AMUSE TERMS & CONDITIONS
EXCLUSIVE DISTRIBUTION AGREEMENT
These Terms & Conditions (“Ts&Cs”) together with the Heads of Terms constitute the entire “Agreement” between Company and Licensor. The Ts&Cs are considered incorporated into the Heads of Terms. If there is any inconsistency between the Heads of Terms and the Ts&Cs, the Heads of Terms will prevail. Any undefined terms used in these Ts&Cs have the meanings given to them in the Heads of Terms. Company and Licensor are referred to collectively as “Parties”.
1. GRANT OF RIGHTS
1.1 RECORDINGS. Licensor grants to Company throughout the Territory and during the Term all necessary rights on an exclusive basis to (i) distribute the Recordings to digital service providers including social media platforms (“DSPs”); (ii) register for and collect the label share of public performance income; and (iii) license the Recordings for synchronization with audio-visual productions provided Licensor has elected to receive such service in the Heads of Terms and has granted its approval in each case. Licensor reserves all other rights including physical distribution. Recordings shall be mixed and mastered, fully cleared and suitable for commercial exploitation by Company. Licensor is responsible for all recording costs including but not limited to the production, mixing and mastering of Recordings and all payments due to engineers, arrangers, performers, collaborators, sample owners and other rights holders (unless otherwise stated in this Agreement). Licensor shall not release, or permit the release of, any recording until all Recordings are released by Company, unless agreed by Company. All remixes, instrumentals and alternative versions of Recordings are automatically covered by this Agreement.
1.2 ADDITIONAL MATERIALS. Licensor will at its own cost create and deliver fully cleared artwork, videos, photographs and other materials relating to Recordings as reasonably required by Company (“Additional Materials”) together with all metadata. Delivery shall take place at the same time as the applicable Recordings. Additional Materials are licensed exclusively to Company on the same basis as Recordings.
1.3 NAME AND LIKENESS. Company has the right throughout the Territory and during the Term to use in all media now known or later developed Artist’s name, approved portrait, approved biography and approved likeness to promote and exploit Recordings. Such materials delivered to Company by or on behalf of Licensor or Artist shall be deemed approved.
1.4 TECHNICAL REQUIREMENTS. Company may (or may direct Licensor to) edit, adapt, modify and adjust Recordings and Additional Materials to ensure compliance with any technological or DSP and platform requirements. Company may exclude delivery of any Recordings to digital fingerprinting technologies, including but not limited to YouTube’s Content ID system, if deemed reasonably necessary by Company.
1.5 TRANSFER OF RIGHTS. Company may assign, transfer and sub-contract the rights in this Agreement without approval to an affiliate or subsidiary of Company or to a person, firm or corporation acquiring all or substantially all of Company’s assets. On expiry or termination of the Term, all rights granted to Company shall revert to Licensor (subject to any continuing licenses granted to third parties with Licensor’s approval during the Term).
2. ROYALTY PROVISIONS
2.1 REVENUE SPLIT. Licensor shall receive the Licensor Share of Revenues and Company shall retain the remaining share of Revenues. “Revenues” means all revenues actually received by Company from exploitation of Recordings (or, in the case of public performance income, means the total of the artist share and label share of such income) less any applicable bank and payment fees and taxes. Licensor is entitled to collect and retain the artist share of public performance income.
2.2 EXPENSES. Licensor shall not receive the Licensor Share of Revenues until all mutually agreed costs and expenses (if any) incurred by Company (“Expenses”) have been recouped in full from the Licensor Share of Revenues.
2.3 FAST FORWARD/EARLY ACCESS. Company shall be entitled to use the Licensor Share of Revenues towards the recoupment of any so-called ‘Fast Forward’ or ‘Early Access’ advances drawn by Licensor or Artist together with Company’s fees in respect of such advances (to the extent unrecouped) prior to the Effective Date.
2.4 COLLABORATORS. Licensor is responsible for paying all fees, advances, royalties and other sums to all third party rights holders who are associated with the Recordings (“Collaborators”). Where Company has expressly agreed to pay any Collaborators in the Heads of Terms, which Licensor acknowledges Company can only make once Licensor has provided Company with each Collaborator’s email address, such payment shall only be made as an accommodation to Licensor.
