Music License Agreement

Music Licence Agreement

This Music Licence Agreement (Agreement) is between D-Tune Me Pty Ltd ACN 608 245 932, its successors and assignees (referred to as “D-Tune Me”, “we”, “us” or “our”) and the person who owns all present Intellectual Property rights in the Digital Content (“you” or “your”), and collectively the Parties.

 

 

  • Acceptance

 

    1. This Agreement forms a binding legal agreement between D-Tune Me, its directors, officers, employees, successors and assignees, and each person, organisation or entity accessing or using our website at https://dtune.me (Website) and the services as set out on the Website (Services). By accessing or using the Website and Services on any computer, mobile, phone, tablet, console or other device, you acknowledge you have read, understand and agree to be bound by this Agreement. Please contact us if you have any questions. Our contact details are at the end of this Agreement.
    2. You accept this Agreement by opening an account for yourself or on behalf of an entity (each an Artist), uploading Digital Content, ticking an online acceptance box or using our Services. By doing so you indicate you have had sufficient opportunity to access this Agreement and contact us, that you have read, accepted and will comply with this Agreement, and that you are 18 years or older, or have the consent of legal guardian who is 18 years or older. You must not use or access our Services including uploading any Digital Content if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to this Agreement, please do not use our Services including uploading any Digital Content.
    3. This Agreement supplements and incorporates the D-Tune Me policies and terms and conditions including without limitation the Website Terms of Use, Privacy Policy, Terms and Conditions and Artist Policy as set out on the Website.

 

  • REGISTRATION AND SERVICES

 

    1. The Website and Services provides a platform for you to submit, upload and post Digital Content and related content which will be stored by us and sold subject to this Agreement and the Terms and Conditions on the Website. Users of the Website and Services will be permitted to stream or download Digital Content subject to the payment of relevant fees.
    2. In order to access all our Services on the Website including to upload Digital Content, you will be required to register for an account (Account). It is your responsibility to keep the details of your Account, including user name and password, confidential. You are liable for all activity on your Account, including any downloads made using your Account details.
    3. Any Digital Content or other content you upload onto our Website must comply with our Artist Policy.
    4. We agree to perform the Services with due care and skill.
    5. We reserve the right to refuse any request for Services, including any uploads of Digital Content that we deem inappropriate, unreasonable or illegal.
    6. We may provide the Services to you using our employees, contractors and third party providers, and they are included in this Agreement.
    7. Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.

 

  • GRANT OF LICENCE

 

