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License agreement

License agreement between Dance All Day Musicvertriebs GmbH, Raiffeisenstraße 4, 83377 Traunstein- Vachendorf,

- hereinafter referred to as "DAD" -

and the user of the website "Feiyr.com", who, by clicking on it when opening a provider account or publishing a file, declares his consent to the validity of this license agreement for the future distribution of this file as well as all previously published and currently distributed files,

- hereinafter referred to as the "Licensor"

 

1. definitions

  • Feiyr.com website - hereinafter referred to as "Homepage".
  • Sales portals operated by third parties, their sub-portals and distribution channels with regard to the downloading and streaming of music titles and data on the Internet and other networks as well as other service providers, also for the use of music and/or video recordings via cell phones and for other mobile services (e.g. iTunes, Spotify, Amazon, YouTube, TikTok, ringtone providers, etc.) - hereinafter referred to as "3rd portals".
  • Books and book content offered and intended for digital distribution in digital eBook formats (also insofar as they are linked to other digital content of a visual or audiovisual nature) - hereinafter referred to as "eBooks" (see Section 13)
  • Music and media productions offered and intended for digital distribution (e.g. songs, videos, ringtones, audio books, etc.), with the exception of eBooks - hereinafter referred to as "Files".
  • Manipulative interventions in any processes on 3rd portals (in particular streaming portals such as Spotify, Deezer, iTunes, Napster, etc.) or their instigation, in particular to place the releases in the charts of the respective 3rd portals or to generate higher revenues through the releases; in particular the artificial increase of the play count or the follow count, for example with the help of non-existent customers, the use of bots, scripts or other automated processes as well as the granting or receipt of a (financial or other) consideration, whereby the suspicion expressed by 3rd portals constitutes a sufficient presumption of manipulative intervention, which must be refuted vis-à-vis the 3rd portal - hereinafter referred to as "artficial streaming".
  • Revenues billed and paid out by 3rd portals from the evaluation of the files that have not been or will not be reclaimed due to incorrect billing or artificial streaming - hereinafter referred to as "net revenues".

 

2 Subject matter of the contract/service description

  • 2.1 The subject of this license agreement is the distribution of the Licensor's files by way of digital distribution and dissemination through 3rd portals. DAD acts as a technical service provider for the Licensor, on whose behalf and responsibility the digital distribution takes place. All files published by the licensor on the homepage and the label created by the licensor on the homepage shall be digitally evaluated as comprehensively as possible in every possible way and forwarded to 3rd portals for the purpose of evaluation on behalf of the licensor. In particular, DAD shall format the "Files" offered and published by the Licensor into various file formats and provide them with metadata, which shall then be used by the 3rd portals for downloads, streaming, storage and retrieval uses in the "Cloud", telephone ringtones and other digital forms of distribution, which can be offered by DAD on the homepage and selected by the Licensor, as well as for advertising in this regard. It is also permitted to combine the audio files provided by the licensor with third-party video material (e.g. YouTube Shorts, TikTok (user-generated content)). If these platforms are selected, each platform user and the platform itself can create their own works by using and/or editing the licensor's files and in turn publish them. If audio swap recording is selected, each YouTube user can create their own works by using and/or editing the licensor's files and in turn publish them. DAD distributes the files and the other products associated with the files in its own name and provides them with its own EAN code/ISRC; the EAN codes are not transferred to the licensor, but are the sole property of DAD. The ISRC, however, remains linked to the respective files even after termination. Insofar as digital exploitation options exist that are not (yet) offered by DAD, the licensor shall inform DAD of this and grant DAD a reasonable period of time to offer the desired exploitation. If DAD is not interested in this or if the deadline expires without DAD offering this exploitation option, DAD shall release this exploitation option to the licensor and transfer the corresponding rights back to the licensor. The distribution of CDs and vinyl sound carriers with the productions offered by the licensor is expressly excluded from this agreement, unless the parties agree otherwise.
  • 2.2 DAD provides the Licensor with a website with numerous functions for the distribution of the files. DAD may change the use of the website or individual functions or the extent to which individual functions and services can be used without the Licensor's consent; however, the basic possibility of distribution shall be maintained in any case. The Licensor is not entitled to use the website in a certain way or at a certain time. The forms of exploitation and advertising options offered by DAD can be found by the licensor on the website and in his provider account. DAD is entitled to temporarily suspend or temporarily limit its services due to maintenance work, capacity limits or to carry out technical measures. DAD is not responsible for the services or for the accessibility of 3rd portals.

 

3 Registration and provider account

  • 3.1 The use of all services, services and other teleservices of the homepage requires the registration of the licensor and the activation of the provider account. In the case of previous registrations, licensors had accepted the previous GTC; new customers now declare their agreement to the validity of the terms and conditions of this license agreement as part of the registration process. There is no entitlement to the conclusion of a contract. A contract is only concluded when the application is accepted by DAD, in the case of new customers by activating the provider account. As part of the publication of a file, the validity of this license agreement is again confirmed by the parties for all future uses of the currently published files.
  • 3.2 Registration is only permitted for legal entities, commercial companies and natural persons with unlimited legal capacity. In the case of companies, the right of representation of the registering person is required and must be proven at a later date upon request. Minors are not permitted to register with DAD. The personal data and information requested during registration must always be correct and complete, e.g. first and last name, current address and mobile phone number (no value-added services or chargeable numbers), a valid e-mail address and, if applicable, the company and the authorized representative of the applicant. When registering, only individual persons may be specified as the owner of the member account, not families, married couples or other groups and organizations, unless they are a legal entity or a commercial company. If the data provided or the bank details required for payment change after registration, the licensor is obliged to correct the details in his member account immediately. DAD is entitled to contest the contract if it turns out that the registration requirements are not met and/or the licensor has provided incorrect information during registration or has not corrected this immediately in the event of a change in data.
  • 3.2a The Licensor hereby agrees that DAD may verify the Licensor's data by means of letters or phone calls no more than once a year in order to ensure proper performance of the contract. If it turns out that the data is incorrect in whole or in part, DAD is entitled to temporarily suspend the Licensor's provider account until the facts have been clarified and any corrections have been made in accordance with Section 8.1 to block it.
  • 3.3 The Licensor must keep his password secret and carefully store and secure access to his provider account. He is obliged to inform DAD immediately if there are indications that a provider account has been misused by a third party.
  • 3.4 Registration as a user is free of charge; the activation of the provider account, however, is subject to a fee: The licensor receives access to his provider account as shown on the portal against payment of a credit (at least €12.00; plus any fees for other services ordered by the licensor), which can be used in the course of using the provider account. The licensor must apply for activation of his provider account by e-mail and by post. This serves to clearly identify the licensor. The fees to be paid upon activation are non-refundable and are also incurred if the licensor does not ultimately use the licensor account, for whatever reason. These and all subsequent deposits are made via the selected payment method (e.g. credit card). The Licensor authorizes DAD to collect the respective amount via the specified payment method.
  • 3.5 The Licensor is generally liable for all activities carried out using his provider account, unless he can prove that he is not responsible for any misuse of his provider account - in particular taking into account the existing duty of care.
  • 3.6 Each licensor may only open one provider account with DAD. Misuse of the provider account, in particular when posting files, is prohibited. DAD reserves the right to delete the provider account of incomplete registrations after a reasonable period of time. The licensor expressly acknowledges that access to the licensor account may not be used to upload unauthorized files or files encumbered with third-party rights.
  • 3.6a A provider account is only transferable with the consent of DAD. If the account is transferred, the new user/licensor enters into the previous contract with all rights and obligations. In particular, the new user must accept all contractual declarations and actions of the previous user/licensor.
  • 3.7 If the licensor has lost or no longer knows his access to the provider account, e.g. user name / password, the licensor has the option of having his user name or password resent to him on the homepage by entering various data himself, e.g. security question / security answer / email address / date of birth etc.. If the licensor no longer knows his data, e.g. security question / security answer / email address / date of birth etc., DAD has no possibility of reactivating the provider account or reading out the user name or password and making them available to the licensor. Should DAD have to technically activate a provider account with new data after a lost user name, password, security question / security answer / email address / date of birth etc., DAD will charge a fee of 50 € for this activation with new user data of the licensor for the associated effort.
  • 3.8 The provider account can also be used to charge for other evaluation activities offered by DAD from time to time and independent of the uploading of files. In particular, DAD may offer to connect the licensor's YouTube channels to the Content ID system as partner channels and to settle the relevant remuneration from YouTube via the provider account, even if this does not concern any contractual files, but independent videos, for example. The term of such a partnership is - unless otherwise agreed - 36 months and is automatically extended by one year if it is not terminated in text form with a notice period of 6 months to the end of the respective term. Any deviating conditions must be agreed separately (e.g. within the framework of the use of the provider account).

