This is a legal agreement (“the Agreement”) between you and TunePartner B.V., registered at the Dutch Chamber of Commerce with number 84629037 ("the Company"). The Company reserves the right at any time to modify, discontinue or terminate the Site and Services, or to change the above-mentioned legal terms without notice. It is your responsibility to check these legal terms periodically for changes. You can find the last version of these Distribution Terms on the Site (www.tunepartner.com). By continuing to use or access the Site and/or Services after the Company makes and publishes any such change, you agree to be legally bound by the revised legal terms.
In case we change these Distribution Terms and the change will impact the business relationship we have with you, we will notify you through e-mail. After sending the e-mail, you will have 14 days to terminate the Agreement we have with you. After the 14 days without a notice of termination, you have accepted the changes.
You understand that by using the Services offered by the company through the Site or with respect to your TunePartner account, you agree to be bound by the above-mentioned legal terms. if you do not accept the Distribution Terms in their entirety, you may not access or use the services offered by company.
Article 1. Grant of rights
The rights granted hereunder include the sale of Recordings (as defined in Section 3 below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, cloud services and so-called "disc-on-demand" services. You and the Company agree that consumer Internet retailers ("Consumer Stores") (e.g., Apple Music, Amazon, Spotify, Rhapsody, including stores where we or our partners have a direct or indirect agreement with) need a license to exploit your Recordings that must be approved by you.
- By clicking on the "I Agree" button, you grant the Company the non-revocable, sub-licensable and exclusive right, throughout the world (the "Territory") and during the Term (as defined in Section 8 below)
to sell, copy, reproduce, communicate to the public, distribute and otherwise exploit the Recordings by any means and media (now known or existing in the future) ("Sales") through all selected Consumer Stores by you now operational or available in the future;
- to collect all revenues derived therefrom; and
- to use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you or the artists whose performances are embodied in the Recordings in connection with the Recordings and the general business of the Company.
- Permit the creation, use and exploitation of User Generated Content (as defined in Section 12 below) through all Consumer Stores.
- You agree that you will not use the Site or Services to transmit, route, provide connections to, or store any material that infringes copyrighted works or otherwise violates or promotes the infringement of the intellectual property rights of other applicable rights. You acknowledge and agree that Company may disable and/or terminate access to your account and/or remove or disable access to Recordings or related materials you provide to Company in the event that Company receives a claim that, if true, would constitute a violation of your representations and warranties below. The Company can decide not to pay out if copyrighted material is uploaded or if other third party rights are violated or if terms and conditions of the Consumer Stores are violated.
- You will comply with the terms and conditions or any other guideline of third parties (such as Youtube Content ID) in regard to the Enforcement and Collection activities as described in Section 10.
Streaming Manipulation (collectively, "Improper Conduct"), the Company reserves the right to discontinue the booking of revenues, including any Net Income or other payments (ii) block your ability to otherwise withdraw funds therefrom until the suspicious activities are resolved to the Company's satisfaction, and (iii) remove some or all of your Recordings from any or all Consumer Stores. You further agree that such earnings will lapse if the Company, in its sole discretion, determines that your account or Recordings have been subject to, engaged in, or generated earnings from Improper Conduct.
Article 2. Obligations
- You agree to provide the Company with any information reasonably requested by the Company as part of its investigation of Improper Conduct.
- You agree that if a Consumer Store reports to the Company that any of your Recordings have generated revenues, playbacks or streams as a result of Improper Conduct, such report will serve as sufficient evidence for the Company to determine, in its sole discretion, that such revenues or playbacks are the result of Improper Conduct.
- If the Company determines that your account or Recordings have been subject to, engaged in, or generated revenues from Improper Conduct, you agree that all revenues on your account that were blocked by the Company will be forfeited, whether or not they were generated through a particular Recording or Consumer Store.
- You agree that the Company may make a good faith determination of Improper Conduct based on streaming or other activities similar to instances in which the Company has previously determined that Improper Conduct occurred.
