Terms & conditions

These Terms and Conditions were last updated on 17 January 2014 and are effective as of this date.

 

Please read the following Terms and Conditions carefully. These Terms and Conditions, as well as the Privacy policy (the “Privacy Policy”) (incorporated herein by this reference and collectively referred to as the “Terms of Service”), govern your access to and use of the Songflow Platform (the “Songflow Platform”), including the use of any content, information, products and/or services (the “Services”) therein.

 

This is a legal agreement between you and Songflow B.V. (“Songflow”). Songflow reserves the sole right at any time to modify, discontinue or terminate the Songflow Platform and its Services, or modify the Terms of Service without notice. All modified terms and/or conditions will be in effect after they are posted on the Songflow Platform. By continuing to use or access the Songlow Platform and/or Services after Songflow makes any such modification, you agree to be legally bound by the revised Terms of Service.

 

YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY SONGFLOW THROUGH THE SONGFLOW PLATFORM OR WITH RESPECT TO YOUR SONGFLOW ACCOUNT, YOU DECLARE YOU HAVE READ THE TERMS OF SERVICE CAREFULLY AND AGREE TO BE BOUND BY THE TERMS OF SERVICE.  IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY SONGFLOW.

 

1. AUTHORIZATION

 

    1. Subject to the Terms of Service you hereby appoint Songflow as your authorized non-exclusive digital distributor for the sale and distribution of Song(s) (as defined in Section 2 hereunder) by, without limitation:

 

      1. permanent digital downloads;
      2. temporary digital downloads;
      3. interactive streaming;
      4. non-interactive streaming;
      5. interactive radio;
      6. non-interactive radio (DMCA complaint);
      7. cloud services;
      8. so-called “disc-on-demand” services.

 

    1. By signing up for the Songflow Platform you grant to Songflow, throughout the world (unless specified in your metadata) and during the Term, the non-exclusive right:

 

      1. to sell, copy, distribute and otherwise exploit the Song(s) by all means and media (whether now known or existing in the future) through any and all Music Services now operational or hereafter available;
      2. to collect all income deriving therefrom;
      3. to use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you in connection with the Song(s) (hereinafter “Artwork”) and Songflow’s general business; and
      4. to authorize or appoint Music Services and/or Songflow’s Digital Distribution Partners to perform any of the activities above.

 

  1. You and Songflow hereby agree that the Music Services authorized to distribute and exploit your Song(s) hereunder are subject to your prior approval.
  2. You authorize Songflow to make and perform full-length promotional clips of your Song(s) via streaming or download free of charge (the “Clips”) to promote the band, artist and/or exploitation of applicable Song(s). To the extent that you own or control the publishing rights in the musical compositions embodied in your Song(s) used in the Clips (the “Compositions”), you authorize Songflow to make and perform full length clips of your Compositions via streaming or download free of charge to promote the band, artist and/or exploitation of applicable Song(s). Said Clips may be created by Songflow or any third party affiliated with Songflow.

 

2. SONG(S)

 

  1. The term “Song(s)” means any and all sound and/or audiovisual recording and underlying musical compositions that you provide to Songflow either before or during the Term, that you have designated for digital distribution in accordance with these Terms and Conditions. Sound and/or audiovisual recordings and the underlying musical compositions that are provided by you to Songflow must be owned or controlled by you and/or have been cleared by you.
  2. Songflow shall have the right, in its sole discretion, to reject any Song(s), Artwork or any other materials that you submit. You shall make the Song(s) and Artwork available to Songflow in accordance with Songflow’s content and delivery specifications.

 

3. YOUR OBLIGATIONS

 

  1. Consistent with Songflow’s technical specifications and delivery instructions (as published in the F.A.Q-section on the Songflow Platform), you shall be responsible for the proper and adequate uploading to the Songflow Platform of Song(s), as well as metadata, sales information, marketing materials, and all other ancillary data relating thereto. You acknowledge that Songflow will not be obligated to furnish its services hereunder until receipt of said materials.
  2. You agree and warrant that you will not use the Songflow Platform or its Services to transmit, distribute, 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.
  3. If there is any change of circumstances during the Term as a result of which you reasonably believe that you do not have, or no longer have, the rights necessary to authorize Songflow and any authorized Music Service to use any Song(s) and/or Artwork as provided for herein, or you reasonably believe that Songflow’s or any authorized Music Service’s continued sale or other use of any Song(s) and/or Artwork will substantially harm your relations, or violates the term of any of your agreements with any copyright owner, artist, director, producer or distributor, then you will immediately withdraw, upon written notice to Songflow, the authorization for the sale or other use of such Song(s) and/or Artwork. Following such withdrawal, Songflow shall cease to offer such Song(s) and/or Artwork for sale or other use or cause such cessation within ten (10) working days after Songflow’s receipt of such notice of withdrawal.
  4. You agree that Songflow may terminate your account if you violate the Terms of Service or, if Songflow believes, in Songflow’s good faith discretion, that you are infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.

