Version: v.3.0 (Updated June 24, 2024)
Please carefully review the following Terms and Conditions of Symphonic’s Starter services, including the eligibility requirements for establishing a new Starter account as a new Client of Symphonic, and for maintaining an existing Starter account.
If you are a new Starter client, by checking the box stating “I Agree to the Terms and Conditions” on the Welcome page when you create a password you thereby accept the Terms and Conditions of Symphonic’s Starter services as set forth herein.
If you are an existing Starter client, by checking the box in the pop-up in your SymphonicMS account stating “I Agree” to the updated Starter Terms and Conditions you thereby accept the Terms and Conditions of Symphonic’s Starter services as set forth herein.
The terms of these Starter Terms and Conditions, the Terms of Use of Symphonic, and any amendments and/or addenda to these Starter Terms and Conditions and the Symphonic Terms of Use hereafter, shall collectively be and become a legally binding and enforceable contract as between you and Symphonic (the “Agreement”). Symphonic encourages you to consult with an attorney if you have any questions concerning this Agreement.
If you are a new Starter client, upon accepting this Agreement, you will be directed to Symphonic’s third party payment processor and then Symphonic’s third party identity verification processor to successfully complete the payment and identity verification requirements to Starter account creation before you will be permitted to create an account and use the Starter services. The “Client” as referenced herein shall be the party who completes the identity verification process. The “Client” should be the Primary Artist (as that term is defined in Section 2(a)(i) below) for the Client Content that will be submitted to Symphonic for the services to be provided hereunder. You should use your real legal name during the sign-up process to ensure that you can complete the identity verification process requirements. You will be prompted further during the sign-up process to additionally supply your professional artist name (p/k/a) if different than your legal name.
If you are an existing Starter Client who accepted a prior version of the Starter Terms and Conditions during sign-up (“Existing Agreement”) this version 3.0 of the Starter Terms & Conditions supersedes and replaces the Existing Agreement. You will be prompted to review and acknowledge these updated Starter Terms and Conditions upon logging into your SymphonicMS account. You may also be prompted to complete the identity verification process upon logging into your SymphonicMS account if you have not already done so. If you choose not to accept this Agreement, you may cancel your Existing Agreement by providing Notice of Termination as set forth herein. A refund will not be issued. Continued use of your Starter account constitutes acceptance hereof.
This Agreement between Symphonic Distribution, Inc., (“Symphonic”), and [the Client/Contracting Party identified in the correlating identity verification process] located at [the physical legal address of the Client/Contracting Party as identified in the correlating identity verification process] (“Client”, “you”, “your”) (individually, a “Party”; collectively, the “Parties”), is entered into by checking the box stating “I Agree to the Terms and Conditions” during the sign-up process for new Clients; or by acknowledging these updated Terms and Conditions within your existing Starter account (or by continued use of the existing Starter account) for existing Clients. Provided, however, that Symphonic shall have no obligations pursuant hereto until such time as Client successfully completes the required payment and identity verification processes as further described herein. This Agreement is effective as of the date the Client accepts this Agreement by checking the box stating “I Agree to the Terms and Conditions” during the sign-up process for new Clients; and remains effective as of the date the Client initially accepted the Agreement during sign-up for existing Clients (each, the “Effective Date”).
1. Background. Symphonic is a music services company providing digital distribution, related marketing and other services in connection with audio and audiovisual recordings, among other things. Symphonic globally delivers such recordings and related data from its clients to digital service providers and other services that distribute such recordings via streaming, downloads, mobile and other platforms for remuneration (collectively, “DSPs”), as well as the other services described herein. Client has selected Symphonic to exclusively provide the services set forth herein regarding Client Content.
1A. Client & Identity Verification. Client warrants and represents that the individual who completes the identity verification process required to receive the services to be provided by Symphonic hereunder is the Party identified as Client subject of this Agreement and is the Primary Artist of the Client Content as defined in Section 2(a)(i). Further, Client, as himself/herself and in his/her own individual capacity is the Personal Guarantor of Client’s representations, warranties, duties, and obligations hereunder. Client warrants and represents that it owns and/or controls the Client Content submitted to Symphonic for the services to be provided hereunder and has all necessary rights and authorities to submit the Client Content that it submits to Symphonic for the services hereunder. The individual who completes the identity verification process will be the required “account owner” of the SymphonicMS account. If the Client opens more than one account with Symphonic, such Client will be required to use the same e-mail address and contact information on each account. PLEASE NOTE: If the Client is unable to successfully complete identity verification and/or Client does not submit any Client Content for distribution within the time required by Symphonic in Symphonic’s discretion, the Starter subscription may be cancelled, and no refund will be issued. No Client Content will be accepted or distributed, and Symphonic is not required to perform any services or obligations hereunder for the Client until the Client has successfully completed the identity verification process.
2. Client Content; Exclusivity; Grant of Rights.
(a) Client Content. Client Content consists of the sound recordings and the associated audiovisual content, artwork and metadata owned and/or controlled by Client which Client delivers to Symphonic for distribution and/or any other services hereunder during the Term hereof. Once submitted for distribution and/or any other services as identified herein, such Client Content is considered “exclusive” to Symphonic during the Term hereof as further explained in Section 2(b).
(i) Primary Artist. Client shall only submit Client Content for which Client is the “Primary Artist”. As used herein, Primary Artist means the main artist who is performing on the Client Content.
(b) Appointment as Sole Distributor of Client Content. Symphonic shall be the sole and exclusive distributor of the Client Content defined in Section 2(a) above via any and all digital and electronic means and media whether now known or existing in the future during the Term and throughout the Territory. Symphonic shall also be the sole and exclusive provider of the additional services set forth in Section 3 below as to Client Content.
(c) Grant of Rights. Client grants Symphonic the sole and exclusive right to distribute Client Content via any and all digital and electronic distribution means and media (whether now known or existing in the future) including, without limitation, the exclusive rights to create digital and/or electronic copies and compilations of Client Content and to distribute, sell copies, stream, publicly perform, sublicense and otherwise exploit Client Content via electronic, digital and mobile platforms during the Term and throughout the Territory, including, without limitation, as embodied in so-called “user generated content” (“UGC”), “art tracks”, and “auto-generated videos”, etc. (such as via YouTube), and as may be reasonably necessary for Symphonic to exercise the grant of rights and perform the services and obligations of this Agreement. Client further grants Symphonic the sole and exclusive right to perform the additional services set forth in Section 3 below regarding Client Content. Conflicting monetization claims by third parties may impede or reduce monetization opportunities of Client Content. As such, during the Term, Client shall not license or attempt to license Client Content to any other distributor, DSP or other third party without prior written approval from Symphonic. Prior to executing this Agreement, Client shall disclose to Symphonic any and all pre-existing relationships between Client and any other distributor, DSP and/or other third party related to Client Content, and any territorial restrictions that may apply to Client Content. Client shall provide Symphonic a copy of any existing agreement(s) related to Client Content upon request by Symphonic. During the Term, Client shall not itself make Client Content available via any electronic, digital or mobile platform or channel.
(d) Intellectual Property Ownership. Client warrants and represents that Client owns and/or controls all rights in and to all Client Content provided to Symphonic (including, but not limited to, sound recordings, audiovisual recordings, compositions, artist names, writer names, song names, artwork, images and related assets). Client acknowledges that such rights are material and necessary for Symphonic to exercise the rights granted by Client to Symphonic hereunder and for Symphonic to perform the services set forth in this Agreement, including any additional services which may be agreed between Symphonic and Client. Client also warrants that Client 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 shall not deliver any Client Content to Symphonic which is not owned and/or controlled by Client. Client acknowledges and agrees that as between Client and Symphonic, Client is solely responsible for procuring and paying for any and all necessary third party rights, licenses, and/or clearances, including any payments required to be made to any and all other Royalty participants as related to the exploitation of Client Content hereunder. Symphonic reserves the right to request Client to promptly provide Symphonic with any and all relevant agreements and documentation concerning the rights granted by Client to Symphonic hereunder which Symphonic reasonably believes ensures Client’s compliance with Client’s grant of rights to Symphonic, and the terms and conditions hereof.
(e) Promotional Programs. Client understands, acknowledges and agrees that DSPs and other third-party partners of Symphonic may incentivize the use of certain promotional programs that provide marketing and/or other benefits related to the Client Content opted into such promotional programs. Such programs may have varying terms, conditions and eligibility requirements. Without limitation, Client grants Symphonic the right, in Symphonic’s sole discretion, to opt in Client Content to such promotional programs. Further, in Symphonic’s sole discretion, Symphonic may provide Client with an option to opt-out of such promotional program if possible and pursuant to the terms and conditions of such promotional program. Client further acknowledges that Symphonic and/or the applicable third party offering such promotional program may decline or remove Client Content from such promotional program if eligibility and/or other requirements are not met in the discretion of Symphonic and/or the third party offering such promotional program.
3. Services; Fees. Subject to the terms of this Agreement, Client and Symphonic agree that Symphonic will provide the services designated as follows to Client regarding Client Content, that Symphonic may provide additional services as noted below for which Client requests to enroll, as well as other services which Symphonic may from time to time provide to Client in Symphonic’s sole discretion as set forth below. Client agrees to be bound by the terms of use of any DSPs and/or other third-party partners to whom Symphonic may deliver Client Content for exploitation and monetization as authorized hereunder.
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Subject to the terms hereof, Symphonic will provide the following services: |
(a) Distribution to DSPs. Symphonic will distribute and license Client Content to DSPs that sell, distribute, transmit, stream, perform or otherwise exploit audio and/or audiovisual recordings by all means and media available. Symphonic will: (i) solicit and service DSPs; (ii) secure the encoding of Client Content in format(s) required by the DSPs (provided Client is in compliance with delivery requirements and terms); (iii) process the delivery of Client Content to the DSPs; and (iv) receive and disburse Royalties actually received by Symphonic from the DSPs directly in connection with the exploitation of the Client Content in accordance with the payment terms hereof. From time to time throughout the Term, Symphonic may add additional DSPs to deliver to and monetize Client Content. Certain DSPs are genre specific and/or may require an application process prior to accepting Client Content for distribution. Symphonic will provide Client Content to such curated DSPs in Symphonic’s sole discretion. Client acknowledges and understands that such DSPs may decline the Client Content and that same is not within Symphonic’s control. Client agrees and acknowledges that Client shall pay Symphonic nineteen dollars and ninety-nine cents ($19.99 USD) upon subscribing, and then nineteen dollars and ninety-nine cents ($19.99) per year thereafter for this service. Subject to the terms of this Agreement, Client will be entitled to receive one hundred percent (100%) of the Royalties (as defined herein) actually received by Symphonic directly in connection with the distribution and exploitation of Client Content to DSPs.
(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 Meta (Facebook/Instagram), United Media Agency, Triller, Snap, TikTok, and/or similar UGC Platforms; and (ii) attempt to negotiate resolutions and document licensing, monetization and similar arrangements on behalf of Client in respect of such exploitations, the terms of such arrangements 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. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of UGC Monetization services directly in connection with the Client Content.
(c) SoundCloud Monetization. Symphonic will use commercially reasonable efforts to (i) identify exploitations by unauthorized third parties of Client Content via the SoundCloud platform; and (ii) monetize SoundCloud, SoundCloud Go and Client’s SoundCloud profile on behalf of Client. To facilitate such monetization, certain follower thresholds and other criteria may be required to be met as per SoundCloud terms of service. Client shall provide additional information and take additional actions as needed to facilitate Symphonic’s provision of such services. Client agrees and acknowledges that Symphonic’s provision of such services on behalf of Client will identify Symphonic as the rightsholder of Client Content via SoundCloud for the purpose of monetization but does not constitute a transfer of ownership to Symphonic. If Client does not wish to have certain profiles claimed, it shall be Client’s responsibility to “allowlist” such profiles via the SymphonicMS to prevent conflicts. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of SoundCloud Monetization services directly in connection with the Client Content.
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Subject to the terms of this Agreement, and further enrollment obligations as may be required by Symphonic and as set forth in Client’s SymphonicMS account, Client and Symphonic agree that Symphonic MAY provide the following services to Client regarding Client Content. If Client requests to enroll into such services, Symphonic may need to collect additional information and documentation from Client to review and consider whether Symphonic can provide the following service(s) for Client. If Client requests to enroll in any of the following services, and such service is approved for Client by Symphonic, then the following shall apply: |
(d) YouTube Content ID. If Client requests to enroll and is approved for this service, Symphonic will use commercially reasonable efforts to (i) identify exploitations by unauthorized third parties of Client Content via the YouTube platform; and (ii) attempt to negotiate resolutions, licensing, monetization and similar arrangements with such third parties on behalf of Client in respect of such exploitations, the terms of such arrangements to be determined by Symphonic in its sole reasonable discretion. Any Client Content will only qualify for such YouTube Content ID 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. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of YouTube Content ID services directly in connection with the Client Content.
(e) YouTube Composition. If Client requests to enroll and is approved for this service, Symphonic will assist Client with the implementation of industry standard best practices for the collection of YouTube revenues in connection with the underlying musical compositions embodied in Client Content. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of YouTube Composition services directly in connection with the Client Content.
(f) Royalty Collections Pursuant to Sections 112 and 114 of the Copyright Act, Direct Licensed Analog or Digital Public Performance Rights, and International Neighboring Rights. If Client requests to enroll and is approved for this service, without limiting the grant of rights hereunder, Symphonic will be entitled to administer and collect one hundred percent (100%) of all sound recording copyright owner (“SRCO”) income as well as any other similar or successor performing and/or neighboring rights income, which is payable to the SRCO, sometimes referred to as the “label” share and which relates to Client Content during the Term, including, without limitation, any SRCO from SoundExchange. In the event that Client has not mandated SoundExchange to collect all worldwide neighboring rights revenues, Symphonic may sign on Client’s behalf with societies in each and every territory where neighboring rights royalties are being earned by Client Content; or to engage agents in other territories, where direct signings are not possible, to collect such sums as may be due or owing to Client for neighboring rights to the extent possible. Furthermore, Symphonic shall be entitled to administer revenue streams related to levies or related fees collected by Collective Management Organizations (CMOs) [which were historically collected in the United States by the Alliance of Artists and Record Companies (AARC)], now part of SoundExchange, and their counterparts in other territories worldwide]. Such administration and collection include any uncollected pre-Term Royalties, as well as any post-Term Royalties attributable to the Term hereof. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of the services described in this Section directly in connection with the Client Content.
(g) BandCamp Monetization. If Client requests to enroll and is approved for this service, Symphonic will assist Client with the implementation of industry standard best practices for the optimization of Client Content on Client’s BandCamp Pro profile. Client shall have (or must establish) a BandCamp Pro account and provide necessary information concerning same to Symphonic. Symphonic will deliver Client Content to BandCamp as a DSP so that Client will not need to redeliver Client Content to BandCamp. Client agrees and acknowledges that Symphonic shall charge nine dollars and ninety-nine cents ($9.99 USD) per month to Client’s Royalty account for such BandCamp Services and that Symphonic reserves the right to increase such cost consistent with market changes related to same. If Client has an Advance in recoupment Symphonic reserves the right to require BandCamp revenue to be directed to Symphonic towards such recoupment. Otherwise, BandCamp revenue shall be paid directly to Client from BandCamp.
(h) Video Distribution (Basic, Plus+ or Vevo Only Plan). If Client requests to enroll and is approved for this service, in addition to the Client Content described in Section 2(a) above, Client grants Symphonic the exclusive and worldwide distribution rights for Client’s video productions delivered to Symphonic for distribution hereunder which video recordings shall also be deemed Client Content. Client warrants that Client has the right to grant such exclusive and worldwide distribution rights to Symphonic and has not knowingly granted such license to any other third party that would restrict the rights granted herein. The following plans are available:
The applicable fee for the plan selected by Client may be charged against Client’s Royalty account; billed directly to Client, and/or charged to Client’s payment method in Symphonic’s discretion and Client’s acceptance of this Agreement constitutes authorization for same, in Symphonic’s discretion, if Symphonic distributes video content for Client. Symphonic may provide playlist pitching for video recordings but cannot guarantee placements. Client acknowledges and understands that the partner platforms for such video distribution may change from time to time, and that Symphonic cannot guarantee placement on such platforms despite distribution to same. Client shall supply Symphonic necessary information via the SymphonicMS to deploy distribution of the video recordings representing Client Content. Symphonic may require Client to accept additional Terms & Conditions related to the distribution of such video recordings. Client shall provide additional information and authorizations as needed for Symphonic to provide such video distribution services. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of distribution and exploitation directly in connection with video Client Content.
(i) YouTube Channel Management and Optimization. As used in this section, “YouTube Channels” means any and all so-called channels, pages, profiles, or similar that are owned and/or controlled by Client, as well as Client Content included therein. If Client requests to enroll and is approved for this service, Client shall submit its YouTube Channel(s) to Symphonic for Symphonic’s consideration for management and optimization of such YouTube Channels. With regard to the YouTube Channel(s) accepted by Symphonic (“Client’s Channels”), Client grants Symphonic the exclusive right throughout the Territory and during the Term to (i) manage and monetize Client’s Channels and exploit the Client Content via YouTube and similar platforms; (ii) edit, translate, subtitle, customize or adapt the Client Content in connection with the management of Client’s Channels; (iii) in Symphonic’s sole discretion, enable advertising mechanisms in connection with Client’s Channels and collect the associated Royalties; (iv) publicize and advertise the Client Content on Client’s Channels and collect any and all Royalties related to the exploitation of the Channels and Client Content regarding same; (v) sell and manage any and all advertising inventory with respect to Client’s Channels; and (vi) perform any other act incidental and necessary to these Channel Management and Optimization services. Client hereby represents, warrants and covenants that it shall not directly or indirectly, engage in any Advertising Fraud with respect to Client’s Channels during the Term. (“Advertising Fraud” as used herein means to enable, authorize, allow or encourage any third party, directly or indirectly, to generate advertising data or views through fraudulent, automated or otherwise invalid actions aimed at increasing impressions, skewing or altering impression or view results, or imitating legitimate user actions with respect to the Client Content.). If, in Symphonic’s discretion, Symphonic determines that Client has engaged in any Advertising Fraud with respect to Client’s Channels during the Term, then without limiting any of Symphonic’s rights and remedies (including, without limitation Symphonic’s rights to indemnification hereunder), Symphonic shall have the right, in its discretion, to invoke any and all remedies available to Symphonic at law, in equity, and as set forth herein, including as set out in Section 9, and otherwise. Subject to the terms of this Agreement, Client will be entitled to receive seventy percent (70%) of the Royalties actually received by Symphonic as a result of such YouTube Channel Management and Optimization services directly in connection with Client’s Channels and Client Content.
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Certain services may not be enrolled via the SymphonicMS. Following are additional Services which require application, approval by Symphonic and a separate Agreement between the Parties: |
(j) Other Services by Application Only. Symphonic offers other services including, but not limited to, Synchronization Licensing, Physical Distribution, Web3, Marketing Diagnostics, Campaign Marketing Services (Graphic Asset Design, Digital Advertising, Streaming Promotions), Collaborative Corporate Marketing Campaigns, Publishing Administration and other related services. Such services are by application only, are subject to additional fees and are not included in the services and fees designated herein or services that Client may opt-into via their SymphonicMS account. Upon request, Symphonic can provide additional information regarding the application process for these other services. Such other services require approval by Symphonic and a separate Agreement between the Parties.
(k) Additional Service Upgrades. Additional upgrades may be available to Client within their SymphonicMS account and selecting such upgrades may incur a one-time charge for usage that will be billed directly to Client at the time such service upgrade is selected. Additional service upgrades include such options as expedited delivery of Client Content.
4. Intentionally Deleted.
5. Account; Delivery; Storage; Content.
(a) Identity Verification. Client is required to submit to individual identity verification at the time of onboarding and at any time during the Term of this Agreement (or any other Existing Agreement) in the sole discretion of Symphonic. The terms of this Agreement, including Symphonic’s provision of any services agreed upon herein, Client’s access to the SymphonicMS, and Symphonic’s payment of Royalties to Client, are conditioned upon Client successfully completing such identity verification. In the event Client fails to successfully complete such identity verification as requested by Symphonic, Symphonic reserves all rights and remedies set forth herein including, but not limited to, the termination of the Term of this Agreement and/or any other Existing Agreement, the remedies designated to Symphonic in Section 9 and 11 herein, and as otherwise deemed appropriate by Symphonic. Such identity verification may include submission of identity verification documentation for the Client (e.g., driver’s license, passport, and/or other documents as may be requested in the identity verification process). Client shall be required to keep such identity verification requirements updated during the Term and may be requested by Symphonic to repeat the identity verification process at any time. No refunds will be issued for Clients who are unable to successfully complete the identity verification process.
(b) SymphonicMS Account. The Symphonic Management System (“SymphonicMS”) is Symphonic’s online account management system. Client shall be provided access to the SymphonicMS after executing this Agreement and being onboarded with Symphonic (and after successfully submitting to Identify Verification as may be required by Symphonic). As further detailed herein, Client shall use the SymphonicMS to, among other things, upload and manage their Client Content and access Symphonic’s analytics related to Client’s account and Client Content. Client shall be solely responsible for ensuring that Client Content and account details are correct and updated in SymphonicMS at all times. Symphonic adheres to a “one account, one owner” policy. The Client identified herein (and the e-mail address provided at sign-up) will be the designated account owner for the SymphonicMS account for this Agreement. While there may be additional profiles added to Client’s SymphonicMS account with various administrative functions, Symphonic reserves the right to require only one account profile with the designated status of “owner” and to require any account owner changes (including owner e-mail address) to be approved by Symphonic. Symphonic may require the execution of a new agreement to effectuate such change to the account owner and may require the new account owner to complete the identity verification process described in Section 5(a). The account owner is responsible for any and all acts and/or omissions of any other third party that the Client provides access to Client’s SymphonicMS account. Further, Symphonic reserves the right to require that any and all payments to be made to Client pursuant hereto be made only to the contracting party.
(c) Delivery; Updates (Revisions, Replacement, Re-Delivery). Client shall promptly deliver Client Content and related data to Symphonic via the SymphonicMS following the Effective Date hereof, and during the Term, pursuant to the terms of this Agreement, at Client’s own expense. Each DSP has standards and requirements for Client Content and related data which are generally encompassed in the required specifications set forth on SymphonicMS. Client shall deliver Client Content to Symphonic in a technically and commercially satisfactory manner that complies with the required specifications set forth on SymphonicMS and in accordance with DSP and other platform requirements. The required specifications set forth on SymphonicMS and by the DSPs and other platforms to which Symphonic delivers Client Content may change from time to time. Client shall ensure that its Client Content and related data is correct and final prior to delivering same to Symphonic for approval. Client’s submission of Client Content to Symphonic is not deemed complete until Symphonic provides confirmation. Symphonic and/or DSPs and platforms to which Symphonic delivers Client Content may deny Client Content for various reasons and/or may require re-delivery, replacements or revisions for compliance with required specifications, including, but not limited to, as further set forth in Sections 5(f), 5(h) and 9 hereof. To the extent feasible, Symphonic may conform Client Content and related data to required specifications and style guidelines, and Client expressly authorizes same. If requested, Client shall promptly re-deliver, replace, revise or otherwise re-submit Client Content. If Client would like to make a change to any Client Content and/or related data, Client shall submit any requested changes via SymphonicMS. Symphonic cannot guarantee that Symphonic, nor any DSP or third-party service provider, will acknowledge or agree to any requested change(s) and/or that any such change(s) will not impact Client’s analytics, streaming numbers and/or other data. During the Term Client shall not directly contact any DSP regarding Client Content.
(i) Data Usage. The grant of rights to Symphonic includes the right to use Client Content and/or related data in a de-identified, aggregated form, e.g.: Symphonic may use information and data arising from or generated, obtained, or acquired by Symphonic in connection with the exploitation of the Client Content such as demographic data, statistical data, anonymized data relating to such activity, including, but not limited to, for calculation of Symphonic’s market share, for the preparation of data and analytics provided to Symphonic’s Clients and other such uses. Symphonic may also use without restriction.
(d) UPC and ISRC Designations; Maintenance Fee; Storage Fee. If Client has a high volume of Client Content consisting of more than two thousand (2,000) tracks, Client may supply their own UPC and ISRC designations, or Symphonic may supply the UPC and/or ISRC designations on Client’s behalf; and Symphonic may apply the following fees:
(i) If Symphonic supplies the UPC and/or ISRC designations on Client’s behalf, Symphonic will assess the following fees: (A) UPC: If Client has more than five thousand (5,000) tracks as Client Content, Client shall be responsible for the cost of their own UPCs; and Symphonic shall purchase such UPCs on behalf of Client at a rate of five hundred twenty-five dollars ($525.00) per five thousand (5,000) UPCs; (B) ISRC: If Client has more than two thousand (2,000) tracks as Client Content, Client shall be responsible for Client’s own ISRC designations; and. Symphonic shall maintain such ISRC designations on behalf of Client at a rate of two thousand dollars ($2,000.00 USD) for each twelve (12) month period of the Term; (C) Maintenance Fee: In addition to the cost to acquire the UPC codes and/or the annual cost to maintain the ISRC designations for Client Content, Symphonic will assess a fee of twenty-five hundred dollars ($2,500.00 USD) related to the facilitation of same for Client for each twelve (12) month period of the Term if Symphonic provides the services set forth in 5(f)(i) and/or (ii); and (D) Costs for UPC, ISRC and Maintenance: Any costs assessed by Symphonic under 5(f)(i)(A), (B) or (C) for each twelve (12) month period of the Term shall be treated as Advances which shall be recouped by Symphonic against Client’s Royalty account, or billed directly to Client, in the discretion of Symphonic in accordance with the Payment terms hereof.
(ii) If Client supplies their own UPC and ISRC designations and has more than two thousand recordings in distribution with Symphonic, then Client shall incur a charge of five cents ($0.05) per track each calendar month during the time that such Client Content is in distribution with Symphonic. This monthly cost shall be treated as Advances which shall be recouped by Symphonic against Client’s Royalty account in accordance with the Payment terms hereof.
(e) Storage. Client is solely responsible for storage and backup of Client Content on Client’s own server(s) or devices. Symphonic may store specific files to facilitate the services provided pursuant to this Agreement, but Symphonic is not obligated or required to store Client Content. Further, Symphonic is not obligated or required to provide copies of Client Content in the event Client requests same. 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. The terms of this Agreement do not impose or impart any storage, backup or retrieval obligations on Symphonic regarding Client Content and/or any related data.
(f) Declined Client Content. Symphonic and/or a DSP may elect not to distribute any Client Content, in the sole discretion of Symphonic and/or the applicable DSP, for any reason, including but not limited to the following: (i) if distribution of such Client Content violates or may violate a statute, law or regulation and/or is subject of any injunction; (ii) if distribution of such Client Content violates or may violate any rights of any third parties and/or entities, including suspected infringement or violation of the intellectual property rights of another; (iii) if distribution of any Client Content constitutes or may constitute a breach by Client of any of the terms and conditions hereof and/or Client’s warranties and/or representations contained herein; (iv) if the Client Content are deemed to be offensive to reasonable standards of public morals; (v) the submitted Client Content does not comply with required specifications of Symphonic and/or the applicable DSP; (vi) the Client Content is scandalous, illegal, hateful, objectionable, pornographic, obscene, defamatory or otherwise offensive; (vii) the Client Content is deemed to violate the Improper Activity provisions hereof; and/or (viii) any other reason as determined in the discretion of Symphonic. Client shall fully cooperate in Symphonic’s investigation of the foregoing. In the event the objectionable material is later eliminated, or the source of objection is removed, to the satisfaction of Symphonic and/or the applicable DSP, Client may resubmit the declined Client Content to Symphonic for reconsideration for distribution hereunder at Symphonic’s and/or the applicable DSP’s sole discretion.
(g) Loss of Rights. Client shall ensure that during the Term and throughout the Territory that Client has all necessary rights in and to the Client Content as required pursuant to this Agreement; and that any third-party contracts which confer such rights to Client comport with the Term and Territory hereof, as well as any and all other terms and conditions of this Agreement. Without limiting Client’s indemnification obligations hereunder, and/or any rights and remedies at law, at equity and/or as set forth herein reserved to Symphonic, if Client no longer has the rights required hereby regarding any Client Content, Client shall immediately notify Symphonic in writing of such loss of rights in accordance with the Notice provisions hereof. For the avoidance of doubt, Client is not permitted to takedown any Client Content in contravention of the Terms hereof as a matter of convenience; and Client warrants that Client has all necessary rights in and to the Client Content as required pursuant to this Agreement for the full Term and throughout the Territory. In Symphonic’s discretion, Symphonic may make exceptions concerning any request for takedown of Client Content by Client.
(h) Advisory Warnings. Client shall be solely responsible for determining the necessity of any advisory warning status as may be applicable to any and all Client Content, including, but not limited to, the need for an “explicit” and/or “parental advisory” status. Client shall indicate such advisory warnings within the SymphonicMS when submitting such Client Content for distribution hereunder.
(i) Takedowns. If Symphonic takes down any Client Content (each, a “Takedown”) pursuant to Section 9 of this Agreement, or otherwise, without limiting any of Symphonic’s available rights or remedies, Symphonic will charge a processing fee of one hundred dollars ($100.00 USD) per track which Symphonic may charge against Client’s Royalty account; invoice Client directly for Client’s payment of a lump sum immediately; and/or Symphonic may charge Client’s payment method on file with Symphonic’s payment processor and Client’s acceptance of this Agreement constitutes Client’s authorization of same.
6. Term; Territory.
(a) Term. The Term of this Agreement will be for an initial period (the “Initial Period”) commencing on the Effective Date hereof and ending on the later of: (i) one (1) year from the Effective Date; and (ii) the last day of the monthly accounting period following the date on which Client’s Royalty account becomes fully recouped hereunder (see Section 7(b) below for additional information on Advances and recoupment). After the Initial Period, this Agreement will auto-renew under the same terms and conditions as set forth herein for successive one (1) year periods (each, a “Renewal Period”) until either Party terminates the Term of this Agreement as provided herein. In addition to Symphonic’s right to terminate as further set forth (unless otherwise modified or amended by Symphonic as set forth herein) in Section 10(a) below, either Party may terminate the Term of this Agreement by giving written notice (a “Termination Notice”) to the other Party no later than one hundred twenty (120) days prior to the end of the then current contract period. The effective date of such termination after either Party’s receipt of a Termination Notice will be the expiration of the then current contract period. In Symphonic’s discretion, Client may be permitted to terminate the Term of the Agreement prior to the end of the then current contract period. However, no refunds (pro-rated or otherwise) shall be issued. The Initial Period and any Renewal Period(s) are collectively referred to herein as the “Term.” The Initial Period and each Renewal Period shall require Client’s payment of the nineteen dollar and ninety-nine cents ($19.99 USD) annual subscription fee, in addition to any other required payments for additional services, fees or expenses as more particularly set forth herein. Symphonic may charge the annual subscription fee against Client’s Royalty account; invoice Client directly and Client shall make payment of the annual subscription fee immediately; and/or Symphonic may charge Client’s payment method with Symphonic’s payment processor. Client’s acceptance of this Agreement constitutes Client’s authorization of same in Symphonic’s discretion. In the event Client does not pay for the subscription fee for any Renewal Period within the time required by Symphonic and/or Symphonic is unable to successfully process such payment from Client’s royalty account and/or authorized payment method, Symphonic may terminate the Term of this Agreement. Notwithstanding the foregoing, if either Party sends a Termination Notice and Symphonic has not recouped any and all Advances (as defined below) paid to Client as reflected on Client’s last Royalty Statement prior to the last day of the then applicable contract period, then the Term shall thereafter automatically renew on a month-to-month basis until the last day of the month in which either: (A) Client’s Royalty account becomes fully recouped; or (B) Client repays to Symphonic an amount equal to one hundred percent (100%) of Client’s unrecouped balance. Written notice of termination shall be provided in accordance with Section 22 below. Client’s submission of a notice of termination to Symphonic is not deemed accepted by Symphonic upon submission. Symphonic reserves the right to conduct a further review to verify that conditions to termination of the Term of this Agreement have been met. Once conditions to termination of the Term of this Agreement have been met, Client may issue request for Takedowns of Client Content via Client’s SymphonicMS account upon the expiration of the Term in accordance with Section 10(a) below.
(b) Territory. The Universe (the “Territory”).
7. Royalties, Fees, Advances, Accounting, Statements and Payment.
(a) Royalties. As used in this Agreement, the term “Royalties” means the revenues actually received by Symphonic directly in connection with the exploitation of Client Content, less Symphonic’s distribution and/or service fees, subscription fee, payment processing fees, DSP fees (e.g. for voided transactions, improper activity, penalties, promotional expenses, publishing withholding, etc. without limitation), promotional program fees, third party charges or other fees, and any refunds, taxes, tariffs and/or other amounts Symphonic is obligated to withhold or pay related to the exploitation of the Client Content. Subject to the recoupment of any and all Advances paid by Symphonic to Client as set forth in Section 7(b) below if applicable, and all of Symphonic’s rights to withhold and/or retain Royalties otherwise due to Client pursuant to this Agreement, Client will be entitled to receive the Client’s percentage share of Royalties designated in connection with each service set out in Section 3 above. Symphonic shall be entitled to retain any and all other revenue as Symphonic’s earned distribution and/or services fees.
(b) Advances. Notwithstanding anything to the contrary contained in this Agreement, any and all amounts other than Royalties (defined in Section 7(a) above) paid to Client or on Client’s behalf by Symphonic shall constitute Advances. 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, or as otherwise provided for herein, pursuant to the terms of this Agreement; may invoice Client directly for same and Client shall pay some directly via lump sum; and/or Symphonic may Symphonic may charge Client’s payment method with Symphonic’s payment processor. Client’s acceptance of this Agreement constitutes Client’s authorization of same. The method of such recoupment shall be in Symphonic’s sole discretion.
(c) Revenue Received by Symphonic. The DSPs and/or other service providers and/or partners to which Symphonic distributes the Client Content for exploitation and monetization of Client Content, and other services set forth herein, calculate the revenue directly attributable to Client Content and pay Symphonic such revenue in accordance with the terms of Symphonic’s agreements with such DSPs and/or service providers. Revenue may vary based on type of content, territory, subscription rates, time of year and various other factors.
(i) Mechanical Royalties received directly by Symphonic. 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) to the Mechanical Licensing Collective (MLC) or similar collection society; (B) directly to the music publishers/writers; and/or (C) as part of an all-in payment to Symphonic. Currently, only a few DSPs pay such mechanical royalties directly to Symphonic. If Symphonic receives revenue for mechanical royalties for the exploitation of the Client Content, Symphonic will identify the amount of the payment(s) that comprise(s) mechanical royalties in the relevant Statement(s). Such Royalties will be payable to Client in the percentages designated to UGC Monetization in Section 3 above, and subject to the terms and conditions hereof. Without limiting Client’s representations, warranties and indemnities under this Agreement, 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.
(d) Accounting/Statements. Symphonic will compute and report the total Royalties, if any, earned by and payable to Client on a periodic basis which shall be reflected on Client’s Royalty Statement(s) (“Statement(s)”). Such Statements will be available to view via SymphonicMS when posted approximately sixty (60) to seventy (70) days after a reporting month ends (each, a “Monthly Submission Date”). Statements may include Royalties from prior months. Symphonic cannot guarantee timely reporting and payment by any DSP or other third party partner where Client Content may be delivered for monetization. Statements will include payments only for DSPs from which Symphonic has received payment(s). If a DSP does not appear on the Statement, the Client Content did not generate any revenue from that DSP during that Statement period, or the DSP has not yet paid revenue to Symphonic for that Statement period with respect to Client Content. DSPs report to Symphonic at different time intervals, and Symphonic cannot guarantee timely reporting and/or payment by each DSP. Symphonic shall have no liability for DSPs’ late or otherwise untimely reporting or payment. Symphonic shall have no obligation to issue a Statement if Client has earned no Royalties during such Monthly Submission Date.
(i) Statement and/or Payment Delay by Symphonic. Client shall promptly advise Symphonic if Client has not received a Statement via SymphonicMS by the applicable Monthly Submission Date. If appropriate, Symphonic will use commercially reasonable efforts to investigate and/or correct the situation. Subject to the terms hereof, Symphonic’s failure to provide a Statement or payment by the Monthly Submission Date shall not constitute a breach hereof.
(ii) Statement and/or Payment Delay by DSPs. In the event that a Statement and/or payment is not timely provided to Symphonic by a DSP, Symphonic will not be deemed in breach of this Agreement for failing to provide a Statement and/or payment with respect to such DSP. Symphonic will use commercially reasonable efforts to resolve such delay with the DSP and/or other third party, and reasonably report such delay to Client via SymphonicMS as appropriate.
(iii) Audit. Each Statement rendered by Symphonic shall be deemed final and incontestable if Client has not provided Symphonic a written objection detailing Client’s objection to such Statement in compliance with the Notice provisions hereof within six (6) months of the posting of such Statement to Client’s SymphonicMS account. Any lawsuit arising from such Statement must be commenced by Client within one (1) year of the posting of such Statement to Client’s SymphonicMS account. Client hereby waives any longer applicable statute of limitations as may be permissible by law. (Notwithstanding the foregoing, Symphonic reserves the right to re-issue a revised Statement, including in the event of Improper Activity as described in Section 9, and/or if any DSP and/or other third party re-issues revised Statements to Symphonic, and same results in a material change to Royalties previously reported and/or paid regarding the Client Content.). Client shall have the right at Client’s sole expense to have a U.S. licensed certified public accountant who is an expert in music royalty payment matters (“CPA”) (who is not then engaged in an examination of Symphonic’s books and records on behalf of a third party) conduct and complete an inspection of Symphonic’s books and records specifically relating to the DSP’s licenses to exploit Client Content and Client’s Royalties and payment activity within one (1) year of the posting of such Statement to Client’s SymphonicMS account. The CPA conducting such audit may not be employed on a contingency fee basis, and prior to commencing an audit, must sign and deliver to Symphonic a copy of Symphonic’s standard confidentiality and non-disclosure agreement. Only those records of DSPs and retailers solely relating to Client Content hereunder shall be available for inspection, and Symphonic may make such redactions as appropriate. Any such inspection shall take place at the location where Symphonic keeps such books and records within the United States during Symphonic’s normal business hours. An inspection may be conducted only once regarding each Statement and only one such inspection may be conducted by Client per calendar year. Client shall provide Symphonic at least thirty (30) days prior written notice of a request to inspect, and Symphonic and Client’s CPA shall mutually agree as to scheduling such inspection. Symphonic shall have the right to rely upon the accounting statements received by Symphonic from DSPs and/or third parties. Symphonic shall not be liable in any manner for any error, omission, or other inaccuracy of any such statement(s) or information received by Symphonic. Any information or materials viewed or obtained by the CPA conducting such audit shall be treated as Symphonic’s Confidential Information (pursuant to Section 14 below) and the CPA shall not be permitted to disclose to Client such data beyond that which is reasonably necessary to report to Client the results of the audit or to permit Client to enforce its rights under this Agreement.
(e) Threshold Amount. Client must meet a Royalties-due threshold of fifty dollars ($50.00 USD) as of Client’s last Royalty Statement posting (the “Threshold Amount”) for Client to be eligible for payment. Any unpaid Royalties will accumulate each month until the Threshold Amount is met at which time Client can request payment within SymphonicMS, subject to the terms of this Agreement. The Threshold Amount is subject to change within reason up to two hundred dollars ($200.00 USD). Provided, however, that in the event of Improper Activity as defined in Section 9 hereof the Threshold may be raised and the account blocked entirely from payment as more particularly detailed herein. Client will be notified via SymphonicMS or e-mail of any such change.
(f) Payments. Subject to the Threshold Amount and all other terms and conditions of this Agreement, including, but not limited to, Client’s timely payment of the required annual subscription fees and successful completion of identity verification as may be required by Symphonic as set forth hereinabove, in order to receive a payment Client must: (i) designate a payment method in Client’s SymphonicMS account from the options available (herein the “Designated Payment Processor”); (ii) complete any additional identity verification requirements as may be requested by Symphonic; and/or the Designated Payment Processor; (iii) submit required tax documentation as set forth in Section 7(g) below and/or as otherwise may be required by Symphonic and/or the Designated Payment Processor; and (iv) issue a payment request via SymphonicMS when Royalty Statements are available and/or other conditions of payments (such as recoupment of any Advance) have been met. Requests for payment may be made up to once per month. All payments referenced herein are made in United States dollar currency. Additional fees may apply for certain payment methods. Client’s failure to provide and maintain complete and accurate payment details and/or to submit a payment request through SymphonicMS may prevent and/or delay Symphonic from paying Royalties to Client. Client represents and warrants that: (aa) all payment information submitted to Client’s SymphonicMS account shall be complete and accurate at all times; (bb) 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 (cc) Client shall indemnify Symphonic against claims, liabilities, losses and expenses (including attorney’s fees) relating to or arising out of any payments made by Symphonic pursuant to such information, including any third party payments as may be directed by Client. Symphonic reserves the right to require that any payments due to Client hereunder are only made to the Client. Symphonic is not required to make any third party payments for Client.
(g) Tax Details. Symphonic conforms to United States IRS-issued guidelines. Client must confirm Client’s tax residency status by submitting Form W-9 (for U.S. residents), or Form W-8BEN (for non-U.S. residents) via SymphonicMS, as well as any additional tax details as may be requested by Symphonic to comply with the terms hereof. Tax details must be kept current in Client’s SymphonicMS account by Client at all times. If any tax information is incomplete, incorrect, or misrepresented, Symphonic may withhold Royalties accrued to Client until such tax information is complete and accurate. Client shall be solely responsible and liable for the payment of any and all taxes with respect to Royalties income paid to Client pursuant to this Agreement. Client and Symphonic each have the status of an independent contractor hereunder, and nothing in this Agreement contemplates or constitutes one Party as agent, employee, joint venturer, fiduciary, or partner of the other. Symphonic will not deduct any payroll-related taxes from any payments to be made to Client under this Agreement.
(h) Third Party Obligations/SplitShare. Client shall be solely responsible for any and all payments, obligations and/or liabilities to its affiliated artists, writers, licensees, producers, and/or any other third parties responsible for the creation of any Client Content and/or whom Client is obligated to pay for any reason in connection with the exploitation and distribution of the Client Content for any and all services to be provided by Symphonic to Client, including, without limitation, payment of any mechanical royalties in connection with the Client Content. Client shall also be responsible for payments, obligations and/or liabilities related to any applicable collective bargaining agreements, third-party licenses, music publishing licenses and/or any other royalties or payments pertaining to Client Content. Solely as a courtesy, convenience and accommodation to Client, Client may enable Symphonic’s SplitShare feature via Client’s SymphonicMS account to request that Symphonic pay a portion of any Royalties otherwise payable to Client to one or more third parties (each, a “Third Party Payee”) directly to such Third-Party Payees on Client’s behalf (“Third Party Royalties”). Such Third-Party Payees may also be required to submit to identity verification and other payment related requirements in order to receive such Third-Party Royalties. Such Third-Party Payees are required to accept the terms and conditions of the SplitShare feature and provide any required information and documentation requested by Symphonic in order to receive such Third-Party Royalties. The provision and accommodation of such SplitShare feature by Symphonic shall not constitute any such Third-Party Payee becoming a beneficiary of or party to this Agreement and does not limit or eliminate Client’s obligation to pay any and all third parties as required in connection with Client Content hereunder. Depending on the status of Client’s Royalty account, and other considerations in the sole discretion of Symphonic, Symphonic reserves the right to limit or prevent use of the SplitShare feature, and to cease any and all payments to any Third-Party Payees at any time in the sole and absolute discretion of Symphonic. Symphonic shall have no liability by reason of any erroneous payment or failure to comply with this accommodation, and Client shall indemnify and hold Symphonic harmless against any claims asserted against Symphonic and any damages, losses or expenses (including reasonable attorneys’ fees) Symphonic incurs by reason of any such payment of Third-Party Royalties or otherwise in connection therewith.
(i) Compliance with Export Control Laws. Client agrees at all times to comply with any and all United States export control laws and similar laws as may be applicable in other jurisdictions, including but not limited to, the Export Administration Regulations (EAR) of the U.S. Department of Commerce; any and all trade and economic sanctions as administered by the Office of Foreign Assets Control (OFAC); and the International Traffic in Arms Regulations (ITAR) as administered by the U.S Department of State. Client acknowledges and agrees that Client is not prohibited from entering this Agreement by any such laws or regulations, is not located in an OFAC prohibited destination, and shall not sell, export, re-export, transfer, divert or otherwise dispose of any products or information received from Symphonic to any destination, entity or person prohibited by any such laws or regulations. To the extent Client becomes subject to such laws and regulations after the Effective Date of this Agreement, Symphonic reserves the right to take any and all measures necessary in the discretion of Symphonic to ensure compliance with such laws and regulations.
(j) Payment Obligations Deemed Satisfied. In the event any payment made by Symphonic to Client or Client’s Third Party Payee as designated by Client and (A) such payment is rejected by the Designated Payment Processor due to Client’s or the Third Party Payee’s geographic region, or otherwise; (B) such payment and/or the recipient of same triggers an OFAC, Anti-Money Laundering or other review; and/or (C) such payment is impermissible due to any applicable laws or regulations, then Symphonic shall nonetheless be deemed to have met its payment obligations with regard to such Royalties and Symphonic shall have no further obligation to Client with respect to such Royalties.
(k) Speculative Nature of Business; Symphonic’s Discretion. Because the exploitation and monetization of Client Content is a highly speculative business, Symphonic makes no guarantee as to any degree of exploitation and monetization of same. Symphonic retains absolute discretion over its exploitation and monetization policies. Nothing contained in this Agreement will obligate Symphonic to distribute or otherwise exploit or monetize Client Content, except as specified herein. Symphonic will use commercially reasonable efforts to exploit and monetize the Client Content, provided that Symphonic makes no representation or guarantee as to the success of such efforts or the level of exploitations or monetization that will be achieved.
(l) 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 Client Content or this Agreement.
8. Client Approvals. 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.
9. Improper Activity.
(a) As used herein, the following activities, and/or any similar activities, constitute “Improper Activity”: (i) any direct and/or indirect creation of fraudulent and/or manipulated streams which includes any method of artificially creating plays of any type or kind of the Client Content on DSPs and/or any other platforms or services where Symphonic may deliver Client Content for exploitation; and/or any direct and/or indirect actions which creates fraudulent and/or manipulated streams that do not represent legitimate streams by genuine consumers; any direct and/or indirect action 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; (ii) any direct and/or indirect infringement upon the copyright, trademark and/or other intellectual property right of any other third party and/or violation of the rights of privacy and/or publicity and/or name, image and likeness of any other third party; (iii) failure to comply with the terms of use of any DSPs and/or any other platforms or third party partners to whom Symphonic distributes Client Content for exploitation hereunder and/or attempt to circumvent same; (iv) the use of artificial intelligence (“AI”) with respect of the Client Content in any manner that is prohibited by law, regulations, terms of usage of Symphonic, the DSPs to which it delivers content and/or any of the other third parties with whom Client submits Client Content for monetization or otherwise; (v) any direct and/or indirect violation of Symphonic’s Terms of Use, any opt-in Terms & Conditions as may apply to services selected on Symphonic’s website and/or direct and/or indirection violation of Symphonic’s Privacy Policy; and/or (vi) any illegal act, misrepresentation, deception, fraud and/or infringement with respect to Client Content and/or that occurs with respect to Client Content. The Parties agree and acknowledge that the foregoing descriptions and examples of Improper Activity are not exhaustive and may vary depending on the circumstances of each case. Symphonic reserves the right in its sole discretion to monitor and take appropriate actions concerning any Improper Activity and/or alleged Improper Activity with respect of the Client Content and/or associated data. Client agrees and acknowledges that laws, regulations, terms of use and other applicable considerations may become effective, change or otherwise be updated after the Effective Date of this Agreement and that it is Client’s responsibility at all times to stay informed of and compliant with same.
(b) Client’s Warranties Regarding Improper Activity. Client acknowledges and agrees that any type or kind of Improper Activity is expressly prohibited and constitutes a material breach of the terms of this Agreement. Client represents and warrants that Client has not heretofore engaged, nor 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 Improper Activity or any similar such activities in respect of the Client Content and/or associated data.
(c) Notification of Claims and Improper Activity. Client is required to and shall promptly notify Symphonic if Client is or may become subject to a third-party claim with respect to any Client Content. Upon request, Client shall promptly provide Symphonic with a copy of any and all communications received by Client in connection with such claim(s). Symphonic shall notify Client if Symphonic receives any claim with respect of Client Content. Client is required and shall also promptly notify Symphonic if Client becomes aware that Client may have or has engaged in any Improper Activity as defined herein.
(d) Rights and Remedies of Symphonic Regarding Improper Activity. In the event that Symphonic suspects or determines through its own review that Improper Activity has or may occur concerning Client Content and/or associated data, and/or Symphonic receives (i) any claim or notice pertaining to any Client Content and/or associated data, and/or (ii) any claim or notice alleging that any Client Content and/or associated data infringes and/or violates the rights of any third party, and/or (iii) any claim or notice that Client and/or Client Content and/or associated data is suspected of and/or has otherwise committed or been engaged in or relates to Improper Activity of any type or kind, then without limiting any of Symphonic’s available rights or remedies hereunder or otherwise, Symphonic shall be entitled to: (A) cooperate with any DSP and/or other platform, service, third party and/or any applicable legal authorities, in any investigation of Improper Activity (and/or as required of Symphonic by any law, regulation, terms of usage or otherwise); (B) suspend or terminate Client’s account, with immediate effect, including suspending or terminating Client’s access to any data and analytics associated therewith (Client understands and acknowledges that Client shall not be entitled to any reimbursement of any fees by Symphonic in connection with any services provided by Symphonic in the event of such suspension or termination); (C) suspend, withdraw, terminate and/or issue Takedowns of Client Content to eliminate Client Content from distribution and/or block or prevent Client from uploading additional Client Content to SymphonicMS for distribution hereunder; (D) withhold and/or retain Royalties whether or not related to the applicable Client Content subject of the Improper Activity, in the sole discretion of Symphonic, including, but not limited to retaining Royalties otherwise payable and or accrued to Client at the time of the assessment or thereafter for the reimbursement of Symphonic (whether or not generated in connection with the applicable Client Content) for costs, expenses, losses and/or potential costs, expenses and/or losses of Symphonic (Client shall forfeit and shall have no legal or equitable interest of any kind, or any right whatsoever, at any time in or to Royalties which Symphonic determines, in its sole and absolute discretion, suspects or deems to constitute, or otherwise attributes to Improper Activity. Such Royalties may be retained by the applicable DSP, and/or may be retained by Symphonic. Client further forfeits and shall have no legal or equitable interest of any kind, or any rights right whatsoever, at any time in or to Royalties which Symphonic determines, in its sole and absolute discretion should be applied to any costs and expenses owed to Symphonic for the remedies available to Symphonic hereunder or otherwise at law or equity and/or are in any way a deemed to be or suspected to be the result of Improper Activity. Any release of Royalty payments to Client shall be without prejudice to Symphonic’s rights to not make Royalty payments in the future pursuant to these provisions and/or to demand repayment of same directly from Client in which case Client shall immediately repay same to Symphonic.); (E) require Client to provide adequate documentation to support the ownership and/or control by Client of Client Content and/or associated data at any time and for any reason the sufficiency of which shall be determined in Symphonic’s sole discretion (Client shall provide such documentation to Symphonic within three (3) business days of Symphonic’s request for same and failure to do so entitles Symphonic to conclusively determine that Client has engaged in Improper Activity in the sole discretion of Symphonic); (F) assess an Investigation Fee related to such Improper Activity against Client in an amount commensurate with costs, expenses, losses and/or potential costs, expenses and/or losses of Symphonic per instance of review of Improper Activity and/or alleged Improper Activity in addition to any applicable Takedown Fees as described in Section 5above and/or any other withholding and/or retaining of Royalties by Symphonic and/or application of improper activity fees and/or penalties by a DSP as described herein. Such Investigation Fee as described in this Section may be charged by Symphonic against Royalties to be paid to and/or accrued to Client at the time such Investigation Fee is assessed or thereafter, and/or Symphonic may bill such Investigation Fee directly to Client in the sole discretion of Symphonic in which case Client shall immediately pay same to Symphonic; (G) require Client to immediately repay one hundred percent (100%) of any then-outstanding unrecouped balance against Client’s Royalty account; (H) invoke any and all indemnification protections provided to Symphonic at law, in equity and/or pursuant to this Agreement including those set forth in Section 11 in the sole discretion of Symphonic; (I) deduct and/or charge any improper activity fee, penalty or other expenses or costs imposed by a DSP or other third party in connection with any of the Client Content from any Royalties accrued and/or payable to Client, bill such expenses directly to the Client in the discretion of Symphonic, and/or Symphonic may charge Client’s payment method on file with Symphonic’s payment processor and Client’s acceptance of this Agreement constitutes Client’s authorization of same; and/or (J) may take any other actions and/or remedies as deemed reasonably appropriate, necessary and/or as required of Symphonic in accordance with applicable laws or regulations and/or terms of usage and contractual obligations to DSPs or other third parties, all in the sole discretion of Symphonic. Client acknowledges that Symphonic’s liability and damages that may result from any direct and/or indirect Improper Activity and/or alleged and/or suspected Improper Activity by Client and/or related to Client Content and/or associated data are unknown and difficult to predict. Client agrees that the foregoing remedies reserved to Symphonic, including, but not limited to, Client’s forfeiture of Royalties, Symphonic’s withholding and/or retaining Royalties, Symphonic’s assessment of an Investigation Fee to Client and/or Symphonic’s termination of Client’s account, are reasonable and are without prejudice to any other rights or remedies of Symphonic at law, in equity and/or as set forth in this Agreement.
(e) Disclosures. Symphonic may disclose information relative to Client and its Client Content to third parties such as DSPs and/or any investigative agencies or personnel to deter, prevent and/or facilitate prosecution of Improper Activity.
10. Expiration of Term; Termination; Breach.
(a) Post-Term Client Content Remaining. Upon expiration or termination of the Term in accordance with the terms of this Agreement, Client may request Takedowns of the Client Content subject of this Agreement within Client’s SymphonicMS account, and Symphonic will thereafter use commercially reasonable efforts to issue Takedowns for Client Content previously distributed under this Agreement. However, Client acknowledges that (i) Symphonic will not be responsible for any failure or delay on the part of a DSP in effectuating a Takedown; and (ii) Symphonic will not be subject to any liability for previously distributed Client Content which remains with DSPs and/or other providers or partners after the expiration or termination of the Term.
(b) Post-Term Payments. Upon expiration or termination of the Term, any Royalties received by Symphonic with respect to Client Content will be handled in accordance with the payment provisions set forth hereiin, subject to all terms and conditions of this Agreement.
(c) Symphonic Rights to Terminate. Symphonic reserves the right to terminate the Term of this Agreement anytime for any reason effective immediately upon written notice to Client via e-mail.
11. Indemnification. Client shall indemnify, defend and hold harmless Symphonic and its affiliates and their respective officers, directors, employees, licensees, successors, assigns, representatives, and agents (individually, “Indemnified Party”; collectively, the “Indemnified Parties”) from and against any and all anticipated, threatened or actual demands, damages, actions, suits, losses, liabilities, obligations, costs, and/or expenses (including reasonable 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 such anticipated, threatened and/or actual demands, damages, actions, suits, losses, liabilities, obligations, costs, and/or expenses, including, but not limited 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; and/or (iii) any act or omission of Client including, without limitation, any claim that any Client Content may violate any law(s) and/or regulation(s), 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 and/or is suspected of and/or engaged in and/or committed, directly and/or indirectly, any other Improper Activity and/or suspected or alleged Improper Activity as described in Section 9 above (each of (i)-(iii), a “Claim”). The Indemnified Parties’ decision in connection with the defense or settlement of any such Claim or demand shall be final. In the event of such Claim(s), in addition to invoking any and all remedies set forth in Section 9 above as designated to Symphonic, and without limiting any of Symphonic’s other available rights or remedies pursuant to this Agreement or at law or in equity, 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 or accrued to Client pursuant to this Agreement, and/or Symphonic may charge Client’s payment method on file with Symphonic’s payment processor and Client’s acceptance of this Agreement constitutes Client’s authorization of same, 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. 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, 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, including this right of Assignment. 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, and any purported assignment and delegation by Client in contravention of the foregoing shall be null and void and have no force and effect. This Agreement shall be binding upon and inure to the benefit of the Parties’ respective assigns, successors, heirs, and legal representatives.
13. Subcontractors and Affiliates. Symphonic may use third-party service providers and/or affiliates to assist Symphonic with services contemplated by this Agreement. Symphonic may delegate or subcontract any of its obligations, and/or sublicense any rights granted to it, to such third-party service providers and/or affiliates in connection with the provision of such services.
14. Confidentiality. Client acknowledges that incident to carrying out the terms of this Agreement, it may come into contact with Symphonic’s confidential information, such as valuable, secret, special, and unique assets or business practices. “Confidential Information” includes, but is not limited to, the terms of this Agreement, lists, Royalty data and reports, marketing and financial tools, pricing information, business plans, relationships, and the terms of agreements with DSPs and other third parties. Client hereby covenants and agrees that, during the Term, and at all times thereafter, it will not disclose the Confidential Information of Symphonic to any other person, firm, corporation, association, or entity for any reason or purpose. Confidential Information may be disclosed as required by law or by a court, governmental agency, or legislative body after providing Symphonic with notice of the potential disclosure.
15. Non-Disparagement. Client shall not make any voluntary statements, written or oral, or cause or encourage others to make any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of Symphonic or Symphonic’s employees, officers or directors.
16. Warranties. In addition to any other representations and warranties as set forth herein, including Client’s representations and warranties that Client has not nor will engage, directly or indirectly, in Improper Activity as set forth in Section 9 above, Client further 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 and has not entered into any agreement or arrangement that limits the performance of Client’s obligations hereunder; (ii) all of the Client Content including audio and audiovisual recordings, musical compositions (including lyrics), artwork, metadata, videos and any other materials delivered by Client to Symphonic are owned and/or controlled by Client and Symphonic’s use and exploitation of any of the foregoing, as authorized and contemplated hereunder, shall not violate any law(s) or regulation(s), nor infringe on the copyrights or other rights of any other third party 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 Client Promotional Materials that are inconsistent with those rights granted to Symphonic herein; (iv) Symphonic shall have the right to exploit Client Content, the underlying musical compositions (including lyrics) embodied therein 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 have or attract publicity that would directly or indirectly adversely affect the status or reputation of Symphonic, Client or the Client Content and/or directly or indirectly tarnish, denigrate or disparage the status or reputation of Symphonic, its affiliates, or any of their respective products, services or trademarks. Client shall notify Symphonic in writing immediately if Client becomes aware of any such act, omission or circumstance.
(a) Failure to Meet Age and Other Eligibility Requirements. To the extent that Client does not meet the eligibility requirements for a Starter account, including the warranties set forth in Section 16 above, Client may be denied access to a Starter account and/or have any existing Starter account terminated. This includes the requirement that Client must be eighteen (18) years of age or older, or otherwise be of legal age of majority under applicable law to entertain into a binding contract and to execute this Agreement and perform all actions required hereunder. In the event of denial of access and/or termination for failure to meet such requirements, a refund will not be issued.
17. Injunctive Relief. Without limiting any of Symphonic’s available rights or remedies, if Client breaches or threatens to breach Client’s obligations hereunder, including but not limited to Client’s exclusivity requirements, 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.
18. 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.
19. Cure Period. 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 within thirty (30) days after the date of Symphonic’s receipt of such notice (or if not able to be cured then resolved to the mutual satisfaction of both Client and Symphonic with Client’s confirmation of same not be unreasonably withheld).
20. Class Action Waiver. Each Party agrees they may only bring claims against the other in Client’s or Symphonic’s individual capacity, and not as a Plaintiff or class member in any purported class or class action lawsuit, or other representative proceeding. Each Party hereto expressly waives any rights to file a class action or seek relief on a class basis.
21. LIABILITY LIMITATIONS; WAIVER OF JURY TRIAL.
(a) EXCEPT FOR THE 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.
22. Notice Requirement. All Notices hereunder shall be given at the following addresses pursuant to the mail methods identified 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: legal@symdistro.com
To Client
(At the address provided to Symphonic in the SymphonicMS.)
Except as provided herein with regard to information provided by Symphonic to Client via e-mail, any notice required hereunder shall be sent by the following methods: (1) by postage prepaid certified mail, return receipt requested if from a location within the United States; (2) by postage pre-paid first class international airmail return receipt requested if from a location outside of the United States; (3) by personal delivery (with a receipt signed by Symphonic or Client, as applicable); or (4) by designated delivery service as defined in 26 USC § 7502(f)(2) with a signature receipt required.
23. Third Party Sites. Symphonic may provide links, referrals and/or other access third-party sites and services. Symphonic does not control such third party sites and services and Symphonic is not responsible for such sites and services. Client acknowledges and agrees that Symphonic will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through any third party site which is linked, referred or accessed via Symphonic.
24. 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. In the discretion of Symphonic, any changes, modifications or amendments of this Agreement will be in writing and reasonably communicated to Client. Client’s clicking an electronic acceptance box or other electronic web-based approval method as may be employed by Symphonic and/or Client’s ongoing use of the SymphonicMS account constitutes Client’s acknowledgment and acceptance of same. Client acknowledges and agrees that Symphonic may submit additional updates and amendments hereto via a web-based and/or other electronic means or form and that same shall constitute an amendment hereto that may modify, supersede and/or replace this Agreement as may be noted within any such amendment or notice. Client’s failure to acknowledge and accept any amendments and/or updates to the terms hereof as may be required by Symphonic may result in the termination of Client’s account. Client’s continued use of the SymphonicMS and acceptance of services from Symphonic constitutes an acknowledgment and acceptance of all updates, amendments, modifications and the like as may be made in the discretion of Symphonic.
25. Privacy Policy & Terms of Use. Client and its agents, signatory authorities, and/or other personnel or affiliates, including third parties to whom Client provides access to Client’s SymphonicMS account, are subject to and shall comply at all times with Symphonic’s Privacy Policy and Terms of Use as set forth as of the Effective Date of this Agreement and as may be revised, amended, modified and/or otherwise updated hereafter. Symphonic’s Privacy Policy and Terms of Use can be found on Symphonic’s website. Symphonic shall have the right to amend, modify or update its Privacy Policy and Terms of Use at any time in Symphonic’s sole discretion. Symphonic may modify or discontinue, temporarily or permanently, the services to be provided (or any part thereof) hereunder at any time. Except as otherwise expressly specified in this Agreement, Symphonic’s collection and use of any personal data of Client, and/or anyone to which Client provides access to Client’s SymphonicMS account, and/or any of Client’s respective payees, artists, employees, representatives, agents, signatory authorities, and/or other personnel or affiliates, are subject to Symphonic’s Terms of Use and Privacy Policy.
26. Further Assurances. Client will do such acts and execute such documents on demand as Symphonic may reasonably request to ensure Symphonic the full benefit of this Agreement, including, but not limited to, promptly and continuously registering Client Content with the U.S. Copyright Office or as otherwise applicable. As set forth herein, Client shall provide any and all documents necessary to evidence Client’s right and title in and to any Client Content upon demand by Symphonic.
27. Interpretation and Severability. If any provision of this Agreement is deemed invalid, the remaining provisions hereof shall stand unaffected. The section and paragraph headings and designations used throughout this Agreement are solely for convenience and reference.
28. Survival. Any and all provisions of this Agreement which by their terms are intended to survive the termination of the Term of this Agreement shall survive such termination.
29. Force Majeure. If Symphonic is materially hampered in the fulfillment of its obligations due to an event not reasonably within its control (e.g. flood, water damage, power failure, catastrophe, terrorism, strike, war, epidemic, pandemic, failure of technical facilities, etc.), Symphonic will not be in breach of this Agreement as a result of any such event and may, upon provision of notice to Client, suspend the Term for the duration of such event.
30. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the 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.
31. Representation. Client acknowledges that Client has read and understood the terms of this Agreement, and that Client has had the opportunity to consult with counsel of Client’s own choosing prior to accepting and entering this Agreement. Symphonic nor any employee, agent or representative of Symphonic is acting as a legal representative of Client nor will provide any legal counsel to Client.