Please read the following terms and conditions carefully. These terms and conditions, as well as the copyright policy (the “Copyright Policy”) the Social Platforms Terms of Service (if applicable), and the privacy policy (the “Privacy Policy”) (incorporated herein by this reference and collectively referred to as the “Terms of Service”), govern your access to and use of the Metaltone.eu website (the “Site”), including the use of any content, information, products and/or services (the “Services”) therein.
This is a legal agreement between you and Metaltone, Inc. (“Company”). Company reserves the sole right at any time to modify, discontinue or terminate the Site and Services, or modify the Terms of Service without notice. It is your responsibility to check these Terms of Service periodically for changes. By continuing to use or access the Site and/or Services after Company makes and posts any such modification, you agree to be legally bound by the revised Terms of Service. You may not alter the terms and conditions of the Terms of Service without Company’s express written consent.
YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY COMPANY THROUGH THE SITE OR WITH RESPECT TO YOUR Metaltone ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY COMPANY.
GRANT OF RIGHTS.
(a) The rights granted hereunder shall include the sale of Recordings (as defined in Section 2 below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, and cloud services. You and Company agree that the Internet consumer stores (“Consumer Stores”) (e.g., Apple Music, Amazon, Spotify, Deezer, Tidal, etc.) licensed to exploit your Recordings hereunder must be approved by you.
(b) By clicking the “I Agree” button, you irrevocably grant to Company, throughout the world (the “Territory”) and during the Term (as defined in Section 7 below), the non-exclusive right:
to sell, copy, reproduce, communicate to the public, distribute and otherwise exploit the Recordings by all means and media (whether now known or existing in the future) (“Sale”) through any and all Consumer Stores now operational or hereafter available;
– to collect all income deriving therefrom
– to use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you or the artists whose performances are embodied on the Recordings in connection with the Recordings and Company’s general business
– to authorize the creation, use and exploitation of User Generated Content (as defined in Section 11 below) through any and all Consumer Stores
(c) You agree that you will not use the Site or Services to transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. You acknowledge and agree that Company may disable access to and/or terminate your account and/or remove or disable access to any Recordings or any associated materials you provide to Company in the event that Company receives any claim that, if true, would constitute a violation of your representations and warranties hereunder. Please see the Copyright Policy for further information.
(d) You agree not to engage in (or to permit, encourage, enlist, retain, or employ third parties to engage in), activities that, in Company’s sole discretion, constitute Streaming Manipulation.
“Streaming Manipulation” means any activity and/or method which involves the artificial creation, by human or non-human means, of online or offline plays on audio and/or audio-visual streaming services, where such plays do not represent bona fide end-user listening and/or views initiated by genuine consumers and taking place in the reporting country. Streaming Manipulation may involve or include, but is not limited to, increasing, generating or manipulating play counts, sales, follow counts, engagement activity, or other key metrics used by the Services and/or any Consumer Store, through the use of (A) bots, scripts, viruses, worms or any other computer codes, files, programs or aed processes; and/or (B) click-farms, troll-farms, inauthentic accounts, shared account information, or virtual private networks. Streaming Manipulation can be the result of activities undertaken with respect to either individual or groups of Recordings in order to artificially improve chart positioning, increase market share, increase royalty or other payments, or for any other fraudulent or dishonest purposes.
You should be aware that Streaming Manipulation may be the result of the actions of a third party, such as a promotion or marketing company, record label or music distributor, acting on behalf of an artist or on its own behalf. You are encouraged to investigate and vet any companies or individuals you may enlist, retain, or employ to promote or market your music, as you may be liable for Streaming Manipulation perpetrated by a third party on your behalf. For the avoidance of doubt, any Streaming Manipulation done by a third party on your behalf or that relates to your Recordings is a violation of these Terms of Service.
The factors used to determine whether any particular consumption or marketing activity is Streaming Manipulation will vary according to the specific circumstances of each case and the examples and descriptions of Streaming Manipulation set forth herein are not intended to be exhaustive.
