In addition to the general terms and conditions referred to as the TOS, the following additional terms and conditions (“DTOS”) apply to your use of Fivesound’LLC digital distribution service (“Distribution Service”). Capitalized terms used herein and not defined shall have the respective meanings set forth in the TOS. If you do not agree to this DTOS, do not use the Distribution Service.
1. DESCRIPTION OF SERVICE:
The Distribution Service digitally distributes your music through various digital Internet retailers. You must be a registered user of the Site to use the Distribution Service. Additional information about the Distribution Service is located on the www.fivesound.es
2. DEFINED TERMS:
The following terms shall have the following meanings for purposes of these DTOS:
- “Album Release(s)” shall mean the Digital Distribution of multiple Recordings to the DSPs as a single album or extended play (EP) format and not to exceed one hundred (100) tracks.
- “Digital Distribution” or "Digitally Distribute" shall mean the digital distribution of Recording(s) for the sublicensing, sale, public performance, electronic transmission, or other distribution to end users in any media whether now known or existing in the future, including, but not limited to permanent digital downloads, limited or temporary digital downloads, ringtones, ring-back tones, interactive streaming, non- interactive streaming, and cloud services, whether or not a direct or indirect charge is made to receive the transmission and whether or not such transmission results in a specifically identifiable reproduction of any Recording(s) by or for any transmission recipient.
- “Recording(s)” shall mean sound recordings and audiovisual recordings of underlying musical compositions that you provide, or previously provided, to us for Digital Distribution as Release(s), together with materials submitted therewith including, but not limited to, associated metadata, copyright management information, artwork, graphics, logos, and any other related materials.
- “Release(s)” shall mean, as applicable, an Album Release and a Singles Release.
- “Digital Service Provider” ,“DSP(s)" shall mean our licensees and the digital Internet consumer stores with respect to which we have agreement(s) (weather directly or indirectly) to Digitally Distribute Recordings. DSPs may change from time to time with the addition or removal of certain Internet consumer stores within our sole discretion, subject only to your right to terminate your use of the Distribution Service as provided in Section this DTOS below. Singles Releases and Albums Releases may be distributed to all current DSPs. The DSPs applicable to any particular Release will be identified in your Dashboard. With respect to any new DSPs added during the Term of a Release, we may, but are not obligated to, submit your applicable Recording(s) to such new DSPs. With respect to any DSPs removed during the Term of a Release, your applicable Recording(s) may be removed from such DSPs.
- “Single Release(s)” shall mean the Digital Distribution of a single Recording to the DSPs as a single track.
3. SUBMISSION OF MATERIALS AND OWNERSHIP:
Recordings and all relevant information shall be submitted to us for Digital Distribution as Releases from your Dashboard in accordance with and subject to the TOS, and such submissions shall be deemed User Content and subject to all applicable representation, warranties, and agreements thereunder. Without limiting the foregoing, to the extent you do not own any underlying musical compositions, sound recordings, samples, publicity rights, or other materials or content in your User Content, it is your obligation to secure all appropriate permissions, clearances, licenses, or other authorizations and agreements, and, as applicable, to pay directly all third-party fees and royalties as may be required, including, but not limited to, with respect to artists, band members, authors, coauthors, copyright owners and co-owners, publishers, producers, or any other person who performed in the making of your User Content, and in connection with mechanical royalties, digital phonograph delivery royalties, public performance royalties, payments that may be required under any collective bargaining agreements or statutory schemes, or any other royalties, fees, and/or sums payable with respect to your User Content, and at our request you shall provide us with confirmation of such authorizations and payments.
