1. GRANT OF RIGHTS.
The rights granted hereunder shall include sale of permanent digital downloads, temporary digital downloads, interactive streaming (both tethered and non-tethered), non-interactive streaming (both promotional and fee based) and sale through so-called "disc-on-demand" services. Specific rights are more fully described on the attached fee schedule. YOU AND COMPANY AGREE THAT COMPANIES LICENSED TO PROVIDE YOUR MATERIALS HEREUNDER MUST BE APPROVED BY YOU.
By clicking the "I Agree" button, you ("you") irrevocably grant to Company, throughout the world and during the Term (as defined below), the non-exclusive right:
(a) to sell, copy, distribute and otherwise exploit the "Recordings" (defined below) by all means and media (whether now known or existing in the future) through the any and all Internet consumer stores (e.g., "iTunes", "Rhapsody" and “Amazon”) now operational or hereafter available;
(b) to collect all income deriving therefrom; and
(c) use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you or the artists whose performances are embodied on the Recordings in connection with the Recordings and Company's general business.
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 VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of the Accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see the HSM Copyright Policy for further information. You acknowledge and agree that Company may disable access to your account, and/or disable access to any Recordings or any associated materials you provide to Company, in the event that Company receives any claim which, if true, would constitute a violation of your representations and warranties hereunder. You agree that Company may also deduct any and all revenues from your account which are received in connection with Recordings or other materials submitted by you which Company believes, in its good faith discretion, violate these Terms and Conditions. You agree that you will not be entitled to any reimbursement for any fees paid by you to Company in the event Company disables access to your account, your Recordings and/or any other materials you provide to Company, and/or deduct any revenues from your account as set forth in the preceding sentence.
The term "Recordings" shall be defined as the sound recordings and audio/visual recordings that you submit to Company at any time. Company reserves the right to reject any materials (including, without limitation, sound recordings, videos and/or artwork) that you submit, in its sole discretion. You agree to submit all Recordings and artwork, at your sole expense, in the format(s) required by Company or its consumer licensees. Technical descriptions of such format(s) will be provided to you upon request. You agree that Company and/or its suppliers will have the right to supplement existing artwork necessary to complete the packaging for Discs-On-Demand. Reasonable efforts will be made to provide you with approval over such artwork, but in the event that you object to any such artwork your only remedy shall be to either (a) provide appropriate replacement artwork, or (b) request prospective discontinuation of delivery of your materials in such manner. In no circumstances shall Company have any liability to you with respect to the quality, sufficiency or other aspect of the creation and delivery of such Discs-On-Demand.
(a) Company will pay you one hundred percent (100%) of "Net Income" (as defined in paragraph 3(b) below). Net Income will be posted to your HSM account within 30 days after Company's receipt thereof. Once payment has been credited to your account, you will be able to withdraw all or any portion at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals.
(b) "Net Income" means Company's actual receipts from providers related to the sale of the Recording. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.
(c) To the extent that you owe any amounts to Company as a consequence of these Terms of Service, Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise then payable to you.
(d) In the event that Company has, in its sole discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent activities, Company reserves the right to discontinue posting of Net Income to your account and block your ability to otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by Company (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by Company from any monies otherwise payable to you hereunder. Certain of Company’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies, if any, and such policies shall be binding upon you hereunder.
(e) The Net Income in your HSM account may be held by the Company in an interest-bearing account. The Company may, in its sole discretion, retain all interest earned on the Net Income or pay to you all or a portion of such interest.
(f) In connection with your decision to use the TuneCore streaming media player (Streaming Player), iPhone application or other “widgets” as a platform for users to stream your Recordings, you hereby waive any right to digital artist royalties, performance royalties or any other fees or royalties, statutory or otherwise, that Company may be obligated to pay you or a third party in connection with such use of the Streaming Player. For the avoidance of doubt, to the extent that you utilize the Streaming Player on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that Company is not responsible to make any third party payments in connection with the Recordings and underlying musical compositions which you own and/or control.
(g) To the extent that you elect to use certain tracks from your HSM catalog to distribute free to any parties (via Company's Streaming Player or otherwise) or distribute directly through your own website, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries. Without limiting any of the foregoing, you expressly agree to either waive music publishing royalties (if you are the owner) or pay any necessary royalties due to third party publishers as a result of any such free distribution.
(h) In the event that Company is presented with a claim of breach or violation of copyright or trademark laws, failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, and in its reasonable business judgment Company elects to engage an attorney to review and/or respond to such claim, Company shall - in its sole discretion - have the right to deduct from your account or charge your credit card up to $300 to offset the costs of associated legal fees, as well as any and all revenues from your account which are received in connection with Recordings or other materials submitted by you which are the subject of such claim.
