Terms of Service
TERMS AND CONDITIONS
Please read these terms of service (“terms”) carefully and in their entirety. They constitute a legal agreement between you and Loud Music, LLC a Maryland company (“us” or “Loud Music”), regarding the use of this website (the “site”) and of our services (“services”), which are described below and elsewhere on the website.
By visiting the website and/or registering for or using the services, you acknowledge that you have read and understand and agree to be bound by these terms as well as the terms of our Letter of Direction and Music Publishing Administrator Agreement attached to these terms and conditions.
By visiting the website and/or registering for or using the services, you acknowledge that you have read and understand and agree to be bound by these terms as well as the terms of our utilized facilitator, found here.
We may occasionally change these terms and conditions, for instance to comply with current laws. We reserve the right to amend these terms at any time. When we amend the terms, we will post the amended terms here. If you are a registered Loud Music user, we may also notify you by email or by posting notice to your account that the terms have been updated.
SECTION A – REGISTRATION AND USE OF OUR SERVICES
In order to use our services, you will need to register and create an account with us. This involves choosing and verifying a valid email address that is your own, choosing a password and providing us with complete and accurate registration information, which may include without limitation your name, age, email address, postal address, phone number, bank account, social security number or other tax ID number and other payment details, and certain details regarding the songs (“Compositions”) and/or recordings (“Recordings”) that you submit to us, such as titles, ISWCs, ISRCs or other identifying codes, and your percentage copyright interest. You will be solely responsible for any activity conducted with your username, password and account, so please keep that information confidential and safe. If at any time your details change or if you learn or suspect that your password has been used or obtained by a person not authorized to use it, please notify us immediately.
If you are registering, submitting materials and/or providing information to us on behalf of one or more other people, a group, or a company or other entity, then you represent and warrant to us that you are duly authorized to do so on their behalf and to bind them to these terms and that we and our sub-licensees are fully entitled to rely on the same. In such case, the term “you” as used throughout these terms, includes all such people and entities.
A2. SUBMISSION OF MUSIC
Once you have registered, you will be able to submit as many compositions and/or recordings as you wish for us to administer within the scope of our services. We will provide you with detailed instructions to submit all necessary accompanying details and, if necessary, to upload applicable recordings or other materials. The compositions and/or recordings that you submit to us, together with any accompanying artwork, photographs, lyrics, metadata and/or other materials, are sometimes collectively referred to in these terms as your “Music.” We are not able to return any materials or information submitted to us and while we don’t intend or undertake to pre-screen your music, we may refuse to accept or to perform services in connection with any music if we receive a claim involving that music, if it violates the terms of a license, or for any reason in our discretion.
You may only register music that you own or control the rights to, and only to the extent of your own interest. For example, if you co-wrote a composition with one or more other writers, then you must tell us what percentage of the copyright you own in that song, and only your interest will be covered under these terms.
If your compositions or recordings are covered under an agreement with a music publisher or administrator or with a record company, then you may not be able to submit them to us. If you enter into any such agreement during the term, it will be subject to our rights herein. We recommend that you carefully review any applicable agreements and consult with a lawyer to make sure that you can submit music to us without violating those agreements or the representations and warranties below. If you don’t own or control 100% of the rights to each and composition and sound recording that you submit to us, then there is still a possibility that someone else may “claim” a portion of the related content or may demand that it be removed from the digital service altogether.
A3 GRANT OF RIGHTS
If you register and account with us and submit music to us, then that music will automatically be included in the licensing claim services described in Sections A3.1 below.
On behalf of yourself and your music publishing designees (if applicable), you grant to us and our sub-licensees, successors and assigns the sole and exclusive rights during the term and in the territory to license, administer, collect and otherwise exploit the mechanical rights (as applicable) on your behalf throughout the universe as to 100% of your right, title and interest in and to each piece of music that you submit to us.
A3.1 MECHANICAL LICENSING CLAIMS
Loud Music will identify instances where your music is being used or exploited during the term (or has been used or exploited prior to the term) on digital music services without authorization or consent from you (or your authorized representative) and to “claim” and monetize such uses and/or exploitations on your behalf (which we may do by authorizing the service to enable the reproduction of your music). We refer to any foregoing kinds of claims as “ Mechanical Licensing Claims”.
We will have the right but not the obligation to initiate litigation or administrative proceedings on your behalf with regard to any unauthorized uses or exploitations of your music on the digital music services.
We will pay you 70% of net sums derived from mechanical licensing claims for your compositions on digital music services for retroactive recovery payments.
We will pay you 70% of net sums derived from mechanical licensing claims for your compositions on digital music services from the date you register on our website.
A3.2 GRANT OF RIGHTS
In addition, we may now or in the future offer some of the following services, all of which will be entirely on an “opt-in” basis. If you do opt-in, then on behalf of yourself and your music publishing designees (if applicable), you grant to us and our sub-licensees, successors and assigns the sole and exclusive rights during the term and in the territory to administer, collect and otherwise exploit the following rights (as applicable) on your behalf throughout the universe as to 100% of your right, title and interest in and to each piece of music that you submit to us for the applicable service.
A3.3 DIGITAL RIGHTS SERVICES
If you opt in for our digital rights services, then you grant to us the sole and exclusive right to license, administer and collect all income (whether earned during or prior to the term) with respect to any and all digital sites and services that digitally deliver music via the internet or a mobile/wireless communications network or the like, including but not limited to:
- Interactive streams or webcasts,
- Limited or “tethered” downloads,
- So-called “pure” or “permanent” downloads ,
- Ringtones and ringback tones,
- So-called “scan and match,” cloud storage or locker services,
- Digital jukeboxes,
- Digital and online/wireless karaoke services,
- Business establishment background/foreground and audiovisual music services, and
as music may otherwise be embodied in any and all other digital phonorecord deliveries or digital transmissions of sound recordings currently existing or hereafter developed (excluding only performances in the U.S. of a sound recording that is exempt under 17 U.S.C. §114(d)(1) or which qualify, either alone or as a result of a program in which it is included, for statutory licensing under 17 U.S.C. §114(d)(2)).
- By way of example and not limitation, our rights hereunder extend to digital services such as Spotify, Apple Music, Pandora, Rdio, Deezer, Rhapsody, Beats Music, SoundCloud, Microsoft Groove, TouchTunes, Slacker, Tidal, iTunes Match, Amazon Cloud Player, the Google Music Store, Google Play Music Services (which currently include the Google Play Music Store, Google Locker Music Service, and Google Play Subscription Service), Amazon Prime, Amazon Scan and Match, Mood Media (incl. Muzak, DMX), PlayNetwork, TouchTunes, AMI Entertainment, Shoplifter and ex-U.S. iTunes and other download or interactive streaming stores or digital services now or hereafter known.
You acknowledge that our exclusive administration rights include, for example, the ability to allow digital services to create and make available promotional excerpts and streams of your music, to encode, reproduce, cache and store your music on central hardware devices and/or to reproduce and physically deliver programmed physical media and digital storage devices containing your music to licensed locations. Our rights also include the right (but not the obligation) to grant licenses to digital devices on a so-called 100% basis (i.e., to license the rights to an entire composition, even if you or Loud Music controls less than 100% of the copyright therein).
For karaoke services, our exclusive administration rights also include, without limitation, the ability to allow digital services and their users to display and record your music in synchronization or timed relation with lyrics and other visual images, to record users’ performances and versions of your music, and to upload, download, perform and distribute recordings of those performances.
We may also grant digital services the right to perform actions necessary or desired for the operation of their services, such as to make and retain cache and server copies of your music, to create and make available previews of your music, create and/or use and store metadata to “fingerprint” or match content on their services, to edit music files and metadata solely for technical or legal purposes, to offer free or discounted promotional trial periods, and to allow users to recommend your music to others via social media for streaming, subscription and/or purchase opportunities.
You also grant us the exclusive right to allow digital services to publicly perform the music (or if you do not control those rights exclusively, then you grant us the non-exclusive right) and to use the names (real and professional), approved biographical information and approved likenesses of the writers of the music, and to authorize others to do so, solely in connection with exploitation of the music via digital services.
We will pay you 75% of Net Sums that we collect from Digital Services for uses of your music beginning on the date that you opt-in to our digital rights services and 70% of net sums that we collect from digital services for use of your music prior to that date.
A3.4 ROYALTY RECOVERY SERVICES
If you opt in for our royalty recovery services, you grant us the sole and exclusive right to find, identify and recover any and all pre-existing mechanical and other royalties that have been earned by you but unpaid by digital services as of or prior to the date that you opt-in for the service from permanent digital downloads and/or use in scan-and-match services (such as iTunes Match) of recordings embodying your compositions in the U.S. (and any applicable statutory late fees and/or interest, collectively, “Blackbox Royalties”).
We may employ our proprietary technology to locate and identify commercially released sound recordings embodying the compositions, and the metadata and identifying codes and ID numbers associated with those recordings. We may be able to use this data to recover arrears payments and accurate payments for current and future exploitations.
We will pay you 70% of Net Sums derived from Recovered Royalties.
Our exclusive rights during the Term for the applicable services above will include anything reasonably necessary or desirable in furtherance of the foregoing, including without limitation the right to (a) reproduce, modify and display the metadata and music for the purposes described herein and for other related internal purposes in carrying out the services; (b) sublicense any or all of the rights granted herein to any person(s) or entity; (c) collect all monies derived from the foregoing prior to and during the term throughout the territory; and (d) use and to grant others the right to use the composition lyrics and the names (real and professional), approved biographical information and approved likenesses of the writers of the compositions and artists, producers and others whose performances are embodied on the recordings. You will be deemed to have approved any artwork, photographs, biographical material or other information or materials that you provide to us. You agree that we may contact you by email or using your other registration details with any questions we may have relating to your music. All rights not granted to us in this agreement (or reasonably necessary or desirable for the exploitation of such rights) are reserved to you. You acknowledge that any services for which you opt-in are exclusive to us, and so during the term you may not engage in those services directly or authorize others to do so. If and to the extent that you retain any moral or other rights, you irrevocably agree not to enforce them against us, or our sub-licensees.
You hereby irrevocably appoint such of our officers as we may delegate with the power of attorney (coupled with an interest and with full power of substitution and delegation) solely for the purposes of effecting the rights, powers and transactions contemplated by these terms (e.g., making, executing, filing and/or delivering any documents or taking any other action necessary or reasonably desirable within our reasonable business discretion). However, you and we are independent contractors and licensor-licensee and this agreement does not create any joint venture, agency, employment or other relationship.
The term of our services (the “term”) will begin on the date that you first submit your music to us via the site and shall continue on a month-to-month basis. The term will automatically renew on a month-to-month basis unless and until either party provides the other with at least thirty (30) days’ prior written notice of its desire that the term expire at the end of the of the then-current period. It will take 6 months for digital and 3 months for physical to have content removed completely from the Loud Music system.
Notwithstanding the foregoing, (i) we may suspend, modify or terminate any or all of our services at any time, without notice, (ii) we may grant sublicenses of your music to third parties which survive the term, and (iii) you have the right to terminate the term upon written notice to us if we stop operating the website and service for sixty (60) consecutive days or longer. There may be a delay between the end of the term (or your withdrawal of any particular piece of music from representation by us) and the time that it takes a digital service to actually acknowledge or register the transition or to take down your music (e.g., they may only honor takedown requests semi-annually or on some other periodic basis), and you agree not to hold us or the applicable third party responsible for any such delays.
The territory of the rights granted to us (the “Territory”) is worldwide as to all music and services unless you specify otherwise when you submit or deliver the music and related information to us during the submission process.
We will pay you the applicable percentage of net sums for the services above. As used herein, “net sums” shall mean gross monies that we earn, collect and actually receive, from digital services or our other sub-licensees and which are solely and directly attributable to the exploitation of your interest in the music pursuant to these terms, less any refunds, taxes, tariffs or other amounts that we may be legally obliged to withhold or pay. We will retain the remaining net sums as our service fee. We shall have the right to rely on accounting, usage and other statements received from our sub-licensees for all purposes hereunder. You will be responsible for payment of all taxes assessed to you, and for all payments due to third parties (e.g., co-writers of compositions if applicable, artists, producers, engineers or others who performed services in connection with recordings), and hereby agree to indemnify and hold us harmless from and against any sums for which you are responsible.
If we or any other digital service or any of our other sub-licensees receives a claim or otherwise reasonably suspects that any of your music infringes the rights of any person or entity, violates any applicable law or terms of service, or that other activity related to your account with us is attributable to misrepresentation, manipulation, misconduct or similar deceptive or fraudulent practices (automated or otherwise), then in addition to any other available rights and remedies we may withhold net sums otherwise payable to you in an amount reasonably attributable to such conduct unless and until any and all claims or other conduct are favorably resolved to our reasonable satisfaction and we may attempt to address and resolve matters resulting from such claims or conduct, which may include, without limitation, the disclosure of information to third parties and the payment to or other settlement of disputed amounts with third parties on your behalf, in Loud Music’s sole business judgment. You will forfeit all amounts that any digital services and/or our other sub-licensees reasonably determine in our discretion are the result of any of the foregoing activity, or if so determined by a court or administrative body. Additionally, if we in our reasonable discretion engage outside attorneys in connection with the evaluation, investigation, enforcement or defense of such matter, then we shall be entitled to offset our resulting expenses by, in our sole discretion, (i) deducting from your account (whether currently or in the future available) a minimum of $500 and a maximum of our actual costs incurred plus a service fee of 20% on top of said fees or (ii) charging $500 (or any greater or lesser balance not deducted from your account) to any payment method then on file with us (e.g., PayPal, Transfer, ACH, Credit or Debit Card). In addition to any other rights or remedies, we may in our discretion deduct or set-off any amounts that you owe us from any monies otherwise payable to you.
We will render payment of net sums payable to you within sixty (60) days after our actual receipt thereof from a digital service, together with copies of any accompanying statements that we receive; provided, in each case, the applicable digital service provides sufficient information in its accounting statement to us to enable us to identify and distinguish the specific exploitation of your music and associated income and to allocate your share of net sums therefrom. If the applicable digital service does not provide sufficient information, then we will use our commercially reasonable efforts to work with the reporting service to identify and obtain such information so that we can allocate, account and pay your share of net sums. If the net sums due to you for a particular quarter are Ten Dollars ($10) or less, then we may hold that amount in your account until a statement shows net sums of Ten Dollars ($10) or more payable to you (or, if later, until the final statement after the term ends). We may furnish statements by posting them to your account dashboard on the site, by email, by regular mail, or otherwise in our reasonable discretion, in each case using the registration details you have provided, it is your responsibility to maintain current contact information. All statements shall be binding upon you and not subject to any objection for any reason unless you give us a specific, non-generalized objection in writing, stating the basis thereof, within one (1) year from the date rendered, and any lawsuit must be commenced within two (2) years from the date such statement was rendered.
A8. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us that: (a) you are 18 years of age or older and have and shall continue to have the full legal right, capacity and authority to agree to and fully perform these terms and to grant the above rights to us without the consent of any other person; (b) all information, data and materials that you provide to us are accurate and complete, including without limitation your stated percentage copyright interest in the music and your ownership, and you will update the same during the term so as to remain accurate and complete; (c) none of the music, nor any part thereof, infringes upon any rights of any third party or violates any applicable law or terms of service; without limiting the foregoing, no music embodies a sample, interpolation or other portion of a work owned or controlled by a third party unless licensed (in writing) by all applicable third parties for your embodiment in the applicable music; (d) any sale, assignment, transfer, mortgage or licensing or other grant of rights in or to your interest in any of the music shall be subject to our rights hereunder and the terms and conditions hereof; (e) there is no existing agreement, and you will not enter into any agreement or perform any act, which materially interferes or is inconsistent with the rights granted to us hereunder; (f) the music are and shall be free from any adverse claims, liens or encumbrances of any kind by any person or entity; (g) we shall not be required to make any payments of any nature for, or in connection with, the exploitation of the rights granted herein, including without limitation to any co-writers of the compositions or any performers, producers or others in connection with any recordings; (h) you will not join or become a party to any class action against us or otherwise involving the website or our services; and (i) you have had the opportunity to consult with independent legal counsel in connection with these terms.
We may disable, suspend, or terminate your account if we receive a claim or otherwise become aware of circumstances that, if true, would violate any of the foregoing representations and warranties or any other provisions of these terms.
SECTION B – USE OF OUR SITE AND SERVICES GENERALLY
B1. SITE CONTENT
All of the content, information and other materials available on the site (collectively, “content”) belong to Loud Music or our licensors and are protected by copyright, trademark and other applicable laws. Content may not be copied, downloaded, distributed, publicly performed or otherwise used in any manner without our prior written consent.
B2. SITE INTEGRITY AND REQUIREMENTS
The website is to be used solely for its stated purposes. You may not interfere or attempt to interfere with the appearance or operation of the website or any transaction conducted on the website. You may not take any action that imposes an unreasonable or disproportionately large load on the website or on our infrastructure.
You are responsible for any hardware, systems and/or software you use and any associated fees and expenses to connect to and use this website. You may not attempt, nor support others’ attempts, to decrypt, reverse-engineer, circumvent or otherwise alter or interfere with the website or any content.
The website may contain advertisements or other links to third party websites and services, and those of third parties may link to our website. Clicking on a link will redirect you away from our website to a third party site or service, in which case any resulting interactions, communications, purchases or other transactions are strictly between you and such third parties. We are not responsible for examining or evaluating, and do not warrant the goods, services or offerings of any third party or the content of their websites or advertisements. We disclaim any liability or responsibility for the statements, actions, products, services, practices, availability or content of these outside resources. Please direct any concerns regarding other sites to their operators.
B4. REPRESENTATIONS AND WARRANTIES
You represent, warrant and agree that: (a) any information you submit to us via the website is and will remain truthful, complete and accurate; (b) that neither your use of the website nor any information submitted by you or the use of such information by us or our users or sub-licensees in accordance with these terms will (i) violate or infringe upon the rights of any third party, including, without limitation, copyright, trademark, privacy or publicity, moral rights, contract or other personal or proprietary rights; (ii) contain unlawful material; (iii) constitute false or misleading statements of fact or indications of origin; (iv) slander, libel or defame any person or entity; or (v) cause injury of any kind to any person or entity; or (vi) violate any applicable laws, rules (including any applicable terms of service), regulations or other governmental regulations; and (c) you are at least the applicable age of majority in the jurisdiction where you reside and you and possess the legal authority and capacity to agree to these terms.
You agree to and hereby indemnify, defend and hold us and our officers, directors, shareholders, agents, service providers, affiliates, licensors, users, sub-licensees, agents and representatives (collectively, the “Indemnified Parties”) harmless from and against any and all liability and costs incurred by the indemnified parties in connection with any claim arising out of any breach by you of these terms or the representations, warranties and covenants herein, including, without limitation, court costs and reasonable attorneys’ fees. You shall cooperate as fully as reasonably required in the defense of any claim and shall not enter into any settlement agreement that affects our rights without our prior written approval. We reserve the right to assume the defense and control of any matter otherwise subject to indemnification by you, which may include, without limitation, the disclosure of information to third parties and the payment to or other settlement of disputed amounts with third parties on your behalf, in Loud Music’s sole business judgment. Pending the determination of any claim involving any alleged breach or failure, we may withhold any sums due to you in an amount reasonably related to such claim. If no suit is filed within twelve (12) months of our receipt of notice of a potential third party claim, we shall release monies held pursuant to this paragraph, provided however, that we may, in our sole discretion, continue to hold such monies if there is an ongoing settlement negotiation or if there is an indication that a suit may be brought imminently (the foregoing does not apply to sums withheld due to fraudulent activity or statements regarding your music which will be deemed forfeited).
B5. DISCLAIMER OF WARRANTIES
We don’t represent, warrant or endorse the accuracy or reliability of any statement or other information displayed, uploaded, or distributed through the site. Your use of our website and/or services is at your sole risk. our services and all information and materials provided via the site are provided “as is.” we make no warranties, express or implied, as to the fitness for a particular use or purpose, or any other warranty, condition, guaranty, or representation, including but not limited to the accuracy, timeliness or usefulness of our services or any information or materials provided via the site. we cannot and do not guarantee that access to or use of the website or it’s services will be continuous, uninterrupted, error-free or secure, or that our services will identify any or all claims or unauthorized uses of your music or result in any net sums payable to you. as a condition of our providing the services, you hereby waive all claims (whether known or unknown to you) against us and our sublicensees, including global 7 music publishing inc., regarding unidentified claims or that better business or greater net sums could have or should have been achieved. We expressly disclaim any and all warranties to the fullest extent of the law.
B6. LIMITATION OF LIABILITY
Neither we nor any of our shareholders, officers, employees, directors, affiliates, licensors, sublicensees or representatives shall be responsible for any direct or indirect, incidental, consequential, special, punitive or exemplary damages, lost profits or losses incurred in connection with the use of, or inability to use, our services or the site or any of the information or materials provided on the site, or any damage or loss, interruptions, errors, defects, lost data, failures of detection, errors in monitoring or reporting, or delays in performance, regardless of the claim as to the nature of the cause of action, even if advised of the possibility of such damage or loss. the aggregate liability of us and the third parties stated above to you or any third parties in any circumstance is limited to $100. the foregoing is applicable to the fullest extent permissible under applicable law.
B7. COPYRIGHT INFRINGEMENT
If you believe that any information or material on our website infringes upon a copyright owned or controlled by you, please send our copyright agent an email or other written notice that includes the following information: (a) an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) a description of where the material that you claim is infringing is located on the website; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for notice of claims of copyright infringement on the site is:
All correspondence and notices in connection with these terms should be sent to us at the email address below:
If you are a registered user of our site or services, we will communicate with you at the address you provided upon registration. Otherwise, please include a postal or email address where we may reach you.
LETTER OF DIRECTION
This is to confirm that COPYRIGHT OWNER (“CRO”) has entered into an exclusive publishing agreement with Loud Music, LLC for the administration of all musical compositions published through Loud Music, LLC.
Accordingly, from and after the date set forth above, Loud Music, LLC is authorized to have account access to CRO’s ASCAP, BMI and SESAC accounts for Live Works Registration, Works Catalog and Royalty Statements.
Loud Music, LLC is authorized to register song titles, submit claims, disputes, resolve discrepancies, issue licensing agreements, administer the collection and royalty payments on CRO’s behalf from all Digital Service Providers, Performance Rights Organizations, Mechanical Licensing Collectives and all other licensing parties.
This authorization shall remain in full effect until modified or terminated by the undersigned CRO and by Loud Music, LLC pursuant the aforementioned publishing agreement.
By: COPYRIGHT OWNER
Dear Loud Music User:
When you register as a Loud Music User, this will constitute an exclusive administration agreement (“Agreement”) between you and LMEG Music Publishing (“Publisher”) with respect to your interest in the musical Compositions, for the Territory set forth below, on the terms set forth below.
For good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, publisher and you hereby agree as follows:
- COMPOSITIONS: Your undivided twenty-five percent (25%) writing and ownership interest (“Your Interest”) in the musical Compositions registered on Loud Music, for the avoidance of doubt, any and all variations, adaptations, translations, samples and derivatives of such musical Compositions (the “Compositions”).
- TERRITORY: The Universe.
- TERM: The term of this Agreement (“Term”) shall begin upon registration with Loud Music and continue in perpetuity.
- GRANT OF RIGHTS: You hereby irrevocably sell, transfer and assign to Publisher, its successors and assigns, during the Term, the exclusive right and license, throughout the Territory, to: license the exploitation of Your Interest in the Compositions in all forms, media, technologies and configurations (now known or hereafter developed), e.g. records, cds, dvds, motion pictures, other audio-visual works, “sample” uses, all digital distributions and transmission, including Internet uses, advertisements, and merchandising; print, publish and/or sell printed editions and other reproductions of the Compositions, in any forms, media or configurations; collect all monies derived from exploitation of Your Interest in the Compositions, whenever earned; license public performance rights; make arrangements, adaptations and other changes; initiate, prosecute and settle claims with respect to Your Interest in the Compositions; claim and collect industry awards; and otherwise administer and grant rights with respect to Your Interest in the Compositions to the fullest extent possible. In order to effectuate Publisher’s rights hereunder, you will execute the direction letter annexed to this Agreement simultaneously with execution hereof, and any other reasonably-required documentation promptly following Publisher’s reasonable request. For the avoidance of doubt, you shall have no right to exploit or license Your Interest in the Compositions nor shall you have any approval rights with respect to the exploitation of Your Interest in the Compositions.
- ROYALTIES (Your share/Publisher’s share):
Publisher’s Share of Performance Income: 70/30
Mechanical Income: 70/30
Synchronization Income: 70/30
All other Income: 70/30
Your share of royalties will be credited to your royalty account established under this Agreement. Royalties earned outside of the U.S. will be calculated on an “at source” basis. All royalties are net of performing rights society fees and/or mechanical rights society fees (or an equivalent amount to be retained by Publisher if Publisher undertakes to perform the functions of the society, trustee or licensing agent for such licensing) and other collection fees and all other customary expenses.
- ACCOUNTINGS: Semi-annual, with statements to be issued 90 days after June 30th and December 31st of each year. Statements will be in accordance with Publisher’s standard royalty accounting practices.
- ROYALTY EXAMINATIONS: Your designated certified public accountant shall have the right, not more than once per year and only once per statement, to inspect Publisher’s books and records relating to the exploitation of Your Interest in the Compositions to verify the accuracy of any statement rendered to you hereunder. You shall give notice to Publisher of your intention to conduct such an examination and Publisher shall schedule the examination with your accountant as promptly as practicable, taking into account previously-scheduled examinations. Your accountant may not commence an examination if (s)he has begun an Publisher royalty examination for someone other than you, unless such audit is conclusively settled. Each statement hereunder will become binding two (2) years after the date Publisher sends you the statement, and you will have no right to make any further objections to it. You will have no right to sue Publisher in connection with any royalty accounting unless you commence the suit within that two (2)-year period. If you commence a suit, the scope of the proceedings will be limited solely to the determination of the amount of royalties due.
- MATCHING RIGHT: If at any time during the Term you receive a bona fide offer from a third party to publish, co publish, purchase or otherwise administer your authorship and/or ownership interest in any musical Composition(s) written and/or owned by you (including, without limitation, the Compositions), you shall accord to Publisher First Refusal Rights and First Negotiation Rights (as defined below) with respect to each and every such proposed publishing arrangement.
(a) “First Refusal Rights” – No entity other than Publisher shall be granted the rights concerned unless you first notify Publisher in writing of all of the material terms of the proposed agreement with such entity and give Publisher the option to secure such rights pursuant to those terms. If Publisher does not accept your offer within fifteen (15) business days after Publisher’s receipt thereof, you may then enter into that proposed agreement with such Person, provided that agreement is consummated within ninety (90) days after the end of that fifteen (15) day period upon those same terms. If that agreement is not consummated within the latter ninety (90) day period, no Person except Publisher shall be granted those rights unless you first again offer to enter into an agreement with Publisher as provided above. Publisher shall not be required, as a condition of accepting any such offer, to agree to any terms which it cannot fulfill as readily as any other entity (e.g., employment of a particular person under contract to that other entity).
(b) “First Negotiation Rights” – No entity other than Publisher shall be granted the rights concerned unless you first notify Publisher in writing requesting that Publisher negotiate with you in respect of such rights, and enter into exclusive, good faith negotiations with Publisher in respect of such rights for a period of ninety (90) days from the date of Publisher’s receipt of your notice (the “First Negotiation Period”). If such exclusive, good faith negotiations do not result in an agreement on the material terms within the First Negotiation Period, then you may thereafter negotiate with a Person other than Publisher regarding such rights, subject to the next sentence. If you do not consummate an agreement with a third party for such rights within sixty (60) days after the First Negotiation Period, then the right of preemption granted to Publisher in this paragraph will be revived and no Person other than Publisher will be granted such rights unless you enter into exclusive negotiations with Publisher in respect of such rights for an additional period of thirty (30) days after the foregoing sixty (60)-day period.
- REPRESENTATIONS/WARRANTIES/INDEMNIFICATION: You hereby represent and warrant that:
(a) You have the full right, power and authority to enter into and fully perform this Agreement.
(b) This Agreement constitutes a valid and binding agreement of you and is enforceable against you in accordance with its terms.
(c) Your Interest in the Compositions and all rights therein are your sole property and are, and shall remain throughout the Term, free from any claims, liens and encumbrances whatsoever by any third party.
(d) No Compositions or any component thereof does or will violate any law or regulation, infringe upon or violate any rights in any other work or violate the rights of any third party.
(e) Throughout the Term, you are and shall remain entitled to be paid and to collect on all income derived from Your Interest in the Compositions, without deduction, encumbrance, set-off or other limitation, subject only to the rights of Publisher.
(f) Prior to the date of this Agreement, you have not collected any income payable in the Territory in connection with the Compositions.
(g) You are a writer and publisher member in good standing of ASCAP/BMI/SESAC.
Your representations and warranties shall remain in effect throughout the Term and shall survive termination of the Term unless expressly limited in time. You hereby agree to indemnify and hold harmless Publisher from and against any and all claims, damages, costs, losses and expenses (including, without limitation, legal expenses) arising out of any breach or alleged breach by you of any of your representations and/or warranties and/or obligations contained in this Agreement. Pending the resolution of any claim in respect of which Publisher is entitled to be indemnified, Publisher may, in its discretion, withhold monies which would otherwise be payable to you in an amount not to exceed your potential liability to Publisher under this paragraph and may, without limitation of its right to require payment directly from you, reimburse itself out of such monies.
- GOVERNING LAW: This Agreement shall be construed in accordance with the laws of the State of Maryland applicable to agreements wholly to be performed therein. You hereby irrevocably submit to personal jurisdiction in the State of Maryland, irrevocably waive the right to contest the jurisdiction or power of the Maryland courts and irrevocably waive any defense of inconvenient forum to the maintenance of such an action. Any process in an action may be served you by delivering it or mailing it, by registered or certified mail, directed to the address specified on page 1 of this Agreement and such delivery or mail service shall be deemed to have the same force and effect as personal service within the State of Maryland.
- MISCELLANEOUS: (a) All notices, royalties, statements and payments under this Agreement shall be sent to the recipient with the information recipient used in registration with the Loud Music site.
(b) You may not assign this Agreement, or any of your rights hereunder, or any rights or interests with respect to the Compositions, without the prior written consent of Publisher. Publisher may assign this Agreement, and any or all of its rights hereunder, in whole or in part, without any restriction or limitation whatsoever.
(c) Neither party to this Agreement shall be entitled to recover damages or impose any remedy by breach by the other party (“Breaching Party”) of its obligations hereunder, unless the Breaching Party has failed to remedy such breach within 30 days following receipt of notice thereof from the other party.