Certain Consumer Stores that use your Recordings may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to become aware of and follow such policies, and such policies shall be binding upon you hereunder.
(e) In the event that Company has, in its good faith discretion, reason to suspect that your account or Recordings have been subjected to, involved in, or generated revenue from: violating the Terms of Service; fraud; infringement of copyright, trademark, right of publicity or any other intellectual property right; failure to comply with any third-party license requirement; or Streaming Manipulation (collectively, “Improper Conduct”), Company reserves the right to (i) discontinue the posting of income, including any Net Income or other payments to your account, (ii) block your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of Company is obtained, and (iii) remove any or all of your Recordings from any or all Consumer Stores. You further agree that such revenues will be forfeited by you if Company determines, in its good faith discretion, that your account or Recordings have been subjected to, involved in, or generated revenue from Improper Conduct.
(f) You further agree to the following:
You agree to provide Company with any information reasonably requested by Company as part of its investigation into Improper Conduct.
You agree that if a Consumer Store notifies Company that any of your Recordings have generated revenue, plays, or streams as a result of Improper Conduct, such notice will serve as sufficient evidence for Company to determine, in its good faith discretion, that such revenues or plays are the result of Improper Conduct.
Upon Company’s determination that your account or Recordings have been subjected to, involved in, or generated revenue from Improper Conduct, you agree that all revenue in your account that has been frozen by Company is forfeited, regardless of whether it was generated from any specific Recording(s) or Consumer Store.
You agree that Company’s good faith determination of Improper Conduct can be based on streaming or other activity that is the same or similar to cases that the Company has previously determined involved Improper Conduct.
The payment of revenues to you by Company does not constitute Company’s acknowledgement that such revenues were not the result of Improper Conduct.
Company has no duty to investigate Improper Conduct unless and until it freezes revenues in your account.
If Company determines that revenues generated to your account are the result of Improper Conduct, and such revenues have already been paid out to you, you agree to return such revenues to Company.
You agree that you will not be entitled to reimbursement for any fees paid by you to Company in the event Company disables access to your account, your Recordings and/or any other materials you provide to Company, or to any revenues forfeited by you as set forth in the preceding sentence.
To the extent that Company, in its good faith discretion, determines that any Improper Conduct was caused by you or your affiliates’ actions or omissions or by any third party acting on your behalf or at your direction, any costs incurred by Company (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by Company from any monies otherwise payable to you.
If in Company’s reasonable business judgment it elects to engage an attorney to review potential Improper Conduct or review and/or respond to any third-party allegation of Improper Conduct by you or associated with your account or Recordings, Company shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to Company (such as a PayPal account, credit card or debit card) (each a “Payment Method”) the cost of such engagement, but at a minimum Three Hundred Dollars ($300), to offset the costs of associated legal fees and expenses.
(g) Company shall have the right, but not the obligation, to review and/or monitor any activity and content uploaded by you. Company may investigate any complaints or any reported violation of its policies and may take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access and/or removal of any materials you may have uploaded. You agree that Company reserves the right and may terminate your account in its sole discretion for any reason and at any time, including if, in Company’s good faith discretion, you are believed to have engaged in Improper Conduct.
(h) In the event you opt to distribute your Recordings via Social Platforms (as defined below), the Social Platforms Terms of Service shall apply to you. Please see Social Platforms Terms of Service for further information. “Social Platforms” as used herein shall mean (I) Meta and any Meta properties, meaning Facebook, Messenger (including as integrated (partially or wholly) with other Meta messaging services other than WhatsApp), Instagram, Portal, and Oculus, and all properties owned and/or operated by Meta Platforms, Inc. or its affiliates that are integrated with the foregoing (by way of example, Lasso, IGTV, SparkAR, MicDrop, Gaming), including in each case, all features and functionality thereof (including live streaming functionality), and all players, pages, tools and APIs, in each case, owned and controlled by Meta or its affiliates, and including in each case, successor and derivative versions (the “Meta Platforms”), (II) TikTok, and/or, (III) YouTube, including all mirror and/or derivative sites and all replacement, successor and/or international versions thereof (the “YouTube Platforms”), including, but not limited to, YouTube Music, the YouTube video player and YouTube websites, applications (e.g., YouTube main app, YouTube Music app), APIs, embeds, products and services, and any of the foregoing that are made available for syndication as well as Metaltone’s YouTube sound recording monetization and revenue collection service (“YouTube Monetization”).
RECORDINGS.
The term “Recordings” shall be defined as the sound recordings and audiovisual recordings that you submit to Company at any time. Company, in its sole discretion, reserves the right to reject any materials (including, without limitation, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images and artwork at your sole expense, in the format(s) required by Company or the Consumer Stores. Technical descriptions of such format(s) will be provided to you upon request, provided that Company reserves the right to convert audio files of the Recordings as necessary to meet the format and/or file size requirements of all Consumer Stores. In addition, Company will have the right to correct metadata errors to meet Consumer Store requirements. Company undertakes to provide your Recordings to Consumer Stores as quickly as possible, with timelines ranging from a few hours, to a few days, to several weeks in order for the particular Consumer Stores to ingest and make your Recordings available to customers. Reasonable efforts will be made to provide you with approval rights over such artwork, but in the event that you object to any such artwork your only remedy shall be to (a) provide appropriate replacement artwork or (b) request prospective discontinuation of delivery of your materials in such manner. In no circumstances shall Company have any liability to you with respect to the quality, sufficiency or other aspect of the creation and delivery of such discs-on-demand.
PAYMENTS.
(a) Company will pay you one hundred percent (100%) of Net Income (as defined in Section 3(b) below). Net Income will be posted to your Metaltone account in a timely fashion after Company’s receipt thereof. Once payment has been credited to your account, you will be able to withdraw all or any portion at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals.
(b) “Net Income” shall be defined as Company’s actual receipts from Consumer Stores less any tax, fee, or other charge related to the Sale of your Recordings and/or the remittance of payments to you. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.
(c) To the extent that you owe any amounts to Company, as a consequence of the Terms of Service or otherwise, Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise payable to you.
(d) The Net Income posted to your Metaltone account will be pooled in an interest-bearing bank account with the Net Income of other Metaltone customers until you withdraw such funds. You agree that you will not receive interest or other earnings on the Net Income that Company handles as your agent and places in such pooled account. In consideration for your use of the Services, you irrevocably transfer and assign to Company any ownership right that you may have in any interest that may accrue on Net Income held in such pooled account. In addition to or instead of earning interest on such pooled account, Company may receive a reduction in fees or expenses charged for banking services by the banks that hold your Net Income.
THIRD PARTY OBLIGATIONS.
(a) You shall be solely responsible for securing and paying for digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from musical composition copyright owners or their agents in connection with Company’s exploitation of rights hereunder, as well as royalties due to artists, producers and other persons who performed in the making of the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.
(b) For digital download sales in the United States, your payment typically includes the mechanical royalty on the underlying composition. In the case of the iTunes Match service, your payment includes a publishing portion that covers both the mechanical and public performance royalties. If you do not own or control the underlying composition(s) in your sound recording(s), it is your obligation to pay these publishing royalties to the person or entity that does. Outside of the United States, Company customarily requires Consumer Stores to secure and pay for music publishing licenses (and such license fees may or may not be deducted by the Consumer Store concerned from the proceeds payable to Company). If any Consumer Store outside of the United States does not agree to secure and pay for music publishing licenses, Company shall have the right, in its sole discretion, to either (i) decline to license such Consumer Store or (ii) assume the responsibility to clear and pay for the music publishing licenses required in connection with such Consumer Store’s Sales, which license fees Company shall have the right to deduct from amounts payable to you hereunder. To the extent that Company is required or elects, in its sole discretion, to pay any of the foregoing amounts, such payments will be deducted from any amounts otherwise payable to you hereunder.
(c) To the extent that you select certain Recordings from your Metaltone catalog to distribute free to fans or directly through your own website, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries.
WARRANTIES; REPRESENTATIONS; INDEMNITIES.
(a) You warrant and represent that you are at least eighteen (18) years of age, you have the full right, power and authority to enter into this agreement and to grant to Company all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, audiovisuals, images and any other materials furnished by you to Company or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site and/or Consumer Stores’ websites shall not infringe on the copyrights, trademark rights, publicity rights, moral rights or other rights of any person or entity, under the laws of any jurisdiction; and that Company shall have the right to exploit same in any manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity other than the amounts payable to you hereunder.
(b) You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach or a claim which, if true, would constitute a breach of the foregoing representations and warranties or any of the agreements contained in these Terms of Service, including reasonable attorneys’ fees and expenses.
(c) Company shall give you prompt notice of any claim that is subject to the foregoing indemnification obligation and you shall defend Company at your expense with counsel approved by Company, which approval shall not be unreasonably withheld. In the event you fail to retain approved counsel, Company may, if it so elects, defend itself at your cost and expense and you agree that Company may require your participation in such defense as a third party or otherwise and you hereby waive any objection or claim to compensation in respect of same. If a claim is made Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to Company’s prior written approval.
(d) THERE ARE NO REPRESENTATIONS OR WARRANTIES BY COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN AS EXPRESSLY SET FORTH IN THE TERMS OF SERVICE.
SUBSCRIPTION FEES.
In consideration of the services rendered hereunder, all Recordings submitted by you and distributed by Company to the Consumer Stores require that you purchase a recurring fee-based subscription via a Payment Method. Such fees cover Company’s administrative expenses, distribution and artist support services, and on-going manual maintenance of your Recordings with Consumer Stores to meet their technical requirements and specifications and the performance of such work by Company represents a principal and indivisible part of the Services. These fees may be amended from time to time by Company without notice to you. You expressly agree that Company is authorized to deduct your recurring subscription fees, any applicable tax and other charges you may incur in connection with your use of the Services directly from your Metaltone account (i.e., your share of Net Income) or charge such fees to any Payment Method you provide to Company. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your Metaltone account by you or anyone else using your account. If you notify Company in writing that you are terminating your subscription for one or more of your Recordings, no further subscription fees will be charged to your Metaltone account or Payment Method for those Recordings and all terminated Recordings will be removed from their respective Consumer Stores. You will not be entitled to reimbursement of any pre-paid fees with respect to any terminated Recordings. If for any reason you fail to make a payment or a payment is reversed hereunder via the Payment Method or any other method after agreeing to these Terms of Service, Company will be entitled to recoup, at its sole discretion, the subscription fee, by any means necessary, including the right to keep your account active and collect any resulting royalties until the subscription fee is fully recouped. It is your responsibility to notify Company if your Payment Method has changed by making the appropriate changes to your Metaltone account settings. If you do not provide a valid Payment Method your service may be disconnected or interrupted at Company’s sole discretion.
TERM.
The Terms of Service shall apply at all times while you utilize the Site or the Services.
CONFIDENTIALITY.
You acknowledge and agree that, in the course of negotiating and transacting business with Company, you may become aware of certain otherwise confidential information related to Company’s business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential. You hereby expressly agree that Company shall have the right to provide information relative to the sales of your Recordings hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.
OTHER AGREEMENTS.