- The payment of revenue to you by the Company does not constitute confirmation by the Company that such revenue was not a result of Improper Conduct.
- The Company has no obligation to investigate Improper Conduct unless and until it blocks revenues on your account.
- If the Company determines that earnings generated on your account are the result of Improper Conduct, and such earnings have already been paid to you, you agree to return such earnings to the Company.
- You agree that you will not be entitled to a refund of any fees paid by you to the Company in the event that the Company disables access to your account, your Recordings and/or any other materials you provide to the Company, or to any lost revenues as set forth in the preceding sentence.
- To the extent that the Company determines, in its sole discretion, that Improper Conduct was caused by your act or omission to act or by a third party acting on your behalf or at your direction, all costs incurred by the Company in connection therewith (including legal fees and expenses), in addition to other remedies, may be deducted by the Company from all amounts otherwise due to you.
- If, based on reasonable business judgment, the Company chooses to engage an attorney to review possible Improper Conduct or to review and/or respond in response to a third-party allegation of Improper Conduct by you or in connection with your account or Recordings, the Company, in its sole discretion the right to deduct the cost of any such order, but not less than three hundred euros (€300), from your account or any other payment method you provide to the Company (such as a PayPal account, credit or debit card) (each, a "Payment Method") to reimburse you for the cost of the associated legal fees and expenses.
- The Company has the right, but not the obligation, to control and/or monitor all activities and content uploaded by you. The Company may investigate any complaints or reported violations of Company policy and take any action it deems appropriate. Such measures may include, but are not limited to, issuing warnings, suspending or terminating the service, blocking access and/or removing any material you may have uploaded. You agree that Company always reserves the right to terminate your account in its sole discretion for any reason and at any time, including if, in Company's good faith judgment, it is believed that you have engaged in Improper Conduct.
Article 3. Recordings
The term "Recordings" is defined as the sound recordings and audiovisual recordings that you submit to the Company at any time. The Company reserves the right, in its sole discretion, to reject any material (including, but not limited to, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images and artwork at your own expense, in the format or formats required by the Company or the Consumer Stores. Technical descriptions of such formats will be provided to you upon request, it being understood that the Company reserves the right to convert audio files of the Recordings as necessary to meet the format and/or file size requirements of all Consumer Stores. In addition, the Company will have the right to correct errors in the metadata to meet the requirements of the Consumer Store. You further agree that the Company and/or its suppliers have the right to supplement existing artwork necessary to complete packaging for discs-on-demand. Reasonable efforts will be made to give you the right to give your approval with respect to such artwork, but in the event that you object to any such artwork, your sole remedy is to (a) provide suitable substitute artwork or (b) request future discontinuance of the delivery of your materials in this manner. In no event shall the Company be liable to you with respect to the quality, adequacy or any other aspect of the creation and delivery of such discs-on-demand.
- The Company can remove Recordings (including albums) based on its sole discretion, stop collaborations and delete your account at any time.
- The Company is allowed to cancel the collaborations with the Consumer Stores at any given moment and in its sole discretion. With cancelling these collaborations, the Recordings will be removed from the specific Consumer Store.
Article 4. Payments
- The Company will pay you eighty percent (80%) of the Gross Income (as defined in Section 4.4 below) (hereafter: “the Net Income”). The Net Income will be paid by Company monthly at the beginning of the month based on the information (the “Reports’’) we received from the Consumer Stores. If we have not received a Report or we received an incorrect Report we will not execute the payment run. We only pay revenue that is allocated to the artist's tracks/albums in the Reports from the Consumer Stores and we use the numbers from these Reports to check if the total matches the amount we received. If a payment run (based on the Net Income) is below the payment threshold as described in Section 4.3 it will be added to the total revenue we owe you and paid out if the total is above the payment threshold.
- You are responsible for any bank charges or other fees associated with such withdrawals. At any given time the percentage of the Net Income that will be paid by the Company can be adjusted by the Company in its sole discretion.
