THE COMPANY PROVIDES THIS AGREEMENT TO NOTIFY ALL CUSTOMERS AND ITS USERS WHO ACCESS AND USE LABEL ENGINE™ OF THE COMPANY'S TERMS AND CONDITIONS WHICH GOVERN ALL ACCESS AND USE OF LABEL ENGINE™. USE OF LABEL ENGINE™ IS CONDITIONED ON ACCEPTANCE, WITHOUT MODIFICATION, OF THIS AGREEMENT BY THE CUSTOMER and USER.
BY CONTINUING TO USE LABEL ENGINE™, AND/OR BY ASSENTING TO THIS AGREEMENT BY SELECTING THE "I AGREE" BUTTON, EACH CUSTOMER AND USER HEREBY AGREES THAT SUCH CUSTOMER AND ALL SUCH USERS ARE HEREBY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE OF THE FIRST USE OF LABEL ENGINE™ BY CUSTOMER AND/OR USERS (THE "EFFECTIVE DATE").
CUSTOMER HEREBY REPRESENTS AND WARRANTS TO THE COMPANY THAT THE INDIVIDUAL(S) THAT HAS/HAVE CONSENTED TO THIS AGREEMENT ON BEHALF OF THE CUSTOMER ("USER(S)") IS/ARE AN AUTHORIZED AGENT OR REPRESENTATIVE OF CUSTOMER AND, THUS, SUCH INDIVIDUAL(S) HAS/HAVE ALL REQUISITE POWER AND AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN THE CUSTOMER (AND ALL OF ITS USERS) SHOULD NOT USE LABEL ENGINE™.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT. EACH CUSTOMER AND USER SHOULD DOWNLOAD AND PRINT THIS AGREEMENT FOR ITS RECORDS.
In addition to any other terms defined in the Agreement, the following terms have the following meanings:
- "Access Right" has the meaning set forth in Section 2 herein.
- "Company" means Create Music Group, Inc. and all of its subsidiaries and affiliate companies, including Label Engine.
- "Company Label Engine Policies" has the meaning set forth in Section 2.3 herein.
- "Company IP Assets" has the meaning set forth in Section 9 herein.
- "Company Trademark(s)" means any and all of the Company’s proprietary trademarks, service marks, names, logos, or slogan, including without limitation its proprietary Create Music Group™ mark and the Label Engine mark.
- "Company Servers" or "Servers" means any servers, other hardware, other computer systems or other software applications which are proprietary to, or leased or otherwise used by, Company to support Label Engine.
- "Create Music Group Material" has the meaning set forth in Section 1.11 herein.
- "Customer Content" means any information, data, images, audio, visual and/or audiovisual media (including without limitation, motion pictures, photographs and videos [including those posted by third parties], and all associated metadata including the names, likenesses, trademarks and trade names in all such media and metadata), which is solely owned or controlled by Customer and all Users and any and all Customer Content owned or controlled by Customer and Users during the effective duration of this Agreement including, without limitation, the Master Recordings and/or Musical Compositions. Either party may submit potential Customer Content for approval to the other party. Customer Content also includes all content owned or controlled by Customer or Users that is used by the Customer or any User and/or made available to Company in the course of using Label Engine under this Agreement; provided, however, that Customer Content does not include any Create Music Group Material as such term is defined herein.
- "Distribution Services Period" has the meaning set forth in Section 3.2 herein.
"Label Engine" means the Company’s proprietary software program and website domain, including https://label-engine.com, https://labelengine.com, and associated domains and applications, currently called "Label Engine", which is designed to be a web-based tool to assist its Customers with the following features and functionalities, that are representative and not necessarily comprehensive:
- provides a Customer with a tool to distribute their Customer Content, including the Customer's music through an independent music label;
- provides a Customer with accounting tools to assist with day-to-day management of up to 10 record labels including but not exclusively processing royalty statements, assigning royalty splits, and managing user catalog and clients;
- provides a Customer with marketing and promotional tools; and
- provides a Customer with a tool to receive demos and to manage the use of those demos by others.
- Without limiting the foregoing in any way, Label Engine may contain, include, or incorporate certain Customer Content, information, data, or material that is created and provided by Customers, in addition to content created by or on behalf of the Company, including without limitation any Company Trademarks or any other Company- provided images, video/audio recordings or instructional documentation (collectively, "Create Music Group Material"). For clarity and the avoidance of doubt, the parties further agree that: (i) any and all such Create Music Group Material are deemed to be a part of Label Engine under this Agreement; and (ii) any and all updates, upgrades, improvements or any other enhancements that the Company may make at any time to any feature of functionality of Label Engine (including without limitation any made to accommodate the customized needs or functionalities of the Customer) shall automatically be deemed to be a part of Label Engine under this Agreement.
- "Media Platforms" means all consumer facing third party digital websites, URLs, domains, applications, and platforms whether accessible from the internet, mobile or wireless networks, via computer, mobile device, console or otherwise, that display and/or contain YouTube videos and/or embeds, including but not limited to Facebook, Twitter, Snapchat, YouTube, and any other website and/or social media platform which contains YouTube hosted and/or embedded videos.
- "Royalties" means all royalties, payments, or earnings received by Label Engine in connection with the use of Customer Content in accordance with this Agreement, less any out-of-pocket costs, expenses or other fees incurred by Label Engine in connection with the use, distribution, and protection of Customer Content.
- "Subscription" has the meaning set forth in Section 4 herein.
- "Subscription Fee" has the meaning set forth in Section 4 herein.
- "Subscription Period" has the meaning set forth in Section 4 herein.
