EMI TERMS OF SERVICE


EMI Terms of Service
LAST UPDATED: October 27 2011
The terms and conditions set out below (“Terms of Service”) are an agreement between you (“you”) and EMI Group Limited concerning your access to and use of the EMI Content (as defined below) provided by EMI at developer.echonest.com (the “EMI Sandbox”) in conjunction with The Echo Nest, a Delaware Corporation (“The Echo Nest” or “EN”).
EMI Group Limited and its subsidiaries (individually or collectively, “EMI Group”, “EMI”, “we”, or “us”) provide access to the EMI Content subject to these Terms of Service which is also applicable to the use of the EMI Content. We are a limited company registered in England and Wales under company number 00229231. EMI’s registered office is at 27 Wrights Lane, London W8 5SW, UK which is also our main trading address. 
Please read these Terms of Service carefully as they form a legally binding agreement between you and EMI. You will only be permitted to participate in the EMI Sandbox if you have accepted these Terms of Service and by so doing you agree to be bound by them.  If you have any questions or comments please contact your legal representative before accepting these Terms of Service. 
1.	DEFINITIONS
“Background Technology” means Intellectual Property developed, or otherwise obtained by you prior to or independently of these Terms of Service and/or any derivatives thereof;
“DMCA” means the Digital Millennium Copyright Act 2000;
“Developer Data” means any information provided by you to EMI in connection with your use of the EMI Sandbox including but not limited to any user data and/or statistical information; 
“EMI Content” means all content provided by EMI for use by you within the EMI Sandbox which shall include, without limitation, any master recordings, audio clips, video clips, artwork, images, associated product data and any other materials, content, information or data made available by EMI pursuant to these Terms of Service but which shall exclude, for the avoidance of doubt, any master recordings, audio clips, video clips, artwork, images, associated product data or any other materials, content, information or data owned or controlled by EMI not made available by EMI for use within the EMI Sandbox pursuant to these Terms of Service; 
“Intellectual Property” means all concepts, data, data collections, designs, diagrams, documentation, drawings, flow charts, formulae, graphics, icons, ideas and inventions (whether or not patentable or reduced to practice), “look and feel,” know-how, marketing and development plans, trade marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology;
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world, including the right to sue for and recover damages for past infringements: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; (f) database rights, and (g) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (f) of this sentence;
“Newly Developed Code” means Intellectual Property Rights in and to the source and object code of any software for the Products that is first developed (i.e., any such software that is not Background Technology or Third-Party Technology) by you whilst creating and developing Products incorporating the EMI Content;
“Products” means any products, software applications or digital platforms (including for the avoidance of doubt any products which, due to their limited interactive functionality, are compliant with the provisions of the DMCA) created by you in the EMI Sandbox incorporating the EMI Content, and (as applicable) any Background Technology, Third Party Technology and Newly Developed Code pursuant to these Terms of Service;
“Third-Party Technology” means Intellectual Property licensed or obtained by you from third parties and/or any derivatives thereof prior to or independently of these Terms of Service and/or any derivatives thereof (which shall include, for the avoidance of doubt, third party application programme interfaces incorporated by you into Products).
2.	GRANT OF LICENSE
Subject to your full, continuing compliance with all of these Terms of Service, we hereby grant you a non-exclusive, revocable, non-sublicensable, non-transferable, limited, development right to use the EMI Content within the EMI Sandbox environment only in conjunction with the application program interfaces and other materials provided by The Echo Nest solely to create and develop Products.  
All EMI Content is the property of EMI or our licensors and is protected by copyright laws around the world.  You may not copy, download, upload, modify, reproduce, transmit, delete, add to, distribute in any way, or otherwise use for any purpose any of the EMI Content except as stated in these Terms of Service.
3.	OWNERSHIP OF PRODUCTS
All Intellectual Property Rights in the Products that are created by you within the EMI Sandbox (but excluding any EMI Content, EN Data, or EN APIs incorporated therein) shall vest solely and exclusively in you and you hereby license, with the right to sublicense through multiple levels of sub-licensees, all of their Intellectual Property Rights incorporated in the Products therein to EMI on a perpetual, irrevocable, worldwide, royalty-free basis in accordance herewith as publisher of the Products solely for the purpose of permitting EMI as Publisher to distribute the Products, whether direct to consumers or via third party distributors.
Without limiting the generality of the foregoing, you will have no interest in any trademark, service mark, or trade name (collectively, “Mark”) used on or in the EMI-Owned Work Product; EMI will be the sole and exclusive owner of all right, title, and interest in and to all such Marks.
For the avoidance of doubt, EMI will not be obligated to actually utilize any Product or to produce, release, distribute or otherwise exploit any Product, it being understood that the use of any Product by EMI shall be subject to, amongst other things, the Submission and Approval Process described in the Rules of the Road and in particular to the consent of EMI’s Artists in each case.
In the event that a Product created by you is approved by us, you acknowledge and confirm that the Product will be distributed by us and that you shall look to us with respect to any payment or remuneration with respect thereto, unless informed by us otherwise. 
For the avoidance of doubt, in the event of conflict between these Terms of Service and the Rules of the Road, the terms of these Terms of Service shall prevail. 
4.	DEVELOPER IP
If you use any Background Technology, Third-Party Technology or Newly Developed Code in the creation of a Product, you will be solely responsible for obtaining, at your own expense, all rights (including without limitation Intellectual Property Rights) and authorizations from any third party necessary for EMI to exercise its rights under these Terms of Service.
You hereby acknowledge and agree that no Background Technology, Third-Party Technology or Newly Developed Code may be incorporated into any Product unless such Intellectual Property has been specifically identified, described and disclosed by you upon submission of the Product as part of the Submission and Approval Process described in the Rules of the Road. 
You further grant to EMI a non-exclusive, perpetual, irrevocable, worldwide, royalty-free right and license, with the right to sublicense through multiple levels of sub-licensees, to any and all Developer Data provided by you to EMI in connection with your use of the EMI Content.
5.	WARRANTIES
You hereby represent, warrant and agree that you will not incorporate into any Product or otherwise make available through or in connection with the EMI Content: 
1	Anything that is or may be (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory; (c) illegal; (d) fraudulent or tortious; (e) obscene, indecent, pornographic or otherwise objectionable; or (f) protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express prior consent of the owner of such right;

