafter shall continue until either party sends written notice to the other party terminating the Term, in which event termination will take effect thirty (30) days from date of receipt of such notice. Cascade’s services are not exclusive to Company, and Cascade will perform the same or similar services for other entities, or persons during the Term; however, Company acknowledges and agrees that Cascade will be the exclusive provider of Services to Company during the Term. Upon termination of this Agreement, Company shall immediately cease any and all use of the Music.
3. Membership Tiers: Provided that Company is not in material breach of this Agreement:
(a) Free - Cascadeshall provide the Music to Company on a gratis basis.Cascade will curate all Music delivered to Company
(b) Paid - Cascade shall provide the Music to Company for five dollars ($5.00) per month, and Company will have the option of curating their own playlist of Cascade Music. Company may also be listed as a “Cascade Business” on the Cascade websites.In the event Company elects to enter into the Paid membership tier, Cascade requires Company to sign up for a monthly recurring credit card payment authorization, which will be available to Company on the Cascade.FM account signup page on the Cascade websites. In its sole discretion, Company may require You enter into a Master Services Agreement, whereby Company shall operate, maintain and make available the CASCADE.FM Music Service, and the “CASCADE.FM System” (which shall include any software or hardware, whether installed or remotely utilized by Company to deliver content to You, our Business Partner) at all locations identified by You.
In order to be listed as a “CASCADE.FM Business” on the Cascade website, Company may be required to provide additional information.
4. Download Card Obligation: Cascade offers a variety of Music for sale on Cascade’s websites and/or mobile applications, and Company sells download cards to customers to help effectuate such sales. In consideration of this Agreement, and regardless if Company selects the Free or Paid membership Tiers, Company agrees, at Company’s sole election, to either: (a) buy download cards from Cascade at a mutually agreed price, or (b) to keep download cards in stock at Company’s locations for Company’s customers to purchase. Company will be permitted to sell the download cards at a price determined by Company, provided that for paragraph 4(b), all free download cards provided by Cascade for Company to sell will have a minimum sale price (the “Minimum Sale Price”) which will be determined by Cascade as and when such cards and sent to Company. For the avoidance of doubt, Cascade will never require Company to purchase any download cards during the Term. In the event Company has any download cards after the Term, Company agrees to promptly return to Cascade all such download cards at Company’s expense. Additionally, if any download cards are stolen, Company will immediately notify Cascade.
5. Download Card Royalty:In the event that Company purchases download cards from Cascade, pursuant to paragraph 4(a), Company will keep one hundred percent (100%) of sums Company receives from the sale of download cards to its customers. In the event that Company sells download cards provided by Cascade to Company at no cost, Company agrees to pay Cascade fifty percent (50%) of such sales, provided that such download cards are, at minimum, deemed to be sold at the Minimum Sale Price.In the event of any sales of download cards, Company shall account to Cascade on a quarterly basis, within forty five (45) days of the last day of March, June, September, and December (each, an “Accounting Period”) and render a statement of accrued sales of download cards for each Accounting Period.
6. Grant of Rights:
(a) Notwithstanding anything to the contrary contained herein, to the extent necessary for Cascade to render Services, Cascade grants Company a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to use during the Term all necessary Cascade intellectual property, including, without limitation, any proprietary Music delivery technology owned or controlled by Cascade, solely related to delivering Music to Company.
(b) Company grants to Cascade the non-exclusive, non-transferable, non-sublicensable, and royalty free right throughout the universe to distribute, duplicate, perform, publicly perform, license, stream, sub-license, reproduce, and otherwise exploit any material that Company uploads to the Sites, through any and all media now known or hereafter devised, in connection Cascade’s business activities. Additionally, Cascade will have the right to use Company’s name, image, likeness and biographical materials in connection with Cascade’s business activitiesand Cascade’s general good will advertising, including, without limitation, showcasing Company on Cascade’s websites and social media pages.
7. Warranties, Representations, Indemnification: Company warrants and represents that: (a)Company is under no disability which would prevent entrance into or performance of this Agreement, has the full right to enter into and perform this Agreement, and to grant to Cascadeall of the rights and licenses herein granted; (b) Company expressly understands that all right, title, and interest into all Music are owned by third parties and ownership rights into the same are not being conveyed to Company pursuant to this Agreement; (c) that Company shall not use theMusic in any way not expressly authorized in thisAgreement; (d) that Cascade may use Company’s name, logo, and trademarks during the Term for purposes of Cascade’s own advertising promotions, or public relations, such as including Company’s name on Cascade’s website; (e) that any delay in rendering Services due to an act or omission by Company shall be the sole responsibility of Company; (f) that Company will cause all affiliates and international divisions, as applicable, to abide by all terms and conditions contained in this Agreement, including, without limitation, all payment terms; (g) in regards to Music provided by Cascade, Company shall not: (i) copy,record,dubormakeormanufactureanyrecordingsorother productionsofall of part of theServices, including, without limitation, the Music;(ii)transmit all or part oftheServicesbyanytelevisionorradiobroadcastorbyanyothermeansorusetheMusicoutsideCompany’s business and retail locations;or(iii)insertanycommercialannouncementsintothe MusicorinterruptanyperformanceoftheMusicforthemakingofanycommercialannouncements; (h) Company agrees that Cascade’s ability to meet all deadlines may be dependent on Company’s prompt performance of all obligations contained herein, including, without limitation, Company’s obligation to provide Cascade, in a timely manner and in a reasonable form without further preparation, all materials, information, personnel, and/or facilities, necessary for Cascade to render the Services;(i) Company will abide by all terms and conditions of Cascade’s terms of service (“Terms”), presently available at www.cascade.fm, and any future revisions thereto pursuant to the terms and conditions contained on the Terms; and (j) the exercise of the rights granted to Cascadehereunder do notany way violate any applicable statute, law, order, rule or regulation.Company hereby agrees to indemnify and hold Cascade and its affiliates and licensees, harmless from any and all liabilities, claims, demands, losses, expenses, and damages (including reasonable attorneys’ fees) in connection with any breach or alleged breach of this Agreement, including, without limitation, all claims by third parties which are inconsistent with any of the warranties, representations, covenants, or agreements made in this Agreement. Company agrees to reimburse Cascade on demand for any payment made with respect to any liability or claim to which the foregoing indemnity applies.
