MUSIC DISTRIBUTION

Last updated: October 1, 2024

 

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 (as 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 tunecontroldistribution.com website (the “Site”) or distribution.tunecontrolapp.com, including your use of any content, information, products or services (the “Services”) thereon.

 

This is a legal agreement between you and TuneControl, LLC. (the “Company”). The Company reserves the exclusive right to modify, discontinue, or terminate the Site and the Services, at any time, or to modify the Terms of Service without notice. You hereby agree that any modification to these Terms of Service shall not be construed to reflect the force of any provision in any prior iteration of these Terms of Service. It is your responsibility to review these Terms of Service periodically for changes. By continuing to use or access the Site or the Services after the Company makes and posts any such modifications, you agree to be legally bound by the modified Terms of Service. You may not alter the terms and conditions of the Terms of Service without the express written consent of the Company.

 

YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY THE COMPANY THROUGH THE SITE OR IN CONNECTION WITH YOUR TUNECONTROL ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY THE COMPANY.

 

1. GRANTING OF RIGHTS.

 

(a) The rights granted hereunder shall include the Sale of Recordings (as defined below) through, 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 Internet consumer stores (“Consumer Stores”) (e.g., Apple Music, Amazon, Spotify, Deezer, Tidal, etc.) that are licensed to exploit your Recordings hereunder must be approved by you.

 

(b) By clicking the “I Agree” button, you irrevocably grant the Company, throughout the world (the “Territory”) and during the Term (as defined in Section 7 below), the non-exclusive right to do the following:

  1. Sell, copy, reproduce, communicate to the public, distribute and otherwise exploit the Recordings by any means and in any format (whether now known or hereafter existing) (“Sale”) through any and all Consumer Stores currently operating or available in the future.
  2. Collect all income derived from the above.
  3. Use the names, photographs and likenesses, images of artwork, and biographical and other information provided by you or the artists whose performances are depicted on the Recordings in connection with the Recordings and the Company's general business.
  4. 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 any copyrighted work or otherwise infringes or promotes the infringement of any third party's intellectual property rights. You acknowledge and agree that the Company may disable access to your account, terminate your account, or remove or disable access to any Recordings or related materials that you provide to the Company in the event that the Company receives an allegation that, if true, involves a breach of your representations and warranties hereunder. Please see the Copyright Policy for more information.

 

(d) You agree not to engage in (or allow any third party to engage in, or encourage, employ, contract or employ any third party to engage in) any activities that, in the Company's sole discretion, constitute Transmission Manipulation.

  1. “Stream Manipulation” means any activity or method that involves the artificial creation, by human or non-human means, of online or offline plays on audio or audiovisual streaming services, where such plays do not represent bona fide end-user listening or viewing initiated by genuine consumers taking place in the reporting country. Stream Manipulation may involve or include, among other things, inflating, generating, or manipulating play counts, sales, follow counts, engagement activity, or other key metrics used by the Services or any Consumer Store, through the use of (A) bots, scripts, viruses, worms, or other computer code, files, programs, or automated processes; or (B) click farms, troll farms, fake accounts, shared account information, or virtual private networks. Streaming Manipulation may be the result of activities undertaken with respect to individual recordings or groups of recordings to artificially improve chart positioning, increase market share, increase royalties or other payments, or for any other fraudulent or dishonest purpose.
  2. You should be aware that Streaming Manipulation may be the result of actions by 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 advised to investigate any company or person whom you may use, hire, 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 performed by a third party on your behalf or relating to your Recordings will constitute a breach of these Terms of Service.
  3. The factors used to determine whether a particular consumer or marketing activity constitutes Transmission Manipulation will vary depending on the specific circumstances of each case, and the examples and descriptions of Transmission Manipulation set forth herein are not intended to be exhaustive.
  4. Certain Consumer Stores that use your Recordings may also have policies regarding fraud and suspected fraudulent activity, and you agree that it is your responsibility to be aware of and follow such policies, and such policies will be binding on you hereunder.

 

(e) In the event that Company has, in its sole and good faith discretion, reason to suspect that your account or Recordings have been the subject of, involved in, or generated revenue as a result of any violation of the Terms of Service; fraud; infringement of copyright, trademark, right of publicity or any other intellectual property rights; failure to comply with any third party licensing requirements; or Transmission Manipulation (collectively, “Misconduct”), Company reserves the right to (i) discontinue the transfer of revenue, including Net Proceeds, or other payments to your account; (ii) disable you from withdrawing funds from such account until the suspicious activities are clarified to Company’s satisfaction and Company determines, in its good faith discretion, that such funds are not attributable to Misconduct; and (iii) remove all or any of your Recordings from all or any of the Consumer Stores. You further agree that you will forfeit and/or surrender any earnings currently in your account and/or any past earnings that are attributable to the Misconduct (as applicable) if the Company determines, in its sole discretion and in good faith, that your account or your Recordings have been the subject of, engaged in, or generated revenue as a result of such Misconduct.

 

(f) You further agree as follows:

  1. You agree to provide the Company with any reasonable information requested by the Company in connection with an investigation into Misconduct.
  2. You agree that if a Consumer Store notifies Company that any of your Recordings have generated revenue, plays, or streams as a result of Misconduct, such notification will serve as sufficient evidence for Company to determine, in its discretion and in good faith, that such revenue or plays resulted from Misconduct.
  3. Upon Company's determination that your account or Recordings have been the subject of, engaged in, or generated revenue as a result of Misconduct, you agree that you will forfeit all revenue in your account that has been frozen by Company, regardless of whether it was generated from any specific Recording or Consumer Store.
  4. You agree that the Company's good faith determination of Misconduct may be based on a transmission or other activity that is the same as or similar to instances the Company has previously determined to have involved Misconduct.
  5. The Company's payment of income to you does not constitute an acknowledgement by the Company that such income was not the result of Misconduct.
  6. The Company has no duty to investigate Misconduct unless and until it freezes the earnings in your account.
  7. If the Company determines that earnings generated in your account are the result of Misconduct and such earnings have already been paid to you, you agree to return such earnings to the Company (or the Company will, at its discretion, deduct such earnings from the current balances in your account or from any future earnings that would otherwise be paid to you).
  8. The Company has the right to withhold and/or redistribute funds to third parties (or their monetary equivalent), which TuneControl determines in its sole discretion and in good faith, are derived from Misconduct.
  9. You agree that you will not be entitled to a refund of any fees you have paid to the Company in the event the Company disables access to your account, your Recordings or any other materials you provide to the Company, or to any income you lose as set forth in the preceding sentence.
  10. To the extent the Company, in its sole discretion and in good faith, determines that any Misconduct was caused by any actions or omissions by you or your affiliates or by any third party acting on your behalf or at your direction, any costs incurred by the Company (including attorneys' fees and legal expenses) in connection therewith may, without prejudice to any other remedy, be deducted by the Company from any amounts of money otherwise payable to you.
  11. In the event that any Store charges you and/or the Company a monetary fee or penalty as a result of Misconduct detected in connection with your account and/or Recordings, you agree that the Company, in its sole discretion, shall have the right to deduct the cost of such fee or penalty (as well as any associated legal fees and expenses incurred by the Company in connection therewith), from your account balance, Net Proceeds otherwise in your favor, and/or charge any alternative payment method you provide to the Company (such as a PayPal account, credit card, or debit card) (each a "Payment Method").
  12. If, in Company's reasonable commercial judgment, it elects to retain legal counsel to review potential Misconduct or to review and/or respond to any third party allegations of Misconduct by you or associated with your account or Recordings, Company, in its sole discretion, shall have the right to deduct from your account or charge any Payment Method the cost of such engagement, but no less than Three Hundred Dollars ($300), to offset the cost of associated legal fees and expenses.

 

The Company shall have the right, but not the obligation, to review or monitor any activity and content uploaded by you. The Company may investigate any complaints or any reported violation of its policies, and may take any action it deems appropriate. Such actions may include, but are not limited to, issuing warnings, suspending or terminating service, denying access, or removing any material that you may have uploaded. You agree that the Company reserves the right to terminate your account at its sole discretion and may do so for any reason at any time, including if, in its sole discretion and in good faith, the Company believes that you have engaged in Misconduct.

 

(h) In the event you choose to distribute your Recordings through Social Platforms (as defined below), the Social Platforms’ Terms of Service apply to you. Please refer to the Social Platforms’ Terms of Service for more information. “Social Platforms” means (I) Meta and all Meta properties, i.e. Facebook, Messenger (even if integrated (partially or fully) with Meta’s other messaging services other than WhatsApp), Instagram, Portal, and Oculus, as well as all properties owned or operated by Meta Platforms, Inc. or its affiliates that are integrated with the Social Platforms; or its affiliates that are integrated with the foregoing (for 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 thereof (the “Meta Platforms”), (II) TikTok and/or (III) CapCut and/or (IV) YouTube, including all replicated and/or derivative sites and all successor, successor, and/or international versions thereof (the “YouTube Platforms”), including but not limited to YouTube Music, the YouTube Video Player, and websites, applications (e.g., the main YouTube application, the YouTube Music application), APIs, embeds, products, and services, and any of the foregoing that are available for syndication, as well as the monetization and revenue collection service from YouTube sound recordings from TuneControl (“YouTube Monetization”).

 

2. RECORDINGS.

 

The term “Recordings” shall include sound recordings and audio-visual recordings submitted by you to the Company at any time. The Company, in its sole discretion, reserves the right to reject any material (including, but not limited to, Recordings, images or artwork) submitted by you. You agree to submit all Recordings, images and artwork solely at your expense, in formats required by the Company or the Consumer Stores. Technical descriptions of such formats will be provided to you upon request, notwithstanding which the Company reserves the right to convert the audio files of the Recordings as necessary to comply with the format or file size requirements of all Consumer Stores. In addition, the Company shall have the right to correct metadata errors to comply with the requirements of the Consumer Stores. The Company undertakes to provide your Recordings to the Consumer Stores as quickly as possible, with turnaround times varying from a few hours or a few days to several weeks until the specific Consumer Stores receive your Recordings and make them available to customers. You further agree that the Company or its suppliers shall have the right to supplement existing artwork as necessary to complete the packaging of the on-demand discs. Reasonable efforts will be made to provide you with approval rights to such artwork, but in the event you object to such artwork, your sole recourse shall be to (a) provide suitable replacement artwork or (b) request possible discontinuance of delivery of your materials in such form. Under no circumstances shall the Company have any liability to you with respect to the quality, sufficiency or other aspect of the creation and delivery of such on-demand discs.

 

3. PAYMENTS

 

(a) The Company will pay you one hundred percent (100%, if the user is subscribed to the silver, gold, platinum or enterprise plan, otherwise he/she/they will receive 85% of the income) of the Net Proceeds (as defined in Section 3(b) below). Net Proceeds will be posted to your TuneControl account in a timely manner after receipt by the Company. Once payment has been credited to your account, you may withdraw all or a portion of the payment, at your discretion. You will be responsible for any bank or other fees associated with such withdrawals.

 

(b) “Net Revenue” shall be defined as Company’s actual revenue from Stores less (i) any taxes, fees or other charges related to the Sale of Your Recordings and/or the remittance of payments; and (ii) any revenue paid to a Contributor on Split through the “TuneControl Splits” feature, as set forth below, if applicable. Any objection to any accounting statement, or any litigation arising therefrom, must be made (and any litigation commenced) no later than one (1) year after the date the statement is issued. Each statement shall be conclusively binding on You at the end of such one (1) year period, and You hereby waive any longer statute of limitations that may be permitted by law. You shall have no right to inspect or audit the books and records of Company or the books and records of any Store.

 

(c) To the extent you owe any amounts to the Company as a result of the Terms of Service or otherwise, the Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise payable to you.

 

(d) Net Income recorded in your TuneControl account will be concentrated in an interest-bearing bank account with Net Income from other TuneControl customers until you withdraw such funds. You agree that you will not receive interest or other earnings on Net Income that the Company handles as your agent and places in such pooled account. As consideration for your use of the Services, you irrevocably transfer and assign to the Company any ownership rights you may have in any interest accruing on Net Income held in such pooled account. In addition to or in lieu of accruing interest on such pooled account, the Company may receive a reduction in fees or expenses charged for banking services by the banks holding your Net Income.

 

(e) In connection with your decision to use TuneControl’s streaming media player, iPhone application, other applications, or so-called widgets (the “Streaming Players”) as platforms for users to stream your Recordings, you hereby waive any right to digital royalties as an artist, performance royalties, or any other fees or royalties, statutory or otherwise, that the Company may be obligated to pay to you or any third party in connection with your use of such Streaming Players. For the avoidance of doubt, to the extent you use a Streaming Player on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that the Company shall not be responsible for making any payments to any third party in connection with the Recordings and underlying musical compositions that you own or control.

 

(f) To the extent you choose to use certain Recordings from your TuneControl catalog to distribute for free to any party (via a Streaming Player, directly through your own website, or otherwise), you agree that you will be solely responsible for any of the foregoing third party payment obligations arising from such distributions. Notwithstanding the foregoing, you expressly agree to waive any music publishing royalties (if you own or control such rights) or pay any necessary royalties owed to third party music publishers as a result of such free distribution.

 

(e) Eligible TuneControl account holders may designate a portion of their income to other eligible TuneControl accounts (referred to herein as “Splits Contributor”) using the “TuneControl Splits” service as set forth below. To create a royalty split in Splits for a Recording, you will need to (i) distribute the Recording under a “Rising Artist,” “Relational Artist,” or “Professional” plan (Recordings distributed under a New Artist Plan are not eligible for royalty splits); and (ii) provide the Company with the email addresses associated with the Splits Contributor accounts and the percentage of profit each Contributor will receive. To receive a royalty payment as a Contributor, you must have a valid TuneControl account with a Rising Artist, Breakthrough Artist, or Professional plan, or a New Artist plan with the TuneControl Splits Collaboration service. Once a Split has been created, in order to receive their profit percentage, each Contributor must confirm their royalty split information. In the event a royalty split is directed to an ineligible TuneControl account, or an email address is not confirmed by the Contributor, or is invalid, the portion of the profit attributed to the Splits Contributor will be credited to the Recording. That contributor will continue to be paid to the TuneControl account holder who created the Split.

 

(f) Sales through certain Stores, services, or other revenue streams may not be eligible for the royalty split service. Such revenue streams may include earnings derived from (i) the exploitation of rights in musical compositions embedded in Recordings; (ii) the exploitation of Recordings on Meta Platforms; (iii) monetization of YouTube Recordings; and (iv) direct payments on Tidal.

 

(g) TuneControl account holders are solely responsible for all charges, fees, duties, taxes and services payable in connection with the Sale of Recordings through their TuneControl account, including any portion of such revenue that may be paid to a Splits Contributor.

 

4. OBLIGATIONS TOWARDS THIRD PARTIES.

 

(a) You shall be solely responsible for securing and paying any digital phonorecord delivery, public performance, mechanical and other licenses (as applicable) required from the copyright owners of the musical compositions or their agents in respect of the Company's exploitation of the rights hereunder, as well as any royalties owed to artists, producers and others involved in the making of the Recordings, and all payments required under collective bargaining agreements or pursuant to schemes provided for by law.

 

(b) For Digital Download Sales in the United States, your payment generally includes mechanical royalties relating to the underlying composition. In such cases, your payment includes a publishing portion that covers both mechanical and public performance royalties. If you do not own or control the underlying compositions used in your sound recordings, it is your obligation to pay these publishing royalties to the person or entity that does. Outside of the United States, the Company routinely requires Consumer Stores to obtain and pay for music publishing licenses (and such licensing fees may or may not be deducted by the applicable Consumer Store from the revenue payable to the Company). If any Consumer Store outside of the United States fails to obtain and pay for music publishing licenses, Company shall have the right, in its sole discretion, to either (i) refuse to grant a license to such Consumer Store or (ii) assume responsibility for authorizing and paying for any music publishing licenses required in connection with such Consumer Store's Sales, which license fees Company shall have the right to deduct from any amounts payable to you hereunder. To the extent Company is required or elects, in its sole discretion, to pay any of the foregoing amounts, such payments shall be deducted from any amounts otherwise payable to you hereunder.

 

(c) To the extent Company permits you to select certain Recordings from its TuneControl catalog for distribution free of charge to fans or directly through your own website, you agree that you will be solely responsible for any of the foregoing third party payment obligations arising from such distribution.

 

5. WARRANTIES. REPRESENTATIONS, INDEMNITIES.

 

(a) You warrant and represent that (i) you are at least eighteen (18) years of age and that you have the full right, power and authority to enter into this agreement and to grant the Company all of the rights specified herein; (ii) that you own or control all of the Recordings, including, without limitation, any sampled third party materials incorporated therein, artwork, metadata, audio-visual materials, images and any other materials provided by you to the Company or relating to the Recordings, and that use of the Recordings as described or contemplated herein or on the Site or Stores' websites will not infringe the copyrights, trademark rights, publicity rights, moral rights or other rights of any person or entity under the laws of any jurisdiction; and (iii) that the Company shall have the right to exploit such Recordings in any manner hereunder, free and clear of any claim against you and without any obligation to make any payment of any nature to any person or entity other than amounts payable to you hereunder.

 

(b) You will defend, indemnify and hold the Company and any of its affiliates (including their directors, partners, officers, employees and other representatives) harmless from and against any third party claims or expenses and losses arising from any breach or allegations that, if true, would involve 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) The Company will promptly notify you of any claim that is subject to the foregoing indemnification obligation, and you will defend the Company, at your sole cost and expense, with counsel approved by the Company; such approval may not be unreasonably withheld. In the event that you fail to retain approved counsel, the Company may, if it elects to do so, pursue a defense at your expense, and you agree that the Company may require your participation in such defense as a third party, or in another capacity; and you hereby waive any objection or claim for compensation with respect thereto. If a claim is made, the Company shall have the right, in its sole discretion, to remove or disable access to the Recordings or any associated materials that are the subject of such claim, or to withhold payment of any money owed hereunder in an amount reasonably proportional to the claim and potential expenses. Any settlement agreement with respect to a claim shall be subject to the prior written approval of the Company.

 

(d) THERE ARE NO REPRESENTATIONS OR WARRANTIES BY THE COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH IN THE TERMS OF SERVICE.

 

6. SUBSCRIPTION FEES.

 

As consideration for the services provided hereunder, all Recordings submitted by you and distributed by Company to Stores require you to purchase a tax-based recurring subscription through a Payment Method. Such taxes cover Company's administrative expenses, distribution and artistic support services, and ongoing manual maintenance of your Recordings with Stores to meet their technical requirements and specifications; the performance of such work by Company represents an essential and indivisible part of the Services. Company may modify these taxes from time to time, without notice to you. You expressly agree that Company is authorized to deduct your recurring subscription taxes, any applicable taxes, and/or other charges you incur in connection with your use of the Services directly from your TuneControl account or to charge such costs to any Payment Method you provide to Company. You are solely responsible for all charges, costs, duties, taxes and levies arising from any use of your TuneControl account by you or any other person and/or as a result of any portion of revenue required to be paid by you to a Splits Contributor, as applicable. If you notify the Company in writing of the cancellation of your subscription for one or more of your Recordings, no further subscription fees will be charged to your TuneControl account or Payment Method for those Recordings and all cancelled Recordings will be deleted from their respective Consumer Stores. You will not be entitled to a refund of any prepaid fees in connection with cancelled Recordings. If, for any reason, you fail to make a payment or if a payment hereunder is reversed through the Payment Method or any other method after you agree to these Terms of Service, the Company shall be entitled to recover, 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 has been fully recovered. It is your responsibility to notify the Company if you have changed your Payment Method by making appropriate changes to your TuneControl account settings. If you do not provide a valid Payment Method, your service may be disconnected or interrupted at the Company's sole discretion.

 

7. TERM.

 

The Terms of Service will apply at all times while you use the Site or the Services.

 

8. CONFIDENTIALITY.

 

You acknowledge and agree that in the course of your dealings and business transactions with the Company, you may become aware of certain confidential information relating to the Company's business and business practices. Except to the extent such information is otherwise widely available to third parties or required to be disclosed by law, you agree to maintain the confidentiality of such information. You hereby expressly agree that the Company shall have the right to provide information relating to Sales of your Recordings subject hereto, to aggregate such information into tables and other comparative informational materials, and to disseminate such information in any manner.

 

9. OTHER AGREEMENTS.

 

(a) You acknowledge that in order to provide the Services and payments hereunder, Company will be required to enter into certain agreements with various Consumer Stores. The selection of such Consumer Stores shall be at the sole discretion of Company. You agree that the Terms of Service shall be subject to the applicable terms and conditions of such other agreements Company enters into with such Consumer Stores. With respect to audiovisual recordings, you expressly acknowledge that certain Consumer Stores may require that their audiovisual recordings be made available on their websites at certain times and in certain formats in connection with the availability of such materials elsewhere in the marketplace. To the extent such requirements are not met, the applicable Consumer Stores may have the right to discontinue the availability of such audiovisual recordings in their stores. Company will, upon written request, provide you with the current specific details of such requirements.

 

(b) From time to time during the Term, Stores may make changes to their platform, including, but not limited to, adding or removing specific services or products, developing and beta testing new products, running promotions, and creating alternative royalty calculations and/or pricing structures (individually and collectively, “New Store Developments”). By entering into this agreement, you understand that, as part of the Services, in connection with the Stores you select and approve distribution to, you may be automatically included in New Store Developments made by such Stores during the Term. In such event, your sole remedy to opt out of such New Store Development will be to (i) opt out of the specific New Store Development (if permitted by Company and/or the applicable Store, at each’s discretion); (ii) opt out of distribution to such Store entirely; or (iii) terminate this agreement.

 

10. BAR CODES AND UNIVERSAL PRODUCT CODES.

 

The Company will provide you with barcodes and Universal Product Codes (“UPCs”) free of charge. These are for your use only and may not be transferred or resold. In the event they are transferred or resold, the Company will charge you twenty-five U.S. dollars (US$25.00) for each barcode or UPC, plus any revenue you have generated from such transfer or resale. The Company may deduct such charges from any Net Revenue owed to you by the Company or charge such amounts to any Payment Method you provide to the Company.

 

11. USER GENERATED CONTENT

 

You agree that Company shall have the right to authorize the creation, use and exploitation of User-Generated Content incorporating 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 to which you choose to distribute your Recordings. As used herein, “User-Generated Content” means derivative works incorporating your Recordings, artwork (including single and album artwork) and other material provided by you in connection with the Recordings that are created by third parties (such as Consumer Store users) and distributed and exploited through Consumer Stores. User-Generated Content includes, but is not limited to, (i) videos and visual images synchronized in temporal relationship to musical recordings; (ii) audio or audiovisual “remixes” that combine two or more recordings that may be edited together, mixed, remixed, edited or “merged”; (iii) visual or audiovisual material that 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. Without limiting the foregoing, you expressly waive any moral rights that may apply to you under the laws of any country, whether as an author, composer, performer, producer or in any other capacity in relation to the Recordings referred to herein.

 

12. ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING

 

Should you choose to participate in the TuneControl AI Front Row Seats Program, the terms of the TuneControl AI Front Row Seats Terms and Conditions will apply to you.

 

13. LEGAL PROCEDURES.

 

(a) You hereby irrevocably authorize and appoint the Company, its licensees, assigns, agents and attorneys to commence on your behalf and/or on behalf of the Company, any claim, suit, action or proceeding (each, a “Claim”) that the Company deems reasonably necessary and proper for the protection and enforcement of the rights granted to the Company hereunder. The Company shall commence and maintain any Claim in good faith and at the Company’s expense, provided that recovery of any Claim shall be used first for 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 the Company to all participants in the settlement or recovery in question.

 

(b) You and the Company agree that each of you and the Company may bring claims against the other only in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You further agree that the court may not consolidate proceedings involving more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.