Without limitation of your grant of rights in the TOS, such rights include the right to Digitally Distribute all Recording(s) as Release(s) and to otherwise use the Recordings to the extent necessary to facilitate such Digital Distribution, including the rights to:
- 4.1. Reproduce, convert, and create derivative works of your Recordings and related materials for Digital Distribution of your Release(s);
- 4.2. Reproduce, promote, advertise, market, sublicense, sell, publicly perform, display, host, distribute, deliver, transmit, and otherwise exploit and use Recordings and related materials for Digital Distribution of your Release(s);
- 4.3. Display any and all lyrics associated with a musical composition embodied in any Recording in connection with the Digital Distribution of your Release(s);
- 4.4. Use the name(s), voices(s), likeness(es), photograph(s), images, artwork, logos, trademarks, service marks, biographical materials, and other rights of publicity with respect to materials and information that you provide to us in connection with the Digital Distribution of your Release(s);
- 4.5. Collect all income deriving from the Digital Distribution of your Release(s);
- 4.6. Exercise all rights granted herein, including the right to edit and publicly perform Recordings and related materials consistent with industrystandards, for purposes of publicizing, promoting, marketing, and advertising the availability of the Recordings for Digital Distribution; and for purposes of creating ringtones, ring-back tones, or for other mobile uses, to the extent applicable for Digital Distribution; and
- 4.7. Sublicense all rights granted in this Section to DSPs or other licensees. Notwithstanding the foregoing, you agree not to use any other Digital Distribution service with respect to any DSPs except only to the extent that an Internet consumer store is no longer a DSP hereunder
5. DISTRIBUTION SERVICE:
- 5.1. Fivesound LLC will submit your Recordings to DSPs for Digital Distribution in accordance with the type of Release you have purchased from us and these DTOS. The scope and type of Digital Distribution provided by each DSP varies in accordance with the particular service(s) any particular DSP offers. Notwithstanding anything to the contrary in these DTOS without limitation, Fivesound LLC reserves the right to decline to distribute or discontinue the distribution of any Recording(s) in our sole discretion.
- 5.2. Your Dashboard will indicate which types of Releases are currently available for your account, which may vary by customer and change over time.
- 5.3. As part of the compensation paid by you to Fivesound LLC, Fivesound LLC provides (“ISRCs”) or Universal Product Codes (“UPCs”) for your Recording(s). These are for use only in connection with the Distribution Service provided by us and may not be transferred or resold. If you have previously obtained ISRCs or UPCs for your Release(s) from another source, you shall provide such previously-assigned ISRCs or UPCs when submitting you Recording(s) to us.
- 5.4. You acknowledge that in providing the Distribution Service and payments hereunder, we have entered into one or more agreements with respect to the DSPs (“DSP Agreements”), and you agree that these DTOS shall be subject to any applicable terms and conditions of the DSP Agreements, and to the extent of any conflict the terms of the DSP Agreements shall control. DSPs may also have policies related to fraud, suspected fraudulent activities, illegal activities, or infringement, and you agree that it is your responsibility to investigate such policies and that such policies shall be binding upon you hereunder.
6. DISTRIBUTION SERVICE FEES AND PAYMENT:
For each Release, you are required to pay the applicable Service Fees in accordance with our policies set forth in the TOS. Current fee schedules are available on the Site or in your Dashboard. These fees may be amended from time to time by us without notice to you. You are solely responsible for all charges, fees, duties and taxes, incurred by your user account in connection with the Distribution Service.
7. SALES INCOME:
- 7.1. We will pay you an amount equal to one hundred percent (100%) of our actual receipts in connection with the Digital Distribution of your Release(s) minus any applicable disbursements of funds fees as to be determined by us from time to time and except as otherwise provided in these Distribution Terms (“Sales Income”) or as amended by us from time to time. Sales Income will be posted in U.S. Dollars to your Fivesound LLC Credit Account in a timely fashion after our receipt thereof together with related sales and accounting data. To the extent that you owe any amounts to us as a consequence of the TOS or otherwise, we shall have the right to deduct all or a portion of such amounts from any Sales Income otherwise payable to you.
- 7.2. Without limiting the TOS, in the event that we have, in our good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities: (i) we reserve the right to discontinue the posting of Sales Income to your Fivesound LLC Credit Account and block your ability to otherwise withdraw funds therefrom; (ii) Sales Income will be forfeited by you; (iii) if in our reasonable business judgment we elect to engage an attorney in connection therewith, we shall, in our sole discretion, have the right to deduct from any monies otherwise payable to you hereunder or charge your account an additional fee of a minimum of seven hundred dollars ($700 U.S.) to offset the costs of associated legal fees and expenses; and (iv) notwithstanding the foregoing, any other costs incurred by us (including total legal fees and expenses) in connection therewith may be deducted by us from any monies otherwise payable to you hereunder.
- 7.3. As we receive sales information from the DSPs with respect to your Recording(s), we will make this information available to you through your Dashboard. As we receive this information, we will use all reasonable efforts to provide it to you as soon as possible and reasonable. This information comes from a DSP and we are not responsible for any errors or inaccuracies in the information.
