Version: v.2.0 (Updated September 28, 2022)
Please read this agreement (the “Agreement”) carefully. This Agreement is a legally binding agreement between you and/or your company (which will be individually and collectively referred to below as “Client”) and Symphonic Distribution, Inc. (“Symphonic”).
By clicking “I agree”, Client hereby agrees to and accept the terms and conditions of this Agreement, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged.
AGREEMENT
This Agreement between Symphonic and Client (collectively, the “Parties”), is entered into as of the date Client clicks “I agree” and accepts the terms of this Agreement (as evidenced by Symphonic’s records)(the “Effective Date”).
1. Background. Symphonic is a music services company providing digital distribution, related marketing and other services in connection with audio recordings and audiovisual recordings, among other things. Symphonic aims to deliver content from clients (artists, record labels, distributors, etc.) to digital service providers (“DSPs”) located around the world that specialize in the reselling/displaying of audio and audiovisual recordings through streaming, distribution, and mobile platforms. Pursuant to the terms of this Agreement, Client has selected Symphonic to exclusively distribute Client Content to DSPs.
2. Client Content; Services.
(a) Client Content. “Client Content” consists of those sound recordings featuring the performances of Artist (as defined below) as the primary artist, together with related video recordings (both short-form and long-form), artwork and metadata, that are owned or controlled by Client (or by Client’s affiliates or companies acquired by Client, or with whom Client has merged, or from whom Client has obtained rights) and which Client elects to deliver to Symphonic, whether created prior to the Effective Date of the Agreement or at any time during the Term (as defined below). For the purposes of this Agreement, the term “Artist” means the individual performer identified as the “Primary Artist” in Client’s SymphonicMS (as defined below) account. For the avoidance of doubt and notwithstanding anything to the contrary contained herein, (i) Client shall not be permitted to submit any recording for distribution hereunder unless the primary artist featured in such recording is Artist (with the understanding that recordings submitted hereunder may feature additional non-primary artists, producers and remixers together with Artist); and (ii) Client retains the right to distribute any and all content other than Client Content itself and/or via third party distributors during the Term.
(b) Appointment as Sole Distributor (for Client Content Only). Client agrees that this Agreement is exclusive during the Term and throughout the Territory for the distribution of Client Content by Symphonic via any and all digital and electronic distribution means and media (whether now known or existing in the future). Client grants Symphonic the exclusive right to create digital and/or electronic copies and compilations, to distribute, to sell copies, to stream and to publicly perform, to sublicense and to otherwise exploit Client Content via electronic, digital and mobile platforms during the Term. Client shall not, during the Term, license or attempt to license Client Content to DSP’s without prior written approval from Symphonic. All pre-existing relationships with outside DSP’s related to Client Content, if any, are to be disclosed to Symphonic at the time of entering into this Agreement. During the Term, Client shall not itself make Client Content available via any electronic, digital or mobile platform or channel.
(c) DSPs. Symphonic agrees to distribute and license Client Content to DSPs that sell, distribute, transmit, stream, perform or otherwise exploit sound and/or audiovisual recordings by all means and media available, and to collect all income deriving therefrom. Symphonic shall: (i) solicit and service the DSPs; (ii) secure the encoding of each Recording in format(s) required by the DSPs; (iii) process the delivery of the recordings to the DSPs; and (iv) collect amounts due from the DSPs for payment to Client, subject to the terms and conditions of this Agreement, including, without limitation, the Client Royalty (as defined below) account Threshold (as defined below) requirements outlined in this Agreement.
(d) Marketing. Promptly following the full execution of this Agreement, Client shall supply Symphonic with a reasonable number of ID Materials. As used in this Agreement, the term “ID Materials” means any of Client’s, or Artist’s respective copyrights, trademarks, names, sobriquets, biographical materials and approved likenesses, as well as the names, sobriquets and approved likenesses of any other person performing on and/or performing services in connection with Client Content. All ID Materials furnished by Client to Symphonic, posted on Client’s website or social media channels, or previously approved by Client at any time will be deemed approved by Client for use by Symphonic in connection with Client Content hereunder, and Symphonic will also have the right to create and use additional, basic marketing materials embodying the ID Materials to promote Client Content. For the avoidance of doubt, Symphonic shall have the right, but not the obligation, to use the ID Materials to promote Client’s and/or Artist’s brand on Symphonic’s website and/or social media channels. Client agrees to use reasonable efforts to independently promote the Client Content during the Term, including, without limitation by sharing promotional assets produced by Symphonic hereunder on Client’s social media channels.
3. Additional Services. The following additional services are included under this Agreement:
(a) Intentionally Deleted.