2.5 COLLECTION PERIOD. Company has the exclusive right to collect income from the exploitation of Recordings on DSPs and from the public performance (including from blanket synchronization licensing) of Recordings for six (6) months following expiry or termination of the Term provided the income was earned during the Term. Company also has the exclusive right to collect the fees from any synchronzation license procured prior to expiry or termination of the Term regardless of when such license is finalized. All such income collected shall be deemed Revenues and distributed in accordance with this Agreement.
2.6 ASSIGNMENT. Licensor may direct Company to pay the Licensor Share of Revenues to a third party (“Assignee”). Such payments shall be deemed payments to Licensor and Company shall have no liability in respect thereof. Licensor indemnifies and holds Company harmless from any claims, losses, damages and expenses arising out of or in connection with Company’s payments to Assignee.
3. ACCOUNTING
3.1 ROYALTY STATEMENTS. Company shall account to Licensor monthly during the Term. All statements rendered by Company are binding on Licensor and not subject to objection unless given to Company in writing within two (2) years of the date such statement is rendered.
3.2 ROYALTY PAYMENTS. Provided the balance of Licensor’s royalty account is at least ten US Dollars ($10), statements shall be accompanied by payment of the Licensor Share of Revenues which Licensor may receive by sending an invoice to Company with payment terms of at least thirty (30) days.
3.3 WITHHOLDING TAX. Company may deduct from payments to Licensor any withholding tax or other fiscal government imposition which Company is obliged to deduct as a result of any statutory, fiscal or government provision.
3.4 ROYALTY WITHHOLDING. If a claim is made (or reasonably anticipated to be made) against Company arising out of or in connection with a breach of this Agreement by Licensor, Company may withhold such portion of the Licensor Share of Revenues as is reasonably necessary to protect against Company’s potential liability.
4. TERM
4.1 TERM. The Term will commence on the Effective Date and run for the duration stated in the Heads of Terms but will expire on the last day of the then current calendar month (“Initial Period”). Unless Licensor terminates the Initial Period on at least thirty (30) days’ notice prior to the expiry of the Initial Period, the Term will automatically extend until the last day of the calendar month that is thirty (30) days from the date Company receives a notice of termination from Licensor.
5. DELIVERY & RELEASE
5.1 DELIVERY. Licensor shall deliver Recordings, Additional Materials and metadata by the date(s) set out in the Heads of Terms (where specified).
5.2 RELEASE. Unless Company has already delivered Recordings to DSPs at the Effective Date, Company shall deliver Recordings to DSPs within sixty (60) days of delivery to and acceptance by Company of Recordings, Additional Materials and metadata provided Licensor has first created a user account with Company.
6. COMPOSITIONS
6.1 COMPOSITIONS. Licensor warrants that it has obtained all publishing licenses, including but not limited to mechanical licenses, in respect of copyrighted musical compositions embodied in Recordings (“Compositions”) and that it shall be solely responsible for the payment of all royalties, fees and other sums, including but not limited to mechanical royalties, due to publishers and/or authors of such Compositions.
7. WARRANTIES
7.1 LICENSOR WARRANTIES. Licensor represents and warrants to Company that:
it has full power and authority to enter into and fulfil its obligations under this Agreement;
it has read and understood Company’s Terms of Use and Privacy Policy (as amended from time to time) which are deemed incorporated into this Agreement. In the event of a conflict or ambiguity between the terms of this Agreement and the Terms of Use and/or Privacy Policy, this Agreement shall prevail;
it owns or controls all rights to Recordings and Additional Materials to facilitate the exploitation by Company;
it has obtained all necessary clearances and permissions from third party creators of any copyrighted materials embodied in Recordings and Additional Materials including but not limited to so-called ‘samples’;
it shall not (and will procure that Artist shall not) re-record any Recordings during the Term without Company’s prior approval;
it shall not assign, transfer, sub-contract or deal with any rights granted to Company during the Term without Company’s prior approval;
use by Company of any materials delivered hereunder, including Compositions, shall not infringe upon or violate the rights of any third party;
it shall not (and will procure that Artist shall not) publish, post or make available any content that may be detrimental or damaging to Company, its business, interests or reputation;
it shall not (and will procure that Artist shall not) change Artist’s professional name during the Term without Company’s prior approval;
unless otherwise stated in the Heads of Terms, Artist is at least eighteen (18) years of age at the time Licensor enters into the Agreement;
the email address having, or to otherwise be granted, access to Licensor’s user account shall be the email address specified in the Heads of Terms;
it has sought independent legal advice with respect to this Agreement prior to signing.
