Audiomack Premium Partner Agreement

This AGREEMENT (the “Agreement”) is between you (hereby referred to as “Rightsholder” or in some instances “their”) and Audiomack Inc., 648 Broadway, Suite 302, New York, NY 10012 (hereby referred to as “Audiomack”). This Agreement contains the general terms and conditions under which Audiomack offers the Services. In agreeing to the terms of this Agreement and freely choosing to become an Audiomack Premium Partner, by submitting sound recordings (and the musical works embodied therein) for monetized streaming on Audiomack (whether by upload to the Audiomack website (www.Audiomack.com) (the “Website”) or through the Audiomack App (the “App”)). Rightsholder constitutes their agreement to and acceptance of this document and any applicable Addendum.

Audiomack reserves the right to add, delete change, replace, amend and or otherwise modify any of the terms and conditions contained in this Agreement (specifically excluding Section 3 below; Audiomack may not add, delete change, replace, amend and or otherwise modify any part of Section 3 without specifically amending this Agreement directly with Rightsholder) as Audiomack may deem necessary from time to time in their sole discretion. Notwithstanding the preceding sentence, no such modifications to this Agreement will apply to any dispute between Rightsholder and Audiomack that arose prior to the date of such modification. In the event of any material changes to the terms of this Agreement, Audiomack will notify Rightsholder by email as set forth in Section 9 herein. If any such modification is unacceptable to Rightsholder, their only and sole recourse is to discontinue use of the Services. Rightsholder’s continued use of the Services following posting of a change notice or new agreement on the Site or notice to Rightsholder through e-mail, will constitute their binding acceptance of the changes. For purposes of this Agreement and whenever the context requires the singular number shall include the plural, and vice versa.

RIGHTSHOLDER IS RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH AUDIOMACK FOR SO LONG AS RIGHTSHOLDER AVAILS THEMSELF OF ANY SERVICES. A FAILURE TO MAINTAIN A VALID E-MAIL ADDRESS SHALL NOT BE A DEFENSE IN THE EVENT RIGHTSHOLDER DOES NOT RECEIVE AN UPDATE OR NOTIFICATION FROM AUDIOMACK FOR ANY AND ALL REASONS.

All capitalized terms used herein shall have the meaning ascribed to such term as described in Section 22 of this Agreement or as otherwise noted in this Agreement.

  1. Terms of Service: This Agreement is incorporated by reference in its entirety into and subject to the Terms of Service solely as they may apply to parties to this agreement, and the Terms of Service are incorporated by reference in their entirety into and subject to this Agreement (https://audiomack.com/about/terms-of-service) (“TOS”).
  2. Authorization: Rightsholder hereby appoints Audiomack as their authorized representative for Advertisement(s) in connection with the content Rightsholder uploads or otherwise delivers to Audiomack (“Rightsholders Content”). Accordingly, Rightsholder does hereby grant to Audiomack and to Audiomack’s “Licensees” during the Term (as defined in Section 22 herein) of this Agreement the non-exclusive right throughout the “Authorized Territory”, to:
    1. Reproduce and create derivative works of Rightsholder’s Content by converting their Content into Digital Masters, including less than full-length versions of sound recordings (“Clips”) that can be used for promotional purposes as authorized herein.
    2. Publicly perform, publicly display, communicate to the public, and otherwise make available Rightsholder’s Content, and portions thereof as embodied in Clips, by means of digital audio transmissions (on an interactive or non-interactive basis) through the Website, a Licensee website, Audiomack’s API or through the App.
    3. Place or embed Rightsholder’s Content in any form of media now or hereafter created in connection with the Services and/or Audiomack’s API. Specifically, this does not include other platforms or services, including synchronization or reproduction, licensing in connection with the use of music in advertisements and on television, video and motion picture soundtracks, video and electronic games, and cellular ringtones.
    4. Use and distribute Copyright Management Information as embodied in a Digital Master of Rightsholder’s Content.
    5. Use Rightsholder’s Content and metadata as may be reasonably necessary or desirable for Audiomack to exercise Audiomack’s rights under this Agreement.
    6. Authorize Audiomack’s Licensees to perform any one or more of the activities specified above or in an applicable Addendum.
