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“.
-
Object of agreement/Specification of services
- 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. 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.
- 3.2a 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.
- 3.4The 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, text messages 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.
- 3.6a 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).
-
Uploading files and bundles/label promotion
- 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 s
- 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).
-
Assignment of rights
- 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 shed by the licensor are no longer included.
o 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-party licences
- 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 actally 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/bundle related to such a take
down, irregardless 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-portal guidelines/ artificial increase of streams and sales
- 7.1 The Licensor and all third parties (performers, remixers, etc.) directly or
indirectly contractually connected with the Licensor are prohibited from
manipulatively intervening or allowing manipulation of any processes on 3rd
portals (in particular 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 releases.
Manipulative is in particular, the artificial increase of the play count or the
follow count, for example with the help of non-real customers, the use of bots,
scripts or other automated processes as well as the granting or receipt of a
(financial or other) consideration.
- 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. 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. If the suspicion cannot be dispelled by the customer, DAD is entitled to
cancel the sales already invoiced and to post the resulting negative amounts to
the licensor's customer account. Should the Licensor's credit balance become
negative as a result, the Licensor is obliged to transfer the negative balance to
DAD within one week. DAD will assign corresponding claims to the Licensor
against the respective 3rd portal to compensate for the chargeback of the credit
balances concerned, so that the Licensor can assert the claims against the 3rd
portal in their own name
- 7.3 The Licensor shall indemnify DAD against all reclaims from the 3rd
portals for such events (co-)caused or initiated by the Licensor and by 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.
- 7.4 From the first suspected case involving the Licensor within the meaning of
this clause 7, DAD is also authorised to demand an appropriate security deposit
from the Licensor, 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 account 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 manipulative interventions according to clause
7.1,
- in the case of reports of copyright infringements on 3rd portals;
- installs more than one account on the homepage;
- abuses services provided by DAD;
- 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
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.
ist.
-
Price, payment, settlement
-
Duration of contract/termination of this agreement,
- 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, whereas fees can be incurred according to point 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.
- 10.3 For one thing, after successful label advertisement an exclusive label
listing and the partnership of a YouTube channel in accordance with Claus 3.7
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.
- 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.
- 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. 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 without regard to 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 Dec. 21st 2020)
