TERMS & CONDITIONS FOR DISTRIBUTING MUSIC RECORDINGS ON THE INTERNET (FOR LABELS)
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| (Rev: 2008-06-12) |
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PREAMBLE |
| 1.1 | KAZZONG GmbH (referred to hereinafter as "KAZZONG") has available the technical infrastructure (hard- and software) for digitally distributing music recordings in the Internet (referred to hereinafter as “Kazzong Service”). The main element of the Kazzong Service is a Web-based application (referred to hereinafter as “Kazzong Player”), which can be integrated in any website using the right HTML code, provided the operator of the respective website so permits. With the Kazzong Player, end consumers visiting the respective website can either (a) use individual streaming to play and listen free of charge to the music recordings (excerpts or full-track), which are connected to and displayed on the respective Kazzong Player and which are stored on a server operated by KAZZONG (the “Kazzong Server”) (“streaming-on-demand”), and/or (b) buy a digital copy of said recordings in MP3 format and download them permanently on to their terminal (e.g. PC) (“download-on-demand”). In addition, the end consumers can see on the Kazzong Player artwork pertaining to the music recordings and connected to the Kazzong Player. |
| 1.2 | KAZZONG permits license (referred to hereinafter as "CONTRACTUAL PARTNER”) who dispose over the relevant rights therein to integrate the Kazzong Player in the websites selected by the contractual partners. The contractual partner decides how many Kazzong Players to install (thus for instance, a contractual partner can install a separate Kazzong Player for all the music recordings contained in a single published album) and in which websites it wishes to integrate the Kazzong Player(s) (provided the respective operator consents), and which of its music recordings are to be offered to the end consumers on the respective website(s) for sale or for listening in using a Kazzong Player. |
| 1.3 | The music recordings provided via the Kazzong Player in the manner described above are uploaded by the contractual partners on to a server operated by KAZZONG, and so they are made accessible to end consumers on the websites selected by the contractual partners via the Kazzong Player integrated there. Additionally Kazzong will made available music recordings on websites operated or mediated by KAZZONG’s distributors. |
| 1.4 | Apart from distribution by distributors as mentioned above, the distribution of music recordings by the Kazzong Service is also designed such that end consumers may effect re-distribution. Re-distribution by end consumers means that a Kazzong Player to which access is provided on a website can be integrated in any other website at any time by end consumers using the HTML code thus made publicly accessible. The Kazzong Player includes relevant functions in order to simplify this for end consumers. Further distribution by end consumers also means: Every user/end consumer is able to create a personal Kazzong-Player. Therefore user/end consumer is able to select songs from all at the Kazzong-Service implemented and uploaded music recordings to load the personal Kazzong-Player. Every user/end consumer is able to include songs from all implemented music recordings of contractual partner in his personal player. End consumers can distribute their personal players on all accessible websites to sell the implemented music recordings and make them available for listening to others. |
| 1.5 | Furthermore, all implemented and uploaded music recordings from contractual partner can be made available by Kazzong on their own websites (e.g. www.kazzong.com) for purchasing and listening. |
| 1.6 | The Contractual Partner disposes over music recordings and over the rights to use said recordings in the manner described in Items 1.1 – 1.5 above. Contractual Partner is a Label and has the rights of other Labels, Producers and Artists for using them with Kazzong. In his account the Contractual Partner can create socalled subaccouts for his partners, and artists. With a subaccount every partner or artist of the Contractual Partner can create their individual Kazzong-Players and place them in the internet. The Contractual Partner wishes to make its music recordings publicly accessible to end consumers (or have them made accessible to the public) using the Kazzong Service. |
| 1.7 | This having been said, the parties now agree as follows: |
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2 |
CONTRACTUAL PARTNER’S AUTHORISATION |
| 2.1 | Installing Kazzong Players |
| | For the contractual term, the CONTRACTUAL PARTNER is authorised to install Kazzong Players for the music recordings and artwork which it is wanting to make accessible to end consumers using the Kazzong Service. |
| 2.2 | Integrating Kazzong Players on Websites |
| | For the contractual term, the CONTRACTUAL PARTNER is authorised to integrate the Kazzong Player in the websites it selects in accordance with the provisions of this Agreement, in particular those laid down in Items 3 and 4. |
| 2.3 | Using Kazzong’s Distribution Potential |
| | Apart from the possibility given in Item 2.2 above of integrating the Kazzong Player(s) itself in the websites it has selected, thus creating distribution channels itself, the CONTRACTUAL PARTNER also has the possibility of using Kazzong’s distribution potential. In this respect, KAZZONG cooperates as follows with “Distributors”: Distributors are individuals, legal entities or companies, who by concluding a corresponding distributor’s agreement with KAZZONG meet the technical requirements for KAZZONG to implement the normal (optional) Kazzong Players specially created for the respective Distributor (referred to hereinafter as “Distributors’ Players”) on the Internet platforms operated by the Distributor or on Internet platforms operated by third parties to which the latter have access accordingly (jointly referred to hereinafter as “Distributors’ Websites”), in order to give end consumers access there to the extent stipulated in Item 7 below to all the music recordings included in the Kazzong repertoire (i.e. the CONTRACTUAL PARTNER’s music recordings and third-party music recordings, referred to hereinafter as the “Overall Kazzong Repertoire”). For each sale of music recordings initiated on any Distributors’ Website(s), Distributors receive from KAZZONG a percentage share in the sales proceeds, which KAZZONG shall pay out of the end consumer price that it attains. KAZZONG is entitled to integrate the Distributors’ Players in all the Distributors’ Websites registered with KAZZONG and to make the Overall Kazzong Repertoire accessible to end consumers via these websites in accordance with Item 7 below.
For clarity’s sake, the parties record the fact that end consumers – including ones not registered with KAZZONG – can place the Kazzong Players on any websites, irrespective of whether they are Distributors’ Websites run by Distributors registered with KAZZONG.
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| 2.4 | Using the Kazzong Server |
| | For the contractual term, the CONTRACTUAL PARTNER is entitled to upload music recordings and relevant artwork in accordance with the terms laid down in Item 3 below, using the interface on the Kazzong Server provided by KAZZONG for the purpose, and to thus make them available for public access by end consumers via the Kazzong Player(s). The music recordings uploaded on to the Kazzong Server by the CONTRACTUAL PARTNER during the contractual term are referred to hereinafter as the “Music Recordings”, and the pictures of covers uploaded by the CONTRACTUAL PARTNER on to the Kazzong Server are referred to hereinafter as “Artwork”. The Music Recordings and Artwork uploaded by the CONTRACTUAL PARTNER on to the Kazzong Server are jointly referred to hereinafter as the “Content”.
The CONTRACTUAL PARTNER determines itself which Content it uploads on to the Kazzong Server and how long to leave it there. Any Content can be blocked on the Kazzong Server or deleted from the Kazzong Server by the CONTRACTUAL PARTNER at any time.
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| 2.5 | Consequences of Uploading and of Integrating Kazzong Players in Websites |
| | When the Content is uploaded on to the Kazzong Server and a relevant Kazzong Player is integrated on a website, the Content becomes publicly accessible and can thus be used by end consumers in the manner specified in Item 1 above and Item 7 below. Apart from this, the CONTRACTUAL PARTNER acknowledges and accepts the fact that distribution of the uploaded Content by the Kazzong Service (as described in Item 1.4 above) is designed for re-distribution by end consumers. For clarity’s sake it is stated that end consumers do not receive any remuneration for re-distribution. |
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3 |
UPLOADING MUSIC RECORDINGS & ARTWORK: TECHNICAL TERMS & CONTENT REQUIREMENTS |
| | Music Recordings and Artwork may only be uploaded on to the Kazzong Server by the CONTRACTUAL PARTNER on the following conditions: |
| 3.1 | The Music Recordings can only be uploaded on to the Kazzong Server in MP3 format (192 kbps, CBR and 112 - 192 kbps, VBR). Converting the Music Recordings into MP3 format is the CONTRACTUAL PARTNER’s task. The Music Recordings are thus made accessible to end consumers without DRM and have no protection against copying in this respect. The CONTRACTUAL PARTNER acknowledges that converting recordings into MP3 format lead to some deterioration in quality. Asserting guarantee claims on KAZZONG in this respect is excluded.
Artwork can only be uploaded on to the Kazzong Server in JPG format, 72 dpi, 1200 x 1200 pixel. It does not have any copy protection either.
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| 3.2 | As regards the Music Recordings and Artwork uploaded on to the Kazzong Server, the CONTRACTUAL PARTNER must dispose without restriction over all the rights required for usage in the manner described in Item 7. At KAZZONG’s request, the CONTRACTUAL PARTNER is under obligation to furnish proof of its rights by presenting relevant contracts. |
| 3.3 | The music works on which the Music Recordings are based (composition and text) must either belong to the repertoire of a collecting society (e.g. GEMA Repertoire), i.e. the rights required for usage hereunder must be obtainable from a collecting society (e.g. GEMA), or the CONTRACTUAL PARTNER itself must dispose over the rights concerned. Music Recordings which are based on music works for which the CONTRACTUAL PARTNER does not own the rights required for usage hereunder or for which said rights are not safeguarded by a collecting society (e. g. GEMA) may not be uploaded on to the Kazzong Server. |
| 3.4 | 3.4 The CONTRACTUAL PARTNER is not entitled to upload any content other than Music Recordings and the appurtenant Artwork on to the Kazzong Server. In particular, the CONTRACTUAL PARTNER is not entitled to upload advertisements for its own and/or for third-party products on to the Kazzong Server. |
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TERMS FOR THE WEBSITES SELECTED BY THE CONTRACTUAL PARTNER |
| | The CONTRACTUAL PARTNER may not integrate the Kazzong Player in websites containing any illegal content or material, and/or containing content or material originating from providers suited to damage KAZZONG’s image, name and/or reputation. In particular, the Kazzong Player may not be integrated on websites containing pornographic or fascist material or any content harmful to young people. Notwithstanding any further statutory and contractual rights, KAZZONG is entitled at any time to demand that the CONTRACTUAL PARTNER immediately remove a Kazzong Player from websites conflicting with the above terms. Moreover, KAZZONG is entitled in any such case to immediately block the entire Content on the Kazzong Server that is connected to the Kazzong Player integrated on the website concerned. If the CONTRACTUAL PARTNER fails to comply with a written demand from KAZZONG to remove a Kazzong Player from a website within 2 working days, then KAZZONG shall be entitled to approach the provider of the website concerned and demand the removal of the Kazzong Player, and in the event of its refusing to do so to take legal action to assert the claim for its removal. |
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SELLING & SUPPLYING MUSIC RECORDINGS, HANDLING END CONSUMERS’ PURCHASES & PAYMENTS |
| 5.1 | The Music Recordings made publicly accessible via the Kazzong Player are offered and sold by KAZZONG in its own name and for its own account. The contract concluded is between KAZZONG and the respective end consumer. As regards the purchase contract, the terms of use laid down on www.kazzong.com apply to the end consumer. |
| 5.2 | KAZZONG shall assume (either itself of through service providers assigned the task) the technical and administrative aspects of downloading (i.e. supplying the Music Recordings to the end consumer on the latter’s individual demand). |
| 5.3 | Handling end consumers’ purchase price payments shall be done by payment providers commissioned by KAZZONG (currently Click&Buy) using the online payment systems which they provide. KAZZONG may call in more or other payment providers. |
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6 |
ROYALTIES |
| 6.1 | By way of remuneration for all the services rendered and rights granted by the CONTRACTUAL PARTNER under this Agreement, the CONTRACTUAL PARTNER shall receive a royalty for each of the CONTRACTUAL PARTNER’s Music Recordings (individual title) or for each compilation of the CONTRACTUAL PARTNER’s Music Recordings (album) bought from KAZZONG and paid for by an end consumer. The CONTRACTUAL PARTNER can select the royalty applying to each of its Music Recordings from the terms given at www.kazzong.com, entering it there as desired. The respective royalty selected by the CONTRACTUAL PARTNER is given in the terms on www.kazzong.com alongside the final price which KAZZONG then charges to the end consumer. The final price paid by the end consumer in each case entitles the latter to download up to two times the Music Recording or the compilation of Music Recordings bought. Thus each individual royalty fee covers up to two downloads. |
| 6.2 | KAZZONG shall assume the transaction costs involved for the Music Recordings sold in the context of the Kazzong Service, i.e. the costs of handling payments (payment service provider, settling credit card payments, DRM costs (where applicable) and/or digital formats). The costs for any collecting society (e.g. GEMA) fees incurred and/or any fees due to foreign collecting societies when sales are made abroad shall be assumed by the CONTRACTUAL PARTNER (whereby KAZZONG shall be responsible for handling the payments). The GEMA fees incurred and/or any fees due to foreign collecting societies shall be deducted each time from the royalty to which the CONTRACTUAL PARTNER is entitled. |
| 6.3 | Using its user login for the Kazzong Service, the CONTRACTUAL PARTNER can each month download at www.kazzong.com a statement of the Music Recordings sold in the preceding month, which is deemed a qualified signed PDF-file. Using its user login, the CONTRACTUAL PARTNER can also download by way of an attachment to the statement a CSV-file listing the sales used for drawing up the statement. KAZZONG undertakes to draw up the statement and make it available to the CONTRACTUAL PARTNER 30 days after the end of each accounting period at the latest.
For the purpose of settling its royalties, the CONTRACTUAL PARTNER undertakes to open an account with one of the payment providers used by KAZZONG (referred to hereinafter as “PP Account”). The royalties shall be paid by KAZZONG into the PP Account as a credit balance in line with tax regulations. In order to simplify administrative aspects, amounts less than EUR 20 shall not be credited to the CONTRACTUAL PARTNER’s PP Account until the end of the calendar year. In this context, the CONTRACTUAL PARTNER is under obligation to immediately provide KAZZONG with its value-added tax identification number (VAT ID), or to disclose same without delay later on if it only acquires it after commencement of the contractual term. The CONTRACTUAL PARTNER is responsible for paying tax on the amounts itself.
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| 6.4 | The CONTRACTUAL PARTNER is responsible for paying tax on the amounts itself. The CONTRACTUAL PARTNER undertakes to immediately inform KAZZONG unsolicited if its turnover tax status alters. KAZZONG shall not pay any income tax, corporation tax or comparable taxes for the CONTRACTUAL PARTNER which are levied in connection with the conclusion and performance of this Agreement. |
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USUFRUCTUARY RIGHTS |
| 7.1 | For the contractual term, the CONTRACTUAL PARTNER grants KAZZONG on a non-exclusive basis the usufructuary rights in the Music Recordings which are required for using them in the Kazzong Service in accordance with Item 1 above. These include in particular the non-exclusive right to store the Music Recordings for this purpose on the Kazzong Server, to transmit them (as a whole or in excerpts) to end consumers on demand and free of charge for listening in (“streaming-on-demand”), and/or to transmit them on demand for downloading in return for a fee (“download-on-demand”), at the same time allowing end consumers to permanently store the Music Recordings and copy them privately to the extent specified in Sect. 53 of the German Copyright Act [UrhG].
With reference to the sale of the Music Recordings, the above usufructuary rights shall only be granted for the territory selected by the CONTRACTUAL PARTNER on the input mask displayed. By making appropriate checking of the payment dates (e. g. credit card checks), KAZZONG (or its payment provider) shall ensure that the Music Recordings are only sold to end consumers who are resident in the relevant territory. The parties agree that the check of the payment dates (e.g. credit card check) mentioned above is sufficient for complying with any restrictions in terms of territory laid down by the CONTRACTUAL PARTNER. Moreover the CONTRACTUAL PARTNER is aware and accepts that streaming of the Music Recordings as described above can be done from anywhere in the world.
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| 7.2 | Moreover, the CONTRACTUAL PARTNER grants KAZZONG the right to make the Artwork accessible to end consumers, subject to the proviso that it can only be viewed by end consumers but not downloaded. The CONTRACTUAL PARTNER is also aware and accepts in this context that viewing Artwork can be done from anywhere in the world. The CONTRACTUAL PARTNER agrees furthermore to KAZZONG using the Kazzong Players for advertising third-party products (e.g. banners, audio-advertisings, video-advertisings, links). |
| 7.3 | The music works contained in the Music Recordings which the CONTRACTUAL PARTNER has marked in the Kazzong Service’s input mask as “GEMA Repertoire” by clicking on the appropriate space are excluded from the assignment of rights pursuant to Item 7.1. For all Music Recordings in respect of which the CONTRACTUAL PARTNER has not marked the underlying music works as “GEMA Repertoire” by clicking on the relevant space, the granting of rights pursuant to Item 7.1 shall also apply to the music works underlying the respective Music Recordings. |
| 7.4 | The CONTRACTUAL PARTNER warrants and guarantees that it is the proprietor of all the ususfructuary rights granted hereunder. In particular, it warrants that it may dispose over all the rights in the achievements and subject-matter incorporated in the Content, i.e. the rights of authors, ancillary copyright holders and other proprietors of rights (e.g. producers, performing artists, graphic artists, photographers, text writers, etc.) such as are required for usage pursuant to Items 7.1 and 7.2. Excluded here, on the condition laid down in Item 7.3, are the rights in the music works incorporated in the Music Recordings that are safeguarded by GEMA. |
| 7.5 | The CONTRACTUAL PARTNER warrants and guarantees further that the Content and its exploitation under this Agreement does not breach any statutory provisions (e.g. anti-trust law, regulations on protection of minors) or government rules or orders, and that usage of the Content hereunder does not infringe any third-party rights (e.g. copyrights, ancillary copyrights, droit moral, trademark rights, and other intellectual property rights). |
| 7.6 | The CONTRACTUAL PARTNER shall release and discharge KAZZONG on first demand from all and any claims asserted by third parties in connection with usage of the Content hereunder. The CONTRACTUAL PARTNER shall refund to KAZZONG all and any reasonable costs incurred in connection with warding off such claims, in particular the costs for legal defence (e.g. lawyers’ fees and court costs). |
| 7.7 | If any rights or claims are asserted by third parties with reference to the exploitation of the Content hereunder, KAZZONG shall be entitled to block the Content thus affected or remove it from the Kazzong Service until the legal position has been finally clarified. |
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RIGHTS CLEARANCE WITH REGARD TO THE MUSIC WORKS |
| | For all the music works underlying the Music Recordings which the CONTRACTUAL PARTNER has marked “Collecting Society” (e.g. “GEMA Repertoire”) in accordance with Item 7.3 above, KAZZONG shall assume the task of clearing the rights with the collecting society (e.g. GEMA). Before uploading the Music Recordings concerned, the CONTRACTUAL PARTNER is under obligation to send to KAZZONG all the data required for registering with the collecting society (e.g. GEMA) the music works involved (in particular length of the music works, names of composers, text-writers, adapters, publishers) by entering said data in the Kazzong Service’s input mask provided for the purpose. The CONTRACTUAL PARTNER guarantees the accuracy and completeness of this data. If the collecting society (e.g. GEMA) makes any claims on KAZZONG due to incomplete or wrong particulars, the CONTRACTUAL PARTNER shall release and discharge KAZZONG from all such claims on first demand. |
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LIABILITY |
| 9.1 | KAZZONG shall only be liable to the CONTRACTUAL PARTNER for compensation under this Agreement or otherwise if and insofar as: |
| | (a) the losses or damage are due to intent or gross negligence on KAZZONG’s part, or |
| | (b) KAZZONG has inflicted injury to life or limb or health damage on the CONTRACTUAL PARTNER due to slight negligence, or breached a cardinal duty. |
| 9.2 | The limitation of liability pursuant to Item 9.1 shall not apply to liability under mandatory product liability law, nor shall it apply insofar as KAZZONG has assumed a guarantee for the quality of a contractual product or service, or if the contractually agreed quality is meant to safeguard the CONTRACTUAL PARTNER against specific consequential damage. |
| 9.3 | If KAZZONG is liable for slight negligence under the above provisions, then its liability shall be limited to the pecuniary losses perceptible to KAZZONG on taking the circumstances into account when it concluded the contract, or which typically occur in cases of this kind of breach of contract. |
| 9.4 | The limitations of liability pursuant to Item 9.3 apply accordingly to losses sustained due to intent or gross negligence on the part of KAZZONG’s vicarious agents. |
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DATA PROTECTION |
| | The contracting parties undertake to comply with statutory provisions on data protection. |
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11 |
CONTRACTUAL TERM |
| | This contract can be terminated by either party at any time by giving written notice. In case of termination of the contract on the part of CONTRACTUAL PARTNER, CONTRACTUAL PARTNER is responsible for the complete removal of his content from the Kazzong service. This can be achieved within CONTRACTUAL PARTNER’S Kazzong account. KAZZONG is authorised to sell audio recordings through its service until all content has been removed by CONTRACTUAL PARTNER. This contract is not deemed to be terminated until CONTRACUAL PARTNER removes all content from the Kazzong system. All granted rights of use revert back to CONTRACTUAL PARTNER after all content is removed from the Kazzong system. Following the termination of the contract on the part of KAZZONG, KAZZONG shall remove all content by CONTRACTUAL PARTNER from its service within three months time. The right to give extraordinary notice for important cause remains unaffected. An important cause for KAZZONG shall be deemed to exist if KAZZONG discontinues operating the Kazzong Service. |
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12 |
MISCELLANEOUS |
| 12.1 | KAZZONG is entitled to name the CONTRACTUAL PARTNER as a reference customer when advertising, promoting and marketing the Kazzong Service, in particular in advertisements, in the Internet, on flyers and in information brochures. |
| 12.2 | This Agreement along with the Annexes thereto definitively reflects the content of the contractual agreements reached by and between the parties, and replaces all and any previous agreements between the parties on the contractual subject-matter. No ancillary agreements, including verbal ones, have been reached. Amendments or supplements to this Agreement (including this clause on written form) have to be done in writing. |
| 12.3 | If any of the provisions of this Agreement is or becomes null and void or impracticable, this shall not affect the validity or practicability of the remaining provisions. In any such case, the parties shall agree a provision approximating the invalid or impracticable one as nearly as possible in business terms. |
| 12.4 | German law applies. Venue shall be Munich. |
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