Terms of Service
Digital Ringtone, Alert Tone and Ringback Distribution Terms of Service
This Digital Distribution & Licensing Terms of Service agreement (“TOS”) is between AudioMicro, Inc.(“AUDIOMICRO”), a Delaware Corporation and you. And is effective as of the date first written below (the “Effective Date”). AUDIOMICRO 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 AUDIOMICRO 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 AUDIOMICRO’s express written consent.
YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY AUDIOMICRO THROUGH THE SITE OR WITH RESPECT TO YOUR 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 AUDIOMICRO.
All capitalized terms not defined within body of this TOS are defined in Exhibit A.
WHEREAS, AUDIOMICRO provides distribution, marketing, licensing and promotional services for recording and other labels for the distribution of digital and wireless music and related content; and
WHEREAS, You are a content owner, licensor or aggregator who desires that AUDIOMICRO be the digital distributor of your Content to Digital Service Providers; and
WHEREAS, you desire to use AudioMicro to be the digital distributor of your Content in the Territory and to distribute your Content to Digital Service Providers on the terms and conditions set forth herein.
AUDIOMICRO provides the following services: (a) encoding and distribution to digital music stores, digital music and subscription services; (b) Wireless Distribution of Content; (c) online marketing and promotions support; and (d) monthly accounting of sales, royalties, and payments (“Services”).
By clicking the “I Agree” button, you irrevocably grant to AUDIOMICRO, throughout the Territory and during the Term the non-exclusive rights to:
a) Act as the licensor and digital distributor solely of your Content delivered to AUDIOMICRO by you as defined herein to Digital Service Providers, and sublicensing and distributing Content to customers of Digital Service Providers located in the Territory, as well as granting the right and license to Digital Service Providers to reproduce, perform, display, distribute, modify, sell, and otherwise use the Content (including, without limitation, all intellectual property rights therein), and, all for use in the formats and media as contemplated herein, including (without limitation) permanent digital downloads, streaming, other digital distribution technologies (such phone services as ringtones, master tones, ringback tones; compact disc burns; Internet radio; kiosks allowing the transfer of the Content to digital storage devices; and conditional downloads whether tethered to a device, time limited, play limited or otherwise), and/or other existing and future digital delivery methods, by any means now known or hereinafter devised.
b) You grant AUDIOMICRO and its Digital Service Providers the right to reproduce and create derivative works of the Content by converting the Content into digital masters, including less than full-length versions of sound recordings (“Clips”) that can be used for promotional purposes as authorized herein and, if necessary, reproducing the Content in new physical product; and to publicly perform, publicly display, communicate to the public, and otherwise make available the Content, and portions thereof as embodied in Clips, by means of digital audio transmissions (on an interactive or non-interactive basis) through the AUDIOMICRO website, a licensee or Digital Service Provider website, or via a widget that You or any person authorized by You may place on any website, to identify the availability of the Content for license, sale or distribution and to promote the Content, on a through-to-the-listener basis, without the payment of any fees or royalties.
c) You grant AUDIOMICRO and its Digital Service Providers the right to use the approved names and likenesses of, and approved biographical material concerning, any Content, You, bands, producers and/or songwriters, as well as track and/or album name, and artwork, in any marketing materials for the sale, promotion and advertising of applicable Content which are offered for sale or other use under the terms of this TOS (e.g., You or band name and likeness may be used in an informational fashion, such as textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable You or band in connection with the authorized exploitation of applicable Content). In addition, AUDIOMICRO and any of its Digital Service Providers shall have the non-exclusive right to market, promote and advertise the Content available for purchase as it determines in its discretion; including, without limitation, on-line and on radio; and the right to reproduce, distribute, and publicly display visual elements of the Content (e.g., album cover artwork, images, etc.) in connection with the promotion, advertisement, sale, and distribution of the Content. AUDIOMICRO shall have the right to create and authorize others to create fingerprints of the Content for purposes of audio, composition, and/or video recognition, which shall remain the property of AUDIOMICRO and/or its third party partners.
