Judge Richard Sullivan of the U.S. District Court for the Southern District of New York has a legal humdinger on his hands in the form of EMI Music’s lawsuit against ReDigi, the service that allows its users to store, stream, buy and sell ‘pre-owned’ digital music. At issue is a function of ReDigi’s Media Manager…
By registering this account, you hereby accept and agree to this DMCAFORCE SERVICES AGREEMENT (the “Agreement”) entered into effective as of (the “Effective Date”), by and between you (“Client”) and MAB Industries. (“DMCAFORCE”) a California limited liability company, with offices at 3590 5th ave. San Diego, CA 92103 with reference to the following facts:
A. Client desires to engage the services of DMCAFORCE, and DMCAFORCE has the ability to perform such services and desires to accept the engagement to provide the services to Client, pursuant to the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Services and Compensation.
(a) Services. Pursuant to the terms and conditions of this Agreement, Client hereby engages DMCAFORCE to provide certain services as set out on Schedule A (collectively, the “Services”). Notwithstanding the foregoing, both Client and DMCAFORCE agree that DMCAFORCE shall accept all reasonable directions from Client, but the manner, working hours and place where DMCAFORCE will perform the Services shall be agreed to by the parties hereto. Furthermore, DMCAFORCE shall at all times observe the security, safety and other policies of Client. DMCAFORCE represents and warrants that it has the skill and capacity to perform the Services herein.
(b) Compensation. Client shall pay DMCAFORCE for the Services to be provided by DMCAFORCE in accordance with the service plan selected by the Client and agreed to by DMCAFORCE.
(c) Business Expenses. Client shall have no obligation to reimburse DMCAFORCE for any business expenses incurred by DMCAFORCE in performing DMCAFORCE’s obligations hereunder unless Client agrees, prior to DMCAFORCE’s incurring expenses, to reimburse such expenses in a writing signed by Client.
2. Term and Termination.
2.1 Term. This Agreement will commence as of the Effective Date and will continue for a period of 12 months, after which Client will be on a month to month basis, terminable by either party with 30 days notice.
2.2 Termination. This Agreement may be terminated prior to the expiration of the term set forth in Section 2.1 above upon the occurrence of any of the events set forth below:
(a) This Agreement may be terminated at any time by Client, upon 30 days written notice to DMCAFORCE. (b) Termination by DMCAFORCE. This Agreement may be terminated at any time by DMCAFORCE, upon 30 day written notice to Client.
2.3 Effect of Termination.
(a) In the event that this Agreement is terminated in accordance with this Section 2, then DMCAFORCE agrees that it shall be entitled to collect (i) any accrued but unpaid Compensation and (ii) any expenses that are otherwise reimburseable under Section 1(c) to the extent not previously reimbursed. DMCAFORCE shall not be entitled to any other payments by Client, including un-employment benefits. (b) Promptly following termination for any reason, DMCAFORCE shall, in accordance with Client’s written instructions, destroy or deliver to Client (i) all work product, work in progress, property, data, documentation or information or materials that are the end product of the Services (collectively, “Work Product”), and (ii) all other property, data, etc., belonging to Client and in the possession or under the control of DMCAFORCE. DMCAFORCE acknowledges and agrees that prompt delivery of such Work Product and other materials described in this Section shall be deemed condition precedent to any payment by Client due to DMCAFORCE.
2.4 Survival of Provisions. Any and all indemnifications, representations and confidentiality, non-use and non-solicitation obligations shall survive the termination of this Agreement.
3. Nature of Relationship.
3.1 Independent Contractors. Notwithstanding anything contained in this Agreement to the contrary or any actions of either party or circumstances arising in connection with Services hereunder, DMCAFORCE is and will be an independent Contractor and will in no event be considered an employee, partner or joint venturer of Client. DMCAFORCE has no authority to bind Client or incur any obligation or liability on its behalf and will not state or imply that he/she has such authority, other than those specifically spelled out in this agreement. Furthermore, DMCAFORCE expressly acknowledges and agrees that (i) DMCAFORCE will not be entitled to or eligible for benefits or programs offered by Client to its employees, (ii) Client will not withhold or pay any kind of employment and/or payroll taxes on behalf of DMCAFORCE, and (iii) DMCAFORCE is solely responsible for the payment of DMCAFORCE’s own taxes. DMCAFORCE represents and covenants that it shall pay all federal, state and/or local income or any other taxes payable by DMCAFORCE by reason of the consideration given to DMCAFORCE by Client in accordance with this Agreement; as such, DMCAFORCE agrees to indemnify Client and defend, protect, save and keep Client harmless from and against any and all losses, actions, liabilities, claims, damages, assessments, costs and/or expenses relating to and/or arising from or in connection with the breach of the foregoing representation and covenant, including any and all legal, accounting, and other professional fees. 3.2. Insurance. DMCAFORCE shall maintain general business, liability, workers compensation and other insurance as necessary to comply with federal and state law; DMCAFORCE acknowledges that it shall not be covered under Client’s workers compensation or other similar policies, and Client shall not be required to provide such coverage for DMCAFORCE.
4. Confidential Information; Non-Solicitation; Noncompetition.
4.1 Confidentiality and Non-Use. Any and all information provided by Client to DMCAFORCE, or otherwise belonging to Client in any way whatsoever, and any information otherwise obtained by DMCAFORCE in connection with the performance of the Services, but not including DMCAFORCE Techniques as defined in Section 5.1 (collectively “Confidential Information”) shall be treated by DMCAFORCE as proprietary and confidential information of Client. With respect to all Confidential Information, unless required to do so by court order or applicable law or regulation, DMCAFORCE shall not at any time during the term of this Agreement and for an indefinite time thereafter (a) disclose such Confidential Information to any third party; or (b) exploit or use such Confidential Information except as permitted by this Agreement and in any event never for the benefit of any party other than Client without Client’s prior written consent. Subject to Section 2.3 above, upon the request of Client, DMCAFORCE will either destroy or return all Confidential Information which is in tangible form and any copies thereof in its possession or control and all Confidential Information in electronic or similar form. Confidential Information does not include any information that (i) was in the public domain prior to the receipt of same by DMCAFORCE through no cause attributable to DMCAFORCE; (ii) has subsequently become part of the public domain by publication or otherwise through no cause attributable to DMCAFORCE; or (iii) was received by DMCAFORCE, through no cause attributable to DMCAFORCE, from a third party which had no obligation of secrecy, confidentiality, non-use or nondisclosure with respect thereto.
4.2 Non-Solicitation. During the term of this Agreement and, except as provided under Section 4.3 hereof, for a period of 36 months following the termination hereof, DMCAFORCE shall not solicit, in any way or capacity whatsoever for the benefit of any party other than Client any of Client’s customers and potential customers. Further, for a period of 36 months following the termination hereof, DMCAFORCE will not, directly or indirectly hire, solicit, attempt to persuade or communicate with any employee, consultant of DMCAFORCE or the Client to leave the employ of Client or otherwise interfere with the performance of their duties for the Client.
4.3 Survival of Obligations. DMCAFORCE acknowledges and agrees that DMCAFORCE shall continue to be obligated under the confidentiality, non-use and non-solicitation obligations set forth under this Agreement for an indefinite time following the termination of this Agreement to the extent necessary to protect the Confidential Information of Client.
4.4 Noncompetition. During the term of this Agreement, DMCAFORCE shall not compete in any capacity with Client.
4.5 No Limitation of Obligations. Nothing in section 4.4 hereof shall limit the applicability and enforceability of the obligations set forth under sections 4.1, 4.2 and 4.3 hereof.
5. Rights to Work Product
5.1 Assignment. DMCAFORCE and Client acknowledge and agree that DMCAFORCE shall retain all rights to any technique or techniques used by DMCAFORCE which are incidental to the performance of the Services as contemplated hereunder (“DMCAFORCE Techniques”). DMCAFORCE Techniques includes but is not limited to, the templates and meta data that are generated in the process of the services, Client agrees to execute and deliver to DMCAFORCE any transfers, assignments, documents or other instruments necessary (collectively, “necessary instruments”) to apply for, prosecute, obtain or enforce any patent, copyright or other right or protection or to otherwise to vest complete and perpetual title and ownership of any DMCAFORCE Techniques and all associated rights exclusively in DMCAFORCE.
5.2 Attorney-in-Fact. If Client is unable to secure DMCAFORCE’s signature on and delivery of any necessary instrument, whether due to DMCAFORCE’s mental or physical incapacity or any other cause, DMCAFORCE hereby irrevocably designates and appoints Client, and each of its duly authorized officers and agents, as DMCAFORCE’s agent and attorney-in-fact to act for and in DMCAFORCE’s behalf to execute and file any such necessary instruments and to do all other lawfully permitted acts to further the purposes of Section 5.1 with the same force and effect as if executed and delivered by DMCAFORCE.
6. Indemnification. DMCAFORCE hereby agrees to conditionally indemnify Client and its members, managers, officers, employees, independent contractors, personal representatives, heirs, attorneys, agents and assigns (individually, a “Indemnified Party” and collectively, the “Indemnified Parties”), and to defend, protect, save and keep the Indemnified Parties harmless from and against, and to pay on behalf of or reimburse the Indemnified Parties as and when incurred for, any and all liabilities (including liabilities for taxes), obligations, losses, damages, penalties, demands, claims, actions, suits, judgments, settlements, penalties, interest, out-of-pocket costs, expenses and/or disbursements (including reasonable costs of investigation, and reasonable attorneys’, accountants’ and expert witnesses’ fees) of whatever kind and nature, that may be imposed on or incurred by any Indemnified Party as a consequence of, in connection with, incident to, resulting from or arising out of, or in any way related to (i) any act or omission by DMCAFORCE related to the Services that is ultimately determined to constitute gross negligence or willful misconduct and/or (ii) any breach by DMCAFORCE of any of the covenants and/or agreements made by DMCAFORCE under this Agreement. Without limiting the foregoing: (i) DMCAFORCE will indemnify and hold harmless Client in regards to content removal from both the Client’s sites and other publishers sites, for the purposes of templating that information; (ii) DMCAFORCE will indemnify and hold harmless, Client, for their acts and steps taken in performing the Services under this contract as it pertains to downloading information from third-party sites; (iii) DMCAFORCE will provide Client with all records of content that is processed and flagged pursuant to the Services. This will ensure the accuracy of the system and allow DMCAFORCE to log matches found across all publishers for their content. The Client can, with written request, receive all information pertaining to their account, including but not limited to, all content processed, all matches found, all actions taken, and all Work Product currently hosted on DMCAFORCE servers. DMCAFORCE agrees to act in accordance to the rules set by Client for the removal, advertising, truncation or allowance of content found to be copyrighted. Client will release and hold harmless DMCAFORCE, to the same extent mentioned herein, for any: 1. Incorrect match that results in a non-copyrighted item being removed, 2. A missed match that results in a DMCA notification or legal action from the legal content owner or a party representing them, 3. Content not protected if Client failed to process the content successfully, 4. A match that is not removed by the Client or directed by the Client to be removed (DMCAFORCE unless explicitly told to do otherwise, has no established duty to remove content, only to flag it), and; 5. If there is any service outage to DMCAFORCE, their servers, operations, or platform, for brief and reasonable period of time.
7. General Provisions.
7.1 Entire Agreement. This Agreement contains the entire agreement between the parties pertaining to the subject matter hereof and supersedes any and all prior agreements, representations and understandings of the parties, written or oral. This Agreement is intended by the parties to be an integrated and final expression of the agreement and also is intended to be a final, complete and exclusive statement of the terms of their agreement concerning this Agreement. In the course of any prior dealings between the parties, no uses of trade, and no parole or extrinsic evidence of any nature shall be used to supplement, modify or vary any of the terms hereof. There are no conditions to the full effectiveness of this Agreement and there are no oral or other written representations or agreements between the parties concerning the subject matter of this Agreement, except as so expressly set forth herein. Any representation, promise or condition, whether oral or written, not specifically incorporated herein shall be of no valid or binding effect upon the parties. Each party to this Agreement further represents, warrants and agrees that he, she or it is not relying, and has not relied, upon any representation, warranty or statement, oral or written, made by any other party to this Agreement with respect to this Agreement, except as expressly set forth herein.
7.2 Amendment and Waiver. No provision of this Agreement or any of the documents referred to herein may be amended, modified, supplemented, changed, waived, discharged or terminated, except by a writing signed by or on behalf of each party hereto.
7.3 Successors and Assigns. Subject to the limitations set forth herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns. This Agreement, or any right or interest hereunder, shall not be assignable by DMCAFORCE without the written consent of Client.
7.4 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable, but the extent of such invalidity or unenforceability does not destroy the basis of the bargain between the parties as contained herein, the remainder of this Agreement and the application of such provision or provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 7.5 Governing Law. This Agreement and the obligations of the parties hereunder shall be interpreted, construed and enforced in accordance with the laws of the Province of British Columbia, without regard to principles of conflict of laws.
7.6 Counterparts. This Agreement may be executed in one or more counterparts, any one of which, if originally executed, shall be binding upon each of the parties signing thereon, and all of which taken together shall constitute one and the same instrument. One or more photostatic copies of this Agreement may be originally executed by the parties hereto, and such photostatic copies shall be deemed originals and shall be valid, binding and enforceable in accordance with their terms.
7.7 No Waiver. No consent or waiver, express or implied, by any party to, or of any breach or default by any other party in, the performance of its obligations hereunder shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance by such other party of the same or any other obligations hereunder. Failure on the part of a party to complain of any act of the other party or to declare a party in default, irrespective of how long such failure continues, shall not constitute a waiver of such party of its rights hereunder.
7.8 Authority. The parties hereto represent and warrant that they have full power, authority and legal right to execute and deliver, and to perform and observe the provisions of, this Agreement and to carry out the transactions contemplated hereby. The execution, delivery and performance by the parties of this Agreement have been duly authorized by all necessary legal action and the parties have obtained any necessary consent, approval of, notice to, or any action by, any person, firm, corporation or governmental entity or agency necessary or appropriate to consummate the transaction contemplated hereby.
7.9 Further Assurances. Each party agrees and covenants that it will at any time and from time to time, upon the request of the other, execute, acknowledge, deliver and/or perform any and all such further acts, deeds, assignments, transfers, conveyances and assurances as may be necessary or desirable to carry out the terms and provisions of this Agreement.
7.10 Cumulative Rights and Remedies. The rights and remedies of the parties hereunder shall not be mutually exclusive, and the exercise by any party of any right to which he or it is entitled shall not preclude the exercise of any other right he or it may have.
7.11 Third Party Beneficiaries. No person shall have any rights whatsoever under this Agreement unless such person is a party to this Agreement, and only in such capacities as such person is a party hereto.
7.12 Interpretation. This Agreement shall be construed in accordance with its fair meaning as if prepared by all parties hereto, and shall not be interpreted against either party on the basis that it was prepared by one party or the other. The captions, headings and sub captions used in this Agreement are for convenience only and do not in any way affect, limit, amplify and/or modify the terms and provisions thereof. Words used herein in the masculine gender shall include the neuter and feminine gender, words used herein in the neuter gender shall include the masculine and feminine, words used herein in the singular shall include the plural, and words used in the plural shall include the singular, wherever the context so reasonably requires.
7.13 Attorneys’ Fees. If any party hereto commences any action or other proceeding to enforce or interpret this Agreement, including any action to reform, rescind or in any manner affect the provisions of this Agreement, the prevailing party (as determined by the court, agency or other authority before which such suit or proceeding is commenced), shall be entitled to all reasonable costs and reasonable attorneys’ fees incurred in connection therewith.
7.14 Arbitration. In the event of a dispute relating to and/or arising from or in connection with this Agreement, the parties agree to try in good faith to resolve the dispute through mediation by selecting a third party to help them reach an agreement. If they are unable to resolve the dispute through mediation, within sixty (60) days from the date notice is first given by one party to the other as to the existence of such a dispute, they agree to submit to resolution by arbitration in accordance with the Commercial Arbitration Rules of JAMS (the “Rules”). Any hearing under the Rules shall take place at San Diego, CA but either party and its representatives may appear at any hearings or meetings by telephone or video conference. The hearing shall be before one arbitrator. The provisions of the Supreme Court Civil Rules are incorporated into and made a part of this Agreement. Any award rendered by the Arbitrator pursuant to this Agreement and the Rules shall be enforceable in the Supreme Court of the United States as the court having exclusive jurisdiction over such arbitration. Such arbitration shall be binding and final. This clause shall not preclude parties from seeking provisional remedies, such as injunctive or other equitable remedies, in aid of arbitration or otherwise from a court of appropriate jurisdiction. IN AGREEING TO ARBITRATION, THE PARTIES ACKNOWLEDGE THAT IN THE EVENT OF A DISPUTE ARISING FROM THIS AGREEMENT, EACH PARTY IS GIVING UP THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD ARE ACCEPTING THE USE OF ARBITRATION FOR RESOLUTION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
Additional expenses incurred by DMCAFORCE will be reviewed independently by Client and approved or disapproved on a case by case basis.
The DMCAFORCE will be paid within two weeks of delivering an invoice without exception. If a billing statement is not paid within 30 days, interest charge