- A minimal monthly payment threshold of fifty (50) euros will be applicable. This will mean that the open balance of the Net Income needs to be higher than fifty (50) euros before payment will be executed. At any given time, the amount of the payment threshold that will be applicable can be adjusted by the Company in its sole discretion. In case the Agreement you have with us is terminated, we no longer have an obligation to pay the remaining revenue if it is below the payment threshold.
- “Gross Income" is defined as the Company's actual received income from the Consumer Stores less any taxes, fees or other costs associated. Any objection with respect to a statement of account or any action resulting therefrom must be filed no later than one (1) year after the date the statement of account was created (and any action resulting therefrom must be filed within that period), and you hereby waive any longer statute of limitations that may be allowed by law.
- To the extent that you owe any amounts to the Company as a result of these Distribution Terms or otherwise, the Company shall be entitled to deduct all or any portion of such amounts from the Gross Income that would otherwise be due to you. The foregoing will also be applicable in case Company has paid you too much in the monthly payment run or a Consumer Store reclaims already paid out revenue.
- With respect to your decision to use applications (the "Streaming Players") as platforms for users to stream your Recordings, you hereby waive any right to digital artist royalties, performance royalties or other fees or royalties, statutory or otherwise, that the Company may be required to pay to you or any third party in connection with the use of such Streaming Players. For the avoidance of doubt, to the extent you use a Streaming Player on your own website or permit its use on any other website on the Internet, you acknowledge and agree that the Company is not responsible for any payments to third parties in connection with the Recordings and underlying musical compositions you own and/or control.
Article 5. Obligations to third parties
- You are solely responsible for obtaining and paying any licenses concerning the delivery of digital sound recordings, mechanical licenses, performance licenses, and any other licenses (if any) required from holders of copyrights in musical compositions or their agents in connection with the Company's use of any rights listed below, as well as royalties due to artists, producers, and other persons who participated in the making of the Recordings and any payments that may be required under collective bargaining agreements or under any statutory schemes.
- For the avoidance of doubt, in regard to the Enforcement and Collection activities as described in Article 10, you are not allowed to use any samples of third parties in the Recordings.
- If you do not own or control the underlying composition(s) of your sound recording(s), you are required to pay those publishing royalties to the person or entity that does own those rights.
- To the extent that the Company permits you to use certain Recordings from your TunePartner catalog to distribute free of charge to fans or directly through your own website, you agree that you will be solely responsible for any and all third party payment obligations set forth above arising from such distributions.
- You warrant and represent that you are at least eighteen (18) years of age or in case you are a minor with permission of your parents or guardian, that you have the full right, power and authority to enter an agreement with Company and to grant to the Company all of the rights set forth; that all Recordings, including, but not limited to, all third party sampled material contained therein, artwork, metadata, audiovisual material, images and all other materials provided by you to the Company or relating to the Recordings, are your property or controlled by you and that the use thereof as described or contemplated herein and/or on the Site and/or the Consumer Stores' websites will not infringe the copyrights, trademark rights, publicity rights or other rights of any person or entity and that the Company shall have the right to exploit them in any manner hereunder, free from adverse claims and without any obligation to make any payment of any kind to any person or entity, other than the amounts paid to you hereunder.
- You shall defend and indemnify Company and its affiliates (including directors, members, officers, employees and other representatives) against any third-party claims or costs and losses resulting from any breach or claim that, if true, would violate the foregoing representations and warranties or any of the agreements in these Distribution Terms, including reasonable attorneys' fees and costs.
- The Company shall promptly notify you of any claim subject to the above indemnification obligation and you shall defend the Company at your expense with counsel approved by the Company, which approval shall not be unreasonably withheld. In the event that you fail to appoint approved counsel, the Company may, if it so chooses, defend itself at your expense and you agree that the Company may require your participation in such defense as a third party or otherwise and you hereby waive any objection or claim to compensation in this regard. If a claim is made, the Company shall have the right, in its sole discretion, to remove or block access to the Recordings and/or related materials that are the subject of such claim, and/or withhold payment of amounts due in an amount reasonably related to the claim and any costs. Any settlement of a claim will be subject to the prior written approval of the Company.