d) 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.
e) You agree that Company may freeze any and all revenues in your account that are received in connection with Content or other materials submitted by you which AUDIOMICRO believes, in its good faith discretion, violate the Terms of Service, and that such revenues will be forfeited by you if AUDIOMICRO 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 AUDIOMICRO in the event AUDIOMICRO disables access to your account, your Content and/or any other materials you provide to AUDIOMICRO, or to any revenues forfeited by you as set forth in the preceding sentence.
f) You agree that AUDIOMICRO may terminate your account if you violate the Terms of Service or, in AUDIOMICRO good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.
g) Further terms and rules:
- No title or artist name may contain the words “Ringtone”, “Ringtones”, “Tone” or the name of an existing Artist who is not the actual featured performer on the sound recording;
- Free accounts are allowed to upload up to 10 ringtones;
- Label accounts are allowed to upload to 100 ringtones;
- Pro accounts have no cap.
DELIVERY OF CONTENT
a) The Content shall be provided to AUDIOMICRO at You’s sole cost and expense, in a format as mutually agreed by You and AUDIOMICRO. Nothing herein shall obligate AUDIOMICRO or any Digital Service Provider to actually exercise any rights granted under this TOS.
b) You agree to specify to AUDIOMICRO the requirements and guidelines for authorship credits and captions to be used with or displayed with Content. AUDIOMICRO agrees to comply, and instruct Digital Service Providers to comply, with all such reasonable requirements and guidelines, including causing credit information and copyright notices to be included with the Content.
a) AUDIOMICRO shall collect all payments from Digital Service Providers and other third parties for any deals entered into or substantially negotiated by AUDIOMICRO during the Term for use of the Content (“Gross Revenues”). AUDIOMICRO shall pay sixty percent (60%) of the Gross Revenues to you (“Master Proceeds”) if you select “Free” option; seventy-five percent (75%) with the Label Plan or ninety percent (90%) when selecting Pro Plan. No Master Proceeds shall be due or payable to You in respect of any Gross Revenues until AUDIOMICRO shall have either actually or beneficially received such Gross Revenues. You acknowledge and agree that the Master Proceeds are inclusive of any and all record, mechanical and other royalties payable to royalty participants in connection with Digital Service Providers’sales of the Masters, and that You shall be responsible for and timely pay all such royalties due to any and all third parties as further specified in Article 6.
b) Promptly following the end of each calendar month in which AUDIOMICRO collects any Gross Revenues, AUDIOMICRO shall compute the amount of Master Proceeds due and owing to You and shall, within forty-five (45) days of the last day of the preceding calendar month, provide a detailed statement (“Statement”) to You, in accordance with AUDIOMICRO’s standard business practices, setting forth the Master Proceeds due and owing to You. Master Proceeds will be paid monthly to your email address via Paypal. You will be responsible for any bank fees or other charges related to such payments.
Unless otherwise specified herein, You shall obtain and pay for any necessary clearances and licenses (including but not limited to mechanical licenses) in the Territory for all Content. Specifically, prior to the distribution of the Content, You shall be responsible for and timely pay (a) any royalties and other income due to record yours, authors, co-authors, copyright owners, co-copyright owners, producers and other record royalty participants from sales or other uses of the Content, (b) all mechanical royalties payable to publishers and/or authors or co-authors of copyrighted musical compositions embodied in the Content from sales or other uses of the Content; (c) all payments that may be required under collective bargaining TOSs applicable to You or third parties other than AUDIOMICRO, and any other royalties, fees and/or sums payable with respect to the Content, including without limitation, the Content itself, as well as any Artwork, metadata and other materials provided by You to AUDIOMICRO.SUBSCRIPTION AND FEES.
Pro Plan - In consideration of the services rendered hereunder, all Content submitted on the Pro plan require that you purchase a recurring fee-based subscription via a Payment Method. These fees may be amended from time to time by AUDIOMICRO without notice to you. You expressly agree that AUDIOMICRO 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 account credit (i.e., your share of Net Income) or charge such fees to any Payment Method you provide to AUDIOMICRO. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your account by you or anyone else using your account. If you notify AUDIOMICRO in writing that you are terminating your subscription for one or more of your Content submissions, no further subscription fees will be charged to your account or Payment Method for that Content and all terminated Content will be removed from their respective DSPs. You will not be entitled to reimbursement of any pre-paid fees with respect to any terminated Content. 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, AUDIOMICRO 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 AUDIOMICRO if your Payment Method has changed. If you do not provide a valid Payment Method your service may be disconnected or interrupted at AUDIOMICRO’s sole discretion.
TERM AND TERMINATION
a) This TOS shall commence on the Effective Date and shall continue for at all times while you use the Site and service.
b) Either Party shall have the right to terminate this TOS at any time in the event that the other Party (i) becomes insolvent, (ii) files a petition in bankruptcy, or (iii) breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of written Notice of such breach, or if not able to be so cured, then resolved to the other Party’s satisfaction, not to be unreasonably withheld.
c) Upon written (digital transmission such as email is acceptable) notice by You to AUDIOMICRO to cease Services for any of Your Content, AUDIOMICRO will, within five (5) business days, advise our Digital Service Providers (via a "Takedown Notice") that they are no longer authorized to sell or offer for any other use those elements of your Content. Termination of this TOS or AUDIOMICRO's rights to perform Services for any Content shall not in any way limit the authorizations granted to AUDIOMICRO or any Digital Service Providers prior to the implementation of the Takedown Notice, and will not limit in any way the rights of end users who have acquired your Content. AUDIOMICRO is not responsible for, and has no liability for, any delays of Digital Service Providers in removing your Content from any websites or services owned or operated by such Digital Service Providers. You shall remain solely responsible for enforcing the removal of Content from any Digital service Providers’ websites and services in the event such Digital Service Providers fail to remove your Content following receipt of a Takedown Notice or following the termination of any rights granted to such Digital Service Providers by AUDIOMICRO; provided, however, that AUDIOMICRO may, in its sole and absolute discretion, continue to assist You to effectuate the removal of your Content from Digital Service Providers' websites and services. AUDIOMICRO may, but need not, provide You with notice in the event AUDIOMICRO terminates or allows to expire any authorizations previously granted to a Digital Service Provider for the distribution of Content. Nothing in this TOS shall limit any remedies you may have at law or in equity against any Digital Service Provider that is using your Content in violation of the terms of any license granted to such Digital Service Provider by you or AUDIOMICRO.
REPRESENTATIONS AND WARRANTIES
a) You represent and warrant that: (i) You have the right, full power and lawful authority to enter into this TOS for the purposes herein (including the granting of licenses under this TOS) and to carry out Yours obligations under this TOS and that no third party licenses or consents (including, without limitation, from any record company or music publisher) are required for the exploitation of the Content at time of execution, (ii) the Content, and all parts thereof, will not: (A) disparage, defame, or discredit AUDIOMICRO, any Digital Service Providers, or any of their respective affiliates or contain content that is detrimental to the name or business reputation of AUDIOMICRO or Digital Service Providers or any of their respective affiliates, (B) facilitate or promote illegal activity, or contain content that is illegal, or (C) infringe or violate any right of any third party including, without limitation, any rights of copyright, trademark, unfair competition, trade secrets, confidentiality, defamation, publicity and privacy; (iii) You have not previously granted and will not grant any rights in or to the Content to any third party that are inconsistent with the rights granted to AUDIOMICRO herein, or which would interfere with the performance of this TOS; (iv) the Content, including all preexisting works owned or used by You, have not been and will not be published under circumstances that would cause a loss of copyright therein; (v) all Content must be owned, licensed or controlled by You and/or have been cleared by You; and (vi) that it is Yours sole responsibility for paying mechanical royalties to the publishers and co-publishers of any and all musical compositions embodied within the Content.
b) AUDIOMICRO represents and warrants that: (i) it has the right, full power and lawful authority to enter into this TOS for the purposes herein, (ii) it will use and distribute the Content only within the scope of the licenses, rights and authorization under this TOS, (iii) it will not knowingly use or distribute the Content in violation of applicable law, rule or regulation in any particular country within the Territory, and (iv) it will not knowingly use or distribute, or continue the use or distribution, of the Content, alone or in combination with other materials, in a manner that would, in its judgment constitute infringement of a third party’s intellectual property rights.
c) NOTWITHSTANDING ANY OTHER PROVISION OF THIS TOS, AUDIOMICRO DOES NOT WARRANT THAT ITS SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE. AUDIOMICRO MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF EITHER THE CONTENT ITSELF OR OF THE FILES, CUSTOM ARTWORK, AND COMPILATIONS CREATED BY AUDIOMICRO WHICH INCORPORATE THE CONTENT, OR ANY ELEMENTS OF THE FOREGOING, AND ANY SUCH WARRANTIES AND TERMS ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
You will at all times indemnify and hold harmless AUDIOMICRO, Digital Service Providers and their respective affiliates, officers, employees, parent and subsidiary companies, directors, shareholders, independent contractors, licensees, agents, and representatives (the “AUDIOMICRO Indemnitees”) from and against any and all claims, damages, liabilities, costs and expenses, including legal expenses and reasonable counsel fees, arising out of any alleged breach or breach by you of any representation or warranty made by you herein. You will reimburse the AUDIOMICRO Indemnitees on demand for any payment made at any time after the date hereof in respect of any liability or claim in respect of which the AUDIOMICRO Indemnitees are entitled to be indemnified. You shall be notified of any such claim, action or demand and shall have the right, at your own expense, to participate in the defense thereof with counsel of your own choosing.
LIMITATION OF LIABILITY
NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S LIABILITY ARISING FROM THIS TOS (EXCEPT FOR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF NONDISCLOSURE REQUIREMENTS), WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AGGREGATE MASTER PROCEEDS EARNED BY YOU UNDER THIS TOS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY IN ALL CIRCUMSTANCES.
a) AUDIOMICRO may assign this TOS to any parent, subsidiary, affiliated or controlling entity (or an entity under common ownership with AUDIOMICRO), or to any person or entity owning or acquiring a substantial portion of the stock or assets of AUDIOMICRO or any parent AUDIOMICRO of AUDIOMICRO, or to a person or entity in which AUDIOMICRO owns or acquires a substantial portion of such person’s or entity’s stock or assets.
b) Except as required by law, each Party will maintain in strict confidence all Confidential Information disclosed by the other Party, will not disclose or reveal to any third party the terms and conditions of this TOS, and will not make any public disclosure, including but not limited to press releases and other publicity disclosures, referring to AUDIOMICRO without AUDIOMICRO’s express prior consent. Each Party will promptly notify the other upon discovery of any unauthorized use or disclosure of Confidential Information.
c) This TOS shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of the parties with allowance for termination as set forth in Article 7 above.
d) 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: (i) Disable, hack, circumvent or otherwise interfere with security related features ofthe Site or features that prevent or restrict use or copying of any AUDIOMICRO content or materials; (ii) Use any metadata, meta tags or other hidden text utilizing a AUDIOMICRO name, trademark, URL or product name; (iii) 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; (iv) 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 sourceidentifying information; (v) Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are, in the sole opinion of AUDIOMICRO, 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; (vi) 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 AUDIOMICRO providers or break any requirements, procedures, policies or regulations of networks connected to the Site;(vii) Attempt to scan, probe or test the vulnerability of any AUDIOMICRO system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Site or Services; (viii) Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services; (ix) 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 AUDIOMICRO 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; (x) Collect or store personal data about other users of the Site or Services without their express and explicit permission; (xi) Misrepresent or impersonate your affiliation with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud; (xii) Use the Site or Services in any manner not permitted by the Terms of Service; or (xiii) Instruct or encourage any other individual to do any of the foregoing or to breach and/or violate any of the Terms of Service.
e) The Parties hereto acknowledge and agree that the relationship between the Parties is that of independent contractors. This TOS shall not be deemed to create a partnership or joint venture, and neither Party is the other’s agent, partner, employee, or representative.
f) All Notices shall be in writing and shall be deemed given (i) upon receipt, when delivered by hand or by overnight courier, or (ii) five (5) days after mailing, postage prepaid, by register or certified mail, return receipt requested, to the address set forth on the signature page of this TOS or such other addresses as either Party shall specify in a written Notice to the other. Payment and other statements may be sent by first class mail or digital transmission such as email, FTP or web access. Rejection or other refusal to accept, or inability to deliver because of changed address of which no Notice has been received, shall constitute receipt. Notwithstanding the foregoing, Notices of default may not be sent by facsimile transmission alone and facsimile transmissions that are received after 4:00 p.m. on a business day or received on a day that is not a business day shall be deemed to have been received on the next business day.
g) The failure by AUDIOMICRO to perform any of its obligations hereunder shall not be deemed a breach of this TOS unless You gives AUDIOMICRO prompt written Notice of such failure to perform specifically stating the nature of any such failure and the provisions that govern or relate to such failure hereunder and such failure is not corrected by AUDIOMICRO within thirty (30) days from and after AUDIOMICRO’s actual receipt of such Notice.
h) This TOS shall be governed by the laws of the State of California, without regard to California’s conflicts of law rules. Any controversy or claim arising out of or relating to this TOS, or the breach thereof, shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (AAA) by a single arbitrator using expedited procedures and located in Los Angeles, California. The Parties shall mutually agree upon the arbitrator and if the Parties cannot agree then one shall be appointed according the AAA rules. Judgment upon the award rendered by the arbitrator may be entered into in any court of competent jurisdiction and shall not be appealable. Furthermore, the prevailing Party shall be entitled to reasonable attorneys' fees. This clause shall not preclude either Party from pursuing injunctive or equitable relief in any court of competent jurisdiction.
i) You specifically acknowledges that: (a) You has been advised to seek its own independent counsel concerning the interpretation and legal effect of this TOS, and (b) You has either obtained such counsel or has intentionally refrained from doing so and has knowingly and voluntarily waived such right.
j) Notwithstanding the forgoing, the Parties hereby acknowledge and make reference to a currently existing TOS between the Parties related to YouTube monetization, known as the AdRev Program TOS. To the extent that any terms of the AdRev Program TOS contradict any terms of this TOS, the terms of the AdRev Program TOS shall prevail, but solely to the extent of the conflict.
k) This TOS sets forth the entire understanding of the Parties hereto relating to the subject matter hereof. No modification, amendment, waiver, termination or discharge of this TOS or of any provision hereof shall be effective unless signed by both Parties. No waiver of any provision of this TOS or of any default hereunder shall affect the waiving Party’s right thereafter to remedy to enforce such provision or to exercise any right or remedy in the event of any other default. If any provision of this TOS shall be deemed void, voidable, invalid or inoperative, no other provisions of this TOS shall be affected as a result thereof, and, accordingly, the remaining provisions of this TOS shall remain in full force and effect as though such void, voidable, invalid or inoperative provisions had not been contained herein. This TOS shall not be deemed to give any right or remedy to any third party unless said right or remedy is approved by You and specifically granted by AUDIOMICRO in writing to such third party. This TOS, together with the Exhibits annexed hereto, constitutes the entire, final, complete and exclusive TOS between the Parties and supersedes all previous and contemporaneous TOSs, understandings and representations, written or oral, with respect to the subject matter of this TOS. The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. This TOS shall not be interpreted against the Party causing this TOS to be drafted. This TOS does not constitute an offer by AUDIOMICRO and it shall not be effective until signed by both Parties. This TOS may be executed in counterparts and signature by fax is authorized.
Exhibit A Definitions
In addition to terms defined within the body of this TOS, the following terms will have the following meanings:
“Artwork” means the following: (i) any artwork (including album cover artwork) relating to the Content that You provides to AUDIOMICRO during the Term, and (ii) any Custom Artwork. Any artwork that is provided by You to AUDIOMICRO during the Term will be deemed to have been cleared by You unless You promptly notifies AUDIOMICRO in writing to the contrary. AUDIOMICRO acknowledges and agrees that You will be the exclusive owner in perpetuity throughout the Territory for all Artwork.
“Compilation” means any grouping, regrouping, or compiling of Content into so-called “compilation,”“themed,” or “best-of” albums or EPs.
“Confidential Information” means any and all non-public information of either Party, including information consisting of or relating to either Party’s business strategy, services, activities, operations, financial information, reports, ideas, concepts, know-how, techniques, technology, designs, data, code, customer lists, suppliers, trade secrets and other proprietary technical or business information that derives actual or potential economic value from not being generally known to the public, to competitors or to other persons who may obtain economic value from its disclosure or use. All information shall be deemed Confidential Information regardless of whether it is disclosed orally, in writing or otherwise. However, Confidential Information will not be deemed to include any information that (a) was generally available to the public or otherwise part of the public domain at the time of its disclosure, (b) becomes generally available to the public or otherwise part of the public domain after its disclosure other than through any act or omission of the receiving Party in breach of this TOS, (c) was disclosed, other than under an obligation of confidentiality, by a third party, or (d) was independently developed by either Party without use of the other Party’s information.
“Content” means sound recordings and video, and other material contained therein, including but not limited to underlying musical compositions, performances, artwork, images, visual elements, lyrics, metadata (such as text and biographical information), and including copies of such in digital or physical form, that (i) is provided by or on behalf of You to AUDIOMICRO, or (ii) for which You has instructed AUDIOMICRO to perform any Service.
“Custom Artwork” means any artwork created by AUDIOMICRO for You at You’s direction which shall be subject to You’s prior written approval in each instance. All Custom Artwork shall be deemed “works for hire” (as defined in the US Copyright Act) for You. In the event that AUDIOMICRO needs to incur costs in the design and creation of Custom Artwork, it shall provide an estimated budget of such costs to You in advance and You shall approve such budget (email approval is sufficient) prior to AUDIOMICRO commencing creation of Custom Artwork. Provided that such costs meet the approved budget, You shall either (i) reimburse AUDIOMICRO for such costs within thirty (30) days after receipt of an approved invoice from AUDIOMICRO, or (ii) AUDIOMICRO shall be entitled to deduct such costs from the Master Proceeds due to You.
“Digital Service Providers” means any third party distributors, collection societies, retailers, and the like that AUDIOMICRO may authorize to carry out the marketing, distribution and sale or other use of the Content pursuant to the terms of this TOS, including without limitation, iTunes, Pandora, Beats, iTunes Radio, Amazon MP3, Rhapsody, Spotify, Rdio, Medianet, Muve, SoundExchange, YouTube Music Key, Google Play, etc.
“Notice” means notices and other communications required or permitted under this TOS.
“Territory” means the Universe.
“Term” means the Initial Term and any subsequent Continuation Term.
“Wireless Distribution” means the (i) display of the Content on AUDIOMICRO’s and Digital Service Providers’ websites; (ii) the distribution of the Content to mobile phones, personal digital assistants (“PDAs”), and other mobile devices; and (iii) the display and use of the Content on mobile phones, PDAs and other mobile devices.