8. Miscellaneous: This Agreement represents the entire understanding between the parties, and shall supersede any prior agreement between the parties with respect to the subject matter contained herein. This Agreement cannot be modified or amended, except by an instrument in writing signed by both parties hereto. If any part of this Agreement is deemed by a court of law to be void, voidable, illegal, or unenforceable, the remainder of the Agreement will remain in full effect as if such void, voidable, illegal, or unenforceable part had not existed.Company may not assign this Agreement or any rights or obligations under this Agreement, by operation of law or otherwise. Cascade may freely assign this Agreement to any third party. The waiver by either party of a breach of any of the provisions of the Agreement by the other party shall not be construed as a waiver by the non-breaching party of any subsequent breach. Nothing in this Agreement shall be construed as creating an employer-employee relationship, partnership, joint venture, or agency relationship between the parties. Paragraph headings are inserted only for the purpose of convenient reference and shall not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement. Neither party shall be deemed to be in breach of any of its respective obligations hereunder unless and until the party claiming a breach shall have given the other party specific written notice of the nature of the breach, and the party receiving such notice shall have failed to cure such breach within thirty (30) days after receipt of such written notice. This Agreement may be executed in counterparts, each of which when so executed shall be an original and all of which shall constitute one and the same agreement. Fax and PDF copies of this Agreement shall have the same force and effect as an original.This Agreement shall not be construed to create a partnership between Company and Cascade, it being understood that Cascade shall render services hereunder as an independent contractor and may render the same or similar services for others as well as to engage in other business activities and/or ventures.All terms and conditions of the Agreement, which should by their nature survive the expiration or termination of this Agreement, shall so survive.
9. Disclaimer: EXCEPTASEXPRESSLYSETFORTHINHEREIN,ALL SERVICES HEREUNDER ARE PROVIDED“ASIS”ANDWITHALLFAULTS,ANDCASCADEANDITS LICENSOR
SMAKENOWARRANTYOFANYKIND,WHETHEREXPRESS, IMPLIED,STATUTORYOROTHERWISE,INCLUDINGWITHOUTLIMITATION ANYWARRANTYOFMERCHANTABILITY,
FITNESSFORAPARTICULAR PURPOSE,NON-INFRINGEMENTORARISINGFROMACOURSEOFDEALING, TITLE,USAGEOF TRADEORCOURSEOFPERFORMANCE.
WITHOUT LIMITINGTHEGENERALITYOFTHEFOREGOING,EXCEPTASEXPRESSLY PROVIDEDINTHISAGREEMENT,CASCADEEXPRESSLYDISCLAIMSANY WARRANTY,
EXPRESSORIMPLIED,CONCERNINGTHEPERFORMANCE, OPERATIONORFUNCTIONALITYOFTHESERVICES WHATSOEVER,ITSFITNESSFORUSEBYCOMPANY,
THATTHEOPERATIONOF THESERVICESWILLBE ERROR-FREE OR UNINTERRUPTED OR THATITWILLPRODUCEADESIRED RESULT.
10. Force Majeure: If at any time, by reason of any act of God, fire, earthquake, hurricane, flood, explosion, vandalism, terrorism, strike, labor disturbance, civil commotion, act of Government, its agencies or officers, or any order, regulation, ruling or action of any labor union delays, interrupts or prevents the performance of any obligations hereunder, then the performance of such obligation shall be excused to the extent so delayed, interrupted or prevented and any similar requirement shall be extended for the duration of such event. If by reason of force majeure a party is unable to perform all or any material part of its obligations under thisAgreement for a continuous period of ninety (90) days, the other party may terminate thisAgreement immediately by written notice.
11. Notices: All notices pursuant to this Agreement shall be in writing and shall be given by registered or certified mail, return receipt requested, at the addresses set forth herein or addresses as may be designated by either party by written notice to the other party. Such notices shall be deemed given when mailed, except that notices of change of address shall be effective only upon receipt. A copy of all notices to Cascadeshall be simultaneously sent to SavurThreadgold LLP, 40 Exchange Place, #1900, New York, NY 10005, attn:Daniel Novick, Esq. and by email to email@example.com.
12. Choice of Law: This Agreement shall be exclusively governed by the laws of the State of New York applicable to contracts entered into and performed within the State of New York and notwithstanding any conflict of law principles. Any dispute related to the Agreement shall be exclusively resolved in the state and federal courts located in New York County, New York. The prevailing party in any dispute shall be awarded their reasonable attorney’s fees and costs at all levels.
13. Independent Counsel: COMPANYACKNOWLEDGES THAT COMPANYHAS BEEN ADVISED TO SEEK INDEPENDENT COUNSEL IN CONNECTION WITH THIS AGREEMENT AND THAT COMPANYHAS EITHER DONE SO OR KNOWINGLY AND WILLINGLY REFRAINED FROM DOING SO.
Creation of your account following these terms being made available to you shall constitute your acceptance thereof.