Content Agreement

Last Updated: 01/01/2019

This Content Provider Agreement (also referred to as the “Upload Agreement”) between You (“You” or “Your” or “The Content Provider”) and Hexacorp Ltd., a Delaware corporation (“Hexacorp Ltd.” or “The Platform” or “Orfium” or “Orfium.com” or “The Service Provider” or “Us” or “Our”) entered into as of the date You license Digital Media to Us by uploading them to The Platform (the “Effective Date”) is a contract and applies to the Digital Media, as defined below, uploaded by You to The Service, as defined below. This Content Provider Agreement operates in conjunction with The Platform’s Terms of Service applicable to The Service and available at https://www.orfium.com/legal. In the event of any inconsistency between this Content Provider Agreement and the Terms of Service, the terms of this Content Provider Agreement shall govern but only to the extent to resolve the conflict. If You do not agree to the terms of this Content Provider Agreement and Our Terms of Service then do not license Your content to Us and do not upload content to The Platform.

Section 1. Definitions

  • 1.1 The Platform: Includes all websites, web apps, desktop apps, mobile apps, phone apps, and software(s) that are owned by The Service Provider or its subsidiaries or controlled by The Service Provider or its subsidiaries or over which The Service Provider or its subsidiaries exert significant influence.
  • 1.2 Uploaded Content: Any Digital Media uploaded to The Platform by The Content Provider.
  • 1.3 Digital Media: Includes all types of digital text and digital files including audio files, video files, and image files and all copyrights embedded or attached to the digital text and digital files including Musical Assets and Visual Assets.
  • 1.4 Musical Asset: any Sound Recording, underlying Musical Composition, audio copyright, or musical copyright embedded within Digital Media, including but not limited to music notes, music lyrics, stock music, production music, music cues, production elements, sound effects and the like (each one a “Music Asset” and together “Musical Assets”).
  • 1.5 Sound Recording(s): an electrical or mechanical inscription and re-creation of sound waves, such as spoken voice, singing, instrumental music, or sound effects.
  • 1.6 Musical Composition: a succession of pitches or rhythms, or both, including any accompanying lyrics.
  • 1.7 Qualified Non-Exclusive: exclusive representation to provide service only when required by the Content Identification Property and/or by a governing body that has authority over such a transaction/agreement. In the event exclusivity is required, the term of the service shall only extend to the minimum necessary amount of time permitted by the Content Identification Property and/or governing body.
  • 1.8 Visual Asset: any picture, image, artwork, animation, video, visual content, or visual copyright embedded within Digital Media.
  • 1.9 Downloadable Content: Any Uploaded Content that is enabled, via the upload form, for Digital Download from The Platform by The Content Provider.
  • 1.10 Permanent Download (DPD): A digital transmission to the consumer (via Internet, satellite, cell phone, etc.) that allows the buyer to permanently download Digital Media for unlimited non-commercial use.
  • 1.11 Tethered: A digital transmission to the consumer (via Internet, satellite, cell phone, etc.) that allows the subscriber to conditionally, for as long as they subscribe to The Service, stream and download Digital Media for unlimited non-commercial use.
  • 1.12 Streamable Content: Any Musical Asset or Visual Asset embedded in Uploaded Digital Media that may be transmitted as a Digital Stream.
  • 1.13 Digital Stream: A digital transmission to the consumer (via Internet, satellite, cell phone, etc.) that plays music audio and/or video through The Platform’s audio player and/or video player.
  • 1.14 Interactive Stream(ing): A Digital Stream where the consumer has the ability to actively and/or specifically choose the Streamable Content.
  • 1.15 Passive Stream(ing): A Digital Stream where the end user does not have the ability to actively and/or specifically choose the Streamable Content. The term commonly refers to radio play where the songs played are chosen by automated algorithms or terrestrial radio.
  • 1.16 Content Provider: Any person or entity or their agent or the like who uploads Digital Media to The Platform through acceptance of this Content Provider Agreement.
  • 1.17 The Service: Any content, licenses, and services made available by The Service Provider through The Platform to The Content Provider or consumer. The Service includes Content Hosting and Monetization Services.
  • 1.18 Free Content: Any Downloadable Content and/or Streamable Content which the Content Provider makes available on The Platform free of charge to consumers.
  • 1.19 Premium Content: Any Uploaded Content in which the content provider set the monetization preferences to either Full Monetization or Advanced Settings Monetization.
  • 1.20 Content Hosting Services: The Content Provider uploads Digital Media to The Platform for the purpose of displaying, broadcasting, sharing, promoting, selling, or licensing any part of the Uploaded Content.
  • 1.21 Full Monetization: A setting on the upload form that opts-in the Uploaded Content into every service offered by The Service.
  • 1.22 Advanced Settings Monetization: A setting on the upload form where the Content Provider selects a la carte which Monetization Services the Uploaded Content will be opted-in to.
  • 1.23 Monetization Services: Includes Retail Services, Publishing Administration Services, Content Identification Services, and Content Administration Services.
  • 1.24 Retail Services: A category of non-commercial services that includes Retail Digital Downloads, Retail Streaming, and Non-Exclusive Digital Distribution.
  • 1.25 Retail Digital Downloads: Includes both Permanent Downloads & Tethered downloads that are sold and/or licensed to the end-user for non-commercial purposes.
  • 1.26 Retail Streaming: A sub-category of services, Premium Subscription Streaming and Premium Plus Subscription Streaming, that includes both Interactive Streams and Passive Streams that may be sold and/or licensed directly to the end-user, for non-commercial purposes, on a per-use or subscription Tethered basis.
  • 1.27 Premium Subscription Streaming: A Retail Service where consumers are able to Interactively Stream and Passively Stream unlimited Digital Media from The Service for a monthly subscription fee.
  • 1.28 Premium Plus Subscription Streaming: A Retail Service where consumers are able to Interactively and Passively Stream unlimited Digital Media and Permanently Download a fixed amount of Digital Media for a monthly subscription fee.
  • 1.29 Non-Exclusive Digital Distribution: Uploaded Digital Media is non-exclusively distributed to many different third party retail and streaming platforms (such as iTunes, Amazon, Spotify, Google Play, etc.) for the purpose of receiving royalty payments from such third party platforms.
  • 1.30 Publishing Administration Services: A category of services that includes Non-Exclusive Publishing, Micro-Licensing, and Content Administration Services.
  • 1.31 Non-Exclusive Publishing: Licenses, usually worth more than $500 and custom negotiated for each use by The Service on behalf of the Content Provider, are sold on a flat-rate, subscription, and/or metered-use basis for the purpose of using music in commercial capacities, including but not limited to performances, advertising, television, film, theatre, radio, and video game productions.
  • 1.32 Micro-Licensing: Licenses, usually worth $500 or less and standardized for all uses, are sold on a flat-rate, subscription, and/or metered-use basis for the purpose of using Musical Assets in commercial capacities, including but not limited to computer and mobile apps, advertising, television, film, theatre, radio, and video game productions.
  • 1.33 Royalty Free Licensing: The Micro-Licensing of copyrighted material or intellectual property for a one time fee without the need to pay royalties or license fees for each use or per volume sold, or some time period of use or sales.
  • 1.34 Content Administration Services: A category of services in which Digital Media are identified, using a fingerprinting algorithm, metadata scanner, or any other means of identification, and claimed for the purpose of monetizing, blocking, and tracking infringing and/or performed uses of the Uploaded Content.
  • 1.35 Content Identification Property: A third party (including all websites, sub-domains, applications, and/or societies) on which The Service represents all Uploaded Content on a Qualified Non-Exclusive basis for the purpose of administering Content Administration Services.
  • 1.36 Derivative Work: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.
  • 1.37 Derivative Works Monetization: Uploaded Digital Media is associated with a remix, sample, cover song, mash-up, parody, and/or any other Derivative Work that contains parts of the composition or sound recording of the Musical Asset, and the owner of the original Musical Asset is granted rights to the monetization of the Derivative Work on The Platform.
  • 1.38 YouTube Monetization: Uploaded Digital Media is fingerprinted on YouTube’s Content ID system and advertising revenue is generated from YouTube videos in which the fingerprint is detected.
  • 1.39 Facebook Monetization: Uploaded Digital Media is fingerprinted on Facebook’s Content ID system and advertising revenue is generated from uses on Facebook in which the fingerprint is detected.
  • 1.40 Vimeo Monetization: Uploaded Digital Media is fingerprinted on Vimeo’s Content ID system and advertising revenue is generated from uses on Vimeo videos in which the fingerprint is detected.
  • 1.41 Free Radio Play: An elective digital radio service in which Musical Assets are streamed/broadcasted, both non-interactively and interactively, to users of The Platform for free. All Content Providers who opt-in to Free Radio play agree to forgo any mechanical, performance, or any other royalties related to Free Radio Play streams.
  • 1.42 Broadcast Service: Making Uploaded Content available for use to 3rd parties to create a pre-recorded or live performance to multiple simultaneous listeners, including via online radio, podcast episodes, DJ sets, terrestrial radio, and performances in a public setting. The two types of Broadcast Services include Onsite Broadcasts and Offsite Broadcasts, where the Content Provider has the option to participate in either type, both, or none. Further, the Content Provider has the option to make music available for free or for a licensing fee.
  • 1.43 Onsite Broadcast Service: A type of Broadcast Service where the Uploaded Content is curated by a 3rd party and performed to users on The Platform. Common examples include where users on The Platform listen to a live or pre-recorded radio show, podcast episode, or DJ set while using The Platform.
  • 1.44 Offsite Broadcast Service: A type of Broadcast Service where The Platform is used by a 3rd party to perform Uploaded Content in a public setting. Common examples of public settings include restaurants, bars, clubs, radio transmissions, DJ sets, television transmissions, phone and computer applications, and websites that are not part of The Platform.
  • 1.45 Base Earnings: Prorated subscription and licensing revenue, fully inclusive of all royalties, based on metered use. Includes both Onsite Base Earnings and Offsite Base Earnings.
  • 1.46 Onsite Base Earnings: Includes all payments received by The Service Provider, through payment gateways integrated with The Platform for Retail Services, Publishing Administration Services, Onsite Broadcasting Services, and Derivative Works Monetization provided for Uploaded Content.
  • 1.47 Offsite Base Earnings: Includes all payments received by The Service Provider, received outside of payment gateways integrated with The Platform, from third parties for Retail Services, Publishing Administration Services, Offsite Broadcasting Services, Content Identification Properties, and Content Administration Services provided for Uploaded Content.
  • 1.48 Payable Earnings: The share of Base Earnings payable to The Content Provider.
  • 1.49 Service Fee: Share of Base Earnings payable to The Service Provider.
  • 1.50 Confidential Information
: Confidential Information is defined as information provided by Us to You as part of this Agreement or through the secure areas of the Service, or in oral or written correspondence, including but not limited to email, instant message, phone call, text message, and RSS feed. Notwithstanding the foregoing, any information that is previously known to You or that becomes known to You via legal channels of communication other than Us shall not be considered Confidential Information.