4. placement of files and bundles/label application

  • 4.1 DAD provides the Licensor with an online portal that the Licensor can use to upload/upload its files to the DAD provider account. The Licensor agrees that, as a rule, only those files will be accepted that the Licensor uploads himself via the portal and his provider account. Files may only be transmitted by other means (e.g. by post) after consultation with DAD; fees may be charged depending on the additional work involved. Transmission by e-mail is excluded. Access to the portal enables the upload of files, e.g. in wave format (16 bit, 44.1 kHz) or in other formats, which are shown in the upload area of the provider account. The Licensor expressly acknowledges that other file formats cannot be accepted or forwarded by DAD.
  • 4.2 DAD will convert the files uploaded by the Licensor into formats. The Licensor expressly acknowledges that DAD does not edit or correct the individual files, but only formats them and forwards them with the metadata or other information to 3rd portals with which a contractual relationship exists. DAD is also entitled to forward and offer files to new 3rd portals at any time; the only exceptions are 3rd portals that the licensor excluded at the time of publication when he released the respective file for publication. The Licensor undertakes not to contact the 3rd portals commissioned with the distribution in order to demand a takedown of the contractual files and/or compilations due to alleged illegal publication; in the event of a breach of this obligation, the Licensor shall bear any costs and damages as well as an additional lump sum for expenses to be paid to DAD in the amount of EUR 40.00, whereby the Licensor reserves the right to prove that the actual expenses incurred were lower if the activities incurred were remunerated in line with the market.
  • 4.3 The Licensor has no claim to publication of the files or claim to publication of further information and metadata not specified by DAD. DAD is entitled to shorten or abbreviate the files and information at any time if this is specified by 3rd portals. It is not at the discretion of DAD whether 3rd portals publish the files or how the files are offered and presented on the 3rd portals. The licensor has no claim against DAD for a specific type of publication of the files. If 3rd portals do not publish files of the Licensor, the Licensor cannot assert any claims of any kind (in particular compensation for damages or reimbursement of costs).
  • 4.4 The Licensor has no claim to advertising measures by DAD; DAD acts only as a technical service provider. However, DAD may provide the Licensor with advertising tools against payment of corresponding fees according to the respective price list, without the Licensor being entitled to specific tools. As a precaution, it is pointed out that DAD does not guarantee any specific success of the advertising tools.
  • 4.5 The Licensor undertakes not to upload any files with pornographic, violence-glorifying, anti-Semitic, discriminatory, racist or illegal content. The Licensor shall be solely liable for breaches of these obligations.
  • 4.6 The aforementioned provisions of this section 4 apply accordingly to the bundles compiled from files by the Licensor itself.
  • 4.7 DAD shall endeavor to provide the Licensor with the possibility of label advertising on special 3rd portals (e.g. Beatport). If the licensor commissions DAD with such a label application and this application is successful, DAD is entitled to have the respective label of the licensor listed exclusively on the respective 3rd portal and to publish the files and bundles of this label posted by the licensor there. The term for such an exclusive label listing is - unless otherwise agreed - 24 months from acceptance of the application and is automatically extended by one year if it is not terminated in text form with a notice period of 6 months to the end of the respective term. Any deviating conditions must be agreed separately (e.g. in the context of using the provider account).

 

5 Transfer of rights

  • 5.1 The Licensor grants DAD the exclusive transferable and worldwide right to digitally exploit all files and bundles posted and published by the Licensor, in particular for the purposes described in Section 2.1 and clause 5 of this agreement, in particular to offer, publish, make publicly accessible and distribute the files and bundles, in particular for the purpose of digital downloads and streaming by the end user on the Internet in digital sales platforms; this includes in particular distribution through 3rd party portals, to which the Licensor hereby also grants the corresponding rights. When publishing a file or bundle, the Licensor may determine whether the rights are granted for an unlimited or limited period of time. If no time limit is specified, the license is granted for an unlimited period of time.
  • 5.2 The aforementioned granting of rights also includes the rights to store the files and bundles in the databases required for this purpose and to make them available for retrieval, to offer free audio samples in a length corresponding to customary practice and to use the music recordings and any existing audio recordings and/or the associated project names of the music titles via mobile radio systems (e.g. in connection with ringtones, SMS, mobile value-added services) by way of downloading and streaming as well as to exercise the synchronization and editing rights for the aforementioned types of use.
  • 5.3 The granting of the right to comprehensive digital exploitation of the files and bundles also includes in particular the exclusive and worldwide right to combine the files with other files within the framework of special projects (e.g. within the framework of compilations for better marketing of files). Such compilations may also be compiled by other licensors for the purpose of exploitation by DAD. The licensor has the option - without this changing the transfer of rights according to sentence 1 - to object to the use of his files for future projects either in general (by selecting the corresponding function in his provider account) or in individual cases. DAD will inform the licensor about the intended publication of a project. If the licensor does not object within two weeks, DAD will use the project for an initial period of five years from the publication of the project for the purposes described in section 2.1 of this agreement. This period shall be extended by a further year in each case, unless the project is terminated in text form with a notice period of three months to the end of the respective term. If the licensor proves that he was not informed of the publication in advance, he may also object subsequently; in such a case, DAD will redesign the project as quickly as possible so that the files published by the licensor are no longer included.
  • 5.3a The option to combine the audio files published by the Licensor with third-party video material, which is also included in the granting of rights, can generally no longer be revoked once the corresponding form of exploitation has been selected. If the licensor has selected the audio swap function, his publication will be listed by YouTube in an audio swap library. In the course of this, YouTube users are granted the right to use and edit the publications in works created by them in any way and form and to publish the new work on YouTube for an unlimited period of time. The licensor is expressly advised that the subsequent deletion of a publication from the audio swap library only affects the creation of future works; the granting of rights with regard to the works created prior to the deletion remains unaffected.
  • 5.4 The exclusivity of the granting of rights covers all labels created by the licensor in his provider account. This exclusivity shall continue for the entire term of this agreement and, in the case of label applications, even beyond that (pursuant to sections 4.7 and 10.3). During the validity of the label exclusivity, the Licensor is not entitled to distribute music and/or media productions under the affected or confusable labels without the consent of DAD. It is pointed out that trademark protection exists for the labels in accordance with §§ 5, 15 MarkenG; the rights in this regard for exclusive use for the purposes described in section 2.1 mentioned in section 2.1. to DAD.
  • 5.5 However, this agreement does not grant DAD exclusive rights to the artists whose performances form the basis of the files. The licensor and the artist may continue to offer files on other portals in the future that were not offered on DAD, as long as this does not violate the label exclusivity and there is no risk of confusion under trademark law between any new label and the labels created on DAD. In addition, the licensor and the artist may exploit the media productions by means of other forms of distribution that are not the subject of the contract (e.g. vinyls, CDs).
  • 5.6 The Licensor grants DAD the exclusive transferable and worldwide right to use all labels and their label identifiers and the publications posted by him for advertising purposes; this includes in particular the use on the homepage of the distributor, for press releases and in social media such as Facebook and Instagram. The Licensor also grants DAD corresponding non-exclusive rights for the use of the photos and biographies of the performer/artist provided by him. The Licensor expressly consents to the use of photos, label labels and biographies for the aforementioned purposes and warrants that it has obtained the corresponding consents from performers/artists. The licensor has the right to object to the use of photos, biographies and label identifiers mentioned in this section for the future and to specify the specific advertising measures to which he no longer consents. In such a case, DAD shall delete the photos, biographies and label identifiers from its homepage and from the social media channels operated by DAD and named by the licensor within two weeks of receipt of the objection. If the performers/artists are not the licensor, the licensor assures that he has obtained all necessary declarations of consent; if such are not (or no longer) available, the licensor is obliged to inform DAD immediately.
  • 5.7 Since there are different specifications and provisions in the area of Digital Rights Management (DRM) at the 3rd portals, the Licensor expressly authorizes DAD to determine the DRM specifications and the rights to the files transferred to the end user at its own discretion. DAD is also fully authorized to format files into an unprotected format (e.g. MP3) at its own discretion and to forward them to 3rd portals.

 

6 Third-party rights

  • 6.1 The Licensor guarantees that the rights transferred to DAD under this agreement do not infringe or otherwise affect the rights of third parties. This refers in particular to obtaining and settling all copyrights, ancillary copyrights, publishing rights, name rights, trademark rights and other rights associated with the files (including their packaging and cover design), photos and label labels required under this contract (also for the purpose of combining with works of third parties and for the purpose of editing, in particular in the context of audio swap recording) and expressly also to obtaining and settling any necessary distribution rights. The Licensor expressly undertakes to only upload files for which it is 100% certain that it is the owner of all rights and, in particular, has the rights to the recording and all rights to sampled parts or vocals; this also applies in particular to files that participate in the YouTube Content ID procedure (or corresponding procedures of comparable portals) and for which the Licensor holds all necessary rights with worldwide validity and, if necessary, has had them granted in writing by third parties. The Licensor hereby expressly declares that it will refrain from uploading files that infringe the rights of third parties. Likewise, the Licensor undertakes not to use any third-party material to which it does not hold the necessary rights and/or not to infringe any other third-party rights - in particular trademark and personal rights - in the context of this use if files are linked to videos and used on a YouTube channel (or on comparable portals). The same applies to videos without a link to contractual files that the Licensor publishes on a YouTube Partner Channel in accordance with Section 3.8 published.
  • 6.2 The Licensor expressly guarantees that he does not distribute the files and labels posted and published on DAD on any other digital distribution or download portal and that he has not already granted the contractual rights to a third party, in particular not exclusively.
  • 6.3 The licensor also guarantees to DAD that he owns all rights to the files that are required for publication in the context of compilations.
  • 6.4 DAD is entitled, but not obligated to the licensor, to withdraw or delete the respective files and bundles from the market (take down) in the event of a breach of the above guarantees or in the event of a suspicion not immediately dispelled by the licensor. The Licensor shall bear the burden of proof vis-à-vis DAD that he has not violated the guarantees and, in particular, that he has not violated any third-party rights. DAD shall immediately forward any third-party complaints to the licensor. The licensor is obliged to respond truthfully to DAD without delay and to immediately and completely provide all information and documents necessary for the examination of the claims and a defense. The permissible response time of the licensor (usually a maximum of three days) and the exercise of discretion by DAD depend on the severity of the allegation, the probability of the infringement and any deadlines set by third parties. If the licensor is unable to dispel the suspicion immediately, DAD will initiate a take-down at its own discretion. The Licensor acknowledges that DAD cannot make a binding decision as to whether the Licensor is entitled to publish the files offered by him in his own name or whether the rights of third parties are being infringed. DAD is therefore under no obligation to the licensor to check the justification of alleged claims by third parties or to become involved in proceedings. In such a case, DAD is entitled at any time to block and/or delete affected files and bundles or to have them blocked and/or deleted by 3rd portals until the matter has been clarified. However, DAD has no influence on whether the 3rd portals actually comply with these requests and cannot be held responsible for this by the licensor. The Licensor will be charged a processing fee of € 29.99 per affected bundle and € 199.99 per affected compilation for the expenses associated with such a take-down, regardless of how long the files or bundles were published by DAD; this does not include a fee due in the event of premature termination of a publication (Clause 9.2) is covered. If the license fee can dispel the accusation and the publication is repeated, the licensor shall receive the processing fee back. The obligation to reimburse further costs and any damages (in particular pursuant to Section 6.5) shall remain unaffected.
  • 6.5 The Licensor shall indemnify DAD against any justified claims of third parties with regard to the above-mentioned guarantees and shall reimburse DAD for any damages and expenses in this respect, in particular if third parties assert claims against DAD due to infringement of their rights by files posted by the Licensor and/or its other use of the homepage. The Licensor shall also reimburse all costs incurred for the necessary legal defense of DAD, including all court and legal costs, in particular in the event of warnings.
  • 6.6 The Licensor is responsible for the respective settlements and payments of the licenses of its own licensors, i.e. artists, producers and other licensors, which are agreed for the exploitation of the music recordings. Furthermore, the licensor is responsible for the proper settlement of accounts with music publishers, collecting societies, Harry Fox and any other authorized third parties. In this respect, the licensor shall indemnify DAD against claims by third parties who claim entitlement to the proceeds. If such a third party asserts its entitlement to the proceeds against DAD, DAD shall inform the licensor and set a reasonable deadline for clarification of the matter. If clarification cannot be achieved within this period, DAD shall be entitled to withhold the amounts in question or - after a preliminary assessment of the legal situation - to pay them out to the party likely to be entitled (licensor or third party); if payment is made to the third party, the licensor may under no circumstances demand further payment from DAD, but must, if necessary, claim restitution from the third party.

 

7. guidelines for 3rd portals/artificial increase of streams and sales

  • 7.1 The Licensor and all third parties directly or indirectly contractually affiliated with the Licensor (performers, remixers, etc.) are prohibited from any form of "artficial streaming".
  • 7.2 The Licensor is hereby informed that 3rd portals monitor the activities on their websites (in particular with regard to the number of views, the users accessing the websites, their locations and other indications of manipulative or artificially induced views) and, in the event of suspicious activities, block the files concerned, block the payment of the remuneration concerned and demand the return of any remuneration already paid out.
  • 7.3 Should DAD become aware of such incidents or suspicious cases due to its own checks or due to notifications from the 3rd portals, DAD will inform the licensor and request a statement. The licensor is obliged to respond immediately - within two weeks at the latest. This period shall be shortened accordingly if the 3rd portals require DAD to comply with shorter deadlines. If the net revenues are reduced as a result and the Licensor's account balance becomes negative as a result, the Licensor is obliged to transfer the negative balance to DAD within one week.
  • 7.4 Furthermore, the Licensor is entitled to dispel the suspicion against the 3rd portals. Should the Licensor succeed in doing so, DAD shall credit the Licensor with the retained amount as soon as it has been settled and paid out to DAD by the 3rd Portal.

  • 7.5 If the Licensor is unable to dispel the suspicion or if he fails to do so within the period specified in 7.3 DAD is entitled to take the following further measures in order to prevent further reports of manipulative interventions:

    • Initiation of a chargeable deletion, on the file(s) affected by the suspicious operations
    • Withholding of payments

    In the event of repeated suspicious transactions, DAD is entitled to block all of the Licensor's files for delivery to streaming portals or, at its own discretion, to initiate the deletion of all of the Licensor's files for a fee. Should the Licensor's account balance become negative due to a measure taken by DAD, the Licensor is obliged to transfer the negative balance to DAD within one week.

  • 7.6 The Licensor shall indemnify DAD against all reclaims from the 3rd portals for such events (co-)caused or initiated by him as well as by all third parties (performers, remixers, etc.) directly or indirectly contractually connected with the Licensor and shall reimburse DAD for any damages and costs in this regard, e.g. processing costs, legal fees, costs for the necessary legal defense of DAD including all court and legal fees.

    The processing costs on the part of DAD amount to € 30.00 net.
  • 7.7 In addition, DAD is entitled to demand an appropriate security deposit from the licensor from the first suspected case that concerns the licensor within the meaning of this clause 7, the amount of which can be reviewed by the competent court. The purpose of the security deposit is to secure possible further claims of 3rd portals against DAD. The security deposit shall be repaid when the account is deregistered, provided that no claims due to Section 7.2 can be asserted against the licensor or DAD.

 

8 Temporary blocking

  • 8.1 DAD may temporarily block the Licensor's provider account and thus block the possibility of further publication if a Licensor
    • violates legal regulations, third-party rights or the provisions of this license agreement
    • violates the Refusal Codes, which are attached to this License Agreement and can be accessed at www.feiyr.com/c/de/faq
    • has provided incorrect contact details, in particular an incorrect or invalid e-mail address
    • has transferred or attempted to transfer the provider account to other persons or companies;
    • makes unauthorized repurchases (purchase of bundles that were placed and published in Feiyr via the licensor) via download portals or the exclusive stores in order to place bundles in the sales charts;
    • there is a suspicion of artificial streaming which the licensor has not cleared up with the 3rd portal;
    • in the case of reports of copyright infringements on 3rd portals;
    • has set up more than one account on the "Homepage";
    • misuses the services of DAD;
    • harms other licensors;
    • insults other licensors or employees of DAD;
    • uses or uses right-wing extremist or pornographic content, in particular in the names of artists, files and bundles;
    • or there is another important reason that makes it necessary to temporarily block the account.
  • 8.2 During the blocking period, the Licensor shall have the opportunity to dispel any existing doubts as to the legality of its conduct; in the event of a suspicion of artificial streaming expressed by a 3rd portal, the decision of the 3rd portal alone shall be decisive as to whether the suspicion is deemed to have been dispelled. In the event of a possible infringement, DAD may withhold the licensor's credit until the legal situation has been clarified. As long as the licensor is blocked, he may use the homepage and his provider account for information purposes and initiate a payout of his non-withheld credit, but may not upload any new files or publish any more bundles. The licensor may not register again, not even under a different name.
  • 8.3 In the event of fault, DAD is entitled to set a reasonable contractual penalty for the costs associated with a measure in accordance with this clause 8, taking into account the specific costs, the appropriateness of which can be reviewed by the competent court. The obligation to reimburse further costs and any damages shall remain unaffected by this. After payment of this contractual penalty and compensation for any further costs and damages, DAD will lift the blocking if the Licensor has succeeded in dispelling doubts about the legality of its conduct or the Licensor has convinced DAD that no further infringements are to be expected.

 

9 Price, payment, invoicing

  • 9.1 As a rule, the Licensor shall receive from DAD 80 percent of all net revenues (according to clause 1) from the evaluation of the files by 3rd portals, after the corresponding amounts have been settled and paid out to DAD; DAD shall receive 20 percent. Deviating agreements are possible and are specified in the current price list; in particular in the case of the exploitation of files within the framework of projects in accordance with clause 5.3which are realized by DAD, DAD can demand as consideration for the expenses incurred in this context that only 50% of the amounts earned for the project are settled in accordance with sentence 1. If revenues cannot be realized (e.g. in the event of insolvency of a 3rd portal), the licensor shall have no claim for payment against DAD. If 3rd portals reclaim or post previously credited net revenues, these reclaims shall be deducted or balanced from any credit balance of the licensor. If the Licensor's account balance becomes negative as a result, the Licensor is obliged to transfer the negative balance to DAD within one week. Revenues in foreign currencies shall be settled in EUR at the daily exchange rate of the incoming payment.
  • 9.2 DAD offers licensors the possibility (by selecting the corresponding function in their provider account) to issue royalties for artists who are involved in files published via the licensor's provider account. The prerequisite for this is that the artist involved in the file sets up their own provider account on the platform. The royalties issued by the licensor are then billed directly to the participating artist. Settlement and payment to the participating artists shall be made with discharging effect vis-à-vis the licensor.

  • 9.3 In addition, DAD shall charge fees for its services in accordance with the currently valid price list, which is available on the homepage in the Licensor's provider account and can be adjusted by DAD at any time for the future. In particular, the following are subject to a charge

    • the activation of the provider account according to Section 3.4;
    • the posting and uploading of files, whereby DAD may provide that the fees incurred for this are only due in whole or in part upon manual deletion (e.g. in the event of termination of the contractual relationship or premature termination of a publication) and the corresponding claim lapses in the event of automatic termination of the publication;
    • depending on the type and manner of posting or display in certain areas, further fees may be incurred for additional options selected by the licensor;

    When booking a service, the corresponding price is usually displayed for information purposes and is then confirmed by the Licensor at the time of booking.

  • 9.4 DAD receives the invoices for the evaluation of the files from the 3rd portals at irregular intervals. After checking the reported figures and receipt of payment, DAD displays the sales figures and the respective payments in the Licensor's provider account, less DAD's commission share. If desired, the licensor can have the accumulated credit balance paid out at any time from a minimum amount of EUR 25.00 via the payment methods specified online. The payout will be made after a completed check by DAD within a normal and customary period of time. If the Licensor terminates his account with Feiyr and no further settlements are foreseeable, the entire credit balance will be paid out to the Licensor less any counterclaims by DAD, regardless of the minimum amount.
  • 9.5 As long as the Licensor's customer account is neither terminated nor suspended, DAD will make these sales statements and related statistics available to the Licensor exclusively in his password-protected provider account online at feiyr.com; the Licensor cannot demand any further provision of information or billing outside the provider account, e.g. by post, fax or email. If the Licensor does not have access to its provider account (e.g. due to suspension or termination), the Licensor may exceptionally request payment and the provision of information on the statements with a notice period of one week to the end of each quarter. DAD will then send this information to the licensor either by post or by PDF. The Licensor is expressly advised that some 3rd portals report the sales figures with a considerable delay - up to 3 years - and only then pay out the corresponding revenues; DAD has no influence on this.
  • 9.6 Statements of account from DAD to the Licensor shall be deemed to have been acknowledged and approved by the Licensor, unless the Licensor disputes their correctness in writing and substantiated within a period of three (3) months after receipt of the statement.
  • 9.7 The Licensor acknowledges that DAD has no possibility to verify the correctness of the statements transmitted by the individual 3rd portals. The Licensor shall therefore direct all claims against the owner of this 3rd portal in the event of suspicion of incorrect billing at a specific 3rd portal. If necessary, DAD shall assign any of its own claims for information for this purpose.
  • 9.8 The individual fees, commissions, additional fees are due for payment immediately and can be paid via the payment methods offered by DAD in the provider account. If the debt collection fails, the licensor must reimburse the additional costs incurred. Licensors shall be in default without any further reminder or request after a period of 30 days following notification of the invoice amount in the provider account.
  • 9.9 DAD will not check whether the 3rd portals have made the necessary notifications to collecting societies and have properly paid the fees to be paid to collecting societies. It is the sole responsibility of the licensor to check this - both for himself and for the authors and artists involved in the respective media production - and to contact the 3rd portals if necessary; he can use the statistics available in his provider account to see which 3rd portals have exploited his files. If necessary, DAD assigns any of its own claims for information against the 3rd portals to the licensor for this purpose.
  • 9.10 The Licensor assures that he will take care of tax matters himself and obtain the necessary permits for his activities himself. The Licensor declares to indemnify DAD in the event of claims by tax offices, trade offices or similar authorities.
  • 9.11 The licensor is expressly informed that he will only participate in the net proceeds. The extent to which VAT is incurred depends on the tax circumstances in the individual case. DAD expressly reserves the right to adjust the tax treatment accordingly in the event of changes in case law, actual circumstances or the administrative practice of the tax authorities. The Licensor expressly agrees that DAD is entitled to correct the invoices in the Licensor's account retroactively if necessary. This also applies to other invoice corrections that are necessary to correct an initially incorrect factual or legal assessment.
  • 9.12 The Licensor is expressly advised that it is responsible for the storage and archiving of its invoices and sales statistics and must ensure this. The Licensor is expressly advised that DAD will irrevocably delete the statements and sales statistics from the Licensor's provider account after 2 years, provided that no other statutory retention periods (German Commercial Code, Tax Code, etc.) exist. Due to this deletion, the Licensor has no further possibility to access these statements and sales statistics online.

    Should the Licensor demand the return of the statements and sales statistics from DAD despite the deletion of the data, DAD can at best offer the Licensor an attempt to restore the data at the expense of the Licensor. The costs incurred for this are based on the current and customary hourly rates for a programmer (currently € 60.00 net). With an expected time expenditure of 5 hours, the costs for the restoration attempt therefore amount to € 300.00 net. In this context, however, the Licensor is advised that there is no legal claim to the manual processing of the statements and sales statistics for the Licensor, and that DAD cannot guarantee success with regard to the restoration of the sales statistics and statements.

 

10 Term/termination of this agreement, individual releases, label listings and projects/compilations

  • 10.1 With the conclusion of this license agreement within the scope of the registration as licensor or with the publication of a file or bundle, these provisions shall apply both to all publications made from then on and to all future exploitations of the titles previously published by the licensor. The license agreement replaces in particular the validity of the previous General Terms and Conditions of DAD for the future.
  • 10.2 This agreement is concluded for an indefinite period of time. DAD and the licensor have the right to terminate this agreement with a notice period of two weeks; the licensor may also terminate individual publications with the same notice period. The Licensor is advised that in the event of termination of the agreement or individual publications, fees will be charged in accordance with Clause 9.3 may become due. Where possible, the licensor shall terminate the agreement by selecting the corresponding function in the provider account; however, this option is technically impossible if the licensor's provider account does not have the required balance in accordance with Section 10.7 has the required balance. Alternatively, notice of termination may also be given by both contracting parties in text form; however, the Licensor is advised that this may extend the processing time. In the event of written termination, the Licensor must ensure that sufficient credit is available on its provider account from the time of termination until the termination becomes effective so that any fees pursuant to Section 9.3 can be debited. If this is not the case, DAD is entitled, with regard to the request to the 3rd portals pursuant to clause 10.7to delete the files, DAD is entitled to exercise a right of retention until sufficient credit is available.
  • 10.3 The termination of this agreement does not affect the partnership of a YouTube channel in accordance with Section 3.8 and an exclusive label listing after a successful label application pursuant to Section 4.7Unless otherwise agreed, such a listing runs for at least 24 months from acceptance of the application and is automatically extended by one year if it is not terminated in text form with a notice period of 6 months; the same applies to the partnership, the basic term of which is 36 months. The term of a partnership or such a listing and the associated exclusivity of the label (also for all other portals and purposes in accordance with Section 2.1) as well as the exclusive granting of rights with regard to the releases (files and bundles) on which the advertised label is based shall therefore survive termination in accordance with Section 10.2; however, the underlying releases may be terminated like any other release in accordance with Section 10.2 can be terminated separately.
  • 10.4 On the other hand, termination pursuant to clause 10.2 shall not affect the term of special projects (in particular compilations); their term shall be as follows clause 5.3 and shall be extended by a further year in each case if the project is not terminated in text form with a notice period of three months to the end of the respective term. DAD is thus entitled to use the files contained in the respective project even after a termination according to 10.2 for the project until the end of its term; further rights of use then no longer exist. The Licensor is advised that premature deletion of the respective project may result in fees of € 199.00.
  • 10.5 The right to terminate this agreement without notice, the partnership in accordance with Section 3.8the label application pursuant to clause 4.7 and/or special projects for good cause shall remain unaffected; the formal requirements of Sections 10.2, 10.3 and 10.4 accordingly. The question of whether good cause exists must be examined separately for this agreement, the partnership, the label application and special projects. For DAD, such a reason exists with regard to this agreement in particular if at least one of the breaches of duty by the licensor, which leads DAD to temporarily block the provider account in accordance with Section 8.1 have occurred in a material manner or repeatedly. Insofar as the termination without notice results in fees pursuant to Section 9.3 the Licensor does not have to pay these if DAD has caused the termination without notice by conduct in breach of contract.
  • 10.6 The Licensor's ability to use the functions provided on the homepage ends with the effectiveness of the termination of this agreement. Excluded from this are functions for information about incoming revenues and their payment. Only when it is foreseeable that no further revenues are to be settled will DAD delete the provider account so that all data, files and account balances are irrevocably lost; it is no longer possible to restore the deleted data. This terminates the Licensor's right to use the homepage via a provider account.
  • 10.7 Upon effectiveness of the termination of this agreement and payment of any deletion costs, all temporary and permanent licenses with regard to the granting of rights in accordance with Section 5 shall automatically end; however, the rights of use existing within the scope of an exclusive label listing and special projects shall remain in force in accordance with Section 10.3. Section 10.3 and 10.4 shall continue to exist. It is pointed out that the termination of this agreement or of individual publications is associated with the termination of publications with which rights of use have been granted in accordance with Section 9.3 fees for the posting of files may become due, if DAD provides for this in its price list; the Licensor must ensure that his provider account has a corresponding credit balance before termination and, if necessary, arrange for a corresponding payment, as the Licensor is obliged to make advance payments in this respect with regard to DAD's deletion activities. Upon receipt of the notice of termination and any fees due, DAD shall request the 3rd portals to delete the files by the end of the term at the latest. If the files have not been removed from the 3rd portals in due time, DAD shall only be responsible for this if DAD has not issued a deletion order. However, DAD will contact the respective 3rd portals again at the request of the licensor and request deletion. If the deletion does not take place despite the requests from DAD, the licensor can contact the respective 3rd portal directly and request the deletion. The parties undertake not to initially seek legal assistance from the other contracting party and the 3rd portals or to demand reimbursement of costs in order to achieve an amicable solution that is cost-saving for both parties. This shall no longer apply after legal objections have been asserted or a 3rd portal has not responded to the licensor's request within a reasonable period of time.

 

11 Electronic storage of data

  1. The licensor hereby declares his express consent to the electronic storage of all his data required for the fulfillment of this license agreement. DAD is entitled to pass on the data on files and on the person of the licensor to 3rd portals. By registering and posting the files, the Licensor declares his express consent and approval to the publication of the files and to the publication of his personal data on the Internet, in particular on 3rd portals.

    12. communication by e-mail, SMS and post

    DAD is entitled, but not obliged, to inform the Licensor on an ongoing basis via his provider account or by e-mail about the status of the provider account and possible uses of the homepage. Such information and in particular invoices and delivery bills can also be sent by SMS or post. The Licensor consents to the receipt of such messages and the use of his data for these purposes.

    13 Limitation of liability

    • 13.1 Claims for damages by the Licensor are excluded, unless they relate to the culpable breach of a material contractual obligation, injury to life, limb or health or are based on intent or gross negligence on the part of DAD, its employees or vicarious agents. The exclusion of liability also applies to any claims for damages against the employees or vicarious agents of DAD.
    • 13.2 As a precautionary measure, it is pointed out that the 3rd portals are not vicarious agents of DAD, as the distribution of the files through these portals is not part of DAD's contractual obligations, but DAD is only acting as a technical service provider for the licensor in this respect.

 

14. eBooks

  • 14.1 The provisions of this agreement apply accordingly to eBooks, which the Licensor can distribute like files via its provider account.
  • 14.2 With regard to Section 2.1 and the provisions based thereon, the digital distribution of eBooks includes all the usual forms of distribution offered by the 3rd portals, in particular by way of download - also in the form of reload for repeated download -, streaming and time-limited use by the consumer.
  • 14.3 DAD will announce the permissible formats of the eBooks on the homepage.
  • 14.4 It is expressly pointed out that DAD merely acts as a technical service provider that forwards the eBooks posted by the Licensor to 3rd portals and does not assume any tasks of a publisher and, in particular, will not provide any promotional services. The Licensor assumes all duties of a publisher as a self-publisher.

 

15 Other agreements

  • 15.1 DAD and the licensor can reach agreements deviating from this contract by DAD submitting a special offer on the homepage that the licensor accepts. No verbal collateral agreements have been made.
  • 15.2 In the event that a provision of this contract is invalid, the remaining provisions shall remain unaffected. In this case, the contracting parties shall replace the ineffective provisions by mutual agreement with effective provisions that correspond to the purpose of the contract. The same applies to any loopholes.
  • 15.3 DAD is entitled to transfer this contract as a whole or in parts to a third company with discharging effect. The Licensor hereby agrees to such a transfer of contract.
  • 15.4 All disputes arising from this contractual relationship shall be governed by German law to the exclusion of private international law, the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods. The place of performance is Traunstein. The exclusive place of jurisdiction for merchants and licensors residing abroad is Traunstein. DAD reserves the right to sue the licensor at its registered office or, in the case of tortious acts, at the place where the act was committed within the meaning of § 32 ZPO.
  • 15.5 Only the German version of this agreement shall apply. Translations are for information purposes only; DAD has had the translations carried out by a professionally recognized agency, without DAD assuming any liability for the accuracy of the translation.

 

(Version dated 30.01.2023)