 

4. THIRD PARTY OBLIGATIONS

 

    1. You agree to obtain and pay for any necessary clearances and licenses in the Territory for all Song(s) and Artwork. Specifically, you shall be responsible for obtaining and timely paying;

 

      1. any digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from musical composition copyright owners or their agents in connection with Songflow’s exploitation of rights hereunder;
      2. any royalties or other income due to artists, producers and other persons who performed in the making of the Song(s);
      3. and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.

 

  1. For digital download sales in the United States, your payment typically includes the mechanical royalty on the underlying composition. In the case of the iTunes Match service, your payment includes a publishing portion that covers both the mechanical and public performance royalties. If you do not own or control the underlying composition(s) in your sound recording(s), it is your obligation to pay these publishing royalties to the person or entity that does. Outside of the United States, Songflow customarily requires Music Services to secure and pay for music publishing licenses (and such license fees may or may not be deducted by the Music Services concerned from the proceeds payable to Songflow). If any Music Service outside of the United States does not agree to secure and pay for music publishing licenses, Songflow shall have the right, in its sole discretion, to either (i) decline to license such Music Service or (b) assume the responsibility to clear and pay for the music publishing licenses required in connection with such Music Service’s Sales, which license fees Songflow shall have the right to deduct from amounts payable to you hereunder.

 

5. PAYMENT

 

  1. Songflow will pay you one-hundred percent (100%) of any and all Net Royalties (as defined in Section 4 b) below) as received from the authorized Music Services and/or Songflow’s Digital Distribution Partners. Accounting statements and your Net Royalties will be posted to your Songflow user account in a timely fashion after Songflow’s receipt thereof. Once payment has been credited to your Songflow user account, you will be able to withdraw the outstanding amount at your discretion. Your balance must exceed a minimum of 25 euro to withdraw money from your account. You will be solemnly responsible for any bank transfer and Paypal transaction fees or other charges related to such withdrawals.
  2. “Net Royalties” shall be defined as Songflow’s actual receipts from Music Services and/or Songflow’s Digital Distribution Partners for the sale, distribution or other use of your Song(s) less any tax, bank transfer and Paypal transaction fees (if any).
  3. All payments shall be made in Euro.
  4. Songflow shall be authorized to issue self-billed invoices on your behalf showing your and or your company’s name (if any), address and VAT registration number (if applicable), as well as all other details that make up a full VAT invoice. You hereby agree to accept such invoices raised by Songflow and to notify Songflow immediately if your VAT registration number changes or if your company stops being VAT registered.
  5. Any objection relating to any accounting statement or Net Royalties must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is published to your Songflow user account, and you hereby waive any longer statute of limitations that may be permitted by law.
  6. Songflow shall maintain and keep for a period of at least three (3) years, complete and accurate records in sufficient detail to enable any Net Royalties which shall have accrued hereunder to be determined. Upon your prior written request, but not exceeding once in any year, Songflow shall be permit during normal business hours an independent public accountant, selected by you and reasonably acceptable to Songflow, to have access to all such records of Songflow as may be necessary to verify the accuracy of the accounting statements and payments submitted to you hereunder. Any such audit of Songflow’s records shall be at your own expense.
  7. To the extent that you owe any amounts to Songflow as a consequence of the Terms of Service or otherwise (i.e subscription fees etc), Songflow shall have the right to deduct all or a portion of such amounts from any Net Royalties otherwise payable to you.
  8. In the event that Songflow has, in its good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, Songflow reserves the right to discontinue the posting of Net Royalties to your account and block your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of Songflow is obtained. Furthermore, you agree that such revenues will be forfeited by you if Songflow determines, in its good faith discretion, that they are the result of fraud and/or infringement.
  9. You agree that you will not receive any interest or other earnings on the Net Royalties.

 

6. DELIVERY FEES

 

  1. In consideration of the services rendered hereunder, Songflow shall charge you an annual subscription fee per Song distributed via the Songflow Platform, to be paid by you before the Song is delivered to any Music Service.
  2. The annual subscription fee charged by Songflow will be published on the Songflow Platform and may be amended from time to time by Songflow in its own discretion and without notice to you.
  3. You expressly agree that Songflow is authorized to deduct your annual subscription fees, any applicable tax and other charges you may incur in connection with your use of the Services directly from your Songflow user account (i.e., your share of Net Royalties) or charge such fees to any Payment Method you provide to Songflow.
  4. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your Songflow user account by you or anyone else using your account.
  5. If you notify Songflow in writing (email is sufficient) that you would like to terminate your annual subscription for one or more of your Song(s) to a Music Service, all terminated Song(s) will be removed from their respective Music Service. You will not be entitled to reimbursement of any pre-paid fees with respect to any terminated Song(s).
  6. If for any reason you fail to make a payment or a payment is reversed hereunder via the Payment Method or any other method after agreeing to the Terms of Service, Songflow will be entitled to recoup, at its sole discretion, the outstanding amount by any means necessary, including the right to keep your account active and collect any resulting royalties until the outstanding amount is fully recouped.
  7. It is your responsibility to notify Songflow if your Payment Method has changed by making the appropriate changes to your Songflow account settings.

 

7. ACCES TO THE SONGFLOW PLATFORM

 

  1. The Songflow Platform 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 Songflow Platform and Services.
  2. Your Songflow user account shall be used solely by you and may not be transferred or shared with any third-party.  You acknowledge that you are exclusively responsible for all usage or activity on your Songflow user account.  You shall immediately notify Songflow of any breach of security or unauthorized use of your Songflow account. Any fraudulent, abusive, or otherwise illegal account activity shall constitute a basis to terminate your account. You agree to indemnify Songflow against any liability and costs arising from such improper use of your Songflow user account.
  3. You acknowledge and agree that Songflow may disable access to and/or terminate your account and/or remove or disable access to any Song(s) or any associated materials you provide to Songflow in the event that Songflow receives any claim that, if true, would constitute a violation of your representations and warranties hereunder.
  4. Songflow does not warrant that the Songflow Platform will operate error-free or that all defects in its underlying software, components, and design can be corrected to meet your requirements, and you acknowledge and agree that Songflow shall have no liability in this respect.
  5. You shall not copy or distribute any part of the Songflow platform in any medium without Songflow’s prior written consent, nor shall you alter or modify any part of the Songflow Platform.
  6. The Songflow Platform is protected by copyright as a collective work and/or compilation pursuant to Dutch copyright laws, international conventions, and other copyright laws. Copying or storing of any content for other than your legitimate commercial business end-use is expressly prohibited without the prior written consent of Songflow. Songflow’s products and services referenced or incorporated in the Songflow Platform are either trademarks or registered trademarks of Songflow. Other featured logos, content and corporate names are or may be service/trademarks of their respective owners.

 

8. EAN / UPC AND ISRC CODES

 

  1. Songflow will provide you with free bar codes and universal product codes (“UPCs”). These are for your use only and may not be transferred or resold.  If you would like to make use of your own EAN or UPC code, please contact support@songflow.com.
  2. All Song(s) distributed via the Songflow Platform must have a unique ISRC (Industry Standard Recording Code) allocated to them.  You are advised to obtain your own free ISRC Registrant Code from your National ISRC Agency (http://ifpi.com/content/section_resources/isrc_agencies.html).
  3. If a you are unable or unwilling to assign your own ISRC codes to Song(s) distributed via the Songflow Platform, Songflow is authorized to act as ISRC Manager on your behalf. The appointment as ISRC Manager only applies to Song(s) you have provided to Songflow (“The Nominated Repertoire”) at your own discretion. You commit to ensure that no other ISRC Manager is appointed to assign ISRCs to Song(s) in the Nominated Repertoire and that you have not assigned, and will not yourself assign, ISRC’s to Song(s) in the Nominated Repertoire. All ISRC’s assigned to Song(s) by Songflow can be found in the “View” tab of the applicable Song in your Songflow user account. You commit to use the ISRC’s assigned by the ISRC Manager in subsequent exploitation of the Song(s).

 

9. PARENTAL ADVISORY

 

If you provide a parental advisory warning in relation to certain Song(s), Songflow shall use or forward such parental advisory information to the authorized DSPs and its Digital Distribution Partners. You shall be solemnly responsible for determining parental advisory warning status. Failing to provide accurate parental advisory information can result in rejection or deletion of your Song(s) by any or all Music Service(s).

 

10. WARRANTIES; REPRESENTATIONS; INDEMNITIES

 

  1. You hereby warrant and represent that you are at least eighteen (18) years of age.
  2. You hereby warrant and represent that you have the right and authority to enter into this agreement and to grant to Songflow all rights specified herein; all of the Song(s), including, without limitation, any sampled third party material embodied therein, artwork, metadata, audiovisuals, images and any other materials furnished by you to Songflow or relating to the Song(s) are owned or controlled by you and the use thereof as described or contemplated herein on the Songflow Platform and on any Music Service websites shall not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity; and that Songflow 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.
  3. You will indemnify and hold harmless, and upon Songflow’s request, defend, Songflow and its Partners and affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorney’s fees and costs) arising out of a claim by a third party which, if true, would constitute a breach of the foregoing warranties and representations and the Terms of Service.
  4. You agree to reimburse Songflow and its partners and affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under these Terms and Conditions, provided that Songflow obtains your written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. Songflow shall promptly notify you in writing of any such claim, and you may assume control of the defence of such claim. Songflow shall have the right, at its own expense, to participate in the defence thereof under your direction.
  5. THERE ARE NO REPRESENTATIONS OR WARRANTIES BY COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN AS EXPRESSLY SET FORTH IN THE TERMS OF SERVICE.

 

11. OWNERSHIP

 

  1. All right, title and interest in and to (i) the Song(s), (ii) all copyrights and equivalent rights embodied therein, and (iii) all materials furnished by you, except as to any rights of Songflow (whether pre-existing or under this Agreement), shall remain your property.
  2. You hereby acknowledge that all title to and ownership of the Songflow Platform, its underlying software, design, and related components, remain vested in Songflow (or, where applicable, third-party owners) and nothing in these Terms and Conditions shall be deemed or construed to transfer ownership or title to you or any third-party.

 

12. TERM

 

The Terms of Service shall apply at all times while you utilize the Songflow Platform or the Services.

 

13. CONFIDENTIALITY

 

You acknowledge and agree that, in the course of negotiating and transacting business with Songflow, you may become aware of certain confidential information related to Songflow’s business and business practices. You hereby agree to keep such information confidential and you will not disclose any confidential information to any third-party without the prior written consent of Songflow. The foregoing obligations shall not apply to any Confidential Information that:

  1. becomes known to the general public without fault or breach on the part of the receiving Party;
  2. the receiving Party receives from a third-party without breach of a nondisclosure obligation and without restriction on disclosure;
  3. was in the possession of the receiving Party prior to disclosure by the disclosing Party; or
  4. is required to be disclosed by law or a court of competent jurisdiction.

 

14. MISCELLANEOUS

 

  1. Songflow does not guarantee exploitation of the Song(s), which will depend on consumer preference, nor on the inclusion or participation of any given Music Service. Company reserves the right in its sole discretion to decline to engage in business with any given Music Service. Except as specifically set forth in the Terms of Service, Songflow shall have no obligations to you.
  2. Songflow shall not be deemed in breach of the Terms and Conditions unless you have given Songflow notice of the breach and Songflow has failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder.
  3. In no event will Songflow, 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 Songflow Platform, its Services, Songflow’s products or any Songflow content, no matter whether the damages are foreseeable and whether or not Songflow 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 Songflow’s aggregate liability to you exceed One Hundred Euros (EUR 100).
  4. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the Netherlands, excluding that body of law pertaining to the conflict of laws.  The appropriate courts in Amsterdam, the Netherlands, shall have exclusive jurisdiction.
  5. In the event that any provision in the Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
  6. The failure of a party to enforce any right or provision of the Terms and Conditions will not be deemed a waiver of such right or provision.
  7. You may not assign the Terms of Service (by operation of law or otherwise) without the prior written consent of Songflow and any prohibited assignment will be null and void. Songflow may assign the Terms of Service or any rights or obligations hereunder without your consent.
  8. The relationship of the parties under the Terms of Service is that of independent contractors and the Terms of Service shall not be construed to imply that either party is the agent, employee, or joint venturer of the other.
  9. You agree that the Terms of Service and the rules, restrictions and policies contained herein, and Songflow’s enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Songflow.
  10. The Terms of Service, together with the rules and policies of Songflow, constitute the entire agreement between Songflow and you with respect to the subject matter hereof.
  11. Any notice or other communication to be given hereunder will be in writing and given (i) by Songflow via email (in each case to your email address of record), (ii) a posting on the Songflow Platform, or (iii) by you via email to support@songflow.com  or to such other address as Songflow may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
  12. You acknowledge that you have read and understand Songflow’s Privacy Policy as more fully described on the Songflow Platform, and by using the Services and the Songflow Platform you have expressly accepted the terms and conditions set forth in such Privacy Policy, as same may be amended from time to time.
  13. Songflow reserves the right, in its sole discretion, to refuse to provide its services to you or any client for any or no reason whatsoever.

 

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