Tim Hortons Franchisee Subscription Agreement

For Soundtrack Your Brand Music for Business

Thanks for choosing Dynamic Media (“Company”) as your music service provider. These are our Terms and Conditions (“Terms and Conditions”) which set forth the terms and conditions pursuant to which we provide access to the Soundtrack Your Brand music service (the “SYB Music Service”) as defined below to you (the “Customer”).

  1. Terms and Conditions. These Terms and Conditions of Company shall govern and apply to the sale of the goods and services by Company as described in this Agreement to Customer and shall be made a part of and incorporated into any service agreement, order, order form, electronic order, purchase order, order acknowledgement, invoice, agreement or contract between the parties (the “Agreement”).
  2. Music Services.Company shall provide to Customer locations the Soundtrack Your Brand commercial background music service (the “SYB Music Service”). The SYB Music Service may be unavailable or interrupted from time to time for a variety of reasons, such as service upgrades, updates, modifications, and changes and/or other similar reasons Company cannot control. Company is not responsible for any inappropriate or explicit content accessed through the service, service interruptions, failures or delays of the service, or for a discontinuation of a feature of the service.
  3. Player. Company agrees to sell and Customer agrees to purchase a playback device (the “Player”) per Customer location. The computer software residing on the Player (the “Player Software”) is protected by copyright laws and is licensed, not sold, to Customer for the term of the Agreement. Customer may not copy, assign or transfer (by operation of law or otherwise) the Player Software to any other party. In no event shall Customer reverse engineer, decompile or disassemble the Player Software or use the Player Software for any purpose other than to play the SYB Music Service at Customer locations. Customer acknowledges that Company’s licensor owns all right, title and interest in the programming of the song selections, or “compilations,” provided to Customer locations, and that the copyright for such compilations belongs exclusively to Company’s licensor.
  4. Player Warranty. For the two (2) year period following Customer’s receipt of a new Player at a Customer location (the “Warranty Period”), Company shall repair or replace a defective Player at no additional charge to Customer (excluding any shipping charges related thereto), provided that the defect is not a direct or indirect result of Customer’s improper or non-standard use of the Player. In order to receive the repair or replacement of a defective Player, Customer should contact the Dynamic Media Business Warranty Center at 1-800-684- If Company replaces a defective Player, the defective Player must be shipped to Company at Customer’s expense within thirty days of receiving the new Player. Failure to return the defective Player within thirty days will result in Customer being charged for the new Player. After the Warranty Period, Customer shall be responsible for any costs associated with repair (including any component replacement and shipping charges) of the Player.

DISCLAIMER; LIMITATION OF LIABILITY: THE WARRANTY SET FORTH IN THIS SECTION IS GIVEN SOLELY TO CUSTOMER AND IS IN LIEU OF ALL OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED. COMPANY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT FOR CLAIMS REQUIRED TO BE INDEMNIFIED HEREUNDER AND FOR CLAIMS OF FRAUD, WILFULL MISCONDUCT, GROSS NEGLIGENCE, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR A BREACH OF THE COMPANY’S SECURITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WITHOUT LIMITING THE FOREGOING, EXCEPT FOR CLAIMS REQUIRED TO BE INDEMNIFIED HEREUNDER AND FOR CLAIMS OF FRAUD, WILFULL MISCONDUCT, GROSS NEGLIGENCE, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR A BREACH OF THE COMPANY’S SECURITY OBLIGATIONS, ANY DAMAGES FOR EITHER PARTY SHALL IN NO EVENT EXCEED THE AMOUNT OF THE CHARGES PAID BY CUSTOMER TO COMPANY WITHIN THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE SPECIFIC EVENT THAT GAVE RISE TO THE DAMAGE.