Access Right to Use Label Engine; Conditions of Use
- Subject to Customer’s strict compliance with this Agreement, including but not limited to the Customer utilizing the Label Engine services set forth in Section 4 and elsewhere in this Agreement, and payment of all required fees, if any, Company grants to Customer, only during the term of this Agreement, a personal, limited, non-exclusive, non-transferable, non-sub-licensable, revocable right to allow only the Customer the ability to access and use Label Engine only in the format that Label Engine provides and only to use the foregoing for those specific features or functionalities that the Company makes available to Customer through Label Engine (hereinafter the "Access Right").
- Without limiting any other conditions or limitations set forth in the foregoing Access Right in Section 2.1, and for clarity and the avoidance of doubt, Customer hereby agrees that: (i) Customer is only permitted to use the Create Music Group Material exclusively through, and solely as provided by, Label Engine in accordance with the level of services to which Customer has access as set forth in Section 4 below and (ii) this Agreement prohibits the distribution, sharing, dissemination, reproduction, copying, or any other uses of the Create Music Group Material outside of Label Engine.
Customer (i) hereby acknowledges and agrees that in addition to any of the other terms and condition set forth in this Agreement, each Access Right to use Label Engine by Customer is hereby explicitly conditioned and subject to each Customer’s compliance with all of the following; and (ii) without limiting the foregoing in any way, each such Customer hereby agrees to all of the terms and conditions of the following, all of which are hereby incorporated into this Agreement by this reference:
- Any and all additional rules, policies, procedures, or guidelines which may be adopted by Company from time to time, or at any time, which govern the permissible conduct of Customer of Label Engine and which impose any other conditions or limitation on the permissible ways that Customer is allowed to use Label Engine (hereinafter collectively referred to as the "Company Label Engine Policies");
- The Company's Digital Millennium Copyright Act Policy, a copy of which is available by this link: https://label-engine.com/dmca.php.
Customer hereby further acknowledges and agrees that the foregoing Access Right is further subject to and conditioned as follows:
- Company has the right, in its sole discretion, at any time or from time to time, to change, amend, modify, suspend, discontinue, cease, or otherwise terminate any or all of the features or functionalities of Label Engine, in whole or any parts thereof, including without limitation discontinuing the Company's support of Label Engine, or any portions thereof (collectively,"Change or Discontinue Support of Label Engine").
- Company shall not have any obligation or liability to the Customer, including without limitation not having an obligation to refund any portion of the Subscription Fee (except within its sole discretion).
- If Company exercises its right to change or discontinue support of Label Engine, including without limitation suspending, discontinuing, ceasing or terminating Label Engine (in whole or in part) for any reason, and after Company has given notice to Customer of its plans to take such action (the format of such notice to be determined by Company), if the Customer fails to transfer all Customer Content by the effective date of such action by Company, then Company is not responsible to provide access to any such Customer Content to the Customer after the effective date of such action by Company.
- In the event the Company's decision to change or discontinue support of Label Engine results in the complete termination of Label Engine during a Customer's Subscription Period, the Company may, in its discretion, offer the Customer a pro-rate refund of the Subscription Fee equal to the percentage of the Subscription Period that has been so terminated.
Customer hereby agrees to the following additional provisions (and the following provisions are further conditions on Customer’s Access Right):
- Without limiting the generality of the foregoing, Customer is explicitly prohibited from using Label Engine for any purpose than what is stated in this Agreement or the Company Label Engine Policies.
Customer is prohibited from using any data, information, material, or content (including without limitation any Customer Data) if the foregoing (in Company's determination):
- Is not owned by Customer or if Customer does not otherwise have the absolute right to use such data, information, material, or content in association with Label Engine.
- Infringes on any patent, trademark, trade secret, copyright, right of publicity, or any other intellectual property or proprietary right of a party or third parties.
- Is unlawful, libelous, defamatory, an invasion of privacy or of any publicity rights, harassing, threatening, abusive, inflammatory, obscene, or otherwise objectionable.
- Would violate any other rights of a party or third parties, would constitute or encourage a criminal offense, or would otherwise violate or create liability under any laws, statutes, ordinances, or regulations worldwide.
- Customer shall not impersonate any other person or entity or otherwise misrepresent Customer's affiliation with a person or entity;
- Customer shall not use another Customer’s user name or password without the authorization of the legitimate user;
- Customer shall not distribute or publish unsolicited promotions, advertising, or solicitations for any goods, services, or money, including junk mail and junk e-mail;
- Customer shall not use Label Engine for any other illegal purpose or any fraudulent scheme or transaction.
Customer is prohibited from violating or attempting to violate the security of Label Engine, any other part thereof, or of any Company Servers, including without limitation, being prohibited from doing any of the following:
- accessing data not intended for such Customer or logging into a server or account which the Customer is not authorized to access;
- attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
- attempting to interfere with service to any other Customer, host, or network;
- attempting to obtain or obtain any data or other content through any means not intentionally made available or provided for by Label Engine;
- take any other action that could damage, disable, overburden, or impair Label Engine or any Company Servers; or
- Otherwise violate or attempt to violate any security features, protocols, systems, or network security associated with Label Engine, any part thereof, or of any Company Servers.
- Customer hereby agrees that Company has the right to investigate occurrences that may involve any violations of this Agreement, including without limitation any matters which could involve, and cooperate with, law enforcement authorities in prosecuting Customers who are involved in any violations. In addition, Company reserves the right to cooperate with any and all law enforcement agencies, including complying with requests for information or disclosures or any warrants, court orders or subpoenas (from any party) and disclosing to law enforcement agencies any information about any Customer and anything a Customer does with respect to Label Engine. By Customer’s use of Label Engine, Customer explicitly authorizes Company to take such action.
- If Company becomes aware of any violations or breach of this Agreement by Customer, Company has the right (in addition to any other rights or remedies available to Company by law, contract or equity) to take any one or more of the following actions, in its discretion: (a) suspend or terminate access to Label Engine to the Customer, including without limitation denying access to the Customer Content to the Customer; (b) terminate a particular Customer’s right to use Label Engine; and/or (c) terminate this entire Agreement in accordance with Section 11 of this Agreement.
- Company may retain revenue resulting from a violation or breach of this Agreement by Customer. By way of example only, in the event a Customer distributes an album for which they do not have the rights to do so, Company may terminate their account(s) and retain any revenue derived from distribution of the album to which the Customer is not entitled.
- All rights granted to Customer under this Agreement, including without limitation Customer’s Access Right to use Label Engine, will immediately terminate upon the expiration, cancellation, or termination of this Agreement for any reason, including without limitation any breach by Customer of any provision of this Agreement.
Overview of Label Engine Services
Customer and its Users' access rights to Label Engine services include the following options:
- Label Engine Free Trial. Customer may choose a 7-day initial term to use the Label Engine bundled services on a trial basis, including accounting, demo management, and promotional tools. The free trial does not provide for the finalization of any processes and is a demonstration of the scope of the services only.
- Subscription to Label Engine. For fees described in the Label Engine Price List, Customer may set up accounts for all of its labels, for which Customer may use any of the Label Engine bundled services, including accounting, demo management, and promotional tools. However, distribution services are not automatically provided by Label Engine as part of the subscription and must be applied for as described below.
- Label Engine Distribution. Customer may submit an application seeking Label Engine distribution services to distribute or deliver music releases to media platforms. Consequently, Customer shall submit information to Company in accordance with Company’s requests for information in order for Company to properly evaluate whether the music label in question is a suitable candidate for Label Engine distribution services. All music releases or other media shall be evaluated and accepted for distribution separately, on its own merits, by Label Engine. In the event that Label Engine rejects a proposed music release, other media, or entire music label, for distribution, Customer may edit and update the application and re-apply to Label Engine for distribution.
- All music release and music albums accepted by Label Engine for distribution services shall be subject to the provisions set forth in Section 5 below. By receiving and accepting any Label Engine distribution services, Customer agrees to comply with all terms and conditions set forth therein for as long as the distribution services are performed by Label Engine (the "Distribution Services Period"), until terminated by either Label Engine, Customer or User in accordance with this Agreement.
For purposes of this Agreement, the term "Pricing List" means Company’s then current published pricing list and terms applicable to each respective subscription level for Label Engine (the "Subscription" or "level of Subscription"), including the following terms:
- The amount of fees for each Subscription ("Subscription Fees" ) and any other terms and conditions governing the Subscription Fees, including but not limited to any cancellation policy, any interest payments/service charges for late payments, or any non-refund policies; and/or
- The time period during which the Customer will have the Access Right to, or any other right to use, Label Engine under this Agreement for each respective Subscription ("Subscription Period"), and any other terms and conditions governing the Subscription Period, including without limitation the conditions for any potential renewal of the Subscription Period; and/or
- Customer shall pay Company fees on a monthly or annual basis within thirty (30) days after the end of each calendar month pursuant to Company’s Pricing List for Label Engine’s bundled services.
- The Customer must select the initial Subscription and, if applicable, any renewal of that Subscription, all to be in accordance with the Pricing List, available at the following link: https://label-engine.com/pricing.php. As a condition to use of Label Engine by Customer (including without limitation, any continued Access Rights), Customer hereby agrees to pay Company the full Subscription Fee pursuant to the Pricing List in effect at the start of the initial Subscription Period and at the start of each renewal of the Subscription Period.
- Any Subscription Fees or any other amounts owed to Company which are not paid when due shall be subject to any applicable interest payment and/or any other service charge as set forth in the Pricing List. If the Customer fails to pay any Subscription Fee or any other amounts owed to Company after thirty (30) days of the applicable due date, Company has the right, in its sole discretion, to terminate this Agreement and/or to initiate any other remedies at law or equity as set forth in Section 8 of this Agreement. If Company initiates any legal proceedings to collect those amounts, Company shall be entitled to recover its reasonable attorney fees and costs from Customer, including those incurred prior to and at arbitration, trial, or other proceeding, and in any appeal.
- Company will publish its then current Pricing List, with the Customer’s understanding and agreement that the Company shall determine, in its discretion, the appropriate means of such publication, including without limitation publishing its then current Pricing List on the Company’s website (which shall constitute sufficient publication of the same to the Customer). THE COMPANY HAS THE RIGHT TO AMEND, FROM TIME TO TIME AND AT ANY TIME, ANY OF THE TERMS AND CONDITIONS IN ITS PRICING LIST (INCLUDING WITHOUT LIMITATION ANY SUBSCRIPTION FEES AND SUBSCRIPTION PERIODS). THE CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS THE CUSTOMER’S OBLIGATION TO ACCESS AND REVIEW THE COMPANY’S THEN CURRENT PUBLISHED PRICING LIST WHICH IS IN EFFECT AT THE TIME OF THE CUSTOMER’S INITIAL SUBSCRIPTION PERIOD AND, IN THE EVENT THE CUSTOMER’S SUBSCRIPTION IS RENEWED, IN EFFECT AT THE TIME OF EACH RENEWAL PERIOD. THE CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER IS AND WILL BE BOUND BY THE THEN-CURRENT PRICING LIST (INCLUDING BUT NOT LIMITED TO THE THEN-CURRENT SUBSCRIPTION FEE) IN EFFECTIVE AS OF THE FOLLOWING DATES: (A) THE EFFECTIVE DATE OF THE CUSTOMER’S INITIAL SUBSCRIPTION PERIOD; AND (B) IN THE EVENT THE CUSTOMER’S SUBSCRIPTION IS RENEWED, THE EFFECTIVE DATE OF EACH RENEWAL OF ITS SUBSCRIPTION.
- Customer will pay all sales, use, value added, and other taxes imposed on any Subscription Fees paid to Company under this Agreement.
Customer License Grant to Company.
To the extent Customer applies for and is accepted by Label Engine for distribution services under this Agreement, Customer hereby grants to Company for as long as such Label Engine services are used, an exclusive, non-transferable, non-sub-licensable, irrevocable, worldwide, royalty-bearing, right to allow to convert, bundle, sell, use, copy, distribute, produce, issue copies to the public, perform, cut, broadcast, communicate, make available to the public and exploit the music releases or other media and all Customer Content in relation to Label Engine’s service, and without limitation, as examples only, to pursue the following on behalf of Customer:
- To use Customer’s name and trademarks, as well as Customer’s artist information and likeness, for the purposes of promoting the music releases or other media;
- To license (e.g. to YouTube, Facebook, Instagram, Twitter, Snapchat, LinkedIn, SoundCloud, Pandora, Spotify, and Vevo, etc.) the master sound recordings that Customer submits to Label Engine and the musical compositions respectively embodied therein, including any derivative works, remixes, master cuts, radio edits, session files and stems (each a "Master" and collectively "Masters"), as those are delivered by or on behalf of Customer to Label Engine;
- To use artist or writer copyrights, artwork, marketing material, trademarks, names, sobriquets, biographical materials and approved likenesses, as well as the names, sobriquets and approved likenesses of any other person performing services in connection with Customer Content (the "ID Materials") during the effectiveness of this Agreement in connection with the exercise of our rights hereunder, including, without limitation the distribution and promotion of Customer Content, without further compensation to Customer or any other person except as otherwise expressly stated in this Agreement;
- To permit the performance, reproduction, display, sale, copying, distribution, synchronization, public performance, encoding in any format, configuration, and exploitation (e.g. as downloads, streams, on YouTube, etc.) of the masters and intellectual property by any method now known or hereinafter invented;
- To collect, administer, and distribute royalties to Customer accounts, as agreed between Label Engine and Customers, from revenue received from Media Platforms and paid to Label Engine for use of Customer Content;
- To perform any other acts deemed necessary to effectuate the purpose of the Distribution Services;
- To do any of the foregoing without further payment to Customer or permission from Customer, except as explicitly stated in this Agreement;
- To authorize or license any 3rd party partner (digital retailer or streaming service) to do any of the above;
- To monitor the Customer Content for the reproduction, distribution, public performance, public display, and synchronization of the Customer Content with user-uploaded videos and monetize and/or claim the Customer Content;
- To collect any and all monies derived from such monetization and/or Content Claiming services (defined below), as shall be agreed upon between Customer and Company in an addendum to this Agreement;
- To block, disable, and/or takedown unauthorized Customer Content;
- To access and utilize Customer’s manager accounts in connection with the Customer Content hereunder;
- To create, on behalf of Customer, art tracks using the Customer Content hereunder (including, where applicable, lyrics) ("Art Tracks" and as further discussed in 5.2 below), and as between the parties Customer shall own all right, title and interest in and to such Art Tracks;
- To send DMCA takedown notices to Media Platforms distributing videos containing links to unauthorized downloads of the Customer Content (collectively, such activities are "Content Claiming"); and
- To perform such other distribution and marketing services regarding Customer Content and music releases or other media as Customer or User and Label Engine may agree.
- Additional Customer License Grant to Company. Customer grants Company the right to use the name, image, voice, signature, biography, and likeness of Customer in connection with the exploitation of Customer Content. Customer grants to Company the right to change the duration, transcode, resize, and reformat the Customer Content as far as necessary to repurpose, watermark, and/or fingerprint the Customer Content for distribution and monitoring on Media Platforms in accordance with the purpose of this license. In connection with the Art Tracks, all album artwork, cover art and any other materials utilized in connection with the Customer Content in the Media Platforms by Customer (e.g. album art contained on SoundCloud) is hereby approved for Company’s use in connection with the Art Tracks. Customer may deliver to Company an alternative visual image or images to use in connection with the Art Tracks, subject to Company’s reasonable approval in each instance. In the event Company selects an alternative visual image or images not provided to Company by Customer, such images will be subject to Customer’s approval, not to be unreasonably withheld or delayed. In the event Customer does not approve of Company’s alternative visual image(s), Customer will use reasonable efforts to provide Company with comparable replacement images.
Customer Commitments and Responsibilities.
Customer shall deliver to Label Engine and upload the Customer Content in accordance with Label Engine procedure, portal guidelines and specifications to be provided by Label Engine and updated from time to time. Customer shall retain all rights in the Customer Content that are not expressly licensed to Label Engine under the terms of this Agreement.
- Customer agrees to be responsible for any and all clearances and/or payments in respect of the music releases or other media and/or granted rights.
- Customer agrees to be responsible for any/or all clearances or payments in respect of the publishing rights for sales made in the territory.
- Customer agrees that Label Engine will provide pre-listening ﬁles in low resolution format and all information contained in the "METADATA," as well as all other materials to 3rd party platforms with the purpose of generating sales to end users.
Customer acknowledges that the 3rd party Media Platforms outlined in the following table are designated as "Opt-in Stores" and agree to notify Label Engine of intent to deliver content to these services. Customer may change delivery status to these platforms at any time via written or electronic notice.
OPT-IN STORE NAME TYPE AUDIBLE MAGIC Piracy Protection BEATPORT Electronic Dance Music JUNO Electronic Dance Music MUSIC REPORTS Publishing Data SOUNDCLOUD Piracy Protection TRAXSOURCE Electronic Dance Music
- Notwithstanding the above, Label Engine shall not have any right to do remixes, edits, alterations of the master tracks, graphic files, video clips or any other copyright protected materials.
Royalty and Accounting
- Company shall pay Royalties that Company collected on Customer's behalf using Company's best efforts from the date on which Company receives Customer's Royalties from any third-party platform or is credited with Royalties in connection with the User Content, whichever is later.
- As soon as practicable every calendar month, Label Engine shall account the Royalties due and shall provide Customer with a reasonable detailed calculation of the royalties in respect of activity in the preceding month(s). If Customer is owed less than ten U.S. dollars (US$10) via PayPal or less than US$100 via Wire or ACH , Customer’s Royalties shall be carried forward onto the following accounting statement and paid to Customer once Customer's Royalties reach ten U.S. Dollars (US$10) or more via PayPal or US$100 or more via Wire or ACH. Label Engine's accounting statements shall be based solely upon information provided by our licensees and Label Engine partners. No Royalties shall be payable to Customer until payment has been actually received by Label Engine or credited to its account. Customer shall be responsible for any bank fees or related charges for the payment of any Royalties. Customer shall have a valid method of payment on file with Label Engine. It is Customer's responsibility to notify Label Engine of any changes to User's method of payment. In the event that Customer does not have a valid method of payment on file, Label Engine may suspend payment to Customer until such time that a valid payment method has been submitted. Any objection to any accounting statement or lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one (1) year after the date the accounting statement is rendered. Customer hereby waives any longer statute of limitations that may be permitted by law. Notwithstanding anything to the contrary contained herein, in the event that no Royalties are due to Customer, or any outstanding balance is owed to Label Engine by Customer, Label Engine shall have no obligations to provide a statement indicating that no payment is due.
- Label Engine shall pay royalties within 30 days after it has determined that all information and payments were submitted correctly. Label Engine may withhold any taxes, duties, charges, or levies on payments by Label Engine to Customer pursuant to this Agreement in accordance with applicable law, rule or regulation and shall remit such withholding to the appropriate authority.
- Unless otherwise agreed by Label Engine, Label Engine reserves the right to set transaction fee rates on a per label basis, which may change as deemed necessary by Label Engine in its sole discretion. By way of example only, Label Engine currently charges a transaction fee of 17.5% (seventeen and one half percent) on net income (amount sent from stores, not the amount that the store receives from the end customer) on sales from 3rd Party Media Platforms or partners, except YouTube Content ID, for which the transaction fee is 20% (twenty percent). All such sales shall be stated in periodic royalty statements to Customer.
- Any royalties that fail to meet the minimum of ten U.S. Dollars (US$10) or more via PayPal or US$100 or more via Wire or ACH, will be carried over until the US$10 or more threshold for PayPal and the $100-dollar or more threshold is reached.
Authorized Use of Label Engine by Users
- Customer shall restrict use of Label Engine solely to those authorized Users of Label Engine who satisfy the following conditions: (a) the individual has been given an authentic and valid invitation by Customer to gain access to and then use any Label Engine services to which he/she is eligible; and (b) each such individual agrees to comply with all of the terms and conditions of this Agreement as a condition of his/her access and use of Label Engine and its services.
- The Company is solely responsible for monitoring the use of the Label Engine by all Users; including, without limitation, the Customer being ultimately and solely responsible for: (i) all uses (or misuses) of Label Engine by all its Users; and (ii) any breaches of this Agreement caused by any Users.
- Customer is required to immediately notify Company of each User that Customer no longer is giving access to Label Engine in order to allow Company the ability to terminate the applicable User’s access to Label Engine.
Additional Responsibilities of Customer
Customer shall be solely responsible for:
- Procuring, at Customer's expense, the necessary environment at the Customer's location(s) to use Label Engine, including, without limitation, all computer hardware, software and equipment, Internet access and telecommunications services ("Systems");
- Keeping Customer's user names and passwords secret and confidential, and, for any communications or transactions that are made, using the same;
- Changing Customer's user names and passwords if it believes that the same has been stolen or might otherwise be misused;
- Ensuring that each User is aware of the material terms of this Agreement and the Terms and Conditions of Use and that no person who is not an authorized user be allowed access to Label Engine;
- Maintaining recommended information security tools, technologies, fire walls, antivirus, malicious software removal and detection software, etc. and to implement and maintain appropriate administrative, physical, and technical safeguards to data from unauthorized access, use or alteration; and
- Complying with all other laws, rules and regulations related to the Customer's use of its Systems.
Company Reservation of Rights
- Subject only to the limited Access Right granted to Customer pursuant to Section 2 above, all rights, title, and interest (including without limitation all global intellectual property rights) in and to Label Engine, including without limitation the underlying code or programs that operates Label Engine, all Create Music Group Material (as defined herein) provided by Company though Label Engine, all Company Trademarks (including without limitation the Company's Label Engine trademark and Create Music Group™ trademark), and all text, graphics, interfaces, photographs, designs and expression, as well as goodwill associated therewith (hereinafter collectively referred to as the "Company IP Assets") shall at all times remain the sole and exclusive property of Company. Customer and Users shall not in any manner represent that they have acquired any rights in the Company IP Assets beyond or in addition to the limited Access Right expressly granted by Company to the Customer pursuant to only Section 2 above.
- Customer acknowledges and agrees that Label Engine receives many submissions, some of which may be similar, or may be similar to content being independently developed by Customer. Nonetheless, Customer agrees that Label Engine is free to work with other artists with similar submissions or proceed with developing its own content without any obligation from Customer.
Customer hereby agrees that all Company IP Assets (as defined above), including without limitation Label Engine and Create Music Group Material therein, may contain valuable trade secrets and confidential information that is owned by Company. Customer agrees to take all commercially reasonable precautions to prevent disclosure of any of the Company IP Assets, including all know-how and confidential information therein to any third parties without prior written authorization from Company. Customer agrees to not use or disclose any part of the Company IP Assets for any purpose other than for the sole purpose of using Label Engine only as explicitly permitted under this Agreement.
Term and Termination
- This Agreement shall commence as of the Effective Date noted above and shall continue until the earlier to occur of the following: (i) any termination of this Agreement under Section 11.2 below; or (ii) the Subscription Period otherwise expires or terminates; or (iii) the Distribution Service Period otherwise expires or terminates.
In addition to any other right of termination set forth in this Agreement, this Agreement may be terminated by Company:
- For convenience upon giving 60 days advance notice to Customer or any individual User; or
- immediately if any one or more of the following occurs: (i) if Customer is in violation of, or has otherwise breached, this Agreement, including without limitation violating or breaching any Company Label Engine Policies.
Upon any type of termination, expiration or cancellation of this Agreement, all rights granted to Customer hereunder, including without limitation the Access Right, shall immediately and automatically cease. Without limiting the foregoing in any way, upon the effective date of such termination, expiration or cancellation:
- Customer shall cease using Label Engine, all Create Music Group Material therein, and any other Company IP Assets that was made available by the Company; and
- Customer shall return to Company or destroy (and certify the destruction thereof in writing), at Company's option, all copies of all of the Company IP Assets. All provisions of this Agreement that by its terms, nature or context are intended by the parties to survive the termination, expiration or cancellation of this Agreement shall do so.
Upon expiration or termination of this Agreement, the following additional terms shall govern the Customer Content:
- If Company has exercised its right of termination for convenience pursuant to Section 11.2(a) above, Customer and each of its Users shall have 30 days after the effective date given by Company for such termination for convenience in which to download copies of their Customer Content, with the understanding and agreement that after such 30-day period Company shall not be responsible to provide access to any such Customer Content thereafter.
- If a Customer has not renewed its Subscription pursuant to this Agreement, then Customer and each of its Users shall have 30 days after the expiration date of the Subscription Period in which to download copies of their Customer Content, with the understanding and agreement that after such 30-day period Company shall not be responsible to provide access to any such Customer Content thereafter.
- Except as set forth in subsections (a), (b) and (c) of this Section 11.4, Company shall not have any other obligation under this Agreement to provide access to any such Customer Content after any type of termination, expiration or cancellation of this Agreement.
Links to Third Party Media Platforms
As a convenience to Customer, Company may now, or in the future, provide links to Media Platforms and other sources of information or other internet web sites that are not owned by Company and are not under Company's control. Company does not control these third-party Media Platforms and is not responsible for the data, material, recommendations, or any other information included in any Media Platforms, including without limitation any subsequent links contained within a linked web site, or any changes or updates to a linked web site. Any reference from the Company's Label Engine to any entity, product, service, or information provided through a Media Platform does not constitute an endorsement or recommendation by Company. No Media Platform is authorized or permitted to make any representations or warranties on Company's behalf. Your use or visit to any Media Platform, or Your act of providing any of your personal information to any Media Platform constitutes Your automatic agreement that Your actions using such Media Platform (including transfer of any information) shall be subject to and governed by the terms and conditions of such Media Platform, including without limitation the privacy policies of any such Media Platform.
Disclaimer of Warranty
CUSTOMER ACKNOWLEDGES AND AGREES THAT LABEL ENGINE (INCLUDING WITHOUT LIMITATION THE CREATE MUSIC GROUP MATERIAL OR ANY OTHER CREATE MUSIC GROUP IP ASSETS AS DEFINED HEREIN WHICH MAY BE PROVIDED THROUGH LABEL ENGINE) ARE PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS.
THE COMPANY MAKES NO, AND HEREBY EXPLICITLY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
CUSTOMER ASSUMES THE ENTIRE RISK REGARDING THEIR USE OF, AND THE RESULTS AND PERFORMANCE ARISING OUT OF, LABEL ENGINE, INCLUDING WITHOUT LIMITATION THE CREATE MUSIC GROUP MATERIAL OR ANY OTHER CREATE MUSIC GROUP IP ASSETS WHICH MAY BE PROVIDED THROUGH LABEL ENGINE.
CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING HIS/HER ACTIONS (OR INACTIONS) NEEDED TO BE IN COMPLIANCE WITH ALL LAWS AND REGULATIONS IN ALL APPLICABLE JURISDICTIONS WITH REGARD TO ANY AND ALL DATA, INFORMATION, GUIDANCE, OR ASSISTANCE PROVIDED THROUGH LABEL ENGINE OR ANY OTHER CREATE MUSIC GROUP IP ASSETS WHICH MAY BE PROVIDED THROUGH LABEL ENGINE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR THE COMPANY'S AUTHORIZED REPRESENTATIVES SHALL CREATE ANY REPRESENTATION OR WARRANTY OF ANY KIND.
COMPANY FURTHER DOES NOT REPRESENT OR WARRANT THAT LABEL ENGINE (INCLUDING WITHOUT LIMITATION ANY CREATE MUSIC GROUP IP ASSETS WHICH MAY BE PROVIDED THROUGH LABEL ENGINE) WHICH MAY BE MADE AVAILABLE TO CUSTOMER WILL OPERATE OR FUNCTION UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVER MAKING ANY OF THE FOREGOING AVAILABLE, OR THAT ANY OF THE OTHER FOREGOING IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS.
CUSTOMER EXPLICITLY ACKNOWLEDGE AND AGREE THAT:
(A) THE COMPANY IS NOT RESPONSIBLE FOR ANY STATEMENT, OPINION, OR ADVICE MADE BY ANYONE (INCLUDING WITHOUT LIMITATION ANY CUSTOMER CONTENT OF, OR STATEMENT, OPINION OR ADVICE PROVIDED BY, ANY CUSTOMER OR USER) OR ANY DAMAGES ARISING FROM THE FOREGOING, OTHER THAN AN AUTHORIZED STATEMENT MADE BY AN AUTHORIZED REPRESENTATIVE OF CREATE MUSIC GROUP (HEREINAFTER A "CREATE MUSIC GROUP AUTHORIZED REPRESENTATIVE") SPEAKING ONLY IN HIS/HER OFFICIAL CAPACITY AS SUCH CREATE MUSIC GROUP AUTHORIZED REPRESENTATIVE; AND
(B) THE COMPANY DOES NOT ENDORSE OR VERIFY THE ACCURACY OR RELIABILITY OF ANY STATEMENT, OPINION, OR ADVICE MADE BY ANYONE (INCLUDING WITHOUT LIMITATION ANY CUSTOMER CONTENT OF, OR STATEMENT, OPINION OR ADVICE PROVIDED BY, ANY CUSTOMER OR USER), OTHER THAN AN AUTHORIZED STATEMENT MADE BY ANY COMPANY CREATE MUSIC GROUP AUTHORIZED REPRESENTATIVE SPEAKING ONLY IN HIS/HER OFFICIAL CAPACITY AS SUCH CREATE MUSIC GROUP AUTHORIZED REPRESENTATIVE.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY, OR ITS SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICES, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR ANY USER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM INCONVENIENCE, INTERRUPTION OF BUSINESS, LOSS OF USE, DOWNTIME LOSS, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF REVENUE) WHETHER OR NOT THE COMPANY OR ANY OF THE FOREGOING HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED IN WARRANTY, CONTRACT, TORT OR AN OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF (OR INABILITY TO USE), THE PERFORMANCE OF, OR THE RESULTS FROM THE USE OF, LABEL ENGINE OR ANY OTHER CREATE MUSIC GROUP IP ASSETS (AS SUCH TERMS ARE DEFINED HEREIN).
IN NO EVENT SHALL THE COMPANY'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS (WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, WARRANTY, OR ANY OTHER LEGAL THEORY OF LIABILITY) EXCEED THE LESSER OF THE SUBSCRIPTION FEES PAID TO THE COMPANY OR THE ROYALTIES ACTUALLY RECEIVED BY THE COMPANY DURING THE LAST 12 MONTHS PRECEDING A CLAIM FOR DISTRIBUTION SERVICES RENDERED TO OR ON BEHALF OF CUSTOMER, USERS OR ANY THIRD PARTY.
Upon a request by Company, the Customer and/or the applicable breaching User each hereby agree to defend, indemnify, and hold Company, its affiliates and their officers, directors, employees, agents, and representatives harmless from all liabilities, claims, and expenses, including attorney's fees, that arise out of, or is related to each Customer's or User's:
- violation or breach of this Agreement, including without limitation any such User's breach or violation of the Company Label Engine Policies;
- any use, misuse or un-permitted use of Label Engine or any other Company IP Assets; or
- Any infringement by any User of any intellectual property or other rights of any person or entity.
- Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by any User under this provision, in which event the User will cooperate with Company in that action.
Change in the Terms of this Agreement
ONCE CUSTOMER BEGINS TO USE LABEL ENGINE, COMPANY MAY MODIFY THIS AGREEMENT AT ANY TIME AND FROM TIME TO TIME ("CHANGES"), AFTER GIVING REASONABLE NOTICE TO CUSTOMER. CUSTOMER AND USERS HEREBY AGREE THAT SUCH REASONABLE NOTICE MAY INCLUDE, BUT IS NOT LIMITED TO, A GENERAL NOTICE ON ANY COMPANY WEBSITE. ONCE THE COMPANY PROVIDES SUCH NOTICE OF SAID CHANGE, THE CUSTOMER AND EACH OF ITS USERS AUTOMATICALLY CONSENT THEREAFTER BE BOUND BY THE VERSION OF THIS AGREEMENT THAT IS IN EFFECT THE NEXT TIME THE FIRST USER OF THE CUSTOMER VISITS AND/OR USE LABEL ENGINE. ANY USE OF LABEL ENGINE THEREAFTER SHALL BE DEEMED TO CONSTITUTE ACCEPTANCE BY CUSTOMER AND ALL OF ITS USERS OF ALL SUCH CHANGES.
Certain Uses of Customer Information by Company
- Each Customer hereby agrees that Company has, and each such Customer hereby explicitly grants to Company, an exclusive, worldwide, perpetual, assignable, sub-licensable, transferable, fully paid up right and license to use any Customer Content in the normal course of Company's business, including without limitation for the following purposes: (i) to use, copy, reproduce, publicly perform, publicly display, communicate to the public, stream, listen to, make available, reformat, translate, excerpt (in whole or in part), transmit, re-post and distribute such Customer Content for any purpose set forth in this Agreement and in connection with services provided through Label Engine for Customer, (ii) statistical analysis, industry trend analysis, and/or evaluating the efficiency of the features and functionalities of Label Engine or any other applications developed by Company; (iii) for any marketing, advertising or other methods of promoting (in digital, print or in any other media) Customer's music albums and other Customer Content, as well as Label Engine, and other products or services of Company.
Monitoring for IP Infringement. Customer acknowledges and agrees that Company has no obligation to monitor Customer Content regarding infringement of third-party intellectual property rights and vice versa related to any of Company's services. Nonetheless, in the event that Company or any of its Media Platforms or business partners have a reasonable suspicion that Customer Content used by Customer may infringe third party rights or otherwise be ineligible for use as contemplated by any of Company's services across any platforms, or that third party content infringes Customer Content, then Customer agrees that Company or any of its affiliates may take commercially reasonable actions to remove that Customer Content wherever located if it infringes third party content, and to pursue remedies if Company determines that third party content infringes Customer Content. However, if deemed appropriate by Company, Company is under no obligation to pursue such action, and may require Customer to pursue such actions as described above. In the event that Company pursues such actions, Customer authorizes Company to negotiate settlements, licensing, monetization, and other agreements, as deemed necessary by Company in its sole discretion. In order for Company to proceed as discussed above, the following conditions must be satisfied by Customer:
- Customer must have exclusive copyright rights to the material in the reference file for the territories where Customer claims ownership;
- Sound recordings must be sufficiently distinct (i.e., no karaoke recordings);
- Customer must provide individual references for each piece of intellectual property (i.e., individual single sound recording files as opposed to full-length albums);
- Customer Content that is sold or licensed for incorporation into other works (i.e., "royalty free" production) must be identified and routed for additional review;
- Customer Content must contain sufficient metadata information;
- With respect to fingerprint-only references, they will be automatically replaced with media-file references that embody the identical content. Fingerprint-only references cannot be automatically updated to utilize the latest Content ID matching technology, thus outdated references may be automatically deactivated;
The following examples are ineligible for use in or as a reference:
- Content licensed non-exclusively from a third party (including underlying music production in songs);
- Content released under Creative Commons or similar free/open source licenses;
- Public domain footage, recordings, or compositions;
- Clips from other sources used under fair use principles; and
- Video gameplay footage (by other than the game's publisher).
The Company develops and maintains Label Engine, its website, and its other products and services from its corporate offices in the State of California, United States of America. The laws of the State of California, USA shall govern this Agreement for all purposes, without regard to the conflicts of laws principles thereof or the United Nations Convention on the International Sales of Goods. In the event of a dispute that cannot be amicably resolved by the parties, Customer agrees and hereby irrevocably submits all disputes arising under this Agreement and Label Engine to binding arbitration in Los Angeles, California before one arbitrator in arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. If the parties cannot agree on a single arbitrator, then the arbitrator shall be selected in accordance with JAMS rules. Judgment on the award may be entered in any court having jurisdiction. The prevailing party shall be entitled to the award of all reasonable dispute resolution costs and expenses, including court, arbitration, and attorneys' fees at any level of judicial or arbitral proceedings.
Customer acknowledges and agrees that monetary damages may not be a sufficient remedy for unauthorized use of Label Engine, any Create Music Group Material, or any other Company IP Assets, and therefore Customer and each User hereby agree that Company shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court or arbitration panel of competent jurisdiction without Create Music Group posting a bond or proving lack of
Notices to Company must be sent to the attention of Legal Notices at email@example.com. Except as set forth in Section 16 of this Agreement ("Change in the Terms of this Agreement"), notices to a User may be sent by Company to the email address or any other contact address that Customer may have supplied at any time to Company. In addition, Company may broadcast notices or messages through Label Engine or through any Company website to inform each User of changes to Label Engine or this Agreement or other matters of importance, and such broadcasts shall constitute notice by Company to Customer at the time of sending. Regardless of the method of sending the notice, all notices sent to Customer by Company shall be deemed to be given and deemed to be effective as of the date sent or posted by Company.
Binding Effect; No Assignment by Users; Permissible Assignment by Company.
This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided, however, that Customer may not assign this Agreement, in whole or in part. Any purported assignment by Customer in violation of this Section shall be void. Company shall have the right to assign this Agreement, or any part of it, in its sole discretion to any party, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by such successors and assigns.
This Agreement constitutes the entire agreement and understanding between the parties concerning the subject matter of this Agreement and supersedes all prior agreements and understandings of the parties with respect to that subject matter. Without limiting Company rights in Section 16 of this Agreement ("Change in the Terms of this Agreement"), Customer and each user agrees that this Agreement may not be altered, supplemented, or amended by any User without the prior written consent of Company.
None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Company, its agents, or employees, except upon an instrument in writing signed by an authorized employee of Company. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the remainder of the Agreement shall continue in effect.
The Company shall not be liable for any delay or failure in performance, nor shall Company be deemed to be in default of any provision of this Agreement, due to any Force Majeure, which shall include without limitation acts of God, disease, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, terrorist acts, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond the Company's reasonable control.
If you have any questions about this Agreement, or about Label Engine, please email CREATE MUSIC GROUP, INC. at firstname.lastname@example.org.