Article 6. Warranties, Representations, Indemnities
There are no declarations or warranties by the Company, expressive or implied, legal or other, other than as expressly set forth in these Distribution Terms.
Article 7. Term and termination
7.1 These Distribution Terms apply at all times while you have an account. In case of a violation of these Distribution Terms, Company can terminate the Agreement we have with you immediately without being liable and we reserve the right to claim any damages.
Article 8. Confidentiality
8.1 You acknowledge and agree that in the course of negotiating and conducting business with the Company, you may become aware of certain information that is otherwise confidential and related to the Company and the Company's business practices. Except to the extent such information is otherwise generally available to third parties or required to be disclosed by law, you agree to keep such information confidential. You hereby expressly agree that the Company shall have the right to disclose to third parties information relating to the sale of your Recordings hereunder, to aggregate such information into charts and other comparative information materials, and to distribute the same in any manner.
Article 9. Other agreements
- You acknowledge that in providing the Services and making payments thereunder, the Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores will be made entirely at the Company's discretion.
- You agree that the Distribution Terms shall be subject to any applicable terms and conditions of such other agreements entered into by the Company with respect to such Consumer Stores. You expressly agree that, in connection with audiovisual recordings, certain Consumer Stores may require that your audiovisual recordings be made available on their websites at certain times and in certain formats in relation to the availability of such materials elsewhere in the marketplace. The individual Consumer Stores may have the right to suspend the availability of such audiovisual recordings in their store(s) if these requirements are not met.
Article 10. Enforcement and Collection
- The Company specializes, among other things, in rights management and the enforcement of intellectual property rights and related rights, including but not limited to copyrights, database rights, domain name rights, trademark rights, model rights, neighboring rights and rights to know-how (hereinafter: “Intellectual Property Rights”) on various platforms and through various methods worldwide, including but not limited to (i) the lodging of claims through (semi-)automated rights management systems (systems that detect unauthorized use of copyrighted materials and re-allocate revenue to the rightful recipient) such as YouTube’s Content ID, Facebook’s Rights Manager or their equivalents in relation to other media, platforms and broadcasting services (ii) the collection of re-allocated revenues, damages and other amounts in the course thereof (hereinafter referred to as: “Enforcement and Collection”).
- If a service is chosen that performs rights management activities such as YouTube Content ID and Facebook Rights Manager, then Company receives the exclusive right to deliver that service.
- You grant the Company an exclusive, transferable, sublicensable, irrevocable and unrestricted license to perform Enforcement and Collection activities in relation to the Recordings and to claim any re-allocated revenues, damages and other amounts on its own behalf, in accordance with and for the duration of these Distribution Terms.
- The Company, in consideration for the abovementioned rights, will pay you a share of the amounts generated by the Company through its Enforcement and Collection activities based on the payment conditions as described in Section 4.
- You indemnify, defend and hold harmless the Company from and against any and all claims, damages, liabilities, losses and/or expenses (including reasonable attorneys’ fees and costs) incurred by the Company relating to or arising from (use of) the Recordings in accordance with these Distribution Terms, including but not limited to copyright or neighboring right claims.
Article 11 Barcodes and universal product codes
11.1 The Company will provide you with free barcodes and universal product codes ("UPCs"). These are for your use only and may not be transferred or resold. In the event of transfer or resale, please contact our support team to discuss the possibilities.
