THIS IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL, REPRESENTING YOURSELF OR, IF APPLICABLE, ACTING AS LEGAL REPRESENTATIVE FOR A GROUP, BAND, COMPANY OR CORPORATION) (“YOU” OR “YOUR”) AND TUNE SOCIETY, LLC (“TUNE SOCIETY”). THIS AGREEMENT GOVERNS YOUR USE OF THE TUNE SOCIETY WEBSITE AND TUNE SOCIETY SERVICE (THE “SERVICE”). THIS AGREEMENT – TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES AND ALL OF TUNE SOCIETY’S RULES AND POLICIES – COLLECTIVELY CONSTITUTES THE “AGREEMENT” BETWEEN YOU AND TUNE SOCIETY. BY UPLOADING OR DELIVERING MATERIAL TO THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT UPLOAD OR DELIVER ANY MATERIAL TO THE SERVICE. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS OR DELETIONS ARE NOT ACCEPTABLE. TUNE SOCIETY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR REMOVE PORTIONS OF THIS AGREEMENT AT ANY TIME. IT IS YOUR RESPONSIBILITY TO CHECK THIS AGREEMENT PERIODICALLY FOR CHANGES. BY UPLOADING OR DELIVERING ANY MATERIAL TO THE SERVICE FOLLOWING THE POSTING OF CHANGES, YOU ACCEPT AND AGREE TO THE CHANGES. TUNE SOCIETY MAY REFUSE YOUR ABILITY TO UPLOAD OR DELIVER MATERIAL TO THE SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT.
1. Definition of the Tune Society Service. The Service is a consignment business which compiles digital content, such as sound recordings and videos, from artists and permits customers to purchase a worldwide, perpetual and royalty-free license for such digital content under certain terms and conditions. By uploading or otherwise delivering audio and/or other content to Tune Society, You permit Tune Society to include Your material in the Tune Society database, which can then be sold and/or licensed on Your behalf in the form of audio files for digital download on a per-song basis available over the Internet.
2. System Requirements. Use of the Service requires one or more compatible devices, Internet access (fees may apply) and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software and Internet access, Your ability to use the Service may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee You access to the Service.
4. Content and Supporting Material. In order to participate in the Service, You must provide Tune Society with one or more sound recording(s) of musical composition(s) or other audio and/or audio-visual content to be used by Tune Society as described in this Agreement (“Content”). You also must provide Tune Society with other material related to Your Content (such as pictures, videos, song lyrics, press reviews, etc.) for use in connection with the Service (“Supporting Material,” and collectively with Content, “Material”).
5. Your Information. You agree to provide accurate, current and complete information required to register with the Service and at other points as may be required in the course of using the Service (“Registration Data”). You further agree to maintain and update Your Registration Data as required to keep it accurate, current and complete. Tune Society may terminate Your rights to upload Material to the Service if any information You provide is false, inaccurate or incomplete. You agree that Tune Society may store and use the Registration Data You provide for use in maintaining Your account and paying You, according to this Agreement.
6. Account and Password. The Service may require You to open an account (“Account”) (including setting up a Tune Society ID and password). You are entirely responsible for maintaining the confidentiality of Your Account information, including Your password, and for any and all activity that occurs under Your Account. You agree to notify Tune Society immediately of any unauthorized use of Your Account, or any other breach of security. However, You may be held liable for losses incurred by Tune Society or any other user of the Service due to someone else using Your Account. Tune Society cannot and will not be liable for any loss or damage arising from Your failure to comply with these obligations.
7. Security. You understand that the Service may include a security framework using technology that protects digital information. You agree not to violate or attempt to violate any security components. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security components related to the Service for any reason whatsoever. You agree not to access the Service or upload Your Material by any means other than through software that is provided by Tune Society for such purposes. You shall not access or attempt to access an Account at any time without the express permission and consent of the holder of that Account. Violations of system or network security may result in civil or criminal liability.
8. License for Content and Supporting Material. By the act of delivering and/or uploading Your Material to Tune Society, You grant to Tune Society the following rights and licenses:
a. a non-exclusive, royalty-free, worldwide license to: (i) publicly perform, publicly display, broadcast, encode, edit, alter, modify, reproduce, transmit, manufacture, distribute and synchronize with visual images the Material, in whole or in part, alone or in compilation with content provided by third parties, through any medium now known or hereafter devised for the purpose of demonstrating, promoting or distributing products or services, and in connection with the sale and promotion of Your Material; (ii) make copies of Your Material employing any compression technologies selected by Tune Society in order to create a database of Your Material; (iii) make Your Material accessible to users of the Service; and (iv) use Your name and any trademarks, service marks or trade names incorporated in the Material and use the name, likeness and biographical information of any individual whose performance or image is contained in the Material in connection with the foregoing;
c. a non-exclusive right to use Your Material for Tune Society business purposes relating to the promotion of the Service. No compensation shall be due for use of Your Material for such Tune Society business purposes.
9. Termination of License. Subject to the provisions contained in Section 16 (Term and Termination) below, You may terminate Your license with Tune Society with respect to some or all of Your Material, at any time. The license will terminate upon the actual receipt of Your notice of termination. Notwithstanding the generality of the foregoing, You agree that any users of the Service that have purchased a royalty-free license to use Your Material shall continue to own such license in perpetuity.
11. Refusal of Content. Tune Society reserves the right to delete, move, refuse to accept or edit any of Your Material that, in the sole discretion of Tune Society, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion. Tune Society shall have the right but not the obligation to correct any errors or omissions in Your Material, as it may determine in its sole discretion.
13. Ownership of Copyrights. You shall retain the ownership of all copyrights and other intellectual property rights in Your Material (if any), subject only to the non-exclusive rights and licenses granted to Tune Society under this Agreement. You are free to grant similar rights to others during and after the term of this Agreement. Tune Society assumes no responsibility for obtaining copyright or other intellectual property protection for Your Material.
14. Accounting. You acknowledge and agree that You are not being hired by Tune Society. Rather, Tune Society is a consignment business, whereby You are selling Your Material directly to end users through the Service. Therefore, Tune Society has no obligation to send any tax forms (including, without limitation, Form 1099) to you. Tune Society shall account to You for Your share of Gross Revenues approximately once per month during the term of this Agreement. Within sixty (60) days of the close of each period during which Tune Society shall have received any Gross Revenues with respect to Your Content, Tune Society will pay You via electronic transfer (PayPal or similar account) the amount owed to you. You agree that Tune Society shall not be responsible for any fees associated with the receiving of payment from Tune Society. Tune Society may deduct from any amount payable hereunder such portion thereof as may be required to be deducted under any applicable statute, regulation, treaty or other law in connection with taxation or otherwise, and You shall promptly execute and deliver to Tune Society such forms or other documents as may be required in connection therewith. If at the time of a Tune Society payment, You have not provided Tune Society with all information reasonably requested, including, without limitation, legal name, tax identification information and complete payment information, then Tune Society shall hold any sums due to You until the end of first period during which You have provided Tune Society with all such missing information. Tune Society agrees to keep accurate books and records covering all transactions related to this Agreement. During the one-year period following Your receipt of payment, You may, at Your expense and upon reasonable notice, inspect Tune Society’s records related to that payment at the Tune Society offices or at a location specified by Tune Society, provided that Your inspection must not unreasonably interfere with Tune Society business. If Your inspection reveals that Tune Society has underpaid You, Tune Society will promptly correct the deficiency. It is understood that Tune Society includes certain advertising on multiple pages and sections of the Service; no portion of the sums received by Tune Society from the sale of such advertising shall be included in the calculation of any sums payable to You hereunder.
15. Representations and Warranties. You represent and warrant that: (a) except as provided in Section 12 (Selling Price; Gross Revenue) with respect to Your share of Gross Revenues, Tune Society, its customers and licensees shall not be required to make any payments in respect of the authorized use of Your Material, including, without limitation, payments to You, third parties claiming through You or otherwise, music publishers, mechanical rights agents, performance rights societies, persons who contributed to or appear in Your Material, Your licensors, unions or guilds; (b) You are under no disability, restriction or prohibition with respect to Your right to execute this Agreement and You have the full right and power to enter into and perform this Agreement, and have secured all third-party consents, licenses and permissions necessary to enter into and perform this Agreement; (c) Your Material does not contain "samples" of any third party's sound recording or musical composition and will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, or moral rights; (d) Your Material does not and will not violate any law, statute, ordinance or regulation; (e) Your Material is not and will not be defamatory, libelous, pornographic or obscene; (f) Your Material does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data; (g) all factual assertions that You have made and will make to Tune Society are true and complete; and (h) You are at least thirteen (13) years of age.
16. Term and Termination.
a. Term. The term of this Agreement shall be for a period of one year from the date that You upload or deliver Your Material to Tune Society. At the end of the term, this Agreement shall automatically be extended for additional one year terms without any further action by You or Tune Society.
b. Termination. Upon termination of this Agreement, all of Tune Society’s license rights shall terminate. Tune Society agrees to use reasonable efforts to discontinue public access to Your Material promptly upon termination. Tune Society may terminate this Agreement at any time by so notifying You; the Agreement will terminate upon Your actual receipt of such notice or three days after Tune Society shall have sent a notice of termination to the email address You supply to Tune Society, whichever is sooner. Tune Society’s obligation to pay sums due You hereunder described in Section 14 (Accounting) shall survive termination. Also, this Section 16 (Term and Termination), Section 15 (Representations and Warranties), Section 18 (Disclaimer), Section 23 (Limitation of Liability), Section 24 (Indemnification), Section 25 (Attorney’s Fees) and Section 26 (Miscellaneous) shall survive termination.
17. Notifications of Infringement.
a. Infringement by You. Upon Tune Society’s receipt of notice, Tune Society will act expeditiously to remove or disable access to any Material claimed to be infringing or claimed to be the subject of infringing activity, as well as any reference or link to Material or activity that is claimed to be infringing. Notwithstanding anything contained in this Agreement, You expressly consent to Tune Society’s disclosure of Your personally identifiable and all other personal information in the event that You or Your Material is the subject matter of any such infringement claim.
b. Infringement by Others. Should You become aware of any possible infringement of any Material, You agree to give prompt notice of the Material claimed to be infringing to Tune Society. This notification requirement applies to the possible infringement of both Your Material and any Material of others.
18. Disclaimer. TUNE SOCIETY DOES NOT PROMISE THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SERVICE WILL PROVIDE SPECIFIC RESULTS. THE SERVICE IS DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. TUNE SOCIETY CANNOT ENSURE THAT THE SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. TUNE SOCIETY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TUNE SOCIETY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE AND ANY THIRD PARTY WEBSITES LINKED TO THE SERVICE. YOUR SOLE REMEDY AGAINST TUNE SOCIETY FOR DISSATISFACTION WITH THE SERVICE OR ANY PRODUCT IS TO STOP USING THE SERVICE. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES..
19. Use of Service.
a. Prohibited Technology. You may not use any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service, or in any way reproduce or circumvent the navigational structure or presentation of the Service, to obtain or attempt to obtain any materials, documents or information through any means not purposefully made available through the Service.
b. Hacking. You may not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Tune Society server, or to any of the materials offered on or through the Service, by hacking, password “mining” or any other illegitimate means.
c. Compliance with Laws. You may not intentionally or unintentionally use the Service for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of Tune Society or any third party.
d. Conduct. You agree not to use the Service to: (i) upload, post or otherwise transmit any Material that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) impersonate any person or entity, including, without limitation, a Tune Society official, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iii) forge or otherwise manipulate identifiers in order to disguise the origin of any of your Material, (iv) upload, post or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other intellectual property of other proprietary rights of any party; (vi) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (vii) upload, post or otherwise transmit any material that contains software viruses or any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (viii) interfere with or disrupt Tune Society or its servers or networks connected to the Service or disobey any requirements, procedures, policies or regulations of networks connected to Tune Society and the Service. Tune Society and its designees shall have the right to remove any of Your Material that violates this Agreement or is otherwise objectionable.
20. General Compliance with Laws. The Service is controlled and operated by Tune Society from its offices in Colorado Springs, Colorado, United States. You agree to comply with all local, state, federal and national laws, statutes, ordinances and regulations that apply to Your use of the Service.
21. Enforcement of These Terms. Tune Society reserves the right to take steps Tune Society believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including, without limitation, Tune Society’s right to cooperate with any legal process relating to Your Material or use of the Service, and/or a third party claim that Your Material or Your use of the Service is unlawful and/or infringes such third party’s rights). You agree that Tune Society has the right, without liability to You, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Tune Society believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including, without limitation, Tune Society’s right to cooperate with any legal process relating to Your Material or Your use of the Service, and/or a third party claim that Your Material or Your use of the Service is unlawful and/or infringes such third party’s rights).