2	Any material that could give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offence; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” “cracking,” or “phreaking”; and

3	Any virus, bug, corrupt data worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment,
You further represent, warrant and agree that: 
4	You have the full right, power, and authority to enter into and perform these Terms of Service without the consent of any third party, including the right to grant all licenses granted by you under these Terms of Service;

5	You shall not use the EMI Content for any fraudulent or unlawful purpose, including for the avoidance of doubt, associating the EMI Content with any entities or individuals connected with file sharing, pirate services or any other service which might reasonably be likely to bring EMI or any of its artists into disrepute;

6	You shall not attempt to obtain un-authorised access, through whatever means, to the services or computer systems or areas of EMI or any of EMI’s partners’ networks. EMI reserve all rights to co-operate fully with court orders and law enforcement authorities requesting the disclosure of the identity of anyone attempting any of the foregoing;

7	You shall not impersonate any person or entity, including without limitation any representative of EMI; use a false name, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the use of the EMI Content and your use of the EMI Sandbox; or express or imply that we endorse any statement you make;

8	You shall not reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the EMI Content;

9	You shall not modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the EMI Content;

10	Neither an Product nor any element thereof will be subject to any restriction, mortgage, lien, claim, pledge, security interest, or encumbrance when delivered by you to EMI;

11	You have obtained the unqualified right to license to EMI all Background Technology, Third-Party Technology and Newly Developed Code as provided herein; and

12	EMI’s rights to exploit the Products shall be co-terminus with EMI’s agreement with The Echo Nest with respect to the exploitation of such Products.


6.	DISCLAIMER AND LIMITATION OF LIABILITY
WARRANTY DISCLAIMER – THE EMI CONTENT IS MADE AVAILABLE TO YOU HEREUNDER “AS IS.”  TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EMI MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES (AS USED IN THIS SECTION, “WARRANTIES”) WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, AS TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING. FURTHER, EMI DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE EMI CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
LIABILITY LIMITATION - REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL EMI OR ITS VENDORS, BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE APIs, EVEN IF THE ECHO NEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, THE ECHO NEST DISCLAIMS ALL LIABILITY OF ANY KIND OF THE ECHO NEST'S VENDORS.
7.	INDEMNITY
You agree to defend, indemnify and hold harmless EMI and its employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of your use of, or activities in connection with, the EMI Content; or any violation of these Terms of Service by you.
8.	UPDATES AND ASSISTANCE
At EMI’s request, you will, and will, if applicable, cause your employees and agents to, (a) cooperate with and assist EMI with providing all such necessary support and updates with respect to the Products including without limitation by maintaining or restoring, and not taking any actions that would adversely affect, the usability of the Products. 
9.	COMPLIANCE WITH LAWS
You agree to comply with all applicable laws, rules and regulations at all times during the creation and development of the Products and thereafter when providing any updates and assistance as requested by EMI.  In addition, your use of the EMI Content is conditioned on your compliance with prohibitions on use set out herein. Any failure to comply with all such applicable laws, rules and regulations or such prohibitions may also result in termination of your access to the EMI Content pursuant to the Termination section below.
10.	TERMINATION
These Terms of Service are effective until terminated as set forth in this Section. Either party may terminate these Terms of Service at any time, for any reason, or for no reason including, but not limited to, if you violate any provision of these Terms of Service. Any termination of these Terms of Service shall also terminate the development license granted by EMI to you hereunder. You agree that EMI shall not be liable to you or any third party for any termination of your access to the EMI Content or to any such information or files, and shall not be required to make such information or files available to you after any such termination.
Upon termination of these Terms of Service for any reason, you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the EMI Content, and shall so certify to EMI that such actions have occurred (including all cached ephemeral copies). 
Sections 1 and 3 - 12 shall survive termination of these Terms of Service. 
11.	CHOICE OF LAW AND JURISDICTION 
These Terms of Service shall be governed by, and interpreted in accordance with the laws of England and Wales, and you irrevocably agree that the courts of England shall have non-exclusive jurisdiction to settle any dispute which may arise out of, under, or in connection with, these Terms of Service although we retain the right to bring proceedings against you for breach of these Terms of Service in your country of residence or any other relevant country.
12.	ENFORCEMENT OF THESE TERMS AND CONDITIONS 
EMI reserves the right to takes steps that EMI believes are necessary or appropriate to enforce and/or verify compliance with any part of these Terms of Service (including, without limitation, EMI’s right to cooperate with any legal process relating to your use of the EMI Content and/or a third party claim that your use of the EMI Content is and/or the Products created by you are in any way unlawful and/or infringes such third party’s rights).
© 2011 EMI Group Limited unless otherwise noted. All rights reserved.