 

14. MISCELLANEOUS CLAUSES.

 

(a) You may use and access the Site and Services only for lawful purposes. You agree to comply with all local, state, national and foreign laws, treaties 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 when using or accessing the Site or Services:

  1. 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.
  2. Use any metadata, meta tags, or other hidden text utilizing TuneControl's name, trademark, URL, or product name.
  3. Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
  4. 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.
  5. Upload, submit, post, email or otherwise transmit through the Site or Services any Recording or other material that is, in the Company’s sole opinion, unlawful, harmful, threatening, obscene, harassing, defamatory or hateful, contains hateful objects or symbols, invades another’s privacy, contains nudity (including, without limitation, any pornography, erotic material, child pornography or child erotica), is misleading, threatening, abusive, incites illegal action, is defamatory, libelous, vulgar or violent, represents hate speech or is otherwise objectionable.
  6. Destroy, tamper with, or disrupt, or attempt to tamper with or disrupt, any web pages available on the Site, servers or networks connected to the Site, or the technical delivery systems of the Company's providers, or violate any requirements, procedures, policies or regulations of networks connected to the Site.
  7. 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 or providing security to the Site or Services.
  8. Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services.
  9. Attempt to search, meta-search, or access the Site using any engine, software, tool, agent, device, or mechanism other than the software or search agents provided by the Company or generally available third party Internet search engines (e.g., Internet Explorer, Firefox, Safari), including without limitation any software that sends queries to the Site to determine the ranking of a website or web page.
  10. Collect or store personal data about other users of the Site or Services without their express permission.
  11. Misrepresent or falsely state your affiliation with any person or entity, through pretexting or any other form of social engineering or otherwise commit fraud.
  12. Use the Site or Services in any manner not permitted by the Terms of Service.
  13. Instruct or encourage any other person to do any of the foregoing or to violate or breach any of the Terms of Service.

 

(b) The Company does not guarantee the exploitation of the Recordings, which will depend on the preference of consumers, or the inclusion or participation of any specific Consumer Store. The Company reserves the right, in its sole discretion, to refuse to do business with any particular Consumer Store. Except as specifically set forth in the Terms of Service, the Company will have no obligation to you.

 

(c) The Company shall not be deemed to have breached these Terms of Service unless you have given notice of the breach to the Company and the 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 terminate any rights granted hereunder.

 

(d) As used herein, “Force Majeure Event” shall mean strikes, acts of God (including, but not limited to, natural disasters and disease outbreaks, including epidemics and pandemics), governmental restrictions, civil unrest, war, acts of public enemies, riots, insurrections, cyber attacks, sabotage, blockades, embargoes, sanctions, shortages of resources or materials in the market, or other conditions beyond the control of the Company and/or the Company’s third party service providers. The Company’s failure to comply with the terms and conditions of this Agreement due to a Force Majeure Event shall not be deemed a breach of this Agreement by the Company. In the event that a Force Majeure Event prevents the Company from posting Net Revenue to your TuneControl account and/or prevents you from withdrawing all or any portion of the Net Revenue from your TuneControl account, the Company shall be excused from making any Net Revenue payments due during the Force Majeure Event; and such Net Revenue payments will be paid upon the conclusion of the Force Majeure Event. Notwithstanding the foregoing, in the event that Company anticipates that a Force Majeure Event will prevent the payment of Net Revenue indefinitely or that a Force Majeure Event may permanently prevent you from receiving or withdrawing Net Revenue, Company will use reasonable efforts to provide you with advance written notice of such anticipated Force Majeure Event and the possibility that you may not be able to receive Net Revenue. In such cases, (i) you will have the right to cancel your TuneControl account at any time while the Force Majeure Event preventing you from receiving payment continues; and (ii) Company will not be liable to you for any portion of Net Revenue that is not payable to you after the date Company provides such written notice to you.

 

(e) In no event shall the Company, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, the Services, the Company products or any of the Company content, whether or not the damages were foreseeable or the Company has been advised of the possibility of such damages. The foregoing limitation of liability shall apply to the maximum extent permitted by law in the applicable jurisdiction, and in no event shall the Company's aggregate liability to you exceed one hundred U.S. dollars (US $100).

