SHIFT WORSHIP PRO MEMBERSHIP LICENSE AGREEMENT
THIS SHIFT WORSHIP PRO MEMBERSHIP LICENSE AGREEMENT (the “Agreement”) is made by and between you (“you” or “Licensee”) and VMG, Inc. dba Shift Worship (“Licensor”).
By signing up and subscribing to the Shift Worship Pro Membership, you agree to be bound by the terms and conditions of this Agreement effective as of the time you click the “Subscribe” button. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the legal entity to this agreement, in which case “you” or “Licensee” shall mean such entity. If you do not have such authority, or if you do not agree with the terms and conditions of this agreement, you must discontinue the signup process and you may not use the services.
WHEREAS, Licensor desires to license to Licensee certain rights to use audio-visual media and other content provided by Licensor (“Licensed Content”), including the right to post or otherwise display the Licensed Content on Licensee’s social media accounts, website, and other web-based platforms, and to make such Licensed Content available for viewing by Licensee and its guests at Licensee-sponsored events located at Licensee’s facilities.
NOW THEREFORE, in consideration of the promises and the mutual covenants of this Agreement, the parties hereto agree as follows:
1. Grant of Rights.
1.01 Streaming and Archiving Right. Licensor hereby grants to Licensee a non-exclusive license to Stream the Licensed Content and to permit Licensee’s guests to view the Licensed Content at Licensee-sponsored events located at Licensee’s facilities, subject to the Prohibited Uses as described in Section 1.04 of this Agreement. For purposes of this Agreement, “Stream” or “Streaming” shall mean the process of delivering data via the Internet that permits an end-user to view data contemporaneously with its reception by an end-user device in such a manner that the data is not copied, duplicated or stored in such end-user device except by way of temporary buffering. Licensor also hereby grants to Licensee a non-exclusive license to archive Licensed Content on Licensee’s server or Licensee’s primary website to be made available for transmission by Licensee, subject to the Prohibited Uses as described in Section 1.04 of this Agreement. The transmission or other display of an archive of the Licensed Content must include a Licensor watermark, consistent with watermark specifications provided by Licensor, which may change from time to time at Licensor’s sole discretion.
1.02 Posting Right. Licensor hereby grants to Licensee a non-exclusive license to post or otherwise display the Licensed Content on Licensee’s social media accounts, websites, and other web-based platforms, subject to the Prohibited Uses as described in Section 1.04 of this Agreement. Licensee is expressly prohibited from posting or otherwise displaying Licensor’s mini-movies on the internet, including websites, social media accounts or other web-based platforms.
1.03 Shiftworship.com Terms of Agreement. Licensee hereby acknowledges and agrees that it is bound by the Shift Worship Terms of Agreement as posted on shiftworship.com for all access and use of such site and Shift Worship Multimedia Content as defined therein. To the extent of an inconsistency between this Agreement and such Terms of Agreement as it relates to Streaming Licensed Content only, the terms of this Agreement shall control. In all other instances of inconsistency between the Terms of Agreement and this Agreement, the Terms of Agreement shall control.
1.04 Prohibited Uses. All rights not expressly granted herein are reserved by Licensor. Licensee is prohibited from the following “Prohibited Uses”: (a) copy, duplicate, replicate or re-master the Licensed Content or any portion thereof; (b) sublicense, re-sell, rent, lend, or otherwise transfer or distribute the Licensed Content; (c) provide access to the Licensed Content, or any portion thereof, except as permitted in this Agreement; (d) use the Licensed Content in other media for resale or reproduction, including, without limitation, video of Licensed Content being used at any Licensee event; (e) broadcast the Licensed Content through any medium, including, without limitation, the Internet, radio, television, or other media, except as specifically permitted in this Agreement; (f) display or other use of Licensor’s mini-movies or portions thereof on your website, social media accounts or any other web-based platform; (g) incorporate the Licensed Content in any product that results in a re-distribution of such content or portions of such content; (h) use the Licensed Content in a way that is obscene (as determined by Licensor in its sole discretion), defamatory or libelous in nature; (i) remove any notice of copyright, trade-mark or other notice of rights from on or in the Licensed Content or its accompanying materials; or (j) post a copy of the Licensed Content on a network server or web server for use by other users.
1.05 Reservation of Rights. As between Licensor and Licensee, Licensor retains all ownership rights in the Licensed Content including, without limitation, all copyrights and trademarks in the Licensed Content and all content therein. Licensee shall not have any rights in Licensed Content other than as expressly provided in this Agreement.
1.06 Withdrawal Rights. Licensee agrees that Licensee's rights to Stream any Licensed Content may be terminated by Licensor upon one week's prior written notice to Licensee if any of the following conditions are met: (a) if Licensor’s rights in the Licensed Content terminate; or (b) if Licensor is notified or otherwise becomes aware of an apparently bona fide third-party claim that the transmission of the Licensed Content infringes rights owned by others.
The “Term” of this Agreement shall begin on the Effective Date and shall end on the date Licensee’s Pro Membership expires.