    7. Include a reference to Rightsholder and Rightsholder’s logo on its Website, a Licensee website, or through the App and in marketing literature, labeling and in promotional materials. Each party may also, subject to the other’s written consent, which shall not be unreasonably withheld, issue press releases regarding this Agreement. Either party may re-publish information contained in a previously approved press release, including on a party’s website and in marketing materials.
  3. Compensation: Conditioned upon Rightsholder’s performance of all of the material terms and conditions hereof and specifically in consideration for Rightsholder’s Authorization (as described above), Audiomack shall pay Rightsholder or a designee of theirs given to Audiomack by Rightsholder the Amp Revenue Share generated in connection with the streaming of Rightsholder’s Monetized Content on the Website, a Licensee website, or through the App (altogether such payment due to Rightsholder shall be considered the “Compensation”). In the case of entities that are legally authorized to enter into this Agreement on behalf of one or more owners of content, such as record labels, while said entity shall have the option whether to maintain a separate Account for each rightsholder on whose behalf this Agreement is entered into, Compensation shall be paid to Rightsholder by Audiomack in the aggregate with respect to all of Rightsholder’s Audiomack accounts.
    The total Compensation for Monetized Content is calculated as follows:
    1. Audiomack will calculate “Revenue Per Stream” (A “Stream” being content played for Thirty (30) seconds or longer, for the complete definition of “Stream” please see Section 22(k) below) by taking the sum of all monies received by Audiomack from all Advertisements (minus Actual Costs) and all Subscriptions (minus all Actual Costs) and dividing that number by the number of total Stream’s on the Audiomack platform in a calendar month.
    2. Rightsholder will be paid based on the number of Streams of solely Rightsholder’s Monetized Content multiplied by the Revenue Per Stream which is then multiplied by the AMP Revenue Share.
    3. The “Amp Revenue Share” is Fifty (50%) Percent.
      1. For avoidance of doubt, if Audiomack generates the sum of Ten Thousand ($10,000.00) Dollars from Advertisements and Subscriptions in a given calendar month (including deductions for Actual Costs) and the total number of Streams on Audiomack for that given month is Ten Million (10,000,000) Streams, the Revenue Per Stream for that given month shall be one tenth of one cent ($0.001).
      2. If in that same given month, the number of Streams of solely Rightsholder’s Monetized Content is One Hundred Thousand (100,000), then to calculate Rightsholder’s particular Amp Revenue Share it is necessary to multiply the Revenue Per Stream (.001) by the number of streams of Rightsholder’s Monetized Content (100,000). In the case of this example, Rightsholder’s Revenue Per Stream would be One Hundred ($100.00) Dollars.
      3. From that point, Rightsholder’s Amp Revenue Share would be Fifty (50%) Percent of One Hundred ($100.00) Dollars, which would entitle Rightsholder to the sum of Fifty ($50.00) Dollars as Rightsholder’s Compensation for that given month.
    4. Other Royalties: In addition to the Compensation due to Rightsholder as described above, by virtue of Rightsholder’s Content being available through the Services and Rightsholder’s performance of all of the material terms and conditions hereof and specifically in consideration for Rightsholder’s Authorization (as described above), Audiomack shall use its it’s best efforts to enter into agreements with Rightsholder’s affiliated PRO and Mechanical Royalties organizations for the administration and Rightsholder’s part of royalty payments for the public performance of Rightsholder’s sound recordings or musical works. In order to become eligible through Audiomack to pay Rightsholder any royalties through Rightsholder’s PRO, Audiomack requires the following information from Rightsholder for Monetized content:
      1. International Standard Recording Code “ISRC”
      2. International Standard Musical Word Code “ISWC”
      3. Universal Product Code “UPC” (If applicable)
    5. Reporting and Payment: Within One Hundred (100) days of the end of each calendar month, Audiomack shall provide Rightsholder with a report detailing the Amp Revenue Share due from Rightsholder’s Content based on Audiomack’s reasonable calculations and in accordance with the parameters set forth on Audiomack’s Website as may be amended from time to time. Within One Hundred and Thirty (130) days of the end of each calendar month, Audiomack shall transfer the Compensation due to Rightsholder in connection with Rightsholder’s Content to Rightsholder or Rightsholder’s designee in Dollars, less any applicable value added or similar tax appropriately charged to Rightsholder’s share of the Amp Revenue Share, to a designated Bank Account or PayPal account provided by Rightsholder or Rightsholder’s designee.