Section 2. License

  • 2.1 Aside from the expressed rights licensed by You to The Service, all rights, including title and copyright, in and to the uploaded Digital Media will be retained by You, and no title or copyright is transferred or granted in any way to Us or any third party except as provided in this Content Provider Agreement and the Terms of Service.
  • 2.2 The Content Provider acknowledges that in order for The Service Provider to provide unhindered performance of The Service it is necessary for The Content Provider to grant The Service Provider certain permissions, rights, and licenses to use the Uploaded Digital Media in the capacities required by The Platform.
  • 2.3 The Content Provider has the ability to opt-in and opt-out of individual services offered by The Service Provider on a per-asset basis. By changing the preferences of Your Uploaded Content, the relevant terms in this agreement which apply to Your Uploaded Content may change. The Service has thirty (30) days to take action and initiate any change in service offered.
  • 2.4 You acknowledge that the Digital Media You provide pursuant to this Content Provider Agreement may be purchased or licensed by members and clients of The Platform, current or future, pursuant to the Terms of Service and this Content Provider Agreement. The Platform cannot take responsibility for the compliance by purchasers and licensees or their compliance with applicable copyright law. You acknowledge and agree to the possibility of Digital Media uploaded by You being used in a manner that is not contemplated in this Content Provider Agreement or the Terms of Service. You agree that The Platform will not be liable to You or any person alleging liability on Your behalf for any breach by a licensee of the terms of any agreement respecting Digital Media. At Your request, The Platform will use commercial efforts to assist in the protection of Your intellectual property rights. The Platform will make every effort to comply with the Digital Millennium Copyright Act (DMCA). If You believe someone is infringing on Your copyright, please promptly notify Us so We can take affirmative actions to resolve the dispute. By uploading Digital Media, You agree that The Platform’s actions fall within the ‘Safe Harbor’ provisions of the DMCA (U.S.C. §512).
  • 2.5 By uploading any Digital Media and by opting-in to specific services offered by The Platform pursuant to this Content Provider Agreement, You expressly grant to The Platform the Qualified Non-Exclusive worldwide right and license to make available to the public on The Platform by any means and media now known or later discovered or developed, by wire or wireless means, including the making available to the public of the Digital Media in such a way that members of The Service may access Digital Media from a place and at a time individually chosen by them. Additionally, You expressly grant The Platform the right to collect on Your behalf all fees and royalties becoming due from such current or future service provided by The Platform. The Platform has no intention, and will not, distribute Your Digital Media to other distribution channels or websites without Your consent.
  • 2.6 By uploading or otherwise providing Digital Media, You grant The Service Provider the right to use the Digital Media and/or Your name, likeness, and Biographical information for purposes relating to the promotion of Your Uploaded Content and The Platform. No compensation shall be due for use of the Digital Media and/or Your name, likeness, and biographical information for such business purposes.
  • 2.7 By uploading or otherwise providing Digital Media, You grant The Platform the exclusive right to place advertising on The Platform alongside, before, after, and within the Digital Media itself and end user projects incorporating the Digital Media.
  • 2.8 In Exchange for Content Hosting Services, The Content Provider grants to The Service Provider the non-exclusive, worldwide right to display and to distribute Uploaded Content on the Platform. Payable Earnings are all inclusive of any royalties related to the distribution of Uploaded Content.
  • 2.9 The Content Provider grants to the Platform the non-exclusive, worldwide right to broadcast, transmit, stream (both interactively and non-interactively), and perform on the Platform all Uploaded Content in accordance with the terms of the respective services in which the Uploaded Content is enrolled.
  • 2.10 By uploading or otherwise providing Digital Media that is deemed as ‘Free Content’ by the legal rights holder, You grant The Platform the unlimited use of said content on The Platform, and agree to forgo any mechanical, performance, or digital royalties in exchange for The Service Provider providing hosting services for the Digital Media. The Content Provider has the option to opt-in to Monetizing Services at any time after upload and receive a share of any Base Earnings that are accrued after the opt-in. The Service retains the right to modify its agreement with the Platform. Both the Content Provider and The Service shall allow for a thirty (30) day grace period before the changes to this agreement go into effect.
  • 2.11 For all Uploaded Content enrolled as Downloadable Content, The Content Provider grants to The Service the non-exclusive, worldwide right to reproduce, on The Platform, all Downloadable Content for the sole purpose of allowing users of The Platform to buy and/or download the Downloadable Content. Payable Earnings are all inclusive of any royalties related to reproduction rights, including mechanical royalties. In the event that the Downloadable Content is deemed Free Content, then You agree to forgo any and all royalties related to the reproduction and distribution to The Uploaded Content.
  • 2.12 If specified by You on the upload page, You grant The Platform a non-exclusive license to sell and/or sublicense Your Digital Media through Retail Services. You will have the ability to set the retail price on The Platform for Permanent Digital Download (DPD). All net payments received from such transactions will be included in the Content Provider’s Base Earnings.
  • 2.13 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive Digital Distribution license to globally distribute Your Musical Assets and Digital Media to 3rd parties for Retail Services (Amazon, iTunes, Google Play, etc.). You grant The Platform the right to reproduce and sublicense the Uploaded Content for the purpose of digital distribution to 3rd parties.
  • 2.14 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Sound Recording(s) on youtube.com for the purpose of YouTube Monetization (via YouTube’s Content Identification Service).
  • 2.15 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Musical Composition(s) on youtube.com for the purpose of YouTube Monetization (via YouTube’s Content Identification Service).
  • 2.16 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Sound Recording(s) on Facebook.com for the purpose of Facebook Monetization (via Facebook’s Content Identification Service).
  • 2.17 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Musical Composition(s) on Facebook.com for the purpose of Facebook Monetization (via Facebook’s Content Identification Service).
  • 2.18 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Sound Recording(s) on Vimeo.com for the purpose of Vimeo Monetization (via Vimeo’s Content Identification Service).
  • 2.19 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Musical Composition(s) on Viemo.com for the purpose of Vimeo Monetization (via Vimeo’s Content Identification Service).
  • 2.20 If specified by You on the upload page, The Platform will act the in capacity of Administrator, operating under a Qualified Non-Exclusive license to collect royalties on Your behalf for Musical Composition performances from performance rights organizations (such as ASCAP, BMI, SESAC, none-U.S. based performance rights societies, and Harry Fox) and 3rd party broadcasters.
  • 2.21 If specified by You on the upload page, The Platform will act the in capacity of Administrator, operating under a Qualified Non-Exclusive license to collect royalties on Your behalf for digital royalties owed to You from collective management organizations (such as SoundExchange and none-U.S. based performance rights societies) and 3rd party broadcasters.
  • 2.22 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Musical Composition(s) for the collection of mechanical royalties from monitoring services (such as the Harry Fox Agency and non-U.S. based performance rights societies) and retail services.
  • 2.23 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Sound Recording(s) for the collection of royalties from Content Identification Properties not yet being collected by You.
  • 2.24 If specified by You on the upload page, The Platform will act in the capacity of an administrator, operating under a Qualified Non-Exclusive license to represent Your Musical Composition(s) for the collection of royalties from Content Identification Properties not yet being collected by You.
  • 2.25 If specified by You on the upload page, The Platform will act in the capacity of administrator, operating under a non-exclusive license to represent Your Digital Media for Publishing Administration Services.
  • 2.26 If Specified by You on the upload page, The Platform will act in the capacity of administrator, operating under a non-exclusive license to represent You Digital Media for Micro-Licensing services. You warrant that all necessary rights have been expressly obtained by You for any Digital Media which You opt-in to Micro-Licensing, and no Digital Media will infringe on any third party’s copyright, moral right, trademark, or other intellectual property rights. Provided that the licensed Digital Media is used in accordance with the End-User License agreement and the Terms of Use agreement, You agree to defend, indemnify, and hold harmless the Service and any and licensee, corporate parent, subsidiaries, or affiliates, and each of their respective officers, directors, and employees from all damages, liabilities, and expenses (including reasonable legal fees) arising out of or in connection with any breach or alleged breach of a third party’s rights.
  • 2.27 For all Premium Content enrolled in Free Radio Play, You grant The Service the right to stream/broadcast, both interactively and non-interactively Your Digital Media for free. You agree to waive any and all royalities that would be paid as a result of the Free Radio Play service, including all mechanical royalties, digital royalties, digital transmission royalties, digital streaming royalties, and digital performance royalties that would otherwise be paid to You and/or third party licensing and collections agencies (such as ASCAP, BMI, SESAC, and SoundExchange).
  • 2.28 For all Uploaded Content enrolled in Derivative Works Monetization, the rights holder of the original Digital Media has the right to take down the Derivative Work, has the right to designate a royalty split with the Derivative Work Content Provider, has the right to determine whether the Derivative work will participate in the Free Radio Play service, has the right to determine whether the Derivative work will participate in the Onsite Broadcast Service, and has the right to determine whether the Derivative work Content Provider will be allowed to purchase a license to make the Derivative Work available as Streamable Content and/or as Free Content.
  • 2.29 For all Uploaded Content enrolled in Publishing Administration Services and/or Non-Exclusive Digital Distribution, The Content Provider also grants The Service Provider the non-exclusive, worldwide rights to sublicense display rights of uploaded content. All net payments received from such transactions will be included in the Content Provider’s Base Earnings.
  • 2.30 For all Uploaded Content enrolled in Publishing Administration Services and/or Non-exclusive Digital Distribution, the Content Provider grants to The Service Provider the non-exclusive, worldwide right to sublicense digital transmissions rights, streaming rights, reproduction rights, and distribution rights to Uploaded Content. All net payments received from such sublicensing transactions are to be included in The Content Provider’s Base Earnings.
  • 2.31 The Service Provider has the option, at its sole discretion, to register Digital Media, enrolled in Publishing Administration Services by The Content Provider, with a Performance Rights Organization and append the title of the Music Asset with an identifier such as “-orfium.” The Service Provider may register to collect 40% of the publisher share, or otherwise to effectively collect 20% of the total combined publisher and writer share. The remaining combined publisher and writer share will be allocated to any other publishers and/or writers reported and prorated based on their respective ownership percentages. Any deficiency in publisher share will be added to the writer share or otherwise to effectively ensure that 100% of the writer share and 100% of the publisher share will be paid out by the PRO. All rights, including title and copyright, in and to the enrolled Digital Media will be retained by You, and no title or copyright is transferred or granted in any way to Us or any third party. The Service Provider will ensure that the total performance royalties, including both publisher and writer shares, are effectively shared with The Content Provider as if included in Base Earnings.
  • 2.32 For all Uploaded Content enrolled in Publishing Administration Services and Derivative Works Monetization, The Content Provider grants to The Service the worldwide non-exclusive right to sublicense the rights to create Derivative works of the Uploaded Content. All net payments received from such sublicensing transactions are to be included in The Content Provider’s Base Earnings.
  • 2.33 For all Uploaded Content enrolled in Publishing Administration Services, The Content Provider grants to The Service Provider the non-exclusive, worldwide right to sublicense synchronization and master usage licenses to the Uploaded Content. All net payments are to be included in the Content Provider’s Base Earnings.
  • 2.34 For all Uploaded Content enrolled in Publishing Administration Services, The Content Provider also grants The Service Provider the non-exclusive, worldwide rights to sublicense to third parties performance rights to Uploaded Content. All net payments received from such sublicensing transactions are to be included in the Content Provider’s Base Earnings.
  • 2.35 For all Uploaded Content enrolled in Premium Subscription Streaming, The Content Provider grants to the Service Provider the non-exclusive, worldwide right to enter into sub-publishing agreement and/or sublicense Digital Media for consumer Retail Streaming.
  • 2.36 For all Uploaded Content enrolled in Premium Plus Subscription Streaming, The Content Provider grants to the Service Provider the non-exclusive, worldwide right to sublicense Digital Media for consumer Retail Streaming and Retail Digital Downloads. All Digital Media enrolled in the Premium Plus Subscription service must also be enrolled in the Premium Subscription service.
  • 2.37 For all Uploaded Content enrolled in the Offsite Broadcast Service, The Content Provider grants to the Service Provider the non-exclusive, worldwide right to sublicense performances and display rights of the Digital Media to 3rd parties.
  • 2.38 For all Uploaded Content enrolled in Content Administration Services, the Content Provider grants to the Service Provider the right to identify claims against unauthorized individuals and/or entities who are using and/or exploiting Your Uploaded Content. You agree and permit the Service Provider the rights to negotiate and enter into settlements or agreements to license or otherwise monetize those claims with individuals and entities on Your behalf on such terms as We may elect in Our sole discretion. You agree and permit the Service Provider to do such things and grant such sublicenses as are reasonably necessary or desirable to exploit the foregoing rights, including without limitation to grant 3rd party services and their users the right to host, cache, route, index, transmit, store copy, embed, stream, perform, communicate to the public, display (including lyrics), reformat, excerpt, analyze, synchronize (in timed relation or otherwise), create derivative works (in the form of synchronized video), create metadata, algorithms and ID files, search, catalog, edit or modify (for technical or operation purposes), sell advertisements against, deliver to any related music service, and/or other exploit, use, and make the Uploaded Content available.
  • 2.39 All Base Earnings generated by Digital Media which are uploaded by the Content Provider that fall within the scope of a Derivative Work owned by a third party, and for which The Content Provider does not have the expressed permission from the third party to upload the Digital Media, will be automatically assigned to the third party rights holder. The third party rights holder will also have the right to specify the Derivative Works Monetization settings, the onsite radio policy, and the consumer policy for the Digital Media on the Platform. Both The Content Provider and the third party rights holder will retain ownership of their respective copyrights and both parties have the right have the Uploaded content removed from the Platform.
  • 2.40 For all Uploaded Content enrolled in the Derivative Works Monetization service, The Content Provider has the right to specify consumer policies and monetization settings of all Digital Media uploaded by third parties to The Platform that are a derivative work of the Content Provider’s original Uploaded Content, except in cases where the third party receives expressed consent by the rights holder of the derivative work. Both The Content Provider and the third party rights holder retain the copyright of their respective work and both have the right to have the content removed from The Platform.
  • 2.41 For all Uploaded Content designated as creative commons and marked as “Attribution CC BY,” You authorize others the right to distribute, remix, tweak, and build upon the Digital Media, even commercially, as long as the original creator is credited for their original creation. This is the most accommodating of creative commons licenses offered. For more information, please visit https://creativecommons.org/licenses/by/4.0/legalcode.
  • 2.42 For all Uploaded Digital Media designated as creative commons and marked as “Attribution CC BY-SA,” You authorize others the right to remix, tweak, and build upon the Digital Media even for commercial purposes, as long as credit is given to original creator and the Digital Media is licensed under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on the original creator’s work will carry the same license, so any derivatives will also allow commercial use. For more information, please visit: https://creativecommons.org/licenses/by-sa/4.0/legalcode.
  • 2.43 For all Uploaded Digital Media designated as creative commons and marked as “Attribution CC BY-ND,” You authorize others to redistribute, commercially and non-commercially, as long as the Digital Media is passed along unchanged and in whole, with credit to the original creator. For more information, please visit: https://creativecommons.org/licenses/by-nd/4.0/legalcode.
  • 2.44 For all Uploaded Digital Media designated as creative commons and marked as “Attribution CC BY-NC,” You authorize others to remix, tweak, and build upon the Digital Media non-commercially, and although any new works must also acknowledge the original creator and be non-commercial, derivative works do not have to be licensed on the same terms. For more information, please visit: https://creativecommons.org/licenses/by-nc/4.0/legalcode.
  • 2.45 For all Uploaded Digital Media designated as creative commons and marked as “Attribution CC BY-NC-SA,” You authorize others to remix, tweak, and build upon the Digital Media non-commercially, as long as they credit the original creator and license their new creations under the identical terms. For more information, please visit: https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode.
  • 2.46 For all Uploaded Digital Media designated as creative commons and marked as “Attribution CC BY-NC-ND,” You authorize others the right to download the Digital Media and share the Digital Media with others as long as they credit the original creator, but they cannot change the Licensed Digital Media in any way or use it commercially. For more information, please visit: https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.
  • 2.47 This agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing Use of the Licensed Digital Media and deleting or destroying any copies of Licensed Digital Media. The Service may terminate this agreement at any time if You fail to comply with any of the terms. In such an event, You are required to cease Using the Licensed Digital Media, delete or destroy all copies of Licensed Digital Media, and if requested, confirm to The Service in writing You have complied with these requirements.

Section 3. Refusal of Service3.1 The Platform reserves the right to delete, move, refuse to accept, or edit any Digital Media uploaded by You that, in its sole discretion, (i) violates or may violate this Content Provider Agreement, (ii) violates or may violate the intellectual property rights of others, (iii) violates or may violate the privacy rights of others, (iv) violates or may violate any of The Platform’s policies (v) violates or may violate the terms of service of another platform or service that The Service Provider administers on Your behalf or (vi) is deemed unacceptable in The Platform’s sole discretion. The Platform also reserves the right to refuse providing individual services for certain Uploaded Content. The Platform shall have the right, but not the obligation, to correct any errors or omissions in any Digital Media as it sees fit. Digital Media deemed unacceptable by The Platform are typically of low quality and/or low resolution.

Section 4. Royalties

  • 4.1 In all cases, Payable Earnings on Uploaded Content will be 80% of Base Earnings, less: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) legal and other reasonable fees incurred in enforcing this Content Provider Agreement or the Terms of Service; (iv) Transaction processing fees (such as credit card fees, PayPal fees, and Bank fees); (v) any monies payable to third parties who have a copyright interest in the Uploaded Content, including but not limited to performance rights organizations, performance rights societies, publishers, and songwriters and/or composers; (vi) any digital performance royalties; (vii) any digital broadcast/streaming royalties (viii) any mechanical royalties; and (ix) any amounts owing by You to The Platform under this Content Provider Agreement or otherwise. Without limiting the generality of the foregoing, The Platform is entitled to off-set against any amount owing to You, all amounts to which it is or may be entitled under this Content Provider Agreement or otherwise at law.
  • 4.2 All Subscription and license revenue will be prorated based on metered use, and included in Base Earnings. Payable Earnings are inclusive of any and all performance royalties, mechanical royalties, and digital royalties that are otherwise collected by 3rd party agencies, including but not limited to Performance Rights Organizations (such as ASCAP, BMI, and SESAC), Licensing Agencies (such as the Harry Fox Agency), and Collection agencies (such as SoundExchange and Song Trust). In the event that The Service does make a payment to a third party, such as a PRO, the amount will be deducted from Payable Earnings. All net payments received from sublicensing transactions are to be included in the Content Provider’s Base Earnings.
  • 4.3 The Service Provider will update Payable Earnings in Your earnings dashboard within ninety (90) days of receipt of both: i) Base Earnings; and ii) the corresponding usage data reports necessary to calculate Payable Earnings. If you elect to receive Payable Earnings via PayPal, You may request a withdraw through Your earnings dashboard any time You have a positive Payable Earnings balance. If you elect to withdraw Your Payable Earnings via any other method besides PayPal, You may request a withdraw from The Service Provider once Your Payable Earnings balance is at least fifty dollars ($50).
  • 4.4 In the event that You receive a recoupable advance royalty or advance royalties from The Platform as part of any contest, promotion or as part of any separate agreement with The Platform, You agree that any Digital Media You provide pursuant to this Agreement will remain on The Platform until the advance has been recouped, either through royalties earned by You by The Service or by You paying the balance.
  • 4.5 From time to time The Service might offer users and artists promotions. Promotions may include granting free downloads or short-termed subscription memberships to The Platform customers. Compensation for such promotions will be offered to all applicable Content Providers as credits against future Service Provider’s fees.
  • 4.6 In the event there are multi-party claims to Derivative Works of Uploaded Content, the default royalty payout by The Service will be an equal split amongst all applicable parties. The Service will also apply the strictest usage policy chosen by the applicable parties. The Service may, at Our discretion, apply a different method for dividing such royalties amongst multiple parties, if such a division is deemed by Us to appropriate.
  • 4.7 In the event The Service Provider deems, at Our sole discretion, that You or any Uploaded Content violates the terms of service of The Platform or the terms of service of any platform for which The Service Provider administers The Service, The Service Provider reserves the right to withhold any and all Payable Earnings.

Section 5. Derivative Works (Remixes)

  • 5.1 All uploaded content to The Platform may be digitally fingerprinted and assigned to the appropriate rights holder. If there is a dispute as to the true rights holder of the content, all royalties will be withheld in escrow until said conflict is resolved.
  • 5.2 If a Derivative Work, or ‘remix’, is uploaded to The Platform, the rights holder to the original Digital Media (both the composition and the Sound Recordings) will have unilateral control of the Monetization Services of the Derivative Work on The Platform. Both the original rights holder and the Derivative Work’s rights holder will also have the option to take down said Derivative Work. This agreement shall be the default agreement in the absence of a separate agreement between the rights holder of the original Digital Media and the Derivative Work’s author.
  • 5.3 The original rights holder and the remix rights holder will retain all rights of their respective sample Digital Media outside of The Platform.

Section 6. Third Party Rights

  • 6.1 You shall be solely responsible for all licensing, reporting, and payment obligations to any third parties (such as monies owed to publishers, performance rights organizations, artists and songwriters/composers) in connection with the Digital Media and the use of the Digital Media as set forward in this agreement. The Platform shall not be responsible to any third parties under this agreement. Further, this agreement is not intended and shall not be construed to create any rights in any parties other than The Platform and the Content Provider.
  • 6.2 This agreement constitutes an All Inclusive license, which means ANY revenue payable to You from The Service includes all associated and relevant royalties, including but not limited to royalties associated with Master Sound Recordings and Composition rights such as mechanical, publishing, and performance licensing fees. There is no obligation by The Service to pay third parties, but We reserve the right to make payments to third parties on Your behalf. Any amount paid to third parties on Your behalf will be deducted from Your Payable Earnings. In the event base earnings equals zero, either due to lack of transactions or because the content was not enrolled in Monetization Services, no compensation, including but not limited to payments made for mechanical royalties, reproduction royalties, performance royalties, or digital stream royalties, shall be due to the Content Provider or any third party by The Service.

Section 7. Your Warranties7.1 By uploading or otherwise providing a Digital Media, You warrant that a) You are authorized to enter into this Agreement; b) You have the capacity and the authority to grant Us the rights granted by You to Us herein; c) each Digital Media asset uploaded by You is original and does not include sampled material unless You have obtained a license permitting the use of such sampled material; d) You are the original composer of all music and lyrics contained in the Digital Media, or You have licensed the rights to such music and lyrics from the original composer(s) and/or the copyright proprietor(s) of the original musical composition(s) from which such music and lyrics are derived; e) no Digital Media submitted by You will violate any law, or violate or infringe on the rights of any person, including contractual rights, copyrights, intellectual property rights, publicity and privacy rights or unfair competition, and no consent, license or permission is necessary or shall be required by You or any third party in connection with the transactions contemplated by this Content Provider Agreement; f) You are under no disability, restriction or prohibition with respect to Your right to execute this Content Provider Agreement, either on Your own behalf or on behalf of each member of Your group; g) in keeping with Section 2 and Section 4 of this Content Provider Agreement, The Platform will not be required to make any payments of any nature to anyone other than You, including all persons whose performances or ideas are contained on the Digital Media, its producer(s), publisher(s) or author(s) (including their rights societies) and any union, guild or affiliated trust fund. In addition to any other available remedies, if You breach this paragraph The Platform may immediately terminate this Content Provider Agreement and/or, if applicable, cancel and/or rescind any other arrangement between You and The Platform without any refund to You. You further agree to forfeit any royalties earned by You in connection with Your misconduct; i) In certain situations a PRO may require that You provide them with notice if You are granting public performance rights to another party. If You have an agreement with a PRO that includes such a provision, You are responsible for providing such notice to the PRO. As a result, You may wish to contact Your PRO to determine if You are able to enter into a license with The Service.

Section 8. Indemnity

  • 8.1 You agree to indemnify, defend and hold The Platform and its affiliates, and their respective directors, officers, employees, agents and licensees of Digital Media harmless from and against any and all claims, liability, losses, costs and expenses incurred by any of them inconsistent with any agreement, undertaking, representation or warranty made by You in this Agreement and the Terms of Service.
  • 8.2 The Platform reserves the right, at Your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Our defense of such claim.