    1. Shipment, Delivery, Inspection. All shipments are F.O.B. destination. The risk of loss or damage to the Products in transit shall fall upon the Company, whose responsibility it shall be to file claims with the carrier and/or the insurance company.
    2. Restrictions. Customer shall use the Player only to provide foreground or background music at the Customer locations and shall not amplify, transmit or retransmit the broadcast of the SYB Music Service so as to be audible outside any such premises (beyond ordinary patio or other outdoor speaker usage, which is permissible). Customer shall not, without the prior written consent of Company, (i) use the SYB Music Service in conjunction with any advertising or commercial message or entertainment or other public event at a Customer location for which Customer or any other person receives consideration of any kind (ii) use the SYB Music Service at the premises listed herein for any Customer location for which an admission fee is charged or (iii) transmit, retransmit, alter, record or reproduce (or permit the transmission, retransmission, alteration, recording or reproduction of) any SYB Music Service other than as expressly permitted under this Agreement. The Players and/or SYB Music Service shall not be moved to a different Customer location without notifying the Company in writing.
    3. Default; Remedy. If Customer breaches the Agreement for any reason, Company in its sole discretion, and in addition to its other remedies, may terminate this Agreement and withhold any further distribution of additional the SYB Music Service. Customer shall reimburse Company for costs and expenses incurred in connection with Company’s exercise of its rights under this Agreement. Customer acknowledges and agrees that, if at any time Customer is late in its payments due to Company, Company may withhold distribution of the SYB Music Service to the Customer locations until such time as Customer pays the balance of payments due and owing to Company.
    4. Purchase Order Fulfillment. IN NO EVENT SHALL A CUSTOMER INVOICE, PURCHASE ORDER OR OTHER CUSTOMER ORDER DOCUMENT (EACH, A “CUSTOMER PO”) MODIFY ANY OF THESE TERMS AND CONDITIONS. NEITHER CUSTOMER NOR COMPANY WILL ACCEPT AND HEREBY OBJECTS TO ANY TERMS OR CONDITIONS OR OTHER WRITING IN A CUSTOMER PO THAT IS DIFFERENT FROM OR ADDITIONAL TO THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS. NO TERM OR CONDITION OF A CUSTOMER PO EXPRESSLY INCLUDING ANY EFFORT TO NEGATE THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS AND CONDITIONS SHALL BE EFFECTIVE OR BINDING AGAINST THE OTHER PARTY. THESE TERMS AND CONDITIONS SHALL CONSTITUTE WRITTEN NOTICE BY CUSTOMER AND COMPANY OF OBJECTION TO AND REJECTION OF, ANY TERM OR CONDITION IN A CUSTOMER PO THAT IS INCONSISTENT WITH THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS. COMPANY SHALL NOT BE DEEMED TO HAVE IN ANY WAY ENLARGED OR MODIFIED ITS LIABILITIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS BY FILLING ANY ORDER OR BY FAILING TO FURTHER OBJECT TO CUSTOMER’S TERMS OR CONDITIONS IN A CUSTOMER PO.
    5. Payment Terms; Taxes. For the SYB Music Service and Players provided hereunder Customer shall pay Company as set forth in this Agreement. Until such time that Company is able to transact in Canadian currency, all payments shall be billed by and made to Company in U.S. currency. All Canadian locations paying in U.S. currency will be switched to payment in Canadian Currency at such time that Company is able to transact in Canadian currency. Customer shall pay for expenses related to shipping the Players and any other equipment to the Customer locations. Company will pay duties for cross border shipments to Canada. Any special transportation arrangements shall be at Customer expense. Company may increase music service fees at any time in its sole discretion. The respective Music Service fees shall be invoiced on a monthly term and be paid in advance by Customer by credit card only. The fees and charges in this Agreement do not include applicable sales or other taxes, which shall be paid by Customer.
    6. Music Rights Fees. If Customer’s commercial establishment uses the SYB Music Service as its sole music source, Customer is not responsible for the payment of any copyright royalties to SOCAN, ASCAP, BMI, SESAC, and/or GMR for any sound recordings, as these are included in the Fees, unless Customer (i) operates an establishment for which an admission fee or cover charge is assessed (e.g., ballrooms, discotheques, dance studios, bowling centers, theme park, skating rink, nightclub, etc.) limited to such portion of the premises from the event or entertainment for which admission is charged is intended to be observed or heard, (ii) uses the SYB Music Service for instructed health club classes, or (iii) uses music sources other than the SYB Music Service (e.g. CDs, DJs, live music or terrestrial radio, etc.), in which case Customer shall be responsible for payment of any and all copyright royalties to SOCAN, ASCAP, BMI, SESAC and/or GMR for any sound recordings.
    7. Termination: Customer may terminate its SYB Music Service subscription at any Customer location upon providing thirty days written notice to Company. Upon termination or expiration of the SYB Music Service, Customer shall cease using the SYB Music Service, and at such time Company shall not be responsible for any copyright royalties related to the playback of music in Customer’s locations thereafter.
    8. Miscellaneous. If any clause or provision of the Agreement shall be held in violation of applicable law, or otherwise invalid or unenforceable, the Agreement shall be interpreted as if such provisions were limited to the extent legally permitted or, if such a clause or provisions shall be prohibited in its entirety, it shall be null and void and the Agreement as so modified shall remain in full force and effect. Any terms and conditions or other provisions issued by Customer in connection with the subject matter of any Agreement, which are in addition to or inconsistent with the Terms and Conditions expressed herein will not be binding upon Company in any manner unless accepted by Company in writing. Customer may not assign the Agreement without the prior written consent of Company, which shall not be unreasonably withheld.
    9. Returns and Exchanges. Special order equipment is non-returnable. Regular orders returned within 30 days of receipt in the original, unopened packaging and in working condition will be returned less a 15% restocking fee. Items returned within 30 days of receipt in opened packaging will be returned less a 30% restocking fee. Please notify Company by phone or email prior to the return for authorization. Customer is responsible for returning the item(s) pre-paid and insured to Company. Any credit issued will not include original shipping charges. Labor that has already been performed and services that have already been rendered (such as monthly music service) cannot be returned. Company reserves the right to not accept a return.
    10. Collection and Use of Personal Information. Personal information is data that can be used to uniquely identify or contact a single person. In order to set up an account with Company, you will be required to provide personal information, such as name, business address, phone number, email address, etc. From time to time, we may use your personal information to send important notices, such as invoices and service updates. Because this information is important to your interaction with Company, you may not opt out of receiving these communications. We may also use your personal information to communicate new products, product specials, or other programs you may find important. These communications are informational in nature and at any time, you may opt out using a link in the email. Company may share your information with affiliated third parties where required, legally or otherwise, to provide the services to you. Company will never sell or share your information with unaffiliated third parties or those parties not involved in the chain of service provisioning or performance licensing.