7.2 INDEMNIFICATION. Licensor hereby indemnifies, holds harmless and defends Company, its affiliates, subsidiaries, directors and employees, from any and all claims, losses, expenses, demands, costs and damages (including reasonable outside legal costs) arising out of or in connection with Licensor's breach of any term, warranty, representation or undertaking contained in this Agreement or any error or failure by Company to pay any Collaborators.
8. CONFIDENTIALITY
8.1 CONFIDENTIALITY. Licensor undertakes not to disclose the terms of this Agreement or any confidential information pertaining to it including, without limitation, Company’s business operations and proprietary information, regardless of whether such information is marked or made available as such (“Confidential Information”). Licensor may only disclose the Confidential Information (a) to its officers, employees, advisers, contractors, partners and agents on a strictly ‘need to know’ basis provided Licensor procures that each such person is made aware of and complies with the confidentiality obligations set out above and provided further that Licensor remains primarily liable for any breaching disclosure by such person(s); and (b) where disclosure is required by an order of a court or any regulatory, judicial, government or similar body of competent jurisdiction provided Licensor promptly makes Company aware of the same. Such confidentiality obligations shall not apply to any Confidential Information already available to or known by the public (other than as a result of a breaching disclosure by Licensor).
9. TERMINATION
9.1 TERMINATION FOR BREACH. Where Licensor commits a breach of this Agreement, Company shall issue a written notice requiring Licensor to remedy the breach within fourteen (14) days of the date of such notice. If Licensor fails to cure the breach within such time frame, Company may immediately terminate the Agreement upon further written notice. A breach by Licensor shall include but not be limited to (a) Licensor’s failure to comply with or fulfil any material obligation, condition, term, representation, warranty, provision or covenant contained herein; (b) Licensor’s failure to deliver any Recording, Additional Material, metadata or other material to Company within the prescribed time frame; and (c) the removal of a Recording from, or the withholding of royalties by, DSPs as a result of any breaching act or omission by Licensor or Artist (for which Licensor shall be deemed responsible).
9.2 TERMINATION FOR CONDUCT. Company may immediately terminate the Agreement on written notice to Licensor if Company reasonably believes that Licensor or Artist has or is engaged in conduct, or has been alleged to have engaged in any conduct which reflects or could reflect unfavourably upon the reputation of Company, or that leads Company to conclude that a continued association with Licensor or Artist could damage Company’s reputation or be inconsistent with Company’s values or responsibilities.
9.3 REPAYMENT. Where Company exercises its termination right under clause 9.1 or 9.2, Licensor shall on demand repay to Company or otherwise reimburse the Expenses and any other mutually agreed advances, fees, costs and other sums incurred or paid by Company (to the extent not already recouped from the Licensor Share of Revenues).
10. GENERAL
10.1 ENTIRE AGREEMENT. This Agreement supersedes all previous oral or written agreements, correspondence or other communications between the Parties relating to the subject matter hereof.
10.2 WAIVER AND SEVERABILITY. No delay or failure by Company to exercise any right under this Agreement shall be construed as a waiver of that or any other right. If any provision of this Agreement is ruled invalid or unenforceable by a final judgement of a competent court of jurisdiction, the remainder of this Agreement shall remain in full force and effect. Clause headings and subheadings are for convenience and do not affect the construction of this Agreement.
10.3 NO PARTNERSHIP. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture or employer-employee relationship between the Parties. Licensor is responsible for its own tax affairs including those owned on income received under this Agreement.
10.4 SURVIVAL. The representations, warranties, indemnification and confidentiality obligations in this Agreement shall survive expiry or termination by either Party for any reason.
10.5 FORCE MAJEURE. Company shall not be responsible for any delays or failure of performance resulting from acts beyond its reasonable control including but not limited to war, power failures, floods, earthquakes and other natural disasters.
10.6 APPROVALS. Where any clause is subject to the agreement or approval of one or all Parties, such agreement or approval shall take place in writing (email to suffice, and to be sent to legal@amuse.io in the case of notices to Company). Where Company requests approval from Licensor, such approval shall be deemed given if Licensor does not respond within forty eight (48) hours of Company sending such request.
10.7 JURISDICTION. This Agreement shall be governed by the laws of Sweden and any dispute regarding this Agreement shall be submitted to the exclusive jurisdiction of the District Court of Stockholm, Sweden.