22. No Responsibility for Third-Party Materials or Websites. The Service may contain links to other independent third-party Websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to You. You acknowledge and agree that Tune Society is not responsible for examining or evaluating the content or accuracy of any such third-party material or Websites. Tune Society does not warrant or endorse and does not assume and will not have any liability or responsibility for the Linked Sites, or for any other materials, products or services of third parties. You agree that You will not use any of the Linked Sites in a manner that would infringe or violate the rights of any other party, and that Tune Society is not in any way responsible for any such use by You.
23. Limitation of Liability. Except where prohibited by law, in no event will Tune Society be liable to You for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Tune Society has been advised of the possibility of such damages.
24. Indemnification. BY USING THE SERVICE AND/OR UPLOADING OR DELIVERY MATERIAL, YOU AGREE TO INDEMNIFY AND HOLD TUNE SOCIETY, ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR MATERIAL, YOUR USE OF THE SERVICE OR ANY ACTION TAKEN BY TUNE SOCIETY AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS INDEMNIFICATION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
25. Attorneys’ Fees. If Tune Society does take any legal action against You as a result of Your violation of this Agreement, Tune Society will be entitled to recover from You, and You agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Tune Society. You agree that Tune Society will not be liable to You or to any third party for termination of Your access to the Service as a result of any violation of this Agreement.
a. Electronic Signatures and Contracts. Your use of the Service includes the ability to enter into agreements electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS.
b. Parental Consent. You acknowledge that the Service is available for individuals 13 years of age or older. If You are under the age of consent in Your jurisdiction, but over the age of 13, You agree and represent that You have reviewed this Agreement with Your parent or guardian to make sure that You and Your parent or guardian understand and consent to the terms of this Agreement. Tune Society does not permit use of the Service by anyone under 13 years of age.
c. Governing Law; Mediation. You agree that all matters relating to Your access to or use of the Service, including all disputes, will be governed by the laws of the United States and by the laws of the State of Colorado without regard to its conflicts of laws provisions. If You are accessing the Service outside of the United States, You hereby submit to the jurisdiction of courts of law in the United States. You hereby agree to the personal jurisdiction by and venue in the state and federal courts in El Paso County, Colorado, and waive any objection to such jurisdiction or venue. Any claim under this Agreement must be brought within one year after the cause of action arises, or such claim or cause of action is barred. In the event of any controversy or dispute between Tune Society and You arising out of or in connection with Your use of the Service, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If the parties are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
d. Assignment. You agree not to resell, assign, otherwise transfer, or delegate Your rights or obligations under this Agreement without the prior express written consent of Tune Society.
e. No Employer-Employee or Partnership Relationship. You agree that Tune Society and You are independent contractors under this Agreement, and nothing herein shall be construed to create an employer-employee, partnership, joint venture or agency relationship. You are not being hired by Tune Society. Rather, You are consigning your Material to Tune Society for sale and license to end users.
f. Export Laws. You may not use or export or re-export any of Your Material or any portion of the Service in violation of any applicable laws or regulations, including, without limitation, United States export laws and regulations.
g. Headings. All headings in this Agreement are for convenience only and shall have no legal or contractual effect.
h. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
i. Severability. If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of the parties hereunder, so that this Agreement shall remain in full force and effect.
e. Entire Agreement. This Agreement constitute the entire agreement between You and Tune Society with regard to Your use of the Service and your uploading or delivering Material to the Service, and any and all other written or oral agreements or understandings previously existing between You and Tune Society with respect to such use are hereby superseded and cancelled.
f. No Waiver. Tune Society’s failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by Tune Society of any provision or any right it has to enforce the terms of this Agreement, nor shall any course of conduct between Tune Society and You or any other party be deemed to modify any provision of this Agreement.
g. No Third Party Rights. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties. You shall be solely responsible for all licensing, reporting and payment obligations to any third party in connection with Your Material and the use of Your Material as set forth herein (including, without limitation, the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Incorporated (BMI), the Society of European Stage Authors and Composers (SESAC), the National Music Publishers Association (NMPA), the Society of Composers, Authors and Music Publishers of Canada (SOCAN) or any other performance rights organization or regulatory agency).
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND ALL THE PROVISIONS HEREIN, AND HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO THE TERMS OF THIS AGREEMENT. IN CONSIDERATION OF TUNE SOCIETY AGREEING TO PROVIDE THE SERVICE AND PAYMENTS CONTAINED HEREIN, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.