    1. By uploading each Digital Content, you grant us a worldwide, non-exclusive, royalty-free, fully paid up, sub-licensable, revocable licence to Exploit the Artist’s Digital Content and all associated Intellectual Property (including but not limited to the song lyrics, album cover artwork, photographs, graphics, descriptive texts, personal and biographical materials of the Artist) on any technologies or methodologies now known or hereafter developed for the purposes set out in this Agreement and to the extent necessary for us to provide our Services.
    2. Your grant of licence permits us to sub-license our rights under this Agreement to a user of our Services. Any sub-licence granted pursuant to this clause will relate solely to the grant of rights in respect of the Digital Content.
    3. The licences granted in this Agreement are granted separately with respect to each item of Digital Content that you upload to our Site. Licences with respect to the Digital Content and any associated Intellectual Property will terminate when we remove such Digital Content from your Account (whether by your request to remove such Digital Content or at our discretion).
    4. We agree that this Agreement and our use of your Intellectual Property under this Agreement does not assign to us any rights in the Intellectual Property, whether registered or unregistered.
  1. PRICE, FEES AND PAYMENT
    1. Currently, the Services are free of charge. Digital Content can be made available on the Website for Download or Stream free of charge or for a fee (Fee). In addition, a User may make a donation to the Artist by cash or bitcoin and not Download or Stream any Digital Content (Donation). If you elect to make Digital Content available for purchase for a fee, you agree we will set the price for such Digital Content and collect the Fee on your behalf.
    2. You agree that if a User Downloads your Digital Content which you make available, we may permit that User to Download any Digital Conduct previously purchased by that User without incurring additional Fees.
    3. The Fees are charged and Donations made in Australian Dollars unless otherwise specified on the Website.
    4. We will be entitled to a portion of the Fees received following Download of your Digital Content (D-Tune Revenue). D-Tune Revenue will be calculated based on the gross revenue received from the Fees in accordance with the rate set out on the Website or otherwise notified to you excluding any refunds we provide for your Digital Content. You acknowledge that you are responsible for payment of any additional fees including but not limited to PayPal, BitPay or credit card fees, or any taxes and duties including but not limited to GST (D-Tune Service Fees). The D-Tune Service Fees are payable after payment of the D-Tune Revenue.
    5. At the end of each fortnight, and provided that the total exceeds $10, we will facilitate payment to your nominated bank account the total Fees accrued for the sale of Digital Content during that fortnight less the D-Tune Revenue and the D–Tune Service Fees and any Donation (Artist Payment). Provided the gross revenue received from the Download of your Digital Content exceeds $10 in any fortnight, you may prescribe the value of the Artist Payment we facilitate to you at the end of each fortnight.
    6. Our pricing structure or payment methods may be amended from time to time in our discretion. The pricing changes will apply to you for Services provided to you and/or Digital Content you provide to us after the date of the change. All other changes will apply from the date that the amended or new Agreement is posted on our Website or provided to you, whichever is earlier.
  2. YOUR OBLIGATIONS AND WARRANTIES
    1. You represent and warrant that:
  1. by uploading or otherwise providing any Digital Content to us or the Services and Website, you own or otherwise control all rights to any and all Intellectual Property in such Digital Content including but not limited to the copyright in the musical work and sound recording.
  2. you have full authority to act on behalf of any and all owners of any right, title or interest in any Digital Content you upload or otherwise make available to the Services and Website, there are no legal restrictions preventing you from agreeing to this Agreement and you are authorised to grant all aforementioned rights to the Digital Content to us and all users of our Service and Website;
  3. you will cooperate with us, provide us with information and comply with requirements in a timely manner as requested by us from time to time, that are reasonably necessary to enable us to license the Intellectual Property from you;
  4. the information you provide to us is true, correct and complete;
  5. by permitting us to Exploit or otherwise use your Digital Content, working with us and providing us the licence for the Intellectual Property, we will not infringe the rights of any Third Party including but not limited to privacy rights, publicity rights, contract rights, Intellectual Property rights or any other proprietary rights;
  6. to the extent applicable, you have the full right, power and authority to grant the rights and licence under this Agreement notwithstanding the provision of any agreement you may have entered into with any performing rights organisation or collecting societies (including but not limited to APRA and AMCOS), any music publisher and you are solely responsible for notifying such performing rights organisation or collecting society or music publisher of the grant of licence under this Agreement. We are not responsible for the payment of any fees or royalties of any kind that is due to such bodies as a result of Exploiting your Digital Content.
  7. you will inform us if you have reasonable concerns relating to the licence of the Intellectual Property under this Agreement, with the aim that we and you will use all reasonable efforts to resolve the concerns;
  8. you will inform us if you become aware that a Third Party may have infringed any intellectual property rights subsisting in the Intellectual Property;
  9. your Digital Content is not and will not be unlawful, offensive, abusive, defamatory, obscene, racist, ethnically or culturally offensive, indecent, racially vilify any individual and will not promote violence, terrorism or other illegal acts;
  10. if applicable, you have a valid ABN which has been advised to us; and
  11. if applicable, you are registered for GST purposes.
    1. This clause survives the termination of this Agreement.