You acknowledge that in providing the Services and payments hereunder, Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores shall be within the sole discretion of Company. You agree that the Terms of Service shall be subject to any applicable terms and conditions of such other agreements that Company enters into with respect to such Consumer Stores. You expressly acknowledge that certain Consumer Stores may, with respect to audiovisual recordings, require that your audiovisual recordings be made available on their websites at certain times and in certain formats relative to the availability of such materials elsewhere in the marketplace. To the extent that such requirements are not met, the individual Consumer Stores may have the right to discontinue the availability of said audiovisual recordings in their store(s). Company will, upon your written request, provide you with the current specifics of such requirements.
USER GENERATED CONTENT
You agree that Company shall have the right to authorize the creation, use and exploitation of User Generated Content embodying your Recordings, artwork, and other material provided by you in connection with the Recordings, as permitted and enabled by the features of the applicable Consumer Stores you opt to distribute your Recordings to. As used herein, “User Generated Content” shall mean derivative works embodying your Recordings, artwork (including single and album artwork), and other material provided by you in connection with the Recordings which are created by third parties (such as users of Consumer Stores) and distributed and exploited via Consumer Stores. User Generated Content includes, but is not limited to: (i) videos and visual images synchronized in time relation with musical recordings; (ii) audio or audiovisual “remixes” which combine two or more recordings which may be edited together, mixed, remixed, edited or “mashed up”; (iii) visual or audiovisual material which manipulates still or visual images through editing and filters and (iv) other adaptations, alterations and manipulations of the Recordings, artwork and other material provided by you, by third parties. Notwithstanding the foregoing, you hereby expressly waive any rights of “droit moral” that may be afforded to you under the laws of any country either as an author, composer, performer, producer or in any other capacity in connection with the Recordings hereunder.
LEGAL PROCEEDINGS.
(a) You hereby irrevocably authorize and appoint Company, its licensees, assignees, agents, and attorneys, to institute in your name and/or Company, any claims, demands, action or proceedings (each, a “Claim”) which Company shall reasonably think necessary and proper for the protection and enforcement of the rights granted to Company hereunder. Any Claim shall be instituted and maintained by Company in good faith and at Company’s expense, except that any Claim recovery shall first be utilized in the reimbursement of all costs incurred in obtaining the same and any remaining balance shall be distributed subject to the terms, conditions and methodologies generally applied by Company to all royalty participants in the settlement or recovery concerned.
(b) You and Company agree that you and Company may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, you agree that the court may not consolidate proceedings of more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
MISCELLANEOUS.
(a) The Site and Services may be used and accessed solely for lawful purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services, including, without limitation, applicable common law, all relevant statutes, and the rules and regulations of the Office of Foreign Assets Control of the U.S. Department of the Treasury. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site and Services:
Disable, hack, circumvent or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Company content or materials;
Use any metadata, meta tags or other hidden text utilizing a Metaltone name, trademark, URL or product name;
Upload, submit, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are, in the sole opinion of Company, unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including, without limitation, any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable;
Destroy, interfere with or disrupt, or attempt to interfere with or disrupt, any web pages available on the Site, servers or networks connected to the Site or the technical delivery systems of Company’s providers or break any requirements, procedures, policies or regulations of networks connected to the Site;
Attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Site or Services;
Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services;
Attempt to search, meta-search or access the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Company or other generally available third party web browsers (e.g., Internet Explorer, Firefox, Safari), including, without limitation, any software that sends queries to the Site to determine how a website or web page ranks;
Collect or store personal data about other users of the Site or Services without their express and explicit permission;
Misrepresent or impersonate your affiliation with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud;
Use the Site or Services in any manner not permitted by the Terms of Service; or
Instruct or encourage any other individual to do any of the foregoing or to breach and/or violate any of the Terms of Service.
(b) Company does not guarantee exploitation of the Recordings, which will depend on consumer preference, nor on the inclusion or participation of any given Consumer Store. Company reserves the right in its sole discretion to decline to engage in business with any given Consumer Store. Except as specifically set forth in the Terms of Service, Company shall have no obligations to you.
(c) Company shall not be deemed in breach of the Terms of Service unless you have given Company notice of the breach and Company has failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder.