Effective as of December 1, 2017
Please read the following terms and conditions carefully.
YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY COMPANY THROUGH THE SITE OR WITH RESPECT TO YOUR PEEKSOUND 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.
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, cloud services and so-called “disc-on-demand” services. You and Company agree that the Internet consumer stores (“Consumer Stores”) (e.g., iTunes, Amazon, Spotify, Rhapsody) 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: • (i) to sell, copy, 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; • (ii) to collect all income deriving therefrom; and • (iii) 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. (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 that Company may freeze any and all revenues in your account that are received in connection with Recordings or other materials submitted by you which Company believes, in its good faith discretion, violate the Terms of Service, and that such revenues will be forfeited by you if Company determines, in its good faith discretion, they are the result of fraud and/or infringement. 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. (e) You agree that Company may terminate your account if you violate the Terms of Service or, in Company’s good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.
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. You agree that Company and/or its suppliers will have the right to supplement existing artwork necessary to complete the packaging for discs-on-demand. 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. 3. PAYMENTS. (a) Company will pay you one hundred percent (100%) of Net Income every quarter on or between the 1st and 5th of the month once artist has reached payout of two hundred and fifty dollars ($250) as defined in Section 3(b) below. Net Income will be posted to your PEEKSOUND account in a timely fashion after Company’s receipt thereof. Once payment has been credited to your account, you will be paid automatically via PayPal. 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. 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) In the event that Company has, in its good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, Company reserves the right to discontinue the posting of Net Income to your account and block your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of Company is obtained. Furthermore, you agree that such revenues will be forfeited by you if Company determines, in its good faith discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by your or your affiliates actions or omissions, 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 hereunder. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies, if any, and such policies shall be binding upon you hereunder. (e) The Net Income posted to your PEEKSOUND account will be pooled in an interest bearing bank account with the Net Income of other PEEKSOUND 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. (f) In connection with your decision to use the PEEKSOUND streaming media player, iPhone application or other so-called widgets or applications (the “Streaming Players”) as platforms for users to stream your Recordings, you hereby waive any right to digital artist royalties, performance royalties or any other fees or royalties, statutory or otherwise, that Company may be obligated to pay you or a third party in connection with the use of such Streaming Players. For the avoidance of doubt, to the extent that you utilize a Streaming Player on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that Company is not responsible to make any third party payments in connection with the Recordings and underlying musical compositions which you own and/or control. (g) To the extent that you elect to use certain Recordings from your PEEKSOUND catalog to distribute free to any parties (via a Streaming Player, directly through your own website or otherwise), you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries. Without limiting any of the foregoing, you expressly agree to either waive music publishing royalties (if you own or control such rights) or pay any necessary royalties due to third party music publishers as a result of any such free distribution. (h) In the event that Company is presented with a claim of infringement of copyright, trademark, right of publicity or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, you agree that Company may freeze any and all revenues in your account that are received in connection with the disputed Recordings or other materials submitted by you, and that such revenues will be forfeited by you if Company determines, in its good faith discretion, they are the result of fraud and/or infringement. Furthermore, if in Company’s reasonable business judgment it elects to engage an attorney to review and/or respond to such claim, 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”) a minimum of Three Hundred Dollars ($300) to offset the costs of associated legal fees and expenses.
4. 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 Company permits you to select certain Recordings from your PEEKSOUND 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.
5. WARRANTIES; REPRESENTATIONS; INDEMNITIES.
(a) You warrant and represent that you are at least eighteen (18) years of age, you have the right 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 or other rights of any person or entity; 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.
6. 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. 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 PEEKSOUND 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 PEEKSOUND 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 PEEKSOUND 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 PEEKSOUND account settings or contacting your account manager at email@example.com. If you do not provide a valid Payment Method your service may be disconnected or interrupted at Company’s sole discretion.
PEEKSOUND charges a $10 processing fee for every royalty payout of $250 or more paid by PEEKSOUND to the artist via PayPal. PEEKSOUND automatically deducts this fee from your royalty payout payment.
Take down Fee
PEEKSOUND charges a $35 take down fee for every project an artist wants taken down/pulled from any or all digital outlet.
PEEKSOUND charges a $35/per release fee to cancel your service and to pull your music from all our digital outlets. This fee is also applied to your account if you fail to pay the recurring yearly fee. After three (3) attempts by PEEKSOUND to charge your credit card on file we will lock your account until either the yearly subscription fee is paid or until we recoup the fees from the royalties collected from your music. Once we recoup our fees the artist music will be pulled from all digital outlets and royalties minus all PEEKSOUND fee will be paid to artist.
As a member of PEEKSOUND, PEEKSOUND has the right to refuse, reject or deny your project audio or video from distribution if your project doesn’t meet our’s or the digital outlets standards. By using our service the artist agrees with these terms & conditions.
We do not offer refunds if we have distributed the artist project to a digital outlet.
The Terms of Service shall apply at all times while you utilize the Site or the Services.
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.
9. 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.
10. BAR CODES AND UNIVERSAL PRODUCT CODES.
Company will provide you with free bar codes and universal product codes (“UPCs”). These are for your use only and may not be transferred or resold. If transferred or resold, Company will charge you Twenty-Five Dollars ($25.00) per bar code or UPC, plus any revenue made by you from such transfer or resale. Company may deduct such charges from any Net Income owed to you by Company or charge such amounts to any Payment Method you provide to Company.