4. THIRD PARTY OBLIGATIONS.
You shall be solely responsible for securing and paying for digital phonorecord delivery (DPD), mechanical and any other licenses required from musical composition copyright owners (or their agents) in connection with Company's exploitation of rights hereunder, royalties due to artists, producers and other persons who performed in the making of the Recordings and all payments that may be required under collective bargaining agreements. Outside of the United States, Company customarily requires the digital music service providers (DMSP's) to secure and pay for music publishing licenses (and such license fees may or may not be deducted by the DMSP concerned from the proceeds payable to Company). If any DMSP outside of the United States does not agree to secure and pay for music publishing licenses, Company shall have the right, at its option, to either (i) decline to license such DMSP, or (ii) assume the responsibility to clear and pay for the music publishing licenses required in connection with such DMSP's sales, which license fees Company shall have the right to deduct from amounts payable to you hereunder. To the extent Company is required, or elects (in its sole discretion), to pay any of the foregoing amounts, such payments will be deducted from any amounts otherwise due to you hereunder.
To the extent that Company permits you to select certain tracks from your HSM catalog to distribute free to fans or distribute directly through your own website, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries.
5. WARRANTIES; REPRESENTATIONS; INDEMNITIES.
You warrant and represent that you are at least eighteen (18) years of age, you have the right and authority to enter into this agreement and to grant to Company all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, videos and any other materials furnished by you to Company or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site shall not infringe on the copyrights, trademark rights or other rights of any person or entity; and that Company shall have the right to exploit same in any manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity, other than the amounts payable to you hereunder. You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach, or a claim which if true would constitute a breach of the foregoing warranties, these Terms of Service, and/or the Copyright Policy, including reasonable attorneys' fees and litigation expenses.
Company shall give you prompt notice of any claim which is subject to the foregoing indemnification obligation and you shall defend Company at your expense with counsel approved by Company (which approval shall not be unreasonably withheld). If a claim is made Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to Company's prior written approval.
6. COMPANY FEES.
In consideration of the services rendered hereunder, all music and videos delivered by Company require that you purchase an annual fee-based subscription. All fees may be amended from time to time by Company without notice to you. You expressly agree that Company is authorized to deduct your annual subscription fees, any applicable tax and other charges you may incur in connection with your use of the HSM service directly from your HSM account (your share of Net Income) or charge such fees to any alternate payment method (such as a valid PayPal account, credit card or debit card) (each, a “Payment Method”) you provided to Company. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your HSM account by you or anyone else using your account. If you notify Company in writing that you are canceling your annual subscription for one or more of your albums or videos, no further annual fees will be charged to your HSM account or alternate Payment Method for those albums or videos. All cancelled albums and videos will be removed from the applicable digital Internet consumer stores (e.g., "iTunes" and "Rhapsody"). You will not be entitled to reimbursement of any applicable pre-paid fees with respect to any cancelled albums or videos. It is your responsibility to notify Company if your Payment Method has changed by making the appropriate changes to your HSM account settings. If you do not provide a valid Payment Method your service may be disconnected or interrupted.
These Terms of Service shall apply at all times while you utilize the Site or the Services.
You acknowledge and agree that in the course of negotiating and transacting business with Company, you may become aware of certain otherwise confidential information related to Company’s business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential. You hereby expressly agree that Company will have the right to provide information relative to the sales of your Recordings hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.
9. OTHER AGREEMENTS.
You acknowledge that in providing the services and payments hereunder, Company will be required to enter into certain sublicensing agreements with various consumer outlets. You agree that the terms of these Terms of Service shall be subject to any applicable terms and conditions of such other agreements Company enters into with respect to such sublicensees. You expressly acknowledge that certain of such sublicenses may, with respect to motion pictures, require that your materials be made available on their stores at certain times and in certain formats relative to the availability of such materials elsewhere in the marketplace. To the extent that such requirements are not met, the individual sublicensees may have the right to discontinue the availability of said materials in their store(s). Company will, upon your written request, provide you with the current specifics of such requirements.
10. BAR CODES AND UNIVERSAL PRODUCT CODES.
Company provides free bar codes and UPCs to all of its customers. These are for the use of the customer only and may not be transferred or resold. If transferred or resold, Company will charge you $25.00 per bar code or UPC, plus any revenue made by you from such transfer or resale. Company may deduct such charges from any fees owed to you.
The Site and Services may be used and accessed solely for lawful and non-commercial purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site or Services:
(a) Disable, hack, circumvent or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Company content or materials;
(b) Use any metadata, meta tags or other hidden text utilizing a HSM name, trademark, URL or product name;
(c) Upload, submit, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation;
(d) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
(e) Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including without limitation any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable in the sole opinion of Company;
(f) Destroy, interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available at the Site, servers or networks connected to the Site or the technical delivery systems of Company’s providers or break any requirements, procedures, policies or regulations of networks connected to the Site;
(g) Attempt to scan, probe or test the vulnerability of any Company system or network or breach or impair or circumvent any security or authentication measures protecting and providing security for the Site or Services;
(h) Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services;
(i) Attempt to search, meta-search or access the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Company or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari, or Opera), including without limitation any software that sends queries to the Site to determine how a website or web page ranks.
(j) Collect or store personal data about other users of the Site or the Services without their express and explicit permission;
(k) Misrepresent or impersonate your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud;
(l) Use the Site or Services in any manner not permitted by these Terms of Service; or
(m) Instruct or encourage any other individual to do any of the foregoing or to break and/or violate any term of these Terms of Service.
Company cannot guarantee exploitation of the Recordings, which will depend on consumer preference. There are no representations or warranties, express or implied, statutory or otherwise other than as set forth in these Terms of Service. Except as specifically set forth in these Terms of Service, Company shall have no obligations to you.
Company shall not be deemed in breach of these Terms of Service unless you have given Company notice, and Company has failed to cure such breach within 30 days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder, but rather you shall only be entitled to damages reasonably related to the breach concerned and no penalty shall be awarded to you.
IN NO EVENT WILL 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, PRODUCTS, SERVICES OR ANY COMPANY CONTENT, NO MATTER WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL COMPANY'S CUMULATIVE LIABILITY TO YOU EXCEED $100.
This Terms of Service shall be governed by and interpreted in accordance with the laws of the State of New York excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Terms of Service will be brought exclusively in courts located in the State of New York, County of New York, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. You may not assign these Terms of Service (by operation of law or otherwise) without the prior written consent of Company and any prohibited assignment will be null and void. Company may assign these Terms of Service or any rights hereunder without your consent. The relationship of the parties under this Terms of Service is that of independent contractors, and this Terms of Service will not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that this Terms of Service and the rules, restrictions and policies contained herein, and Company's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Company. This Terms of Service together with the rules and policies of Company constitutes the entire agreement between Company and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given (a) by Company via email (in each case to the address that you provide), (b) a posting on the Site, or (c) by you via email to copyright@tHSMENT.com or to such other addresses as Company may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
It is your responsibility to deliver all necessary information, metadata, songs, graphic files or any other information or music in any required specifications. You acknowledge that Company will not be obligated to furnish its services hereunder until receipt of said materials.
You authorize Company to perform and make clips of your Recordings up to ninety (90)seconds in length available by streaming or download ("Clips") to promote the band, artist and/or sale of applicable Recordings free of charge. To the extent that you own or control the publishing rights in the musical compositions embodied on your Recordings (the “Compositions”), you authorize Company to perform and make Clips of your Compositions up to ninety (90) seconds in length available by streaming or download to promote the band, artist and/or sale of applicable Recordings free of charge. Said Clips may be created by Company or any third party affiliated with Company by using any consecutive ninety (90) seconds of the applicable Recording(s).
Company reserves the right to refuse to provide its services to any customer for any or no reason.
12. FEE SCHEDULE.
a) In the event you would like your Recording(s) removed prior to six months from when it first became available in the digital Internet consumer store(s), Company will charge a $20.00 (twenty dollars) early termination fee per request per release (album, single or ringtone).
b) If your music video or film submission is rejected by iTunes because it does not meet iTunes’ technical or editorial specifications, you must pay a second flat rate charge as set forth above before sending in a new version of the master. The flat rate charge for the initial, rejected master is not refundable under any circumstance.
c) In the event you are unable to correct the errors or quality issues in order to have their music video or film submission delivered to iTunes, there is no refund on previous payments.
HSM COPYRIGHT POLICY
HSM respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, HSM will respond expeditiously to claims of copyright infringement committed using the HSM service that are reported to the HSM Designated Copyright Agent identified in the sample notice below.
Notice of Infringement
If you are a copyright owner, authorized to act on behalf of one or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the HSM service (the "Service") by completing the following DMCA Notice of Alleged Infringement and delivering it to the HSM Designated Copyright Agent. Upon receipt of Notice as described below, HSM will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Service and/or termination of the applicable HSM user’s account.
DMCA Notice of Alleged Infringement ("Notice"):
Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material you claim is infringing (or the subject of infringing activity) and to which access should be disabled.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
- "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
- "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to HSM's Designated Copyright Agent:
243 west 75th street
New York, NY 10023
Notice of Wrongful Removal of Material
If you are a HSM user and you believe that material you have uploaded to the HSM Service has been wrongfully removed, you may file a counter-notification. If you did not have all of the rights to post the material at issue, you MUST NOT submit a counter-notification. Under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be liable for damages.
After HSM receives your counter-notification,HSM will forward it to the party who submitted the original claim of copyright infringement. Please note that when HSM forwards the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. HSM will not forward the counter-notification to any third party other than the original claimant. After HSM sends out the counter-notification, the claimant must then notify HSM within 10 business days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material in question. If HSM receives such notification HSM will be unable to restore the material. If HSM does not receive such notification, HSM may reinstate the material.
DMCA Counter-Notification ("Counter-Notification"):
Identify the work that has been removed from the HSM service.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
- “I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which TuneCore is located, and will accept service of process from the claimant.”
- “I am the HSM user that uploaded the material in question to the HSM service. I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed.