Songmonk is a distribution platform that allows you to upload your music to download stores and streaming platforms even without involving record labels or intermediaries (irrespective of whether you are an artist, producer, hobby musicians and/or copyright holder of music) and to get music onto the digital market and make money with them in what is probably the quickest, most direct way.
Songmonk is a service provided by the company Songzz Media GmbH. With the Songmonk model, Songzz Media GmbH allows artists not signed to a label to distribute music.
Songmonk charges an annual handling fee per release and pays you 90 % of the net revenues (which are generated via download stores, streaming or video platforms). The handling fee of € 9.99 for singles (1-2 tracks), € 19.99 for EPs (3-6 tracks), € 39.99 for albums.
Songmonk chooses suitable stores, shops or platforms (such as Amazon, iTunes or Spotify) for you, so that your content is delivered accordingly to the right stores.
We also assume that you will also want to be up to date at all times, meaning that we will auto- matically place your content in future, new stores and provide the music there. This means that Songmonk will make your content – which you have already paid for with the handling fee – available in new stores as they come onto the market without you having to pay any additional fees.
If, for example, you select the genres Electronic or Dance when you upload your music, then
we will endeavor to deliver your content to specialist dance stores like Beatport, Traxsource or Juno Download. Otherwise, we will deliver your music to all possible shop models like iTunes, Spotify, KKbox or YouTube. However, shops, streaming portals and other platforms generally have the right to refuse certain content (e.g. in the event of an unsuitable genre, style or if the content is selected exclusively by the site operators). Songmonk has no influence whatsoever on this. Furthermore, please note that all stores and platforms have their own genre categories. In this regard, Songmonk will endeavor to assign the genre information contained in the publication to the genres of the individual stores to the best of its ability and at its own discretion.
A so-called takedown fee of € 39.99 will be charged if you want to have your music removed from one, several or all platforms during the minimum contractual term of 1 (one) year.
You grant Songmonk non-exclusive rights, meaning that you can continue to do whatever you want with your music. You transfer to Songmonk only the rights necessary for the distribution or delivery of your music to the stores. Before you can start the ordering process, you must confirm the agreement indicated below.
oYou don‘t need to worry about things like ISRC or UPC / Barcodes. We provide you with these at no extra cost.
If you have created a digital booklet for your publication, then please write to support@songmonk.com after ordering so that we can check the booklet before delivering it to iTunes (we are happy to inform you of the booklet specifications). If you require specific services such as mastering (or even ‚Mastered for iTunes‘), just send an Email to support@songmonk.com and we will advise you.
We will distribute your product worldwide, so your music will be available (almost) anywhere in the world.
As soon as you have generated distributable revenue of more than € 50.00 / 50 USD, we will pay it to you (less any tax deductions such as withholding tax for countries outside Germany).
You can define your release date when you place your order with Songmonk. The earliest pos sible release date is 7 days after ordering but we recommend to plan a release date 21 days in the future after ordering. The reason for this is that not all stores process the data at the same rate. Please also note that we work with many different stores worldwide, each with a variety of different mentalities. This is why we generally estimate the date of release to be the date of ordering plus 21 days.
For example, if you order “today” and set your release date to tomorrow, the software will automatically define it as “today + 7 days”.
Please note that not all stores or streaming portals will always be able to keep to a specific release date since delays may occur there due to technical requirements, maintenance inter- vals, editorial rejection or any other unforeseen circumstance related to delivery and ingestion.
The Agreement is for a minimum term of 2 years and shall be automatically renewed for periods of 1 (one) year each unless one of the parties gives the other written notice of its decision not to renew, which notice must be given at least 3 (three) months prior to the applicable renewal date.
We believe that a contract term of less than 2 year does not make any sense, because digital products need time to evolve or get the chance to generate subscribers. Any terminations are subject to takedown fees and will be deducted prior to final payment.
This agreement was most recently updated on March 06, 2020.
The following Terms of Service (“TOS”) contain the terms and conditions that govern your use of the Site. Any use of artist services through Songmonk are governed by the Songmonk Agreement and its relevant addendums. Access and use of the Site constitutes your agreement to and acceptance of all the TOS.
Songmonk (a division of Songzz Media GmbH, along with our licensees and assignees referred in this Agreement as “us” and “we” and “Songmonk”) reserves the right to revise this TOS in its sole discretion at any time and without prior notice to you other than by posting the revised TOS on the Site. Any revisions to the TOS are effective upon posting. The TOS will be identified as of the most recent date of revision. It is incumbent upon you to visit this page periodically to ensure your continued acceptance of this TOS. Your continued use of the Site after a revised version of this TOS has been posted by Songmonk to the Site constitutes your binding acceptance of such revision and the revised TOS. Notwithstanding the preceding sentences of this paragraph, no revisions to this TOS will apply to any dispute between you and Songmonk that arose prior to the date of such revision.
1. Use Of The Site.
(a) Eligibility. Songmonk will only knowingly provide the Songmonk Site to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Songmonk Site only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Songmonk Site is not intended for children under the age of 13.
(b) International Users: The Site is hosted in Germany.
(1) If you are a customer or client accessing the Site from the US, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from German laws, then please note that you are transferring your personal data to Germany which does not have the same data protection laws as other regions.
(c) Compliance With TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Songmonk Site
(d) Your License to Use the Site.
(1) Songmonk and its licensors solely and exclusively own all intellectual property and other right, title and interest in and to the Songmonk Site, except as expressly provided for in these TOS. You will not acquire any right, title or interest therein under these TOS or otherwise.
(2) Songmonk grants you a limited revocable license to access and use the Site for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Site for purposes prohibited by Songmonk; create derivative works based on the Products or any third-party content available via the Site; or download or copy the Site (other than page caching). If you use the Site in a manner that exceeds the scope of this license or breach this TOS, Songmonk may revoke the license granted to you.
(3) This Section 1(d) does not pertain to your intellectual property rights. Any rights relating to materials that you upload to the Site are covered by the Songmonk Member Agreement
(e) Third-Party Services. Songmonk may use third parties to provide certain services accessible through the Site. Songmonk does not control those third parties or their services, and you agree that Songmonk will not be liable to you in any way for your use of such services. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as these TOS when you use these services. If any such terms or policies conflict with Songmonk TOS, agreements or policies, you must comply with Songmonk TOS, agreements or policies, as applicable.
2. Rules For Use Of The Site.
(a) Prohibited Use. Except as may be expressly permitted by Songmonk, you may not: (i) interfere with the Songmonk Site by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Songmonk Site; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet “search engine”, hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Songmonk Site; (v) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain Songmonk name or trademarks; (viii) engage in any activity that interferes with another user’s ability to use or enjoy the Songmonk Site; or (ix) assist or encourage any third party in engaging in any activity prohibited by these TOS.
(b) Privacy Policy. By entering into these TOS, you agree to Songmonk collection, use and disclosure of your personal information in accordance with the Songmonk Privacy Policy,
(c) Monitoring. Songmonk reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Site. If Songmonk determines, in its sole and absolute discretion, that you or another Songmonk user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Songmonk may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
(d) Modification of the Site. Songmonk. may modify the Songmonk Site at any time with or without notice to you, and will incur no liability for doing so.
3. Submissions.
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information (“Submissions”), you grant Songmonk permission to use such submissions for marketing and other promotional purposes. You agree that Songmonk will have no obligation to keep any Submissions confidential and you will not bring a claim against Songmonk based on “moral rights” or the like arising from Songmonk`s use of a Submission.
4. Representations And Warranties.
(a) Mutual Representations and Warranties. You represent and warrant to Songmonk and Songmonk represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
(b) By You. You represent and warrant to Songmonk that, in your use of the Songmonk Site, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Songmonk that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions; (ii) Songmonk will not be required to make any payments to any third party in connection with its use of your Submissions, except for the expenses that Songmonk incurs in providing the Songmonk Site; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Submissions will not cause injury to any third party; and (iv) your Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
5. Disclaimers, Exclusions, And Limitations.
(a) DISCLAIMER OF WARRANTIES. SONGMONK PROVIDES THE SITE AND ANY SONGMONK SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. SONGMONK DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. SONGMONK MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
(b) EXCLUSION OF DAMAGES. SONGMONK WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SONGMONK SITE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID OR PAYABLE BY SONGMONK TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
6. Indemnification.
You will indemnify and hold Songmonk and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any of these TOS. If you have to indemnify Songmonk under this Section, Songmonk. will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Songmonk`s express written permission.
7. Termination.
(a) Termination. Songmonk may suspend or terminate your use of the Site if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.
(b) Survival. These TOS will survive indefinitely unless and until Songmonk. chooses to terminate them.
(c) Effect of Termination. If you or Songmonk terminates your use of the Site or any Songmonk service, Songmonk may delete any Submissions or other materials relating to your use of the Songmonk. Site on Songmonk servers or otherwise in its possession and Songmonk will have no liability to you or any third party for doing so.
8. Notice.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Songmonk , you must use the following addresses: Songzz Media, Freiheit 12c, 12555 Berlin or support@songmonk.com.
09. Notice and procedure for making claims of copyright or other intellectual property infringements.
(a) Songmonk respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or any Songmonk service.
(b) Songmonk`s intellectual property policy is to (1) remove material that Songmonk believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by “repeat infringers.” Songmonk considers a “repeat infringer” to be any user that has uploaded Products or Submissions to the Site and for whom Songmonk has received more than two takedown notices .
Songmonk has discretion, however, to terminate the account or permission to access the Site of any user after receipt of a single notification of claimed infringement or upon Songmonk’s own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or any Songmonk service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
11. Miscellaneous.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the German laws without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Songmonk. Songmonk may freely assign or transfer any rights granted by you to Songmonk under these TOS. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and Songmonk are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect. The headings used in this TOS are for convenience only, do not constitute a part of this TOS, and shall not be deemed to limit or affect any of the provisions hereof
PUBLISHING ADMINISTRATION ADDENDUM
Last Updated: March 10, 2020
This Songmonk Administration Addendum (the “Publishing Addendum”) governs the terms upon which Songmonk, a division of Songzz Media GmbH, will provide you (“you” or “Writer”) with music publishing administrative services (the “Publishing Services”) as described in this Addendum in accordance with the options you select in connection with your Songmonk account registration (“Account Registration”) or as you may later update in connection with your account settings. Please read these terms carefully prior to using or registering for the Publishing Services. BY REGISTERING FOR A Songmonk PACKAGE THAT INCLUDES PUBLISHING SERVICES OR SIGNING UP TO ADD PUBLISHING SERVICES, YOU AGREE TO THE TERMS OF THIS PUBLISHING ADDENDUM AS WELL AS TO TERMS OF SERVICE (THE “TOS”). If you do not agree to all these terms, then you may not use the Publishing Services. To the extent that there is any conflict between the terms of this Publishing Addendum and any term(s)in the Artist Agreement of the TOS, the terms of this Publishing Addendum will control.
If you are registering for Songmonk or otherwise signing up for the Publishing Services on behalf of one or more other writers, a group, or a company or other entity, then you represent and warrant to us that you are duly authorized to do so on their behalf and to bind them to this Addendum. The term “you” and “your” and “Writer” includes all such people and entities.
1. GRANT OF RIGHTS
During the Term and Exploitation Period (as defined in Section 6(b) below), you hereby grant to Songmonk its successors, licensees and assigns, the sole and exclusive rights of administration, promotion and collection throughout the world (the “Territory”) with respect to one hundred percent (100%) of all of your right, title and interest (“Writer’s Interest”) in and to the musical compositions you submit to Songmonk via the Songmonk Web site (the “Site”) (the “Compositions”), except that this grant does not include the right to grant or administer any synchronization rights for the Compositions and with respect to the manufacture and distribution of physical copies of the Composition, the rights granted hereunder shall be nonexclusive. The rights you grant to Songmonk include, without limitation, the sole and exclusive (except as set forth above) right, license, privilege and authority throughout the Territory with respect to Writer’s Interest in and to all Compositions, whether now in existence or whether created during the Term, to do the following:
a) To register the Compositions, if you have not already done so, at your request and on your behalf, with the relevant performance rights organizations (e.g., GEMA or ASCAP ) (“PROs”) and other licensing agencies (e.g., The Harry Fox Agency) for which Songmonk. may offer such registration services (the “Third-Party Registrations”). Such Third-Party Registrations will be made in accordance with the then current rules, terms and conditions of the applicable PRO or licensing organization and will require the payment of the applicable fees as specified by Songmonk. As Songmonk makes additional PROs and licensing agency registrations available, you may request registration with such additional PROs and agencies at any time. If you are already registered with such PROs or other third parties, you will need to execute such letters of direction as we provide to enable us to administer your account with such PROs or other third parties on your behalf during the Term and Exploitation Period. For the avoidance of doubt, you understand that we will not be able to start collecting publishing income on your behalf unless and until the necessary Third-Party Registrations and/or letters of direction are accurately completed.
b) To perform and license others to perform the Compositions publicly or privately, for profit or otherwise, by any means or media whatsoever, whether now known or hereafter conceived or developed, including, without limitation public or private live performances, radio broadcast, television, Internet, mobile telecom.
c) At your request or with your permission, to do or allow others to do the following: (i) substitute new titles for any of the Compositions; (ii) make any arrangement, adaptation, translation, dramatization or transposition of any of the Compositions or of the titles, lyrics or music thereof, in whole or in part, and in connection with any other musical, literary or dramatic material;(iii) add new lyrics to the music of any Composition or new music to the lyrics of any Composition, and (iv) prepare derivative works based on the Compositions, regardless of any so-called “moral rights”.
d) To make or cause to be made, and to license others to make phonograph records, master recordings, digital downloads, streams, podcasts, ringtones, transcriptions, soundtracks, pressings and any other mechanical, electrical or other reproductions of the Compositions, in whole or in part, including without limitation, the right to grant licenses to third parties authorizing so-called “sampling” and/or interpolation of the Compositions, and to use, manufacture, advertise, license, sell, or otherwise exploit such reproductions for any and all purposes, including, without limitation, private and public performances, radio broadcast, television, sound motion pictures, wired radio, phonograph records, and any and all other means and devices, whether now known or hereafter conceived or developed, but excluding any synchronization rights. Synchronization rights, if applicable, are covered by the Songmonk Sync Addendum.
e) To print, publish, sell and distribute, and to authorize others to print, publish, sell and distribute, copies of the Compositions, in all forms, including, without limitation, sheet music, orchestrations, arrangements and other editions of the Compositions, separately or together with other musical Compositions, including, without limitation, in song folios, compilations, song books, mixed folios, personality folios and lyric magazines, with or without music.
f) To sublicense any or all of the rights granted herein to any persons or entities.
g) To exercise and exploit during the Term and Exploitation Period, exclusively, any and all other rights now or hereafter existing with regard to Writer’s Interest in any and all Compositions under and by virtue of any common law or statutory laws or provisions, including without limitation, copyright laws, including so-called grand rights and small performance rights, but excluding any synchronization rights.
h) To administer and collect all monies derived from the exploitation of the Compositions during the Term and Exploitation Period throughout the Territory. After the Term and Exploitation Period, we shall continue to have the right to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period for a period of 1 year after the Exploitation Period for such Composition. In addition, you understand that it is your responsibility to notify the relevant PROs or other third party licensing agencies or licensors at the end of the Exploitation Period, and if you fail to do so, we may continue to receive income on your behalf. If we receive monies that were earned after the applicable Exploitation Period for a particular Composition(s) from a PRO or other third party licensing agency, licensor or other entity due to their acts or omissions or your failure to notify the relevant third party of the expiration of the Exploitation Term, you acknowledge that our receipt thereof will not be a violation of this agreement and that we have the right to accept such monies on your behalf. In such event, our Administration Fees will apply to such monies, and we will remit all Net Income to you as and when we would otherwise have accounted to you if this Addendum and Exploitation Term were still in effect.
i) To use the names (real and professional), biographical information and likenesses of the writers of the Compositions (including but not limited to Writer) in connection with the marketing and/or promotion of the Compositions and of our Site and the Publishing Services.
2. PUBLISHING SERVICES
The specific Publishing Services to be provided will be as specified on the Site in accordance with the options you select in your Account Registration and is contingent upon the payment of all applicable fees. You or your designee will be the contracting party in any licenses entered into in connection with the Publishing Services.
You acknowledge that the term of individual licenses may extend beyond the Term and/or Exploitation Period hereof and you authorize Songmonk to enter into such licenses on your behalf.
3. YOUR ACCOUNT
a) In order to use the Publishing Services, you must create a Songmonk account (the “Account”). Writer will be asked as part of the Account Registration to select a unique user name and password and to provide Songmonk with accurate, complete registration information to obtain access to the Site and the Publishing Services. Writer will be solely responsible for any and all activity transacted and charges incurred under Writer’s Account, so please ensure that you keep you user name and password confidential and safe. If at any time Writer’s registration information changes or if you learn or suspect that your Account has been used or obtained by a person not authorized to use it, please notify Songmonk immediately at support@songmonk.com. Any materials submitted to Songmonk will not be returned.
b) Writer may not assign or transfer Writer’s Account, rights, obligations, or interest under this agreement to anyone else unless otherwise agreed in writing by Songmonk. Any assignment, encumbrance or other transfer of Writer’s Interest in any Composition(s) will remain subject to this agreement during the Term and Exploitation Period. A purported assignment, encumbrance or other transfer not in accordance with this paragraph will be void and without effect ab initio.
4. FEES
a) In consideration of the Publishing Services rendered hereunder, you shall be obligated to pay to Songmonk the registration fees described in the relevant Account Registration (the “Registration Fees”) and the administration fee as set forth below (the “Administration Fee”). You also agree to pay any applicable Third-Party Registration fees and any other fees as specified in your Account Registration or otherwise authorized under your Account. Registration Fees are non-refundable once paid, and will not be prorated upon termination.
b) When you sign up for the Publishing Services, you will be providing Songmonk with credit card information and authorization to charge your Registration Fee, any applicable taxes, and other charges you may incur in connection with your use of the Site and the Publishing Services directly to your credit card account. If, at any time, we are unable to charge or otherwise recover the relevant fees from the credit card provided at Account Registration, you hereby authorize us to deduct said amounts from any monies then existing or accruing in the future to you in your Songmonk account (i.e., your share of Net Income); otherwise, we may suspend our Publishing Services and/or terminate the Term.
c) Songmonk shall retain an Administration Fee of fifteen percent (15%) of the “Gross Receipts.” As used herein, Gross Receipts shall mean the total amounts actually collected on your behalf by Songmonk which are attributable to the exploitation of Writer’s Interest in the Compositions.
5. PAYMENT OF NET INCOME; ACCOUNTING
a) Songmonk shall remit to you, in accordance with Section 5(c) below, all Net Income (as defined below) collected on your behalf in connection with the to the exploitation of Writer’s Interest in the Compositions. “Net Income” shall mean the Gross Receipts actually received by Songmonk on your behalf in connection with the exploitation of your Writer’s Interest in the Compositions, less the Administration Fee applicable to such Gross Receipts, and less all actual and reasonable non-overhead costs or expenses paid or incurred by or on behalf of Songmonk in connection with the administration and exploitation of the Compositions, the performance of this Agreement and the collection of income, including, without limitation audit fees, collection expenses, and any taxes required to be deducted. With respect to licensees outside Germany, if applicable, monies received by or credited to CD Baby directly attributable to exploitation of the Compositions in the United States shall be calculated “at source”.
b) In the event that Songmonk has, in its reasonable business judgment, reason to suspect that Writer’s account has been subjected to and/or involved in fraudulent activities, Songmonk reserves the right to suspend the payment of the Net Income to Writer’s Account and to block your ability to otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates’ actions or omissions, any costs incurred by Songmonk (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by Songmonk from any monies otherwise payable to you hereunder. Certain of Songmonk licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
c) The Net Income payable by Songmonk to you hereunder shall be posted to your Account on or before the 10th day of April for the period ending the preceding December 31st, and on or before the 10th day of July for the period ending March 31st, and on or before the 10th day of October for the period ending the preceding June 30th and on or before the 10th day of January for the period ending the preceding September 30th, together with an account of the amounts earned by you during such quarterly period. Songmonk will issue payments from your Account when the amount in your Account reaches the level you designate in your Account Registration. Songmonk may also issue payments from your Account at additional times in its sole discretion.
d) All accountings rendered and payments made by Songmonk to you shall be binding upon you and not subject to any objection for any reason unless specific objection in writing, stating the basis thereof is given to Songmonk within one (1) year from the date rendered. Statements and payments shall be sent in accordance with the relevant instructions in the Registration. No generalized objection (such as, but not limited to, a generalized claim of over-reporting of deductions or underreporting of income or any similar generalization) shall be deemed a valid objection.
6. TERM; TERMINATION
a) The initial term of this Publishing Addendum will commence when you register for the Publishing Services (either by specifically signing up for the Publishing Services or for a package that includes the Publishing Services) and will continue for a period of one year (the “Initial Term”) unless earlier terminated by Songmonk as set forth below. Thereafter, the term will automatically renew quarterly (i.e. for additional three month periods) (each a “Renewal Term”) unless you terminate prior to the end of the previous term by sending an email with subject line Songmonk PRO CANCELLATION to support@songmonk.com with a request to cancel along with your email address and Songmonk user ID (a “Cancellation Notice”). Together, the Initial Term and any Renewal Terms will constitute the “Term”. Regardless of when you send your Cancellation Notice, termination will not be effective until the end of the Term in which the notice is sent. No additional Registration Fees will be payable for any Renewal Term.
b) Notwithstanding any termination of this Publishing Addendum, the rights granted and the Publishing Services provided under this Addendum will continue with respect to any particular Composition until the end of the Exploitation Period (as defined below) for such Composition. The “Exploitation Period” for a Composition shall commence upon the date on which you submit such Composition and will continue until the later of (a) the end of the Term or (b) twelve (12) months after you submit the Composition to us, unless earlier terminated by Songmonk. as set forth below. For example, if you submit a Composition on January 1st and the Term ends on February 1st of that year, then the Exploitation Period for that Composition shall continue until December 31st of that year.
c) Songmonk shall continue to have the right to collect all income payable with respect to a Composition that was earned during the Exploitation Period for a period of one year after the Exploitation Period for such Composition. Songmonk will continue to account to you for all such income.
d) Songmonk may terminate this Publishing Addendum and/or may also terminate the Exploitation Period for any of all of the Compositions at any time upon written notice, for any reason or for no reason. Termination of your Account or of the Songmonk service as a whole will also constitute termination of this Publishing Addendum.
e) The following Sections will survive any termination of this Addendum: Sections 1 and 2 (for the duration of any applicable Exploitation Periods) and Sections 3, 4, 5, 6, 7, 8, 9, and 10. After the Term and Exploitation Period, we shall continue to have the right, but not the obligation, to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period. We will continue to account to you for all such income.
7. CHANGES
Songmonk reserves the right at any time to modify this agreement and to impose new or additional terms or conditions on your use of the Publishing Services. We will inform you of any proposed modifications (e.g., by e-mail or through your account page on the Site) and you may terminate this Addendum upon written notice if you do not wish to accept them. Otherwise, such modifications and additional terms and conditions will be deemed accepted and incorporated into this agreement.
8. WARRANTIES AND INDEMNIFICATION
Writer hereby warrants and represents as follows:
a) Writer is at least eighteen (18) years of age and not currently signed to an exclusive songwriter, co-publishing, administration or other agreement regarding Writer’s Interest in any Compositions or Writer’s songwriting services.
b) All registration information and other information you submit Songmonk is and will remain truthful and accurate. You will notify us promptly if any information changes or needs to be updated. In the event we are put on notice with respect to a discrepancy or any inaccuracy with respect to information provided in the Registration, we shall have the right to suspend payments generated in connection with the Compositions in question until the discrepancy or inaccuracy is resolved to our reasonable satisfaction, without limitation of our indemnity rights as set forth below.
c) Writer has and shall continue to have the full right, power and authority to enter into and fully perform this agreement and grant the rights granted herein. Without limiting the foregoing, no consent or other permission of any third party is required, nor shall it be required, in order to effectuate the grant of rights made to Songmonk under this agreement, or Songmonk enjoyment of such rights and the proceeds thereof as contemplated hereunder.
d) All Compositions are wholly original to Writer, and neither the Composition nor any portion thereof (including any music, title, lyrics or other material) infringes or shall infringe upon any copyright, trademark, publicity rights or other statutory, common law or other rights of any third party; violates or shall violate any applicable law, rule or regulation or will otherwise cause any harm to or liability for Songmonk. Without limiting the foregoing, no Composition embodies a “sample” or other portion of a musical composition owned or controlled by a third party.
e) The Compositions are and shall be free from any adverse claims, liens or encumbrances of any kind by any person or entity.
f) Songmonk shall not be required to make any payments of any nature for, or in connection with, the exploitation of the Compositions except as specifically set forth herein.
g) You will not interfere or attempt to interfere with the proper working of the Site or the Publishing Services or any transaction conducted on Site and will not take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure.
h) You shall at all times defend, indemnify and hold harmless Songmonk and its affiliates and their respective members, employees, affiliates, representatives, agents, licensees and distributors (collectively, the “Other Indemnitees”) from and against any and all claims, liabilities, damages, judgments, losses, costs and expenses, including actual out-of-pocket legal expenses and reasonable attorneys’ fees, arising out of (i) any exercise of the rights granted under this agreement, (ii) any breach or alleged breach by Writer of any warranty, representation or agreement made herein, (iii) any act, error or omission committed by Writer or any person or entity acting on Writer’s behalf or under Writer’s direction or control, and (iv) the Compositions and any use or exploitation thereof as contemplated under this Addendum. You will reimburse Songmonk and the Other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which Songmonk or the Other Indemnitees are entitled to be indemnified, or Songmonk may elect to deduct any such payments from all sums otherwise due you hereunder.
9. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY
IN NO EVENT WILL SONGMONK BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE PUBLISHING SERVICES, EVEN IF SONGMONK IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SONGMONK`s LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SONGMONK FOR THE PUBLISHING SERVICES.
THE SITE AND THE PUBLISHING SERVICES ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE” BASIS AND SONGMONK DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND REGARDING THE SITE AND THE PUBLISHING SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SONGMONK CANNOT GUARANTEE AND DOES NOT PROMISE ANY REVENUE OR OTHER SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE PUBLISHING SERVICES. TO THE EXTENT THESE DISCLAIMERS AND LIMITATIONS ARE LIMITED BY APPLICABLE LAW, THEY SHALL OTHERWISE APPLY TO THE FULLEST EXTENT OF SUCH LAW.
10. MISCELLANEOUS
This agreement, together with the Songmonk privacy policy, terms of use applicable to the Site generally, and the Registration, sets forth the entire understanding between Songmonk and you regarding the Site and Publishing Services. We may assign or delegate this agreement or any or all of our rights and obligations hereunder to one or more third parties without notice to you. No waiver of any provision or default under this agreement shall affect either party’s rights thereafter and no waiver by either party shall be deemed a continuing waiver. Except as expressly set forth herein, neither party has made or makes any representations or warranties, express or implied, with respect to any matter contained in this agreement or with respect to the making of this agreement, all of which are expressly disclaimed. If any clause, sentence, paragraph or part of this agreement or the application thereof to any person, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall be limited and confined in its operation to the clause, sentence, paragraph or part thereof directly involved in the controversy and shall not affect the remainder of the agreement.
You acknowledge that any exploitation of the Compositions is speculative and that Songmonk cannot guarantee that the Compositions will be exploited at all or that any Net Income will be generated or earned hereunder. You waive all claims and warrant, represent and agree that you will not make any claim, nor will any liability be imposed upon Songmonk based upon a claim, that more Net Income could have been generated or better business achieved than that which was actually generated or achieved Songmonk and/or its licensees.
Songmonk does not guarantee, represent, or warrant that your use of the Site or Publishing Services will be uninterrupted or error-free, and you agree that from time to time Songmonk may suspend the Site and Publishing Services for indefinite periods of time for technical maintenance or upgrade or otherwise, or may cancel the Publishing Services at any time, without notice to you. The functions and features of the Site and Publishing Services are subject to change without notice.
Your use of the Site and the Publishing Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR REGISTRATION AND ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR THE PUBLISHING SERVICES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
This agreement is entered into in Germany and shall be construed in accordance with the laws of said state applicable to contracts to be wholly performed therein, without reference to any conflict of laws principles.