1. Acceptance of Terms
IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE, YOU MUST HAVE PARENTAL CONSENT BEFORE ATTEMPTING TO LICENSE
ANY SONG USING THIS SITE.
YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY COMPANY THROUGH THE SITE, YOU
2. Ownership of Website
3. Registration Information / Username and Password
You agree to provide complete and accurate information when signing up and adding information on this site. Your username will be the e-mail address associated with your TuneCore account. Upon registration, you will choose a private password. You agree to use your username and password only to purchase licensing services and conduct business on behalf of yourself or the organization you represent. You will not permit others to use your username or password for any reason. Company will not be liable in the event of loss of your username or password or for any misuse by anyone of your username or password. You have the sole responsibility to secure and maintain your username and password and agree to immediately notify Company of any unauthorized use of your username and password.
5. No Unlawful or Unauthorized Uses
6. Description of Services
The Site allows you to purchase a service where Company seeks to acquire on your behalf, at least (1) day prior to your digital distribution of phonorecords, mechanical licenses for the digital reproduction and distribution of musical compositions, and administers royalty payments under such mechanical licenses, if successfully acquired. This service is for the mechanical licensing of permanent digital downloads (PDD) only. Company does not currently service any other formats (e.g. physical formats, streaming, limited/temporary downloads, cloud rights, other digital phonorecord delivery (DPD) formats such as ringtones or ringbacks). Upon purchasing Company’s services you must choose either a Limited License or a <Unlimited> License. If you elect the Limited License option, for a maximum of 3000 units, you must inform Company the exact number of reproductions that you need, and will thereby be seeking to license for that number only. If you elect the <Unlimited> License option there will be no maximum number of units. Company calculates the royalty that must be paid to publishers for the use of musical compositions based on the statutory rate in effect at the time of your request. You pay those royalties to Company, along with Company’s licensing service fee, and Company obtains the license from the appropriate publisher or copyright holder and pays that publisher or copyright holder the royalties on your behalf.
This Site does not allow you to obtain licenses for samples, master (recordings of recordings), interpolations, dramatic musical works, synchronization rights (video), public performance rights or derivative works of any kind. You must contact the rights holder(s) for such uses. In addition, this Site does not allow you to obtain mechanical licenses for cover songs that do not comply with the Compulsory Mechanical provisions of the U.S. Copyright Law. Specifically, for each song you submit for licensing, you agree:
i) You will not change the lyrics.
ii) You will not change the fundamental melody of the song (general rearrangement is allowed however).
iii) You will not request a song that has never been released.
iv) You will not release the song for any purpose other than personal private listening by the end user.
Licenses obtained through the Site are limited to the making and distribution within the United States of DPDs of musical compositions, as prescribed by Section 115 of the US Copyright Act.
Under U.S. Copyright Law, a mechanical license must be obtained from the copyright owner of the applicable musical composition prior to distribution of digital phonorecords. To allow for the necessary processing time, we require that you submit your request to Company at least 21 days in advance of distribution. If these time limits have passed, Company will still make every effort to secure a retroactive license on your behalf. In no event does Company guarantee that a license will be secured. If a license cannot be secured, any accrued royalties will be returned to you along with Company’s licensing service fee. In all events, you will be responsible for any adverse claim by a publisher or copyright holder and agree to indemnify Company against any such claim in accordance with section 13 below.
For example, if you request mechanical licenses for 100 DPDs that you intend to offer for download or sale, such a license does not authorize you to reproduce the musical compositions in physical or ringtone format without further licensing. In addition, such a license does not authorize you to produce or sell more than 100 DPDs. The 101st DPD requires an additional license. It is your responsibility to ensure that additional mechanical licenses are requested BEFORE you offer the 101st DPD for download or sale.
7. Accuracy of Information
When requesting Company’s Services, you agree and warrant that you will provide accurate information, including song title, original recording artist, current recording artist, release date, track length and any other information requested, for the recordings that you are attempting to license. Company is not responsible if licenses cannot be obtained, if the incorrect license is obtained, or if insufficient publisher royalties are paid as the result of inaccurate information provided by you.
8. Licensing Authorization / Grant of Rights
When you request a Mechanical License, you appoint Company as your authorized representative and agent in connection with the procurement, clearance, administration, and payment of Mechanical Licenses for your sound recording, whether by securing a direct license with the publisher or securing a license through the Harry Fox Agency.
When using Company’s Services, you are also authorizing Company (i) to receive sales files from TuneCore relating to the sales of your recordings, (ii) to charge your credit card on a onetime and/or a quarterly basis for amounts due calculated by Company including amounts due to publishers and copyright owners and Company’s fees, and (iii) to use the any names, biographical and other information provided by you in connection with Company’s efforts to procure the requested mechanical license.
You alone will be responsible for paying fees and royalties for formats not licensed via our services and/or reproductions exceeding the formats and quantities specified in your direct communications to Company or via your TuneCore account. You will make best efforts to include in the metadata of all recordings manufactured or distributed under the Mechanical Licenses, the names of the songwriters and publishers of the licensed compositions embodied in the recordings.
You also agree not use the Site and/or Services to secure licenses for samples, interpolations, dramatic musical works, synchronization, public performance rights or derivative works of any kind. You must contact the relevant rights holder(s) or administrator(s) for such uses.
9. No Guarantee
When you submit a license request on the Site, you will be billed for the following:
Royalties: any royalties that must be paid to rights holders under the relevant direct license or under the US Copyright Act based upon the statutory rate in effect at the time of your request (currently, for digital downloads, the greater of 12 cents or 2.31 cents per minute per composition or fraction thereof for compositions over 5 minutes); and
Company’s service fee: This covers the costs of our services, which include obtaining the Mechanical License from the appropriate copyright owner and paying royalties to that copyright owner on your behalf.
A valid credit card is required in order to submit orders through the Site. Please note that prices are subject to change at any time, and that all fees are exclusive of all federal, provincial, state, or other governmental sales, goods, and services, harmonized or other taxes, fees, or charges now in force or enacted in the future. Once a request for a Mechanical License has been submitted to and received by Company, Company does not provide refunds on royalties or services, except that we do refund royalties for musical compositions that we deem to be in the public domain under the Copyright Act or compositions that we deem not possible to license.
13. Warranties; Representations; Indemnities.
You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees, other representatives, subsidiaries, affiliates and licensors) and hold them harmless against any third party claims or expenses, losses or damages (including without limitation any reasonable attorneys’ fees and litigation expenses) resulting from: i) a breach, or a claim which, if true, would constitute a breach, of the foregoing representations and warranties or any of the agreements contained in these Terms of Service; or ii) your unauthorized use of the Site or musical compositions licensed by Company; or iii) your violation of any rights of another party.
Company shall give you notice of any claim that 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. In the event you fail to retain approved counsel, Company may, if it so elects, defend itself at your cost and expense and you agree that 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 respect of same.
If a claim is made Company shall have the right, in its sole discretion, to remove or disable access to the Site, 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.
14. Limitation of Liability; Disclaimer of Warranty
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR AND DOES NOT ASSUME RESPONSIBILITY OR ACCEPT LIABILITY FOR ANY MUSIC FILES, CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS MADE AVAILABLE IN CONNECTION WITH THE LICENSES SECURED THROUGH THE SERVICES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE OF THE SERVICES IS AT YOUR DISCRETION AND RISK. WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, THE FAILURE TO STORE, OR FAILED OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. WE DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM ACCESSING INFORMATION OR MATERIAL USING THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
THE FUNCTIONS EMBODIED IN THIS WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS WEBSITE. COMPANY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT, INFORMATION, SERVICES OR MATERIALS MADE AVAILABLE ON OR THROUGH THIS SITE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RESPONSIBILITY AND RISK. COMPANY NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY OPINION, ADVICE, STATEMENT, INFORMATION OR OTHER CONTENT MADE AVAILABLE ON OR THROUGH THIS SITE, NOR WILL IT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF ANY CONTENT, INFORMATION, PRODUCTS, SERVICES OR MATERIALS OBTAINED ON OR THROUGH THIS SITE.
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, SERVICES, COMPANY PRODUCTS 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.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE WEBSITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, EXCLUSIVE OF PUBLISHING ROYALTIES, TO COMPANY FOR LICENSING SERVICES OR ACCESS TO, OR USE OF, THE WEBSITE.
THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
TO THE EXTENT IT MAY APPLY, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH STATES:
(GENERAL RELEASE – CLAIMS EXTINGUISHED) A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
15. No Professional Advice
16. Electronic Communication and Contract
You consent to receive communications and your Licensing Agreement from Company electronically. You agree that all agreements, licenses, notices and other communications provided to you in electronic format satisfy any legal requirements that such documents or communications be in writing, and that such documents and communications have the same force and effect as though they had been provided in non-electronic form. Any notice or other communication to be given hereunder will be in writing and given (i) by Company via email (in each case to your email address of record), or (ii) a posting on the Site, or (iii) by you to such address as Company may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
17. Entire Agreement; Severability; Waiver and Amendment
Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable, or otherwise contrary to law and equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected and enforceable.
18. Governing Law and Venue
This Agreement shall be governed by and be construed in accordance with the laws of the State of New York. The parties hereby consent to the exclusive jurisdiction of and venue in the federal and state courts located in the State of New York and in New York County. You agree not to contest personal jurisdiction or venue of these courts. Notwithstanding the foregoing, Company will have the right to commence and prosecute any legal or equitable action or proceeding before any non-U.S. court of competent jurisdiction to obtain injunctive or other relief as Company may deem necessary.
The Site and Services may be used and accessed solely for lawful 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, including, without limitation, applicable common law, all relevant statutes, and the rules and regulations of the Office of Foreign Assets Control of the U.S. Department of the Treasury.
It is your responsibility to deliver all necessary information required by Company. You acknowledge that Company will not be obligated to furnish its services hereunder until receipt of said information.
Company reserves the right, in its sole discretion, to refuse to provide its services to you or any customer for any or no reason whatsoever.
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 shall have the right to provide information relative to your use of this Site and Services hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.