  1. TERMINATION
    1. At any time during the Term, either Party may terminate this Agreement by giving the other party 7 days’ notice in writing.
    2. Either Party may terminate this Agreement, if there has been a material breach of a term under this Agreement, subject to the dispute resolution procedure set out in this Agreement.
    3. On termination of this Agreement we will pay any Artist Payment accrued but not paid to you and we will:
  1. immediately stop exercising any licensing rights you grant to us under this Agreement;  and
  2. remove or delete (where possible), your Digital Content and/or related Intellectual Property, within 21 Business Days.
    1. On completion of this Agreement, we will retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of this Agreement.
    2. The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.
  1. Consumer Law, Limitation of Liability and Disclaimers
    1. Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    2. Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services, the Digital Content and this Agreement, except those set out in this Agreement, including but not limited to:
  1. implied or express guarantees, representations or conditions of any kind, which are not stated in this Agreement;
  2. the Services, the Digital Content or the Website being unavailable; and
  3. any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise suffered by you or claims made against you, arising out of or in connection with the Website, Digital Content, the Services or your inability to access or use the Website, Digital Content or Services, and the late supply of Services or Digital Content, even if we were expressly advised of the likelihood of such loss or damage.
    1. Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
    2. Indemnity: You agree to release and indemnify D-Tune Me (including its affiliates, respective officers, employees, consultants and agents) from any and all actions, claims, proceedings or demands (including those brought by third parties) which may be brought against D-Tune Me, whether on their own or jointly with you and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including but not limited to consequential financial loss) arising out of or in connection with:
  1. a breach of your obligations contained in this Agreement; or
  2. any infringement of the Intellectual Property.
  1. DISPUTE RESOLUTION
    1. If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure.
    2. The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
    3. If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator.  The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
    4. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.
  2. GENERAL
    1. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
    2. Accuracy: While we endeavour to keep the information up to date and correct, we make no representations, warranties or guarantees, expressed or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services or related graphics contained on the Website for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
    3. Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
    4. GST: If and when applicable, GST payable on our Services will be set out on our Invoices.  By accepting this Agreement you agree to pay us an amount equivalent to the GST imposed on these charges.
    5. Relationship of parties: This Agreement is not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
    6. Assignment: This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld).
    7. Severance: If any provision (or part of it) in this Agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of this Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this Agreement and the remaining provisions (and remaining part of the provision) of this Agreement are valid and enforceable.
    8. Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 Business Days’ notice in writing.
    9. Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address in the Proposal.  Our address is set out in the Proposal. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
    10. Jurisdiction & Governing Law: This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria. The Website may be accessed throughout Australia and overseas. We make no representation that the Website complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Website from outside Australia you do so at your own risk and are responsible for complying with the laws in the place where you access the Website.
    11. Entire Agreement: This Agreement and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
  3. DEFINITIONS
    1. Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria.
    2. Communicate has the same meaning as in the Copyright Act 1968 (Cth).
    3. Digital Content means the sound recordings, the musical works embodied within such sound recordings and associated copyrightable works or metadata, including but not limited to album cover artwork, graphics and descriptive texts, in the form of an electronic file.
    4. Download means a single copy of an audio recording of the Digital Content in which sounds are embodied.
    5. Exploit means the right to reproduce, distribute, Download, Stream, Communicate, publicly perform, publicly display, create derivative works of, playback, synchronise and other such related rights to exploit the Intellectual Property and related works including but not limited to digital audio transmission.
    6. GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
    7. Intellectual Property means all intellectual and industrial proprietary rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions, patents, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and confidential information, know how, trade secrets, business names, internet domain names and Digital Content but does not include Moral Rights that are not transferable.
    8. Moral Rights means the rights of attribution of authorship, the rights not to have authorship falsely attributed and the rights of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
    9. Stream means the Communication to the public of Digital Content either as a stand-alone sound recording or within a content item by means of the internet to a Device under circumstances in which a user is prohibited from making a copy of the Digital Content.

 

Contact details:

D-Tune Me Pty Ltd ACN 608 245 932

Canterbury VIC 3126

Australia

 

Email: [email protected]

 

Last update: 23 November 2015