BANDJAM SERVICES AGREEMENT - BandJAM

This Services Agreement (the "Agreement") is entered into by and between BandJAM (“Company”) and the entity electronically accepting this Agreement (“Customer”). By checking the acceptance box and proceeding with sign-up or payment and affirms they have read and agree to be bound by this Services Agreement and where applicable the Business Associate Agreement.

  1. Services. BandJAM shall provide to Customer the services (the “Services”) set out in Section  2.1, including access to BandJAM’s business-to-business marketplace platform (the “Platform”). BandJAM shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement. BandJAM operates as a business-to-business marketplace for booking, coordinating, and managing music sessions, performances, and related audio/video productions. Through its platform, BandJAM facilitates scheduling, access to third-party performers and JAM Masters, and other services as agreed in writing.
  2. Fees and Expenses. For the Services to be performed hereunder, Customer shall pay to BandJAM the fixed fee set out in BandJAM’s then-current standard published fee schedule provided to Customer or as set forth in checkout or as defined in Section 3 upon receipt of BandJAM’s invoice. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse BandJAM for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which BandJAM does not waive by the exercise of any rights hereunder), BandJAM shall be entitled to suspend the provision of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof. Pricing for sessions varies based on session duration, frequency, and selected service tier (e.g., Partner or Freedom plans). Session fees are invoiced according to the plan and duration selected at the time of booking. In addition to session fees, the following supplemental charges may apply: Travel Fees, if applicable, are assessed based on location and agreed upon in advance; Sessions scheduled on major U.S. holidays (July 4, Thanksgiving, Christmas Eve/Day, New Year’s Day) are subject to a 1.5x rate adjustment. Cancellations must be made at least 24 hours in advance to avoid being charged the full session fee.Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, BandJAM’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Any refund or cancellation policies (e.g., for missed sessions or event cancellations) shall be set forth in BandJAM’s cancellation policy, available on the Platform or otherwise provided to Customer.
  3. Term and Renewal. The initial term of this Agreement shall be one (1) year from the Effective Date (“Initial Term”). This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) unless either party provides written notice of intent to terminate at least thirty (30) days prior to the renewal date.
  4. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of BandJAM in the course of performing the Services (collectively, the “Deliverables”) shall be owned exclusively by BandJAM or its personnel. BandJAM hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.Customer grants BandJAM a non-exclusive, royalty-free, worldwide license to display Customer’s name, logo, and feedback solely for marketing, promotional, and portfolio purposes.  BandJAM shall not publicly disclose any personal identifying information of Customer’s employees or clients without Customer’s prior written consent.  Subject to compliance with applicable law, (i) BandJAM may record and capture audio, video, or other content related to the Services or sessions, subject to compliance with all applicable privacy laws, and (ii) BandJAM has the right to use such recordings (or extracts) for its own marketing, branding, product development and/or training of artificial intelligence or machine learning models, provided that no personally identifiable or protected health information is disclosed without applicable required consent. Before BandJAM features Customer’s testimonials, endorsements, or case studies, BandJAM will seek written approval from Customer. Once approved, Customer’s name, likeness, and feedback may remain in BandJAM’s promotional materials even after this Agreement ends, unless Customer provides a written request for removal.
  5. Confidentiality; Non-Solicitation. From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 30 days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 5; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 5 only, “Receiving Party’s Group” shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors. The parties acknowledge and agree that the roster of contractors and service providers of BandJAM constitutes trade secrets and Confidential Information of BandJAM.  Customer agrees not to solicit any contractor or service provider of BandJAM using BandJAM’s Confidential Information for purposes of engaging such contractor or service provider to perform services similar or related to the Services during the Term and for a period of twelve (12) months thereafter.
  6. Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to Section 5 (the “Term”). Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 15 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this section, BandJAM may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure continues for 30 days after BandJAM’s written notice to Customer of nonpayment. Notwithstanding termination of this Agreement pursuant to this Section 6, Sections 3, 4, 7, 8, 9 and 10 of this Agreement, as well as any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination.Customer acknowledges and agrees that by electronically accepting this Agreement via BandJAM’s online platform or payment portal, the Customer is legally bound by its terms as of the date of acceptance.
  7. Independent Contractor. The details of the method and manner for performance of the Services by BandJAM shall be under its own control, Customer being interested only in the results thereof. The BandJAM shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. BandJAM is for all purposes hereunder an independent contractor and in no event will BandJAM be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose..
  8. Limited Warranty. BandJAM warrants that it shall perform the Services in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. BANDJAM (a) MAKES NO WARRANTIES EXCEPT FOR THAT SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. BandJAM’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected services. If BandJAM cannot reperform the services in compliance with the warranty set forth above within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 6. BandJAM shall within 30 days after the effective date of such termination, refund to Customer a portion of the fees previously paid by Customer as of the date of termination corresponding to the defective Services.
  9. Limitation of Liability. IN NO EVENT SHALL BANDJAM BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT BANDJAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL BANDJAM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO BANDJAM IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  10. General. Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request of the other party, without any additional consideration, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby. Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses set forth above (or to such other address that the receiving party may designate from time to time in accordance with this Section). This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with the laws of California, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Los Angeles, California. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY DELAWARE LAW. Customer access to the Platform is subject to, and Customer shall comply with, the BandJAM Terms of Use available at: [www.bandjam.co/terms-of-use] (“Terms”). This Agreement, together with the Terms, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that, the parties intend that the remedy set out in Section 9 (Limited Warranty) is Customer’s exclusive remedy for BandJAM’s breach of the limited warranty set out in Section 9. Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, without the written consent of the other party; provided, however, that BandJAM may assign this Agreement in connection with a sale or change of control of its business, a sale of all or substantially all of its assets, or a merger or similar business combination or acquisition involving BandJAM. Any purported assignment or delegation in violation of this Section shall be null and void. BandJAM, however, may subcontract the Services. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement.  This Agreement may be executed in counterparts.
  11. Entire Agreement - This Agreement, along with the Terms of Use - https://bandjam.co/legal/tos, Business Associate Agreement BAA (if applicable) https://bandjam.co/legal/baa,  and any attached or linked agreements contain the entire agreement between parties and supersedes all prior communications. In the event of conflict, this Agreement will govern. Customer confirms they have reviewed.
  12. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to BandJAM hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): acts of God; flood, fire, earthquake, epidemics, pandemics, or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; government order, law, or actions; embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns, or other industrial disturbances; telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 10 consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 10 days’ written notice.

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