Section 9. Modification and Termination

  • 9.1 The parties agree that The Service may amend its policies and agreements from time to time, as reasonable business objectives may require, and will notify You via email to any such relevant changes.
  • 9.2 You shall be entitled to terminate this Content Provider Agreement at any time by giving sixty (60) days written notice to support@Orfium.com. We may also terminate this Content Provider Agreement for any reason at any time and without notice. Should We desire to give You notice of termination, email is sufficient and can be sent to either (i) the address to which We most recently sent Your account balance statement or a royalty payment, or (ii) the address listed in Your Account Data. If We terminate Your account pursuant to the terms of the Terms of Service, such termination shall be deemed to be notice of termination of this Content Provider Agreement, as well.
  • 9.3 Upon termination We may remove Digital Media uploaded by You from the Service within thirty (30) days of the date of termination of this Content Provider Agreement.
  • 9.4 Upon termination The Service has thirty (30) days to take action to stop The Service and/or to notify any third party service provider (e.g. YouTube, iTunes, Amazon).
  • 9.5 Notwithstanding any other provision in this Content Provider Agreement, the termination or expiration of this Content Provider Agreement shall not alter or affect the rights granted to licensees, sub-licensees or third parties by Us pursuant to this Content Provider Agreement.
  • 9.6 Termination of this Content Provider Agreement shall operate without prejudice to The Platform’s rights, defenses and limitations of liability provided under this Content Provider Agreement or the Terms of Service, which rights, defenses and limitations of liability shall survive termination of this Content Provider Agreement.

Section 10. Nondisclosure

  • 10.1 No joint venture, partnership, employment, or agency relationship exists between You and the Service Provider, and nothing in this Content Provider Agreement shall be construed as creating any join venture, partnership, or employment relationship.
  • 10.2 As a part of the relationship contemplated herein, We may disclose to You certain Confidential Information. Confidential Information may be communicated directly via human oral or written correspondence, or over one or more websites or other digital networks to You individually or to more than one of Our registered users.
  • 10.3 All communications made to You via Your registered email address, phone number (including mobile), RSS or similar feed, or via any of Our websites shall be considered Confidential Information unless clearly and expressly marked otherwise.
  • 10.4 As a covenant and condition of this Agreement You agree to hold all Confidential Information in the strictest of confidence and to not disclose any part of Confidential Information to any third parties. You hereby represent Your understand that disclosure of such information may cause irreparable harm to Us and that We shall be entitled to injunctive relief, liquidated damages, and other available remedies.

Section 11. Arbitration and Agreement to Waive a Right to Jury Trial and Class Action11.1 You agree that ALL claims or disputes You have against The Platform must be resolved exclusively through binding arbitration, and You agree to waive Your right to jury trial and to participate in class actions. This agreement to arbitrate is intended to be broadly interpreted and covers all controversies, disputes, and claims. You agree that any arbitration under this agreement will take place on an individual basis. Class arbitrations and class actions are not permitted. You agree that any arbitration will be initiated by You through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed upon by the parties, and in any such case, must take place in Los Angeles, California; (c) any judgment on the award rendered by the arbitrator must initially be entered into a state or federal court of law located in Los Angeles County, California. All claims You bring against The Platform must be resolved in accordance with this Legal Dispute Section. All claims filed or brought contrary to the Legal Dispute Section shall be considered improperly filed. Should You file a claim contrary to the Legal Dispute Section, The Platform may recover attorney’s fees and costs up to $2,000, provided that The Platform has notified You in writing of the improperly filed claim, and You have failed to promptly withdraw the claim.

Section 12. Miscellaneous

  • 12.1 This Agreement shall be governed by and construed in accordance with the laws of the state of California without giving effect to the laws of Your actual state or country of residence.
  • 12.2 The Platform shall have the right to assign this Content Provider Agreement to any third party. You shall not have the right to assign any right or obligation under this Content Provider Agreement except the right to royalty payments.
  • 12.3 The Platform shall have the right to amend, delete, or change any username, display name, URL, or any other data or information provided by You on the Platform.
  • 12.4 In the event of a dispute relating to this Content Provider Agreement, Your sole remedy is damages at law (i.e., money). By entering into this Content Provider Agreement You agree to give up any right that You may have to an injunction and any right that You may have to other equitable remedies against The Platform and its directors, officers, employees, agents, and licensees.
  • 12.5 Nothing in this Content Provider Agreement shall be construed to make The Content Provider representatives or agents of The Service. The parties hereunder are acting in performance of this Content Provider Agreement as independent contractors engaged in the operation of their own respective businesses. A party’s employees, agents or representatives are not employees or agents of the other party and are not entitled to any of the other party’s benefits. Neither party shall be responsible for payment of the other party’s workers’ compensation, disability benefits or unemployment insurance, nor shall it be responsible for withholding or payment employment related taxes for the other party or its employees.
  • 12.6 If one or more of the provision in this agreement is found to be invalid, illegal, or unenforceable in any respect, the validty, legality, and enforceability of the remaining provisions should not be affected.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE, IN ADDITION TO THIS CONTENT PROVIDER AGREEMENT READ AND AGREED TO THE TERMS OF SERVICE AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY UPLOADING DIGITAL MEDIA TO THE PLATFORM AND/OR USE OF THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN, AS APPLICABLE, AND GRANT HEXACORP LTD. THE RIGHTS SET FORTH HEREIN.