Article 12. User-generated content
12.1 You agree that Company has the right to grant permission to create, use and exploit User Generated Content embodying your recordings, artwork and other material provided by you in connection with the recordings, as permitted and enabled by the features of the applicable Consumer Stores where you choose to distribute your recordings. As used herein, "User Generated Content" means derivative works containing your Recordings, artwork (including single and album artwork) and other materials provided by you in connection with the Recordings, which are created by third parties (such as users of the Consumer Stores) and distributed and exploited through the Consumer Stores. User Generated Content includes, but is not limited to: (i) videos and visual images synchronized in time with music recordings; (ii) audio or audiovisual "remixes" that combine two or more recordings that may be edited, mixed, remixed, edited or "mashed up" together; (iii) visual or audiovisual materials that manipulate still or visual images through editing and filters and (iv) other adaptations, alterations and manipulations of the Recordings, artwork and other materials provided by you, by third parties. Notwithstanding the foregoing, you hereby expressly waive all rights of "droit moral" that might be granted to you under the laws of any country whether as author, composer, performing artist, producer or in any other capacity in connection with the Recordings hereunder.
Article 13. Legal Proceedings
13.1 You hereby irrevocably authorize and appoint the Company, its licensors, assigns, agents and attorneys to bring, in your name and/or in the name of the Company, such claims, demands, actions or proceedings (each a "Claim") as the Company deems reasonably necessary and proper for the protection and enforcement of the rights granted to the Company hereunder. Each Claim shall be made and enforced by the Company in good faith and at the Company's expense, provided that the recovery of any Claim shall first be used to reimburse the Company for all expenses incurred in obtaining it and that the remaining amount shall be distributed in accordance with the terms, provisions and methodologies generally applied by the Company to all royalty participants in the relevant settlement or recovery.
Article 14. Miscellaneous
- The Site and Services may be used and accessed only for lawful purposes. You agree to comply with all applicable local, state and foreign laws, regulations and rules in connection with your use of the Site and Services, including, without limitation, applicable Dutch law. In addition, you agree without limitation that you will not do any of the following during your use of or access to the Site and Services:
You agree not to engage in any activity (or permit, encourage, employ, retain or engage third parties to engage in such activity) that, in the sole judgment of the Company, constitutes Streaming Manipulation."Streaming Manipulation" means any activity and/or method that involves the artificial creation, by human or non-human means, of online or offline playback events on audio and/or audiovisual streaming services, where such playback events do not represent bona fide end-user listening and/or viewing initiated by real consumers and occurring in the reporting country. Streaming manipulation may include or include, but is not limited to: increasing, generating or manipulating the number of songs played, sales, number of followers, engagement or other key statistics used by the Services and/or a Consumer Store, through the use of (A) bots, scripts, viruses, worms or other computer code, files, programs or automated processes; and/or (B) click-farms, troll-farms, fake accounts, shared account information or virtual private networks. Streaming Manipulation may result from activities undertaken in connection with individual Recordings or groups of Recordings to artificially improve chart position, increase market share, increase royalties or other payments, or for other fraudulent or dishonest purposes.Please be aware that Streaming manipulation may be the result of the actions of a third party, such as a promotion or marketing company, record label or music distributor, acting on behalf of an artist or in their own name. You are encouraged to do extensive research on any companies or individuals you hire to promote or market your music, as you may be liable for Streaming manipulation performed on your behalf by a third party. For the avoidance of doubt, any Streaming manipulation done by a third party on your behalf or that relates to your Recordings is considered a violation of these Distribution Terms.The factors applied in determining whether a particular consumption or marketing activity constitutes Streaming Manipulation will vary according to the specific circumstances of each case, and the examples and descriptions of Streaming Manipulation set forth herein are not intended to be exhaustive.Some Consumer Stores using your Recordings may also have policies regarding fraud and suspected fraudulent activity, and you agree that it is your responsibility to familiarize yourself with and abide by such policies, and any such policies shall be binding on you hereunder.In the event that the Company, in its sole discretion, has reason to suspect that your account or Recordings have been the subject of, involved in, or generated income from: violating these Distribution Terms; fraud; infringement of copyright, trademark, right of publicity, or any other intellectual property right; failure to comply with a third party's licensing