3. Warranties and Indemnity.
3.01 Licensee's Warranties. Licensee represents and warrants that Licensee has full right and authority to enter into and to fulfill all of Licensee's obligations under this Agreement.
3.02 Licensor's Warranties. Licensor represents and warrants that Licensor has full right and authority to enter into and to fulfill all of Licensor’s obligations under this Agreement.
3.03 Disclaimer of Warranties. THE LICENSED CONTENT, INCLUDING ALL CONTENT, MATERIAL, AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF, IS DISTRIBUTED ON AN “AS IS” BASIS. THERE ARE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SECURITY, ACCURACY, NON-INFRINGEMENT, THAT THE STREAMING OR OTHER PROVISION OF THE LICENSED CONTENT SHALL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE LICENSED CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE LICENSED CONTENT DEFECTS SHALL BE CORRECTED, THAT THE LICENSOR SHALL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE LICENSOR OR LICENSED CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW THE UNIFORM COMMERICAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT SHALL NOT APPLY TO THIS AGREEMENT.
3.04. Limitation of Liability. USE OF THE LICENSED CONTENT IS AT YOUR SOLE RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR STREAMING OR OTHER USE OF THE LICENSED CONTENT, ACCESSED THROUGH OR OBTAINED BY MEANS OF THE LICENSOR OR ANY OTHER MEANS. LICENSOR AND ITS AFFILIATES, AGENTS, LICENSORS, AND ANY PROVIDER OF TELECOMMUNICATIONS OR BROADBAND OR NETWORK SERVICES FOR LICENSOR SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, ATTORNEY'S FEES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES OR SIMILAR DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
4.01 Licensor's Termination Rights. Licensor may terminate this Agreement by written notice to Licensee if, at any time during the Term:
(a) Licensee goes in liquidation, receivership or administration or becomes bankrupt, makes any arrangement for the benefit of Licensee's creditors or has a receiver appointed for any of Licensee's assets; provided, that if such proceeding is involuntary, then Licensor shall not have the right to terminate the Agreement unless such proceeding is not dismissed within 90 days of the filing thereof; or
(b) Licensee breaches any material term or provision of this Agreement and fails to cure such breach within 30 days after Licensor's written notice to Licensee of such breach.
4.02 Licensee's Termination Rights. Licensee may terminate this Agreement by written notice to Licensor if:
(a) at any time during the Term, Licensor goes into liquidation, receivership or administration or becomes bankrupt, makes any arrangement for the benefit of Licensor's creditors or has a receiver appointed for any of Licensor's assets; provided, that if such proceeding is involuntary, then Licensee shall not have the right to terminate the Agreement unless such proceeding is not dismissed within 90 days of the filing thereof; or
(b) if Licensor or an Affiliate breaches any material term or provision of this Agreement and fails to cure such breach within 30 days after Licensee's written notice to Licensor of such breach.
5.01 Relationship of the Parties. In performing its obligations under this Agreement, each of the parties hereto shall be deemed an independent contractor, and nothing in this Agreement shall in any way constitute either party, or any of such party's officer or directors, an agent or employee of the other party and this Agreement shall not be deemed to constitute a partnership, joint venture or contract of employment between the parties.
5.02 Assignment; Sublicense. Licensee may not assign, sublicense or effectively assign or sublicense Licensee's rights or obligations under this Agreement without prior written consent of Licensor. Licensor may not assign, sublicense or effectively assign or sublicense any of Licensor's rights or obligations under this Agreement to any party except to an affiliated or associated company or to a person or entity acquiring all or substantially all of the stock or assets of Licensor.
5.03 No Waiver. No failure to exercise or delay in exercising any right, power or privilege under this Agreement by either party shall operate as a waiver of that right, power or privilege. Similarly, a single or partial exercise of any right, power or privilege by either party shall not preclude any other or further exercise of that right, power or privilege.
5.04 Remedies Cumulative; Severability. The rights and remedies contained in this Agreement are cumulative and are not exclusive of any rights and remedies provided by law, in equity or otherwise. If any provision of this Agreement is prohibited by or contravenes any applicable law, or is held by any court of competent jurisdiction or any other legally constituted body having jurisdiction to make this determination to be void, unlawful or unenforceable then that provision shall be severed from the Agreement and rendered ineffective, as far as possible, without modifying the remaining provisions of this Agreement.
5.05 Entire Agreement; Amendments; Counterparts. This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or negotiation between the parties on the subject matter of this Agreement. There are no representations, agreements or understandings, oral or written, between the parties relating to the subject matter of this Agreement which are not fully expressed in this Agreement. No amendment, termination, waiver, discharge or modification of this Agreement shall be effective unless it is in writing and is signed by an authorized signatory of both Licensor and Licensee. This Agreement may be executed in one or more counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall be deemed one Agreement.
5.06 Governing Law. This agreement has been entered into in the state of Nebraska, and the validity, interpretation and the laws of the state of Nebraska shall govern the legal effect of this Agreement.
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