- 7.4. You acknowledge and agree that we and any of the DSPs shall have the right to market, promote, advertise, and distribute Recordings in connection with Digital Distribution promotional programs for which we or the DSPs receive no payment, and in connection with such promotions we and the DSP shall have no payment obligations to you.
- 7.5. For certain Digital Distribution outside of the United States, DSPs customarily secure and pay for music publishing licenses (and such license fees may or may not be deducted by the DSP concerned from the proceeds payable to us). If a DSP does not make all necessary payments to secure the appropriate music publishing licenses, we may, but are not obligated to, make certain payments for the music publishing licenses required in connection with such DSP's Digital Distribution, and in connection therewith we shall have the right to deduct any payments we may make with respect to such licenses from any amounts payable to you hereunder.
- 7.6. You acknowledge and agree that you will not use any automated means or method that is not authorized by any applicable DSP, including bots, botnets, robots, spiders, scrapers, data mining tools, automated scripts, or the like, to access your Recording(s) from the DSPs to generate plays, public performances, streams, or other uses of, or interactions with, your Recording(s) for the purpose of generating fraudulent Sale Proceeds or otherwise.
- 8.1. You may terminate your use of the Distribution Service in accordance with the TOS following our receipt of your written notice of termination, subject to our rights in Section 8.3 below, we may notify all applicable DSPs to discontinue the distribution and sale of the applicable Recording(s). You will not be entitled to reimbursement of any pre-paid fees with respect to any terminated Recording(s).
- 8.2. Up on our termination of your use of the Distribution Service inaccord an cewith the TOS subject to our rights in Section 8.3 below, we may notify all DSPs to discontinue the distribution and sale of your Recording(s). You will not be entitled to reimbursement of any pre-paid fees with respect to any terminated Recording(s).
- 8.3. In the event that the Digital Distribution of any Release is terminated for any reason and you still owe applicable Service Fees (including any applicable takedown fees): (i) we may elect to continue the distribution and sale of your Release(s); (ii) all rights granted to us hereunder and the DSPs will continue; (iii) we will be entitled to keep one hundred percent (100%) of Sales Income due to you until the applicable Service Fee is fully recouped; and (iv) you will continue to be responsible for all of your obligations under these DTOS. Following our recoupment of the Service Fees due and owing to us, we will notify all applicable DSPs to discontinue the distribution and sale of the applicable Release(s) and these Distribution Terms will terminate. In the event that your Release has not been taken down as a result of your non-payment of Service Fees, and you would like to re-activate the Distribution Service, you may pay our then-current reinstatement fee, if any, and, upon our receipt of such fee, your Fivesound LLC Credit Account will be reactivated and any Sales Income thereafter due to you after our receipt of such payments will be paid to your Fivesound LLC Credit Account. Reinstatement will not cause any payments retained by us to be paid to you. When you pay the reinstatement fee and re-subscribe to the Distribution Service, you will again be obligated to pay all applicable Service Fees.
YOU UNDERSTAND AND AGREE THAT WE AND THE DSP’S HAVE THE RIGHT, BUT NO OBLIGATION, TO MARKET, PROMOTE, AND ADVERTISE YOUR RELEASE(S). WE MAKE NO GUARANTEES WHATSOEVER WITH RESPECT TO THE SCOPE OF EACH DSP'S DISTRIBUTION OF YOUR RELEASE(S), MINIMUM SALES OF YOUR RECORDING(S), PAYMENTS TO YOU UNDER THESE DISTRIBUTION TERMS, THE MARKETING, PROMOTION, OR ADVERTISEMENT OF YOUR RECORDING(S) BY THE DSP’S, OR WHETHER A DSP WILL ACTUALLY OFFER YOUR RECORDING(S) FOR SALE. EACH DSP HAS TOTAL DISCRETION AS TO WHETHER IT WILL OFFER YOUR RECORDING(S) FOR SALE. WE AND THE RELATED PARTIES ARE NOT RESPONSIBLE OR LIABLE TO YOU IN ANY WAY AS A RESULT OF ANY INCORRECT OR INACCURATE INFORMATION IN CONNECTION WITH THE DISTRIBUTION SERVICE, INCLUDING, WITHOUT LIMITATION, INFORMATION PROVIDED BY YOU OR A DSP.
This document was last updated on June 1, 2023