requirement orThe Company does not guarantee utilization of the Recordings, which will depend on consumer preference, nor on the addition or participation of any particular Consumer Store. The Company reserves the right, in its sole discretion, to refuse to do business with any particular Consumer Store. Except as specifically set forth in the Distribution Terms , the Company has no obligations to you.The Company shall not be deemed to be in breach of these Distribution Terms unless you have notified the Company of the breach and the Company has not remedied such breach within thirty (30) days of receipt of such notification. In no event shall any breach entitle you to revoke the rights granted hereunder.In no event shall Company, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, Services, Company products or any Company content, whether or not the damages are foreseeable and whether or not Company has been advised of the possibility of such damages. The foregoing limitation of liability shall apply to the extent permitted by law in the applicable jurisdiction and in no event shall Company's total liability to you exceed two hundred euros (€200).The Distribution Terms shall be governed by and construed in accordance with the laws of the Netherlands. Any action or proceeding arising out of the Distribution Terms shall be brought exclusively in the courts of the Amsterdam.In the event that any provision of the Distribution Terms is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. The failure of any party to enforce any right or provision of the Distribution Terms shall not be deemed a waiver of that right or provision.You may not assign the Distribution Terms (by operation of law or otherwise) without Company's prior written consent, and any prohibited assignment will be void. The Company may assign the Distribution Terms or any rights or obligations hereunder without your consent.The relationship between the parties under the Distribution Terms is that of independent contractors and the Distribution Terms shall not be construed to mean that either party is the agent, employee or joint venturer of the other. You agree that the Distribution Terms and the rules, restrictions and policies contained herein, and the Company's enforcement thereof, are not intended to, and do not, confer any rights or remedies on any person other than you and the Company. The Distribution Terms together with Company's rules and policies, constitute the entire agreement between Company and you with respect to the subject matter hereof.It is your responsibility to provide all necessary information, metadata, songs, graphic files or other information or music in the required format. You confirm that the Company will not be obligated to provide its Services until receipt of said materials.The Company reserves the right, in its sole discretion, to refuse to provide its Services to you or any customer for any reason.
- Disable, hack, circumvent or otherwise interfere with security-related functions of the Site or functions that prevent or restrict the use or copying of Company content or materials;
- Using metadata, meta tags or other hidden text that uses a TunePartner name, trademark, URL or product name;
- Uploading, submitting, posting, emailing or otherwise transmitting unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
- Forging TCP/IP packet headers or any part of the header information in any publication or in any way using the Site or Services to transmit altered, fraudulent or false source-identifying information;
- Upload, submit, post, email or otherwise transmit, through the Site or Services, Recordings or other materials that, in the sole judgment of the Company, are unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hatred invade the privacy of third parties, contain nudity (including, without limitation, pornography, erotica, child pornography or child erotica), be misleading, threatening, abusive, incite unlawful acts, be libelous, defamatory, vulgar or violent or constitute hate speech or be otherwise objectionable;
- Destroying, disrupting or interrupting, or attempting to disrupt or interrupt, web pages available on the Site, or servers or networks connected to the Site or Services or technical delivery systems of the Company's providers, or violating any requirements, procedures, policies or regulations of networks connected to the Site;
- Attempt to scan, investigate or test the vulnerability of any Company system or network or attempt to breach, impede or circumvent the security or authentication measures that protect and provide security to the Site or Services;
- Attempt to decompile, disassemble, decipher or reverse engineer any software used to provide the Site or Services;
- Attempt to search, meta-search on or access the Site using any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by the Company or other generally available third-party web browsers (e.g., Internet Explorer, Google Chrome, Firefox, Safari), including, but not limited to, software that sends queries to the Site to determine how a website or web page ranks;
- Collect or store Personal Data about other users of the Site or Services without their express and explicit consent;
- Misrepresent your relationship with any person or entity or impersonate anyone else through pretense or any other form of social engineering or otherwise commit fraud;
- Use the Site or Services in a manner not permitted by the Distribution Terms; or
- Instruct or encourage any other person to do any of the foregoing or to violate and/or breach any of the Distribution Terms.