 

(f) The Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws provisions. Any legal suit or proceeding arising under the Terms of Service shall be instituted exclusively in the courts located in the State and County of New York, and the parties hereby irrevocably consent to the personal jurisdiction and venue of such courts. The parties hereto waive their respective rights to a trial by jury. In the event any provision of the Terms of Service is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. The failure of a party to exercise any right or provision of the Terms of Service shall not be deemed a waiver of such right or provision. You may not assign the Terms of Service (by operation of law or otherwise) without the Company's prior written consent, and any prohibited assignment shall be void and unenforceable. The Company may assign the Terms of Service or any rights or obligations hereunder without your consent. The relationship of the parties under the Terms of Service is that of independent contractors, and the Terms of Service shall not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that the Terms of Service and the rules, restrictions, and policies contained herein, and the application and enforcement of them by the Company, are not intended to and do not confer any rights or remedies upon any person other than you and the Company. The Terms of Service, together with the Company's rules and policies, constitute the entire agreement between the Company and you with respect to the subject matter hereof. Any notice or other communication required to be given hereunder will be in writing and will be given (i) by the Company via email (always to your email address of record), (ii) a posting on the Site, or (iii) by you to copyright@tunecontrolapp.com or such other address as the Company may specify in writing. The date of receipt shall be deemed to be the date on which the notification was transmitted.

 

(g) You acknowledge that you have read and understand the Company's Privacy Policy as set forth in more detail on the Site and that, by using the Services and the Site, you have expressly agreed to the terms and conditions set forth in such Privacy Policy, as amended from time to time.

 

(h) It is your responsibility to provide all necessary information, metadata, songs, graphic files or any other information or music in the required format. You acknowledge that the Company shall not be obligated to provide its services hereunder until receipt of such materials.

 

(i) In very limited circumstances, the Company may permit you to modify the standard wholesale price you will receive from sales of some of your Recordings by a Consumer Store (“Price Variation”), and such circumstances will be determined by the Company in its sole discretion. In addition to and pursuant to the provisions of Section 14(e) above, in no event will the Company, its officers, directors, employees or agents be liable to you for any claim you may have in connection with any error that occurs in the implementation of such Price Variation that is not caused solely and exclusively by the negligence or error of the Company.

 

(j) You authorize the Company to make and perform clips of your Recordings up to ninety (90) seconds in length via streaming or download free of charge (the “Clips”) to promote the band, artist, or Sales of the applicable Recordings. To the extent you own or control the publishing rights to the musical compositions embodied in your Recordings (or any rights embedded in non-musical recordings) used in the Clips, you authorize the Company to make and perform clips of such Compositions up to ninety (90) seconds in length via streaming or download free of charge to promote the band, artist, or Sales of the applicable Recordings. Such Clips may be created by the Company or any third party affiliated with the Company using ninety (90) consecutive seconds of the applicable Recordings.

 

(k) The Company reserves the right, in its sole discretion, to refuse to provide services to you or any client, for any reason or no reason.

 

(l) You hereby agree that the Company may share information and data about you and/or your account (including, without limitation, your name, contact information, and/or other account information) with certain third parties, if required to do so by law or in the good faith belief that such action is necessary to (i) comply with legal or regulatory obligations, or other lawful requests by public authorities, including meeting national security or law enforcement requirements; (ii) protect and defend our rights or property; (iii) prevent fraud; (iv) act in urgent circumstances to protect the personal safety of users of the Services, or the public; or (v) protect against legal liability, including, without limitation, protecting the Company from liability in connection with third-party claims that materials provided by you to the Company hereunder infringe the rights of a third party.

 

(m) If a Store rejects a master media file because it does not meet that Store's technical or editorial specifications, you must pay a resubmission fee before resubmitting the master file. In the event that you are unable or unwilling to correct errors or quality issues in order to resubmit the master media file, there will be no refund of any fees previously paid. Fees paid for the initial submission and any resubmission are non-refundable under any circumstances.