Licence agreement
between Dance All Day Musicvertriebs GmbH, Raiffeisenstraße 4, 83377 Traunstein- Vachendorf,
- hereinafter called „DAD“ -
and the user of the website „Feiyr.com“, who, with clicking while creating his account, accepts
this licence agreement for the future distribution of the files as well as all files released before or currently
distributed,
- hereinafter called “Licensor“ -
-
Definitions
- The website Feiyr.com – hereinafter called “homepage“.
- Selling portals run by a third party, subportals and distribution channels regarding the download and
streaming of music files and data as well as further networks and service provider for the use of music
and/or video files via mobile phones and other mobile services (e.g. iTunes, Spotify, Amazon, YouTube,
TikTok, ring tone providers etc.) – hereinafter called “3rd portals“.
- Ebooks and content of ebooks that are offered and intended for digital distribution in digital ebook
formats (including those which are linked to other visual digital or audio visual digital content) –
hereinafter called “ebooks” (see clause 13)
- Music and media productions that are offered and intended for digital distribution (e.g. songs, videos,
ring tones, audio books etc.) except ebooks– hereinafter called “files“.
- Manipulative interventions and/or inducing them in any processes on 3rd portals (in particular the
streaming portals, such as Spotify, Deezer, iTunes, Napster etc.), in particular in order to place the
releases in the charts of the respective 3rd portals or to generate higher revenues through the
publications; in particular, artificially increasing the play count or the follower count for example
with the help of non-existing customers, the use of bots, scripts or other automated processes, as well
as the granting or receipt of (financial or other) compensation, whereby the suspicion expressed by
third portals constitutes a sufficient presumption of a manipulative intervention, which is to be
refuted vis-à-vis the 3rd portal. Hereinafter referred to as "artficial streaming".Revenues from the
evaluation of files billed and paid out by 3rd portals which have not been reclaimed due to incorrect
billing or artificial streaming - hereinafter referred to as "net revenues"
-
Objectofagreement/Specificationofservices
- 2.1 Object of this licence agreement is the distribution of
the Licensor’s files by way of digital distribution and dissemination by 3rd portals. DAD hereby
functions as 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 as well as all labels
established by the Licensor on the homepage shall be assessed as comprehensively as possible digital and
in every way possible and forwarded to 3rd portals for the purpose of evaluation on behalf of the
Licensor. DAD will particularly format the offered and published “files“ of the licensor into different
data formats and tag them with meta data which can then be booked by 3rd portals for downloading,
streaming, memory and recall usage in the “cloud“, ring tones and other forms of digital distribution,
which are offered by DAD on the homepage and can be booked by the Licensor. Also a connection between
the audio files offered by the Licensor and video material of third parties is permissible (i.e. YouTube
Shorts, TikTok (User Generated Content). If these platforms are selected, each platform user as well as
the platform itself may create their own works by using and/or editing the licensor's files and publish
them in turn. In the case of the selection of the audio-swap-recording every YouTube user can create
their own works by using and/or processing of the Files of the Licensor and publish on their part. DAD
distributes the file and all products affiliated at its own direction and DAD provides it with EAN-Code
and ISRC. These EAN-Codes will not be provided to the Licensor, but only DAD is entitled to them. The
ISRC stays connected with the published files, even after a termination of this agreement. Where digital
exploitation possibilities exist, which are not offered (yet) by DAD, the Licensor will point this out
and will allow DAD an adequate time to provide the desired utilization. If DAD is not interested
thereto, or the deadline expires without DAD offers this opportunity DAD will free this possibility for
the licensor and re-transferred the corresponding rights to the licensor. The distribution of CDs and
vinyl sound carriers with productions of the Licensor is excluded expressly from this contract, unless
otherwise stipulated by both parties.
- 2.2 DAD provides the Licensor with a website with numerable
functions for the distribution the Licensor’s files. DAD can change use of the website, of single
features as well as the extent to which those functions and services can be used, at any time without
consent of the Licensor; the possibility of distribution will however be maintained at any rate. The
Licensor cannot claim the use of the homepage in a particular way or at a particular time. The
respective ways of usage and advertisement possibilities offered by DAD can be learnt from the website
and the Licensor’s account. DAD is entitled to temporarily discontinue or reduce its services due to
maintenance work, capacity limits or implementation of technical measures. DAD takes no responsibility
whatsoever regarding the services and accessability of 3rd portals.
-
Registration and account
- 3.1 The usage of all providers, services and other
teleservices of the homepage requires the registration of the Licensor and the activation of the
respective account. Until now Licensors had to accept the General Terms and Conditions on registration;
henceforth new clients accept the conditions of this licence agreement on registration. There is no
right to contract formation. The contract only originates with proposal acceptance by DAD, for new
clients this is at the time of the activation of the account. The validity of this licence agreement is
again confirmed by both parties at the time of the file release for all future usage of the published
files.
- 3.2 Registration is only permissible to legal entities,
trading companies and natural persons with full contractual capacity. Trading companies require an
authorization for representation (which can be claimed by DAD at any time) for the person who registers.
Minors are not allowed to register with DAD. Personal data and information will have to be submitted
completely and correctly at the time of registration, e.g. first and second name, current address and
mobile phone number (no value-added services or chargeable phone numbers), a valid email as well as the
company name and the authorized representative. Upon registration only single persons can hold a member
account – no families, married couples or other groups and organizations, unless it is a legal entity or
a trading company. The Licensor is bound to immediately correct any changes to his personal data stated
in the registration process, including the bank details required for payment. DAD is entitled to contest
the contract if the registration requirements are not met and/or the Licensor’s registration data is not
valid or if changes to the personal data have not been corrected immediately.
- 3.2 The licensor herewith agrees, that DAD is allowed to
verify the licensors data once a year by letter or call, to ensure a proper execution of the contract.
If your data is wrong or partly wrong, DAD is entitled to block the licensors account temporary until
clearance of this matter and until a correction according to 8.1 of this agreement.
- 3.3 The Licensor must keep his password secret and store his
access data accurately. The Licensor is bound to notify DAD immediately if there are signs of misuse of
a member account by third persons or if third persons have gained unauthorized access.
- 3.4 The registration as user is free; the activation of the
provider account however is charged: against a payment (of min. 12€ plus fees for further services
booked by the Licensor) the Licensor will be given access to his provider account on the portal; the
paid fee can be used up on the provider account. The Licensor has to apply for activation of his
provider account via email and mail. This is for the purpose of unambiguous
identification of the Licensor. Fees for the account activation are not reimbursable and will also be
incurred if the Licensor eventually never uses the Licensor account for whatever reason. All payments
will be effected through the method of payment chosen in the beginning (e.g. credit card). The Licensor
authorised DAD to debit the respective amount via the specified method of payment.
- 3.5 The Licensor will be liable for all activities effected on
his provider account, unless Licensor can prove that he is not responsible for an eventual misuse of his
provider account – particularly taking account of the existing due diligence.
- 3.6 Each Licensor may only open one provider account with DAD.
The misuse of any provider account, in particular the uploading of files, is prohibited. DAD reserves
the right to delete provider accounts with incompleted registration after an adequate period of time.
The Licensor expressly acknowledges that access to the Licensor account may not be used for
unjustifiable uploading of third party files.
- 3.6 A provider account is only transferable if DAD agrees. In
case of a transfer the new licensor joins this contract with all rights and responsibilities. In
particular, the new user has to bear all contractual statements and acts of the former user/licensor.
- 3.7 If the Licensor loses or does not remember the access data
to his provider account e.g. user name/password, he can retrieve his user name/password by entering
personal data such as the security question/security answer/email/date of birth on the homepage. It will
be sent to him again. If the Licensor forgets these personal data (security question/security
answer/email/date of birth etc.) DAD will not be able to re-activate the account or to retrieve the user
password for the Licensor. If DAD has to activate an existing provider account after loss of user
name/password/security question/security answer/email/date of birth etc. with new data, DAD will charge
the Licensor a fee of 50€ for the technical effort to activate the account with the new personal data.
- 3.8 With the provider account evaluation actions, which are
offered and uploaded from time to time by DAD and are independent of Files, can also be settled. In
particular DAD can offer to connect YouTube channels of the Licensor as Partner Channel to the
Content-ID-System and to settle in connection with this, refunding of YouTube with the provider account,
even if it does not affect any contractual files, but for example independent videos. The term period of
such a partnership is – subject to other agreements – 36 month and will be automatically extended by a
year if not terminated at a term of 6 months to the end of the expiry of the term period in text form.
Any regulations deviating from this shall be agreed separately (e.g. within the framework of use of the
provider account).
-
Uploadingfilesandbundles/labelpromotion
- 4.1 DAD provides the Licensor with a portal on which the
Licensor can upload/publish his files on his provider account. The Licensor acknowledges that generally
files are only accepted when uploaded by the Licensor on his provider account on the portal. Other means
of data transmission (e.g. postal conveyance) is only permissible after agreed upon with DAD; extra
effort and expense may be charged here. Transmission via email is ruled out. Access to the portal
facilitates the upload of files in wave format (16 bit, 44.1 kHz) or other formats that are displayed in
the upload area of the provider account. The Licensor expressly acknowledges that DAD will not accept
nor forward any other data formats.
- 4.2 DAD will convert the files uploaded by the Licensor into
formats. The Licensor expressly acknowledges that DAD will not edit nor correct the files, they will
only be formatted and tagged with meta data or further information and forwarded to 3rd portals with
which there is a contractual relationship. DAD is entitled at any time to forward and offer files to new
3rd portals, except those 3rd portals that the Licensor excluded at the moment of the release of the
files. The Licensor is committed not to contact 3rd portals which are in charge with the distribution,
to demand a takedown of the contractual files and/or compilations, because of allegedly illegal
publication; in the event of a breach of this obligation the Licensor has to bear all costs and damages
as well as a expending rate of 40.00 € to be paid to DAD, whereby the licensor reserves the proof that
the actual expenses where lower as reimbursement of expenses incurred activities in line with market
conditions.
- 4.3 The Licensor is not entitled to publication of the files
nor to publication of further information and meta data which have not been provided by DAD. DAD is
entitled to abridge and shorten the files and information at any time, if the 3rd portals require so. It
is beyond the control of DAD whether 3rd portals publish the files or how the files are offered and
presented by 3rd portals. The Licensor has no claim against DAD for a specific type of publication of
the files. If the 3rd portals do not publish the Licensor’s files, the Licensor cannot make any claim to
compensation of any kind (no compensation for damages/no reimbursement of expenses).
- 4.4 The Licensor has no right of advertising efforts on the
part of DAD; DAD exclusively operates as technical service contractor. DAD can provide advertising tools
against payment of the current prices, yet the Licensor has no claim to particular tools. As a
precautionary measure it is pointed out that DAD will not assume any warranty for the success of the
advertising tools.
- 4.5 The Licensor shall ensure that his files have no
pornographic, sadistic, violent, anti-Semitic, discriminating, racist, political or radical contents of
any kind. The Licensor shall be exclusively liable for the infringement of these obligations.
- 4.6 The above stated regulations of chapter 4 shall apply
accordingly to bundles of files that the Licensor compiled.
- 4.7 DAD will endeavour to provide Licensor with the
possibility of label application on particular 3rd portals (e.g. Beatport). If Licensor engages DAD to
activate label advertising and the application turns out to be successful, DAD is entitled to have the
Licensor’s label listed exclusively with the respective 3rd portal and to publish the uploaded files and
bundles of the label there. The term period is generally - subject to other agreements - 24 months after
activation of the application and will be automatically extended by a year if not terminated at a term
of 6 months to the end of the expiry of the term period in text form. Any regulations deviating from
this shall be agreed separately (e.g. within the framework of use of the provider account).
-
Assignmentofrights
- 5.1 The Licensor grants DAD the exclusive, transferable and
worldwide right to offer all of his uploaded files and bundles to exploit them digitally and in
particular for the purposes stated in 2.1 and 5. of these regulations, in particular
for the
publication, public availability and distribution of the files and bundles for the purpose of digital
downloads and streaming by the final user on the Internet on the digital selling platforms. Included is
the distribution by 3rd portals to which the Licensor hereby assigns the respective rights. At the time
of publication of the files or bundles the Licensor can determine whether the assignment of rights is
for a limited of unlimited period of time. Where no period is expressed, the license has been granted
for an unlimited period of time.
- 5.2 The above-stated granting of rights also relates in
particular to the storage of files and bundles in the therefore necessary databases, to provide free
audio samples in a customary corresponding length and the preparation for retrieval, the use of music
recordings and audio-visual recordings, where available, and/or the downloading and streaming of the
corresponding project names of the music files via mobile communication systems (e.g. in connection with
ring tones, text messages, mobile value-added services) as well as the dubbing and editing rights for
the aforementioned types of use.
- 5.3 The granting of the right to fully exploit the digital
files and bundles includes in particular the exclusive and worldwide right to combine the files with
other files in the framework of particular projects (e.g. in the framework of compilations for an
improved marketing of files). For the purpose of exploitation of the digital files and bundles through
DAD, such compilations also can be combined by other licensors. The Licensor has - without a change of
the transfer of rights pursuant to sentence 1 - the possibility to oppose to the use of his files for
future projects in general (by choosing the respective function on his provider account) or on a
case-by-case basis. DAD will inform the Licensor of the intended publication of a project. If the
Licensor does not object within two weeks, DAD is entitled to use the project for the purposes stated in
2.1 of this agreement over a period of five years from the date of publication. The
term period will be
automatically extended by a year if the project is not terminated at a term of three months to the end
of the expiry of the respective term period in text form. Demonstrates the licensor that he was not
informed in advance of the publication, he may also object to it later; DAD will change the project as
soon as possible in such a case, so that the files published by the licensor are no longer included.
- 5.3a The possibility, also encompassed by the granting of
rights, to connect audio files published by the licensor with video footage of third parties can usually
not be undone after selection of the appropriate form of exploitation. If the licensor has chosen the
function audio swap, his publication of YouTube will be listed in an audio swap library. In this
context, YouTube users get the right to use the publication of these created works in in any kind and
form and to process as well as publish the now work unlimited on YouTube. The licensor is expressly
pointed out that the subsequent cancellation of a publication from the audio swap library only concerns
the creation of future works; the granting of rights of works created before deletion remains
unaffected.
- 5.4 The exclusivity to which these rights are granted includes
all labels installed by the Licensor on the provider account. The exclusivity shall persist for the
entire duration of the agreement and in case of label advertising even beyond (according to 4.7 and
10.3). During label exclusivity the Licensor is not entitled to distribute music
productions and/or
media productions under the respective or confusingly similar labels without the consent of DAD. It is
pointed out that the labels enjoy trademark protection according to §§5,15 MarkenG (Trade Mark Law);
Licensor grants DAD the respective rights for exclusive usage to the purposes stated in 2.1.
- 5.5 With the present contract DAD will however not hold the
exclusive rights to the artists on whose works the files are based. The Licensor and the artist can
furthermore offer those files on other portals which have not been offered with DAD, provided that they
do not fail to observe the label exclusivity and provided that a likelihood of trademark confusion of a
newly created label with an already existing label offered with DAD can be excluded. Moreover the
Licensor and the artist can evaluate their media productions by other forms of distribution that are not
subject to this agreement (e.g. vinyls, CDs).
- 5.6 The Licensor grants DAD the exclusive transferable and
worldwide rights to use all labels and their label identifiers submitted by them and the publications
submitted by them 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 them. The Licensor expressly consents to the use of photographs, label
identifiers, biographies for the said purposes and warrants that they have obtained the relevant consent
from performers/artists. The licensor has the right to object to the use of photos, biographies and
label identifiers referred to in this clause for the future and to specify the specific advertising
measures to which they no longer consent. In such a case, DAD shall delete the photos, biographies and
label identifiers from their homepage and from the social media channels operated by DAD and named by
the Licensor within two weeks of receipt of the objection. Insofar as the performers/artists are not the
Licensor, the Licensor assures that they have obtained all necessary declarations of consent; insofar as
such declarations of consent are not (no longer) available, the Licensor is obliged to inform DAD
immediately.
- 5.7 Since there are different specifications and regulations
regarding the digital rights management (DRM) with the 3rd portals, the Licensor grants DAD the right to
determine the DRM specifications and therefore also the rights to files that are eventually transferred
to the end user. DAD is furthermore authorized to the full extent to format and forward files in an
unprotected format (e.g. MP3) to 3rd portals.
-
Third-partylicences
- 6.1 The Licensor guarantees that the rights assigned to DAD in
this contract do not violate or otherwise encroach on third party rights. This refers in particular to
the obtaining and compensation of all copyrights related to the files (including design of the packaging
and cover design), pictures and label identifiers all rights existing therein, whether sounding in
copyright, ancillary copyright, publishing rights, trademark rights or any other theory (also for the
purpose of connection with works of third parties and for the purpose of processing, in particular in
the context of Audio-Swap-Recording), as well as the obtaining and settlement of any necessary
dissemination rights. The Licensor expressly undertakes to upload only files for which there is a 100%
guarantee that the Licensor is the owner of all rights and in particular of rights to the recording and
sampled parts or vocals, this is particularly valid with regard to files, which participate at the
YouTube Content-ID process (or equivalent methods of similar portals) and for which the licensor holds
all necessary rights with global validity and if necessary receive rights of third parties. The Licensor
hereby expressly declares to refrain from uploading files which could infringe the rights of third
parties. Equally the licensor is committed not to use material of thirds, in the case of connection of
files with videos and the usage at a YouTube Cannel (or equivalent portals), for which he does not have
the necessary rights and/or to violate within this usage no rights of third parties – particular
trademark and privacy rights. The same applies for videos with no connection to contractual files, which
the licensor releases on a YouTube partner Channel, clause 3.8.
- 6.2 The Licensor expressly guarantees that the files and
labels installed and published by DAD are not being distributed with any other digital distribution or
download portal and that he has not yet given the rights which are the subject matter of this agreement
to any other third party, in particular not on an exclusive basis.
- 6.3 The Licensor furthermore guarantees to DAD that he
possesses all necessary rights for publishing files in the framework of compilations.
- 6.4 In the case of violation of the above mentioned
regulations or if the Licensor delays to avert suspicion regarding a possible infringement of these
regulations, DAD will have the right (not the duty) to withdraw the bundle from the market or to delete
it (take down). The burden of proof that he does not infringe any regulations and in particular any
rights of third parties rests with the Licensor. DAD will forward any claims and/or complaints of third
parties directly to the Licensor. The Licensor is is bound to answer immediately, correctly and in full
and provide all necessary information and documents for the examination of the claims and for a defence
against them. The maximum permitted reaction time for the Licensor (of generally max. three days) and
the exercise of discretion by DAD depend on the seriousness of the accusation and on the likelihood of
an infringement of rights as well as the reaction time allotted by third parties. If the Licensor cannot
dispel any such suspicion of infringement immediately, DAD will carry out the take down at its own
discretion. The Licensor notes that DAD cannot take a binding decision as to which extent the Licensor
is entitled to publish the files offered by him in his own name or if there is an infringement of third
party rights. DAD is therefore not obliged to check the legitimacy of any alleged third party claims nor
to enter into any proceedings. In such a case DAD is entitled to block and/or delete the files and
bundles concerned from the homepage as well as from 3rd portals at any time until clearance of this
matter. DAD has however no control over ensuring that the 3rd portals actually comply with these orders
and cannot be held responsible for this situation by the Licensor. The Licensor will be charged the
costs of € 29.99 per bundle and € 199,99 per affected Compilation related to such a take down,
regardless of how long the bundle was published at DAD; the fee rate falling due for premature
termination of the publication (8.2 of this agreement) is thereby covered. If the
Licensor can dispel
the suspicion of infringement and the publication is repeated, the Licensor will get back the processing
fee. The obligation to refund further expenses and damages (according to 6.5 of this
agreement) remains
unaffected.
- 6.5 The Licensor indemnifies DAD from any alleged third party
claims according to the aforementioned guarantees and will compensate DAD for any damage and expenses
incurred, in particular if third parties claim infringement of their rights by files uploaded by the
Licensor and/or any other usage the Licensor made of the homepage. The Licensor shall reimburse DAD for
all costs required for a legal defence including all court and lawyer costs, - especially in the event
of warnings.
- 6.6 The Licensor is responsible for the respective settlements
and royalties of his own Licensors (that is artists, producers and other Licensors) respectively agreed
for utilization 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 third party
authorized. The Licensor maintains DAD free in respect of claims by third parties who claim an
entitlement to the proceeds. If such third parties asserts its entitlement to the proceeds against DAD,
DAD will inform the Licensor and set a reasonable deadline to clarify the matter. As far as a
clarification cannot be obtained within this period, DAD is entitled to retain the sums in question, or
- according to preliminary estimates of the circumstances – pay to the likely owner (licensor or third
party); if the payment takes place to the third party, the licensor may not demand a new payment of DAD,
but hast to make demands on the third party for payout.
-
3rd-portalguidelines/artificialincreaseofstreamsandsales
- 7.1 The Licensor and all third parties (performers, remixers,
etc.) directly or indirectly contractually connected with the Licensor are prohibited from any form of
"artficial streaming".
- 7.2 The Licensor is hereby notified that 3rd portals monitor
the activities on their websites (in particular with regard to the number of views, the viewing users,
their locations and other indications of manipulative or artificially induced views) and, in the event
of suspicious processes, block the affected files, block the payment of affected remuneration and
reclaim remuneration already paid out.
- 7.3 Should DAD become aware of such occurrences or suspected
cases on the basis of its own checks or on the basis of notifications from the 3rd portals, DAD will
inform the Licensor and request a statement. The licensor is obliged to respond to this immediately - at
the latest within two weeks. This period shall be shortened accordingly if the 3rd portals require DAD
to comply with shorter deadlines. If the net proceeds are reduced by this 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 In addition, the licensor is entitled to dispel the
suspicion against the 3rd portals. If the Licensor succeeds 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
they fail to make a statement within the period specified in 7.3, DAD shall be
entitled to take the
following further measures to prevent further reports of manipulative interference:
- Initiation of a chargeable deletion, of the File(s) affected by the suspicious operations.
- Withholding of payments
In case of repeated suspicious activities, DAD is entitled to block all files of the licensor for
delivery to streaming portals or to initiate a deletion of all files of the licensor with costs at their
own discretion.
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 we
- 7.6 The Licensor shall release DAD of all reclaims from the
3rd portals for such processes (co-)caused or initiated by the Licensor and all third parties
(performers, remixers, etc.) directly or indirectly contractually associated with the Licensor and shall
reimburse DAD for any damages and costs in this respect, e.g. processing costs, lawyers' fees, costs for
the required legal defence of DAD including all court and lawyers' fees.
The processing costs on
the part of DAD shall amount to € 30.00 net.
- 7.7 In addition, DAD shall be entitled to demand an
appropriate security deposit from the Licensor as of the first suspected case involving the Licensor
within the meaning of this clause 7, the amount of which may be reviewed by the competent court. The
purpose of the security deposit is to secure possible further claims by 3rd portals against DAD. The
security deposit shall be repaid when the account is deregistered, provided that no claims can be
asserted against the Licensor or DAD on the basis of clause 7.2.
-
Temporary blocking of account
- 8.1 DAD can temporarily block a Licensor’s provider account
and hence block the possibility of further publication if the Licensor
- violates regulations, third party rights or provisions made in the present licence agreement;
- offends against the refusal codes which can be found in the enclosure or at
http://www.feiyr.com/c/en/faq
- has specified wrong contact data, in particular a wrong or invalid e- mail address;
- transfers or tries to transfer his provider account to other persons or companies;
- effects illicit repurchases (purchase of bundles installed or published on Feiyr by the
Licensor) via download portals or the exclusive shops in order to place bundles in the sales
charts;
- there is a suspicion of artificial streaming which the licensor has not dispelled vis-à-vis the
3rd portal; in the case of reports of copyright infringements on 3rd portals;
- installs more than one account on the homepage;
- Leistungen von DAD missbraucht;
- damages other Licensors;
- insults other Licensors or employees of Feiyr;
- uses radical right-winged or pornographic content of any kind, including the name of artists,
files and bundles;
- or if there is any other important reason which requires the temporary blocking of the
account.
- 8.2 During the suspension of the account the Licensor has the
possibility of clearing the doubts about the lawfulness of his own actions in the case of a suspicion of
artificial streaming expressed by a 3rd portal, the decision of the 3rd portal alone is decisive as to
whether the suspicion is deemed to have been dispelled.In the case of a possible law infringement DAD is
entitled to freeze the Licensor’s credit until clarification of the legal situation. During suspension
of the account the Licensor can use the homepage and his account for information purposes only, he can
ask for repayment of his credit, yet he cannot upload and publish new files and bundles. The Licensor is
not allowed to register again, not even if he uses a different name.
- 8.3 In the case of fault DAD is entitled to stipulate an
appropriate contractual penalty for any effort connected with measures stated in article 8 taking
particular account of the specific effort. The appropriateness can be reviewed by the competent court.
The obligation to refund further expenses and eventual damages remains unaffected. After payment of the
contractual penalty and refund of eventual further costs and damages DAD will unblock the Licensor’s
account, provided that the Licensor has managed to remove the doubts about the lawfulness of his actions
or the Licensor has convinced DAD that there will be no further infringements.
-
Price, payment, settlement
- 9.1 The Licensor generally receives 80 percent of all
net-revenues (according to number 1) from the evaluation of the files by 3rd portals after the
respective amounts were deducted and paid to DAD; DAD receives 20 percent. Individual agreements are
possible and will be entered in the respectively current schedule of prices; especially in the case of
exploitation of files in accordance with project of Clause 5.3, which will be realized
by DAD, DAD may
require as compensation for the expenses incurred in this connection, that only 50% of the proceed for
the project are calculated in accordance with clause 1. If revenues are unrealisable (e.g. due to
insolvency of a 3rd portal), the Licensor has no payment claim against DAD. If 3rd parties reclaim or
book previously credited net proceeds, these reclaims will be deducted or netted 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 currency will be converted
into EUR at the current rate of payment receipt.
- 9.2 DAD offers licensors the possibility (by selecting the
corresponding function in its provider account) to issue shares for artists who are involved in files
that have been published via the provider account of the licensor. The prerequisite for this is that the
artist involved in the file sets up their own provider account on the platform. Subsequently, the
participating artist will be invoiced directly for the share issued by the licensor. The payment to the
participating artists shall be made with discharging effect towards the licensor.
- 9.3 Moreover DAD charges fees for services according to the
current price list retrievable on the Licensor’s provider account on the homepage, which can be adapted
to the future at any time. In particular will be charged:
- the activation of the provider account according to 3.4;
- dinstalling and uploading of files whereas DAD can foresee that all or part of the fees fall due
only with manual deletion (e.g. in the case of a dismissal of the contractual relation or
premature termination of a publication) and the respective claim if the publication expires
automatically becomes invalid;
- further fees for additional options chosen by the Licensor depending on the manner of the upload
or advertisement in certain areas;
When booking a service the respective price will be generally displayed for information purposes and
will then have to be confirmed by the Licensor.
- 9.4 DAD receives the statement of the evaluation of the files
at irregular intervals from the 3rd portals. After examination of the supplied figures and the receipt
of payment DAD will show the sales figures and the respective revenues on the Licensor’s provider
account minus the stipulated commission for DAD. The Licensor can now make a cash out request from his
account of minimum 25 € via the online selected methods of payment. In this case, payment shall be made
after completion of the review by DAD within a period of time that is usual and customary for this
purpose. If the Licensor terminates his account with Feiyr and no further settlements are to be
expected, the whole balance on the account will be paid-out minus eventual counterclaims on the part of
DAD irregardless of the minimum amount.
- 9.5 As long as the licensor's customer account is neither
cancelled nor suspended, DAD will provide the Licensor online with the account of sales and respective
statistics exclusively on the password-protected area of his provider account on feiyr.com; beyond that
the Licensor cannot claim any further conveyance of information or billing outside the framework of the
provider account as for example via post, telefax or email. If the Licensor has no access to his
provider account (e.g. due to suspension or cancellation),, he can exceptionally request the pay-out and
transfer of information regarding the settlement with a period of 7 days to the end of each quarter. DAD
will then send this information to the licensor either by post or by PDF. The Licensor is hereby
explicitly advised that some 3rd portals only convey the sales figures and the respective revenues with
a considerable delay – up to 3 years; DAD has no influence on this.
- 9.6 Settlements by DAD to the Licensor shall be deemed to have
been acknowledged and approved by the Licensor unless the Licensor disputes their accuracy in writing
and in a substantiated manner within a period of three (3) months after receipt of the settlement.
- 9.7 The Licensor shall aknowledge that DAD has no possibility
of checking the correctness of the sales figures reported by the single 3rd portals. In the case of a
suspected mistake in the settlement the Licensor has to address his claims directly against the owner of
the 3rd portal. DAD will forward any eventual claims for information for this purpose, if necessary.
- 9.8 All fees, commissions and additional charges are due for
payment immediately and can be paid via the methods of payment offered by DAD on the provider account.
Where the debt collection fails, the Licensor must reimburse the additional costs incurred. Licensors
will be in default of payment on the provider account 30 days after they were informed of the invoice
amount without an extra payment reminder or notice.
- 9.9 DAD will not check if the 3rd portals effected the
necessary reports to the collecting societies or if they paid the according fees in proper form to the
collecting societies. Checking this and contacting the 3rd portals if necessary is the sole and only
duty of the Licensor – both for himself and for the artists and authors involved in the respective media
productions. By reference to the statistics on his provider account the Licensor can track which 3rd
portals used his files. DAD will forward any eventual claims for information for this purpose to the
Licensor, if necessary.
- 9.10 The Licensor ensures that he will take care of all the
fiscal matters himself and that he will seek all necessary approvals for his business. The Licensor
agrees to indemnify and hold DAD harmless from any claims made by relevant authorities, tax offices,
Trade Licencing Office or other similar offices.
- 9.11 The Licensor is hereby explicitly advised that he only
participate with net proceeds. The extent to which VAT is payable depends on the fiscal circumstances in
the individual case. DAD expressly reserves the right to adjust the tax treatments in the case of
changes of the actual circumstances or the administrative practice of the tax authorities or of law. The
Licensor expressly agrees that DAD is also entitled to correct the accounts in the account of Licensor
if necessary retroactively. This also applies to other accounting adjustments that are required to
correct an initially erroneous factual or legal assessment.
- 9.12 The Licensor is expressly advised that he is responsible
for the storage and archiving of his statements and sales statistics and must ensure this. The Licensor
is expressly informed that DAD will irrevocably delete the invoices and sales statistics from the
Licensor's provider account after a period of 3 2 years, provided that no other relevant statutory
retention periods (HGB, German Fiscal 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
may at most offer the licensor an attempt to restore the data at the licensor's expense. The costs
incurred for this shall be 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 attempted restoration thus
amount to € 300.00 net. In this context, however, it is pointed out to the Licensor that there is no
legal entitlement to the manual preparation 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.
-
Duration of contract/termination of this agreement, single publications, label listings and
projects/compilations
- 10.1 By accepting this agreement upon registration as a
Licensor or upon publication of a file or bundle the present terms are valid for all files that are
published from then on as well as for all future evaluation of files the Licensor published before. As
for the future this licence agreement substitutes the former General Business Terms/Terms and Conditions
of DAD.
- 10.2 This agreement shall be concluded for an indefinite
period. DAD and the Licensor have the right to terminate the agreement within a period of two weeks; the
Licensor can also terminate single publications within the same period. The Licensor's attention is
drawn to the fact that in the event of termination of the Agreement or of individual publications, fees
may become due in accordance with Clause 9.3. Termination of the agreement by the
Licensor should be
effected by choosing the respective function on the provider account; this possibility, however, does
techically not apply if the available credit on the provider account is insufficient for such an
operation (according point 10.7). Alternatively, the termination of the agreement can
be effected by
both contractual partners in text form; it should however be noted that the processing time may
therefore be extended. In the event of written termination, the Licensor shall ensure that sufficient
credit is available on their 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 shall be
entitled to exercise a right of retention with regard to the request to the 3rd portals pursuant to
section 10.7 to delete the files until sufficient credit is available.
- 10.3 For one thing, after successful label advertisement an
exclusive label listing and the partnership of a YouTube channel in accordance with Claus 3.8
will
remain untouched by a termination of this agreement (according to point 4.7); such a
listing will expire
24 months after activation of the advertisement and will be automatically extended by another year if
not terminated by giving 6 months’ notice in text form; the same applies for the partnership, for which
the base period is 36 months. The duration of such a partnership or listing and the connected label
exclusivity (also for all further portals and purposes according point 2.1) as well as
the exclusive
granting of rights regarding the published files and bundles which the advertised label is based on,
shall survive the termination (according to point 10.2). Underlying publications can
however be
terminated separately just like every other publication according to point 10.2.
- 10.4 For another thing, the duration of particular projects
(especially compilations) will remain untouched by termination according to point 10.2; their duration
consists of initially five years according to point 5.3 and will be automatically
extended by another
year if the project is not terminated by giving three months’ notice to the end of the respective term
in text form. DAD is entitled to use the files contained in the respective project even after
termination according to 10.2 until the end of the project term; further rights of
use cease to exist.
The licensor is informed that fees in the amount of € 199.00 may become due in the event of premature
deletion of the respective project.
- 10.5 The right of termination without notice of this
agreement, the partnership in accordance with claus 3.8, the label advertisement in
accordance with
claus 4.7 and/or single projects remains untouched; the regulations stated in the
points 10.2, 10.3 and
10.4 apply accordingly. The decision of whether or not an important reason exists has
to be examined
separately for this agreement, the partnership as well as for label advertisement and particular
projects. For DAD such a reason particularly exists in respect of this agreement, if the Licensor is
guilty of at least one substantial or repeated violation of duty which entitles DAD to block the
provider account according to point 8.1. Insofar as fees are incurred as a result of
termination without
notice pursuant to Section 9.3, the Licensor shall not be required to pay such fees if
DAD has caused
the termination without notice through conduct in breach of the contract.
- 10.6 Upon the effectiveness of the termination of this
agreement, the Licensor’s opportunity of using the functions provided on the homepage expires. Functions
to retrieve information on anticipated revenues and pay-out can still be used. Only when revenues are no
longer likely to arrive, DAD will delete the provider account, so that all data, files and account
credits will be irrevocably lost; a restoration of the deleted data will then no longer be possible. The
Licensor’s right to use the provider account on the homepage ceases to exist.
- 10.7 Upon the effectiveness of the termination of this
agreement and payment of possible deletion fees, all temporary and permanent licenses regarding the
granting of rights according to point 5.1 will end automatically; however, the rights
of use connected
to the framework of exclusive label listings and particular projects remain untouched according to
points 10.3 and 10.4. It should be noted that, connected to the
termination of this agreement or of
single publications, there are terminations of publications, which can entail costs according to point
9.3 for uploading the files, if indicated on the DAD price list. Before termination of
the agreement the
Licensor has to ensure that there is sufficient credit on his provider account and, if necessary,
arrange payment, because the Licensor is obliged to pay in advance the deletion of activities DAD. After
receipt of the termination and all costs deriving from it, DAD will order the exclusive portals and the
3rd portals to delete the files by end of the term at the latest. If the files on the 3rd portals are
not removed within the time allowed, DAD will only be liable, if DAD has not forwarded any deletion
request. Upon request of the Licensor, DAD will, however, contact the respective 3rd portals once again
and request deletion of the files. If the deletion is omitted despite the requests, the Licensor can
contact the 3rd portals directly and request deletion of the files. The parties hereby agree not to take
legal action against the contractual partner and the 3rd portals nor to claim reimbursement of costs, in
order to achieve a mutually agreeable solution that is cost-efficient for both sides. This does no
longer apply after legal objections have been made or if a 3rd portal does not react to the Licensor’s
request within the applicable period.
-
Electronic storage of data
The Licensor hereby declares its express consent to the electronic storage of all its data required for the
performance of this Licence Agreement. DAD is entitled to pass on the data on files and on the person of the
Licensor to 3rd portals.. The Licensor declares upon registration and installation of the files that he
expressly approves and permits the publication of the files and of his personal data on the Internet, in
particular on 3rd portals.
-
Communication via email, text messages and mail
DAD is entitled but not obliged to send information about the status of the provider account and about
further methods of use of the homepage via email or directly on the provider account. Information of this
kind and in particular invoices and delivery notes can also be sent by text message or mail. The Licensor
expressly agrees to the receipt of such text messages and the processing of his personal data as described
above.
-
Limitation of liability
- 13.1 The Licensor cannot claim damages unless wilful
violation of a primary contractual obligation (cardinal obligation) by DAD is involved, in the event of
culpable loss of life or limb or health, or due to wilful intent or gross negligence of DAD, its
employees or vicarious agents. The exemption from liability also includes any claims for damages against
the employees or vicarious agents of DAD.
- 13.2 As a precautionary measure it is pointed out that 3rd
portals are not vicarious agents of DAD, as the distribution of files through these portals does not
belong to the contractual obligations of DAD, but DAD only operates as technical service provider for
the Licensor.
-
eBooks
- 14.1 The regulations of this agreement are valid accordingly
for ebooks, which can be distributed by the licensor like files, with his provider account.
- 14.2 Regarding clause 2.1 and the
regulations based on it, it
is valid, that the digital distribution of ebooks includes all standard sales forms, which are offered
by 3rd portals, especially through download - also in form of reload for further download - , streaming
and the and the time-limited use by the consumer.
- 14.3 The permitted formats of eBooks are published on DADs
homepages.
- 14.4 It is explicitly pointed out, that DAD hereby functions
as technical service provider, who forwards ebooks, which are published by the licensor, to 3rd portals
and does not perform duties of a publisher and in particular no promotional services. All the duties of
a publisher has the Licensor as self- publisher.
-
Further agreements
- 15.1 Agreements differing from this contract can be made if
DAD submits a particular offer on the homepage which the Licensor accepts. Additional verbal agreements
have not been made.
- 15.2 Should one or more stipulations of this agreement be
ineffective, the legal effectiveness of the other regulations remains unaffected. In this case the
contractual partners will replace the ineffective or infeasible stipulation by a legally effective
stipulation. The same applies for potential loopholes in the regulations.
- 15.3 DAD is entitled to assign the present contract either
entirely or in parts to a third party company with a releasing effect. The Licensor herewith agrees to a
possible transfer of contract mentioned above.
- 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. Place of fulfilment 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 address or, in the case of
tortious acts, at the place where the act was committed within the meaning of Section 32 of the German
Code of Civil Procedure (ZPO).
- 15.5 The German version of this agreement is the
authoritative version.
These translations are provided for information purposes only and have no legal force. DAD entrusted the
translations to an officially-recognised translator and will not assume any responsibility for the
accuracy of the translation.
(Version of Jan. 30th 2023)