(b) UGC Monetization. Symphonic will use commercially reasonable efforts to (i) identify exploitations by third parties of Client Content via video streaming services and social media platforms (collectively, the “UGC Platforms”), including, without limitation YouTube, Meta (Facebook/Instagram), MixCloud, Snap, TikTok, Triller, Twitch, and United Media Agency/VK.RU; and (ii) negotiate and document settlement, licensing, monetization and similar agreements on behalf of Client in respect of such exploitations, the terms of which such agreements shall be determined by Symphonic in its sole reasonable discretion (collectively, the “UGC Monetization Services”). Client acknowledges and agrees that any Client Content will only qualify for UGC Monetization Services if such Client Content is one hundred percent (100%) owned and controlled by Client and does not include any third-party materials or public domain contributions. In addition to any and all other costs and fees due Symphonic hereunder (including, without limitation all Annual Fees [as defined below]), Symphonic will be entitled to retain 30% of the Royalties actually collected by Symphonic as a result of UGC Monetization Services.
(c) UGC Compositions. Symphonic will assist Client with the implementation of industry standard best practices for the collection of revenues in connection with exploitations by third parties of the underlying musical compositions embodied in Client Content via UGC Platforms (“UGC Composition Services”). In addition to any and all other costs and fees due Symphonic hereunder including, without limitation all Annual Fees), Symphonic will be entitled to collect and retain 30% of the Royalties actually collected by Symphonic, if any, as a result of UGC Composition Services with respect to such compositions. Client hereby represents and warrants that Client has not authorized, and shall not during the Term authorize, any third parties to administer any or all of the rights granted to Symphonic in connection with the UGC Composition Services.
(d) Intentionally Deleted.
4. Delivery; Storage.
(a) Delivery Procedures.
(i) SymphonicMS. Client shall deliver Client Content to Symphonic via its online Management System (“SymphonicMS”). Client Content shall be delivered promptly following the execution of this Agreement and from time to time during the Term at Client’s own expense. Client Content shall be technically and commercially satisfactory to Symphonic and shall be delivered in first-class commercial quality, in compliance with the specifications stated on SymphonicMS and all marketing and related materials shall bear an appropriate copyright notice. Where applicable, Client shall provide administrative logins and access for digital or streaming channels. Delivery will not be deemed complete until Symphonic provides written confirmation thereof. Denial of Client Content may occur for various reasons and as outlined in Section 13 of this Agreement.
(ii) Delivery to/from Symphonic. Client is solely responsible for uploading Client Content to SymphonicMS for distribution. Symphonic does not obtain or secure transfer of Client Content from Client’s former distributor or other third parties. Upon the expiration or termination of the Term, Symphonic will no longer host Client Content on its servers and Symphonic will not be responsible for transferring Client Content from Symphonic to Client or any third party.
(iii) Client Responsibility. Client will be solely responsible for ensuring that Client Content and account details are correct and updated in SymphonicMS at all times.
(b) Storage. Client acknowledges that he or she is solely responsible for storage and backup of Client Content on his or her own server(s) or devices. Symphonic may store specific files for distribution purposes but is not obligated or required to store Client Content. Symphonic is not obligated to provide Client with copies of Client Content in the event Client requests same.
(c) Updates (Redelivery, Mistakes, File Replacements). Client must use commercially reasonable efforts to ensure that its material is correct and final prior to delivering same to Symphonic’s distribution department for approval and delivery to DSPs. Requests for changes are to be submitted via SymphonicMS. During the Term, Client may not contact any DSP directly in respect of Client Content. Symphonic cannot guarantee that any DSP will acknowledge or agree to any requested change(s). Client agrees to provide Symphonic with replacement files, if requested, for purposes of re-delivery. For the avoidance of doubt, the provisions of this Section 4(c) and Section 4(b) above do not, and shall not be deemed to, impose or impart any storage, backup or retrieval obligations on Symphonic with regard to Client Content.
(d) Takedowns. If Symphonic takes down any Client Content (each, a “Takedown”) pursuant to Section 10(g) of this Agreement, without limiting Symphonic’s available rights or remedies, Symphonic will charge a USD $20 processing fee per release subject to any Takedown.
(e) DSP Specifications. Each DSP has a different standard or requirement for Client Content. Symphonic agrees to use commercially reasonable efforts to assist Client to meet each DSP’s requirements.
5. Term; Territory.
(a) Term. The term of this Agreement will be for an initial contract period (the “Initial Period”) commencing on the Effective Date and ending on the one (1) year anniversary thereof.. After the Initial Period, this Agreement will auto-renew (and Client’s credit card for the subsequent Annual Fee will be charged accordingly) under the same terms and conditions as are applicable during the Initial Period for successive one (1) year periods (each, a “Renewal Period”) until either party terminates the Term of the Agreement as provided herein. Either party may terminate the Term of this Agreement by giving written notice (a “Termination Notice”) to the other party prior to the end of the then current contract period. In addition and without limiting the foregoing, (i) Client may terminate the Term of this Agreement by contacting the HelpDesk via SymphonicMS; and/or (ii) Symphonic may (in its discretion) elect to terminate the Term of this Agreement without notice to Client (and issue Takedowns (as defined below) for Client Content) if Symphonic does not receive payment of the Annual Fee for the subsequent contract period prior to the expiration of the then current contract period. The effective date of any termination of the Term of this Agreement pursuant to this Section 5(a) will be the expiration of the then current contract period and Client understands and agrees that all Annual Fees are non-refundable irrespective any termination pursuant hereto (unless otherwise agreed by Symphonic in its sole discretion). The Initial Period and the Renewal Period(s), if any, are collectively referred to as the “Term.” Written notice to Symphonic will be considered sufficient when received via Symphonic’s online help center and at the address and method set forth in Section 17 below. Without limiting the foregoing, or any of Symphonic’s other available rights or remedies, if Client does not terminate the Term of this Agreement in accordance herewith and if Symphonic does not receive payment of the Annual Fee for the subsequent contract period prior to the expiration of the then current contract period, then Symphonic may deduct the Annual Fee for subsequent contract period(s) from any and all Royalties (as defined below) that may otherwise be due Client hereunder.
(b) Territory. The Universe (the “Territory”).
6. Fees, Royalties and Accounting.
(a) Fees. Throughout the Term, Symphonic shall charge an annual fee (the “Annual Fee”) for its services hereunder. The Annual Fee for each successive twelve (12) month period during the Term shall be in the amount set forth on SymphonicMS as of the date of the commencement of such contract period; it being acknowledged and agreed that the amount of the Annual Fee is subject to change on a prospective basis throughout the Term and Client shall be notified in the SymphonicMS of any such change(s). All Annual Fees throughout the Term are and shall be due and payable to Symphonic on or prior to the first business day of the applicable contract period. All Annual Fees must be paid with a valid credit card and Client must maintain a valid credit card on account with Symphonic throughout the Term. Client expressly authorizes Symphonic to charge all applicable amounts, plus any applicable taxes, to the credit card Client provides in SymphonicMS or, in Symphonic’s sole discretion, to deduct that amount from any Royalties payable to Client hereunder.
(b) Client Royalty Details (all fees in US dollars). As used in this Agreement, the term “Royalties” means the revenues actually received by Symphonic from DSPs and other third parties or credited to Symphonic against an advance previously received by Symphonic in respect of the Client Content, less any fees imposed by DSPs or other third parties. Subject to the recoupment of all Advances and all of Symphonic’s rights to withhold Royalties otherwise due to Client pursuant to this Agreement (including, without limitation in respect of fees and costs owed to Symphonic), Client will be entitled to receive 100% of the Royalties, except in respect of UGC Monetization Services and UGC Composition Services which are governed by Sections 3(b) and 3(c) above, respectively. Client must meet a Royalties-due threshold of fifty dollars ($50.00 USD) as of their last Royalty Statement posting (the “Threshold”) for Client to be eligible to request payment within the SymphonicMS. The Threshold amount is subject to change at any time and Client shall be notified in the SymphonicMS of any such change.
(c) Royalties. Payments are made in US dollars. Failure to reach the Threshold will result in non-payment, and the unpaid Royalty amount will accumulate each month until the Threshold is met and at which time, Client can request payment within the SymphonicMS, subject to the terms and conditions contained in this Agreement.
(i) Calculation. Subject to recoupment of all Advances paid hereunder, Royalties are calculated by the DSP platform upon which the Client Content appears and are processed in accordance with the currency exchange rates provided by DSPs to Symphonic or the exchange rate listed on the day the DSP reports to Symphonic. Royalties may vary based on type of content, territory, subscription rates, or time of year. In most instances, Royalties are generated by content downloads and streaming. If a DSP does not appear on Client’s Royalty statement (“Statement”), the Client Content did not generate any Royalties from that DSP during that Statement period or the DSP has not yet paid Royalties to Symphonic for that period. Client may view posted Statements on SymphonicMS.
(ii) Mechanical Royalties received directly from DSPs. Client grants to Symphonic an irrevocable license under copyright to reproduce each composition embodied in the Client Content for uses as contemplated hereunder. Client hereby acknowledges that in the United States, mechanical royalties for digital sales of copies of Client Content may be paid by DSPs: (A) directly to the music publishers/writers; or (B) as part of an all-in payment to Symphonic, which includes any fees due to Symphonic (e.g., currently Beatport and Traxsource). When Symphonic receives mechanical royalties as part of the fee due from DSPs or others, Symphonic shall identify in the relevant Statement(s) the amount of the payments that comprises mechanical royalties. The Royalty will then be payable to Client pursuant to the terms and conditions hereof. Without limiting Client’s representations, warranties and indemnities under this Agreement and for the avoidance of doubt, Client acknowledges and agrees that as between Client and Symphonic, Client remains solely responsible for paying any and all mechanical royalties due to third parties in connection with the exploitation of Client Content by Symphonic pursuant hereto.
(iii) Intentionally Deleted.
(iv) Monthly Accounting/ Payments. Symphonic shall compute and report the total Royalties earned by Client on a monthly basis. A schedule of when the Royalty Statements are posted and approximate payment dates for the postings are located in the Help Desk and SymphonicMS. Royalty Statement reports are available electronically to Client via SymphonicMS approximately 60-70 days after a reporting month ends (each, a “Monthly Submission Date”). For example, January reporting will occur at or around the end of March, February reporting at or around the end of April, and so on.
(A) Statements. Each Statement will include details and total Royalty amounts payable to Client, if any. Statements posted may include both the immediate previous month amount and additional previous months’ amounts. Symphonic cannot guarantee timely reporting and payment by all DSPs and thus, Symphonic Statements will include payments only for DSP payments Symphonic has received or which have been credited to Symphonic against an advance previously received by Symphonic in respect of the Client Content. Solely by way of example, some DSPs report to Symphonic on a quarterly basis. Client acknowledges and agrees that Symphonic will have no liability for DSPs’ late or otherwise untimely reporting or payment.
(B) Payment. Subject to the Threshold and all other terms and conditions hereof, (i) in order to receive payment, Client must issue a payment request via SymphonicMS when Royalty Statements are available; and (ii) Symphonic shall issue payment via the payment method designated by Client in SymphonicMS within ten (10) business days of receipt of each such payment request. Client is required to identify the payment method within SymphonicMS (ACH, wire, PayPal, etc.) and in some instances, additional fees may apply for certain payment methods. Failure by Client to provide complete and accurate payment details and/or to submit a payment request through SymphonicMS may prevent and/or delay Symphonic from paying any Royalty to Client. Without limiting the foregoing, Client represents and warrants that: (i) any and all payment information submitted to Client’s SymphonicMS account shall be complete and accurate at all times; (ii) Symphonic shall have the right to rely upon such information and shall have no liability whatsoever by reason of any erroneous payment made in accordance with such information; and (iii) Client shall indemnify Symphonic against claims, liabilities, losses and expenses (including reasonable attorney’s fees) relating to or arising out of any payments made by Symphonic pursuant to such information. Notwithstanding anything to the contrary contained in this Agreement, Client acknowledges and agrees that Client may be required to submit identity verification related documentation (e.g., driver’s license, passport, etc.) to Symphonic in accordance with Symphonic’s then current policies and procedures as specified in the SymphonicMS in order to receive Royalties payable to Client hereunder (if any). Client information collected in accordance therewith will be governed by Symphonic’s Privacy Policy.
(C) Statement Delay by Symphonic. Client shall promptly advise Symphonic if Client has not received a Statement. Upon notification, Symphonic shall investigate and/or correct the situation, as appropriate. Subject to Section 6(c)(iv)(B) above, in no event shall Symphonic be deemed in breach of its payment obligations under this Agreement by virtue of the fact that Client has not received payment or a Statement by the applicable Monthly Submission Date.
(D) Statement Delay by DSPs. In the even that a statement is not provided to Symphonic by a DSP in a reasonable amount of time, Symphonic will not be deemed in breach of this Agreement for failing to provide a statement with respect to such DSP. Symphonic will use reasonable efforts to report any DSP that has yet to provide a statement on a monthly basis, which will be accessible when available via the Help Desk and SymphonicMS system.
(E) Tax Details. Symphonic conforms to United States IRS-issued guidelines. Client must confirm Client’s tax residency status by submitting Form W-9, Request for Taxpayer Identification Number and Certification (for U.S. citizen and residents), or Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (individuals) (for non-U.S. residents) digitally, via SymphonicMS in order to receive any payments hereunder. Tax details can be viewed or edited by Client in SymphonicMS. Tax details must be filled out fully and correctly prior to Client claiming and receiving payment. Symphonic will reach out for additional information as needed. Client and Symphonic each have the status of an independent contractor hereunder, and nothing in this Agreement contemplates or constitutes one party as agent or employee of the other or a partnership relationship between Client and Symphonic. Symphonic will not deduct any payroll-related taxes from any payments to be made to Client under this Agreement. Client acknowledges that Client is solely responsible for the payment of all taxes with respect to income received by Client pursuant to this Agreement.
(F) Additional DSP Fees. DSPs may impose additional fees that are outside of Symphonic’s control. Such DSP fees may be deducted by Symphonic from revenues generated hereunder for the purposes of calculating Royalties (e.g. for voided transactions, promotional expenses, and publishing withholding, without limitation).
(a) Notwithstanding anything to the contrary contained in this Agreement, any and all amounts paid by Symphonic to Client (other than Royalties), on Client’s behalf or at Client’s direction will constitute Advances and be fully recoupable from all Royalties payable to Client hereunder. For purposes of this Agreement, the term “Advance” means a prepayment of Royalties payable to Client. Symphonic may recoup Advances from any and all Royalties to be paid or accrued to Client pursuant to this Agreement.
(b) Other than as specifically provided in this Agreement, Symphonic will not be required to make any payments of any kind or nature whatsoever to Client or to any other person or entity for or in connection with the acquisition, exercise or exploitation of rights by Symphonic hereunder or otherwise in connection with Client Content or this Agreement. Client further hereby acknowledges and agrees that Client shall have no legal or equitable interest of any kind, or any right whatsoever, at any time, to receive any royalties or other revenues generated as a result of or in any way relating to streams, transmissions, impressions, plays, views, engagements, clicks, logs, or other exploitations of Client Content which Symphonic, in its sole and absolute discretion, suspects or deems to constitute, or otherwise attributes to Improper Activity (as defined below).
7. Audit. All Statements shall be binding upon Client and not subject to objection by Client unless specific objection is made in writing, stating the basis thereof, and provided to Symphonic within twelve (12) months from the applicable Monthly Submission Date. Client shall have twelve (12) months from each Monthly Submission Date to have a certified public accountant, who is licensed in the US and not then engaged in an outstanding examination of Symphonic’s books and records on behalf of a third party, conduct an inspection of Symphonic’s books and records specifically relating to the DSP’s licenses to exploit Client Content and Client’s sales and payment activity. For avoidance of doubt, Client will have access only to those records of DSPs and retailers relating to Client Content hereunder (i.e. not including the reporting information of any other client). Each such inspection shall take place at the location where Symphonic normally keeps such books and records and shall be conducted during normal business hours. All such inspections shall be made upon prior written notice to Symphonic at least thirty (30) days prior to the date Client intends to commence such inspection. Client may inspect records relating to each Statement only once and may conduct such an inspection for any period only once per calendar year. Symphonic shall have the right in accounting to Client to rely upon the accounting statements received by Symphonic from DSPs and/or third parties and shall not be liable in any manner whatsoever for any error, omission, or other inaccuracy of any such statement(s) or information received by Symphonic, provided Symphonic does not know or has no reliable business reason to know of an error, omission, or other inaccuracy in such third party statement or information. Client shall be precluded from maintaining any action, claim or proceeding against Symphonic in any forum or tribunal with respect to the accuracy of any Statement rendered hereunder, unless such action claim, or proceeding is commenced in a court of competent jurisdiction within one (1) year from the date that the applicable Statement is due.
8. Third Party Obligations. Client shall be solely responsible for payment to its affiliated artists, writers, licensees, producers and other persons responsible for the creation of any Client Content distributed under this Agreement including, without limitation, payment of any mechanical royalties in connection with the Client Content. Client shall also be responsible for payments related to any applicable collective bargaining agreements, third-party licenses, music publishing licenses and other royalties pertaining to such Client Content. For the avoidance of doubt, in connection with the exploitation of Client Content under this Agreement, Client shall be solely responsible for any obligations or liabilities to such third parties related to such exploitation. Notwithstanding anything to the contrary contained herein, if, solely as an accommodation to Client, Client desires that Symphonic pay a portion of any Royalties otherwise payable to Client to one or more third parties to whom Client is obligated to pay a portion of such Royalties (each, a “Third Party Payee”), directly to such Third Party Payees on Client’s behalf (“Third Party Royalties”), Client may enable Symphonic’s SplitPay feature via SymphonicMS pursuant to which Symphonic will direct a portion of such Third Party Royalties to Third Party Payees, subject always to the terms and conditions of the SplitPay Authorization and the terms and conditions of this Agreement. The foregoing shall not be deemed to limit Client’s obligation to pay any and all third parties in connection with Client Content hereunder.
9. Intellectual Property Ownership. Client warrants and represents that it owns and/or controls all rights in and to all Client Content provided to Symphonic (including, but not limited to sound recordings, audiovisual works, compositions, ID Materials, artist names, writer names, song names, artwork and images) which are necessary for Symphonic to exercise the rights granted to Symphonic in this Agreement. Client also guarantees that it has secured written permission from any and all third parties whose performances and/or contributions are embodied in Client Content or underlying compositions embodied therein. Client will not deliver any Client Content and/or ID Materials to Symphonic which is not owned and/or controlled by Client. Client further grants Symphonic a license to use the ID Materials during the Term and throughout the Territory in connection with the exercise of Symphonic’s rights hereunder, including, without limitation the distribution and promotion of Client Content, without further compensation to Client or any other person except as otherwise expressly stated in this Agreement. Notwithstanding anything to the contrary contained herein: (a) ID Materials provided by Client to Symphonic shall be deemed approved by Client for use by Symphonic pursuant hereto; (b) in any instance where Client’s approval is required hereunder, Client’s approval shall be deemed given if notice of Client’s disapproval is not received by Symphonic within five (5) business days of Symphonic’s request for approval, unless a shorter time period is specified in any such request; and (c) Symphonic’s inadvertent failure to obtain Client’s approval of any ID Materials shall not be deemed a breach of this Agreement nor shall such failure derogate from Symphonic’s right to use such ID Materials hereunder. No use of any ID Materials by Symphonic hereunder will constitute an endorsement or implied endorsement by Client or any person of any activity, cause, philosophy, service or product (other than Client Content or the ID Materials themselves).
10. Termination and Breach.
(a) Client Content. Upon expiration or termination of the Term, Symphonic will use commercially reasonable efforts to actively seek Takedowns for Client Content previously distributed under this Agreement. However, Client acknowledges that (i) Symphonic will not be responsible for any failure to effectuate or any delay in effectuating any Takedown on the part of a DSP; and (ii) Symphonic will not be subject to any liability for previously distributed Client Content which remains with DSPs or third parties after the expiration or termination of the Term. No act or omission by Symphonic shall constitute a breach of this Agreement unless Client first notifies Symphonic in writing setting forth such alleged breach and Symphonic does not cure the same, if capable of being cured, within thirty (30) days after the date of receipt of such notice..
(b) Payments. Upon expiration or termination of the Term, Symphonic may, in its discretion and without notice to Client, issue Takedowns for Client Content, and/or to the extent Symphonic continues to distribute the Client Content, deduct the Annual Fee from any and all Royalties that may otherwise be due Client hereunder.
(c) Symphonic Rights to Terminate. Notwithstanding any other termination provisions contained herein, Symphonic reserves the right to terminate the Term of this Agreement anytime for any reason immediately upon written notice to Client.
(d) Injunctive Relief. Without limiting Symphonic’s available rights or remedies, in the event that Client breaches or threatens to breach Client’s exclusivity obligations hereunder, then Symphonic shall be entitled to seek injunctive and other equitable relief, without the posting of a bond, in order to prevent or cure such breach.
(e) Attorneys’ Fees. In the event of a dispute concerning the terms of this Agreement, the prevailing Party shall be entitled to recover from the other Party reasonable outside attorneys’ fees and costs incurred by the prevailing Party in such dispute.
(f) Intentionally Deleted.
(g) Copyrights/ Content Disputes. In the event that Symphonic receives a notice of any Claim (as defined below) pertaining to any Client Content or ID Materials or any other Claim alleging that any Client Content or ID Materials violate the rights of any third party, then without limiting Symphonic’s available rights or remedies, (i) Symphonic will be entitled to withhold Royalties otherwise payable to Client while such Claim is pending (it being understood that Symphonic cannot control the length of any Claim); (ii) Symphonic will use commercially reasonable efforts to notify Client of such Claim; and (iii) Symphonic may issue and/or authorize Takedowns for any affected Client Content, in its sole discretion. In addition to the above, Symphonic may request documentation to support the ownership or control by Client of Client Content and/or ID Materials from Client at any time and for any reason. Without limiting any of Symphonic’s other rights and remedies, Client’s failure to provide documentation within three (3) business days of Symphonic’s request for same may result in non-payment of Royalties, Takedown of Client Content, and/or immediate closure of Client’s account, all at Symphonic’s sole election.
11. Indemnification.
(a) Client shall indemnify, defend and hold harmless Symphonic and its affiliates and their respective officers, directors, employees, licensees, successors, assigns, representatives, and agents (collectively, the “Indemnified Parties”) from and against any and all anticipated, threatened or actual demands, actions, suits losses, liabilities, obligations, costs, and expenses (including reasonable outside attorney’s fees and/or other costs and fees and any damages or settlement payments incurred by the Indemnified Parties) which result from or arise in connection with or are related in any way to: (i) a breach or threatened breach by Client of any of Client’s representations, warranties, covenants and/or obligations under this Agreement; (ii) any attempt by any person or entity to cause or require any Indemnified Party to pay or discharge any debt, obligation, liability or commitment of Client; or (iii) any act or omission of Client (each of (i)-(iii), a “Claim”), including, without limitation, any Claim that any Client Content may infringe upon the copyright, trademark and/or other intellectual property right of any third party and/or violate the rights of privacy and/or publicity of any third party. Client shall have the right at its own expense to participate in the defense of a Claim with counsel of its own choosing, provided however that the Indemnified Parties’ decision in connection with the defense or settlement of any such Claim or demand shall be final. Without limiting Symphonic’s other available rights or remedies, Client shall reimburse Symphonic on demand for any payment made at any time by Symphonic in respect of any Claim, or Symphonic may instead deduct the amount of any such payment from any Royalties otherwise payable to Client pursuant to this Agreement, all at Symphonic’s sole discretion. Any failure of the Indemnified Parties to notify Client of any Claim shall not relieve Client of its indemnification obligations hereunder. Client’s representations, warranties and indemnification obligations under this Agreement, as well as all of Symphonic’s claims against Client for any breach thereof, shall survive the expiration or termination of the Term and continue in perpetuity thereafter.
(b) Without limiting any of Symphonic’s available rights or remedies under this Agreement, at law or in equity, in the event of any Claim, Symphonic will have the right to avail itself of any or all of the following remedies, in its sole discretion: (i) Symphonic may suspend payment of Royalties otherwise payable to Client (if any) while such Claim is anticipated or pending (notwithstanding anything to the contrary contained herein, this remedy shall not apply in the case of a Claim arising out of or relating to Improper Activity, with respect to which Royalties shall be solely governed by Section 6(d) above); (ii) Symphonic may issue and/or authorize Takedowns for any affected Client Content; (iii) Symphonic may terminate the Term of this Agreement and require Client to repay of one hundred percent (100%) of Client’s then-outstanding unrecouped balance, if any; (iv) Symphonic may block or prevent Client from uploading additional Client Content to SymphonicMS; and/or (v) Symphonic may enforce its indemnification rights pursuant to this Agreement. Any release of Royalty payments hereunder shall be without prejudice to Symphonic’s rights to not to make Royalty payments in the future with respect to such Claim or any other Claim if Symphonic deems it reasonably necessary in Symphonic’s sole discretion. Client shall notify Symphonic in writing immediately if Client receives notice of any Claim related to Client Content. The Indemnified Parties’ right to indemnification hereunder will not be affected by any information or knowledge acquired by the Indemnified Parties at any time.
12. Assignment. Symphonic may freely assign this Agreement to any third party, in whole or in part. Symphonic shall notify Client of any such assignment in writing within thirty (30) days of such change, provided that any inadvertent failure by Symphonic to do so will not constitute a breach of this Agreement nor derogate from Symphonic’s rights hereunder. Client may not assign this Agreement, nor any of Client’s rights nor delegate any of Client’s obligations hereunder, without Symphonic’s prior written consent. This Agreement shall be binding upon and inure to the benefit of the parties’ respective assigns, successors, heirs, and legal representatives.
13. Declined Client Content.
(a) Election Not to Distribute. Symphonic and/or a DSP may elect not to distribute any Client Content for any of the following reasons: (i) if, in the opinion of Symphonic and/or the DSP, such distribution might violate a statute, law or regulation, or violate any rights of any persons or entities, including suspected violation of the intellectual property of another; (ii) Symphonic and/or a DSP believes that its distribution of any of Client’s recordings hereunder would constitute a breach by Client of any of Client’s agreements, warranties and/or representations contained herein or if Symphonic and/or a DSP reasonably deems the recording or the associated artwork or other associated ID Materials to be offensive to reasonable standards of public morals; or (iii) the submitted recording does not comply with the current specification stated on SymphonicMS. Notwithstanding the preceding sentence, in the event the objectionable material is later eliminated, or the source of objection is removed, Client may resubmit the applicable Client Content to Symphonic for review and possible distribution hereunder at Symphonic’s and/or the applicable DSP’s sole discretion. In the event that Symphonic elects not to distribute any Client Content hereunder, Symphonic may, in its sole discretion (but shall not be obligated to), refund all or a portion of the Annual Fee.
(b) Scandalous Material. Symphonic will not distribute scandalous, illegal, hateful, highly objectionable or offensive material. Symphonic and DSPs reserve the right to reject or retract distribution of any Client Content containing any such material at their discretion.
(c) Parental Advisory. The parties shall cooperate in implementing any applicable parental advisory labeling. It is understood that Client shall use reasonable efforts to click “Explicit” while submitting any Client Content if the material contains explicit material. Client acknowledges that explicit material is different than, and may not rise to the level of, scandalous material.
14. Confidentiality.
(a) Each party (the “Receiving Party”) acknowledges that in the course of performing its obligations under this Agreement, it may come into contact with the other party’s (the “Disclosing Party”) confidential information, such as valuable, secret, special, and unique assets or business practices, including those learned in the course of dealing or performance hereunder (collectively the “Confidential Information”). Confidential Information includes, but is not limited to the terms of this Agreement and the Disclosing Party’s customer lists, royalty data and reports, marketing and financial tools, pricing information, business plans, relationships, and the terms of the Disclosing’s Party’s agreements with DSPs. Information will not be considered Confidential Information if, and to the extent that, such information is or becomes publicly known through no wrongful act of the Receiving Party.
(b) The Receiving Party covenants and agrees that, during the Term, and at all times thereafter, it will not disclose the Disclosing Party’s Confidential Information to any other person, firm, corporation, association, or entity for any reason or purpose, except that the Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s attorneys, accountants and other authorized representatives. Notwithstanding anything to the contrary contained herein, (i) Confidential Information may be disclosed as required by law or by a court, governmental agency or legislative body after providing the Disclosing Party with notice of the potential disclosure; and (ii) nothing in this Section 14(b) shall prohibit Symphonic from disclosing the terms of this Agreement to the extent necessary for Symphonic to protect Symphonic from liability or to enforce Symphonic’s rights.
15. Warranty.
(a) Client’s Representations & Warranties.
(i) Client warrants and represents that: (i) Client has the right and authority to enter into this Agreement and to grant to Symphonic all rights specified hereunder; (ii) all of the recordings, musical compositions (including lyrics), ID Materials, artwork, metadata, videos and any other materials delivered by Client to Symphonic are owned or controlled by Client and Symphonic’s use and exploitation of any of the foregoing, as authorized and contemplated hereunder, shall not infringe on the copyrights or other rights of any third person or entity; (iii) Client has not granted and will not grant to any third party any rights in connection with Client Content or the underlying musical compositions (including lyrics) embodied therein or ID Materials that are inconsistent with those granted to Symphonic herein; (iv) Symphonic shall have the right to exploit Client Content, the underlying musical compositions (including lyrics) embodied therein and the ID Materials as authorized under this Agreement without obligation to make payments to any person or entity, other than the amounts due to Client pursuant to the express terms hereof, if any; (v) Client is eighteen (18) years of age or older, or is otherwise the legal age of majority under applicable law to enter into a binding contract and to execute this Agreement and perform all actions required hereunder; (vi) all payment, billing and personal information provided by Client is accurate and complete; and (vii) Client does not know of any currently existing or impending acts or circumstances, and Client shall not, at any time during or after the Term, engage in any act or omission, which would, in the reasonable judgment of Symphonic: (A) have or attract publicity that would have a direct or indirect adverse effect upon the status or reputation of Symphonic, Client or the Client Content; or (B) directly or indirectly tarnish, denigrate or disparage the status or reputation of Symphonic, its affiliates, or any of their respective products, services or trademarks, and Client shall notify Symphonic in writing immediately if Client becomes aware of any such act, omission or circumstance.
(ii) Client further represents and warrants that Client has not heretofore engaged, or authorized or permitted any third party to engage, and Client hereby covenants and agrees that Client shall not hereafter engage nor authorize or permit any third party to engage, in any of the following activities or any similar such activities (individually and collectively, “Improper Activity”) in respect of the Client Content: any so-called “illegal boosting,” “fraudulent streaming,” or “juicing” activities or any similar activities designed to artificially inflate the amount of streams, transmissions, impressions, plays, views, engagements, clicks, logs, or other exploitations in respect of the Client Content, including, without limitation, via the use of bots, third party tools or services, or any other method of fabricating, manipulating, artificially increasing, intentionally boosting or improperly aggregating the amount or number of streams, transmissions, impressions, plays, views, engagements, clicks, logs, or other exploitations for any Client Content. All Improper Activity is expressly prohibited and shall constitute a material breach of this Agreement.
(b) Symphonic’s Representations & Warranties. Symphonic warrants and represents that it has the right, power, and authority to enter into and fully perform this Agreement and all of its obligations under this Agreement.
16. LIABILITY LIMITATIONS; WAIVER OF JURY TRIAL.
(a) EXCEPT FOR CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST RIGHTS, PROFITS OR GOODWILL, BUSINESS INTERRUPTION, REPUTATIONAL DAMAGE AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE, NON-PERFORMANCE OR BREACH OF THIS AGREEMENT.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, EACH PARTY KNOWINGLY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH DISPUTE.
17. Notice Requirement. All notices hereunder shall be given to the following addresses pursuant to the mail methods below and with a copy via email at addresses indicated.
To Symphonic:
Symphonic Distribution
707 N. Franklin Street, Suite 400, Tampa FL 33602
and via email to: support@symdistro.com
With a copy to:
Patra Sinner, General Counsel
via email to: patra@symdistro.com
(At the address provided to Symphonic in the SymphonicMS.)
Any notice shall be sent postage prepaid, either by certified mail, return receipt requested (and in the case of notices sent to or from a location outside the United States, by air mail), or by personal delivery (with a receipt signed by Symphonic or Client, as applicable) or air express (e.g. Federal Express, DHL or any other similar type of first class overnight courier service that gives the sender proof of delivery) and shall be deemed served five (5) business days after the same is deposited in any United States mail box addressed as aforesaid, except that: (a) all materials personally delivered shall be deemed served when received by the party to whom addressed; (b) overnight air express materials shall be deemed served the next business day after delivery to the air express company; (c) notices in connection with change of address shall be effective only from the date of written receipt; and (d) Statements shall be sent as set forth in Section 6 above.
18. Amendment. This Agreement represents the entire understanding between the parties and supersedes and replaces all prior agreements, whether oral or written, between the parties with respect to the subject matter contained herein. Any change, modification or amendment of this Agreement must be in writing and signed by both parties and/or through a web based SymphonicMS Terms & Conditions approval form.
19. Privacy Policy & Terms of Service. Symphonic’s Privacy Policy and Terms of Service, as each such agreement may be amended from time to time by Symphonic in its discretion, are hereby incorporated by reference into this Agreement and made a part hereof as if fully set forth herein.
20. Interpretation and Severability. If any provision of this Agreement is deemed invalid, the remaining text and enforceability of any other provision shall stand unaffected. The section and paragraph headings and designations used throughout this Agreement are solely for convenience and reference.
21. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any and all disputes in connection with this Agreement shall be brought exclusively in federal or state courts located in New York County, New York.
22. Signature. The parties may sign this Agreement in counterparts, including PDF copies or copies via electronic transmission, each of which need not contain signatures of more than one party, but all the counterparts taken together will constitute one and the same contract. A digital signature or scanned signature will be treated as an original and the parties waive any right to object to such treatment.