      1. Payout Threshold: If the amount payable to Rightsholder hereunder for any calendar month does not equal at least One-Hundred Dollars ($100.00 USD), then no amounts shall be payable to Rightsholder until the aggregate amount due to Rightsholder after the conclusion of a calendar month equals at least One-Hundred Dollars ($100.00 USD) (the “Threshold Streaming Payout Amount”). If Audiomack is required by applicable law, Audiomack shall remit to the proper taxing authorities any and all taxes withheld from the payments to Rightsholder. In the case of entities that are legally authorized to enter into this Agreement on behalf of one or more owners of content, such as record labels, while said entity shall have the option whether to maintain a separate Account for each content owner on whose behalf this Agreement is entered into, the Threshold Streaming Payout Amount shall be accounted for and paid to Rightsholder by Audiomack in the aggregate with respect to all of Rightsholder’s Audiomack accounts.
    6. Track Listing: The track(s) that shall comprise Rightsholder’s Content in this Agreement and be eligible for Compensation are all tracks uploaded on to any of Rightsholder’s Audiomack accounts during the Term.
    7. Licensee Records: Audiomack may, but need not, audit the books and records of Licensees and may accept any representations made in a Licensee accounting statement delivered to Audiomack as true and complete. Audiomack shall have no liability to Rightsholder for failure to audit or investigate any accountings rendered to it by any Licensees.
    8. Recordkeeping and Audits: Audiomack will maintain books and records which report the number of streams or other licensed uses of Rightsholder’s Content. Rightsholder may, but not more than once a year, at their own expense, engage a Certified Public Accountant (“CPA”) to examine those books and records directly related to the streaming royalties or other licensed uses of Rightsholder’s Content, as provided in this Agreement. Rightsholder may have their CPA make those examinations only for the purpose of verifying the accuracy of the statements sent to Rightsholder. All such examinations will be in accordance with generally accepted accounting principles (“GAAP”) procedures and regulations.
      Rightsholder’s CPA may make such an examination for a particular statement only once, and only within one (1) year after the date Audiomack sends the Rightsholder that statement. Rightsholder’s CPA may make such an examination only during Audiomack’s usual business hours, and only at the place where such books and records are maintained in the ordinary course of business. Rightsholder must provide Audiomack with thirty (30) days written notice prior to commencing an audit and must identify the name, address, telephone number, and email address of the CPA conducting the audit on Rightsholder’s behalf. Rightsholder may not engage the CPA on a contingent fee basis (i.e., Rightsholder’s CPA must be paid on a flat fee or time-based basis). Audiomack may postpone the commencement of Rightsholder’s CPA’s examination by notice given to Rightsholder not later than five (5) days before the commencement date specified in Rightsholder’s notice. In the event of any postponement initiated by Audiomack, the running of the time within which the examination may be made will be suspended during the postponement. If Rightsholder’s CPA’s examination has not been completed within three (3) months from the time commenced, then Audiomack may require Rightsholder to terminate the audit upon seven (7) days’ notice, which notice may be given at any time. Audiomack will not be required to permit the CPA to continue any examination after the end of that seven (7) day period.
      Rightsholder’s CPA will not be entitled to examine any other records that do not specifically report sales or other licensed uses of Rightsholder’s Content for which Audiomack has actually received payment. Rightsholder’s CPA may act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination on Rightsholder’s behalf will not be knowingly released, divulged, published or shared with any other person, firm or corporation, other than to Rightsholder or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Rightsholder’s CPA may not share the results of the examination conducted on Rightsholder’s behalf with any third party without Audiomack’s express written permission.
    9. Objections to Accountings: If Rightsholder has any objections to an Audiomack accounting statement made available to them, Rightsholder agrees to provide Audiomack specific written notice of that objection, including a copy of Rightsholder’s CPA’s analysis of the accounting statement, and their reasons for it within eighteen (18) months after the date Audiomack send or make that statement available to Rightsholder. Each statement shall become conclusively binding on Rightsholder at the end of that eighteen-month period, and Rightsholder will no longer have any right to make any other objections to it notwithstanding any audit rights Rightsholder may otherwise have under any applicable law or regulation. Any payments determined to be owed Rightsholder following an audit shall be paid within forty-five (45) days of the delivery of Rightsholder’s CPA’s audit report, unless objected to in writing by Audiomack, in which case any payments due shall be postponed pending the resolution of the audit dispute. A late fee of one-half percent (0.5%) shall be due for underpaid streaming royalties. Unless otherwise prohibited by law, Rightsholder will not have the right to sue Audiomack in connection with any statement, or to sue Audiomack for unpaid royalties for the period a statement covers, unless Rightsholder commences the suit within that eighteen (18)-month period. If Rightsholder commences suit on any controversy or claim concerning statements rendered to Rightsholder under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to a determination of the amount of royalties due for the accounting periods concerned, and the court shall have no authority to consider any other issues or award any relief except recovery of any royalties found owing, plus interest at the rate of one-half percent (0.5%) per month. Rightsholder’s recovery of any such royalties plus interest shall be the sole remedy available to Rightsholder by reason of any claim related to Audiomack’s statements.
    10. Tax Information: Audiomack will use its reasonable efforts to collect sales and other taxes owed on the streaming of Rightsholder’s Content (“Streaming Tax”), and to remit such Streaming Tax on Rightsholder’s behalf to relevant government authorities. Notwithstanding the above, in all events, Rightsholder acknowledges and agrees that they are ultimately responsible for the payment of any Streaming Tax owed in connection with the sale or distribution of Rightsholder’s Content pursuant to this Agreement, and Rightsholder hereby indemnify Audiomack for any Streaming Tax that may be owed in addition to those amounts collected and remitted on Rightsholder’s behalf by Audiomack.
  4. Term: The term of this Agreement is the date it is accepted (“Effective Date”) by an authorized representative of Rightsholder and, unless terminated in accordance with the termination provisions provided herein, shall continue for a period of twelve (12) months (the “Initial Term”). Following the Initial Term, unless written notice of intent not to renew or terminate is provided by either party at least thirty (30) days prior to the scheduled expiration date of the then current term, this Agreement shall be automatically renewed on an annual basis for successive one (1) year additional terms. This Agreement will continue until terminated by either Rightsholder or Audiomack, upon three (3) business days’ written notice (the “Term”), which notice.
    1. If sent by Audiomack, may be sent to Rightsholder at the last e-mail address Rightsholder provided to Audiomack.
    2. If sent by Rightsholder to Audiomack, must be sent only to the following email address: finance@audiomack.com with the following information:
      1. Rightsholder’s username
      2. The email address associated with Rightsholder’s Account
      3. All album or song titles for which Rightsholder is requesting termination
    3. Any Termination Notice provided by Rightsholder pursuant to this Agreement shall be permanent and irreversible. Notwithstanding anything to the contrary herein, Audiomack may at any time in its sole discretion, with or without notice to Rightsholder:
      1. Suspend or limit Rightsholder’s access to or Rightsholder’s use of the Services and/or
      2. Suspend or limit Rightsholder’s access to Rightsholder’s Account.
  5. Rightsholder’s Obligations: Rightsholder, or an authorized representative acting on Rightsholder’s behalf will be responsible for obtaining and paying for any and all clearances or licenses required in the Authorized Territory (or any portion thereof) for the use of any musical works embodied in Rightsholder’s Content, as well as:
    1. Parental Advisory Labeling: Rightsholder will be responsible for complying with the Recording Industry Association of America’s (“RIAA”) Parental Advisory Logo (“PAL”) Standards, as applicable, for so long as Rightsholder uses the Services.
    2. Content Sharing: As part of this Agreement, the Rightsholder agrees to use best efforts to upload all content created or licensed by Rightsholder and uploaded by Rightsholder to other free streaming platforms (For example YouTube, Soundcloud, etc.).
  6. Right to Withdraw Material; Termination of Authorizations to Licensees: Rightsholder has the right, at any time during the Term, to withdraw the authorizations set forth in Section 2 above, for any and all uses of all or any portion of Rightsholder’s Content, upon written notice to Audiomack (a “Withdrawal Notice”) or to terminate this Agreement pursuant to Section 4 of this Agreement (a “Termination Notice”).
    Upon receipt of a Withdrawal Notice with respect to any of Rightsholder’s Content or a Termination Notice with respect to all of Rightsholder’s Content, Audiomack will promptly remove those elements of Rightsholder’s Content covered by such Withdrawal Notice or Termination Notice, as the case may be, from the Website, a Licensee website, or through the App (and in no event more than five (5) business days following receipt of a Withdrawal Notice or Termination Notice). Rightsholder’s submission of a Withdrawal Notice or Termination Notice shall not in any way limit the authorizations granted to Audiomack or any Licensees prior to the implementation of Rightsholder’s Withdrawal Notice or Termination Notice.
  7. Names and Likenesses; Promotional Use and Opportunities: Rightsholder hereby grants to Audiomack during the Term the right to use and to authorize Audiomack’s Licensees to use the names and approved likenesses of, and biographical material concerning, any of Rightsholder’s , bands, producers and/or songwriters, as well as track and/or album name, and all artwork related to Rightsholder’s Content, in any marketing materials for the promotion, and advertising of Rightsholder’s Content, which is offered to stream or for any other use under the terms of this Agreement (e.g., an artist or band name and likeness may be used in an informational fashion, such as by textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the exploitation of Rightsholder’s Content).
    1. Listener Information: Audiomack may, from time to time, provide Rightsholder with information relating to customers that stream Rightsholder’s Content, subject to Audiomack’s privacy policy and the preferences of Audiomack’s customers. Rightsholder may only use, and disclose this information to a third party, for Rightsholder’s internal record keeping purposes. Rightsholder may not disclose any of this information to a third party or use it for any other purpose. In all events, Rightsholder will comply with the terms of Audiomack’s privacy policy http://www.audiomack.com/privacy-policy in connection with the customer data provided under this Agreement.
  8. Ownership: Subject to Audiomack’s rights hereunder or under any prior agreement between Rightsholder and Audiomack, as between Rightsholder and Audiomack, all right, title, and interest in and to (a) Rightsholder’s Content, (b) the Digital Masters, (c) the Clips, (d) the Physical Product (if applicable), (e) all copyrights and equivalent rights embodied therein, and (f) all materials furnished by Rightsholder that were Rightsholder’s prior to this Agreement will remain unchanged by entering into this Agreement and as far as Audiomack is concerned shall remain Rightsholders.
  9. Modification, Termination and Effect of Termination:
    1. Modification of Agreement: Audiomack reserves the right to change, modify, add to, delete, amend, replace or remove all or any part of this Agreement, as Audiomack may deem necessary in Audiomack’s sole discretion, at any time and from time to time. Notice of any material change will be sent to Rightsholder by electronic mail at least thirty (30) days prior to its effective date. If the e-mail Rightsholder has provided to Audiomack is no longer valid or functioning, then, in addition to any other remedies Audiomack may have with respect to Rightsholder’s Account and use of the Services, Audiomack shall be authorized to communicate with Rightsholder via any other reasonable manner Audiomack may choose in Audiomack’s sole discretion, including through notice on the web page through which Rightsholder accesses their account information or via any accounting statement. The most recent date of this Agreement shall be identified on the first page hereof. In the event that Rightsholder does not consent to any such proposed changes in the Agreement, Rightsholder’s sole recourse shall be to terminate this Agreement by notice to us, and Rightsholder’s failure to submit a Termination Notice within thirty (30) days of the date of Audiomack’s notice to Rightsholder shall constitute their acceptance of such changes to the extent Rightsholder’s Content is still available to stream through the Services. To terminate Rightsholder’s Agreement, Rightsholder must send a Termination Notice to Finance@Audiomack.com and include in the subject line of Rightsholder’s e-mail “Termination of Premium Partner Agreement.”
    2. Consequences of Termination. The expiration or termination of the Agreement will not relieve either Rightsholder or Audiomack from Audiomack’s respective obligations incurred prior to the effective date of Rightsholder’s termination of the Agreement. In addition, provisions of this Agreement intended to survive the termination of this Agreement shall survive termination.
  10. Monitoring of Rightsholder’s Content; Removal of Content from Website:
    1. Monitoring: Audiomack does not control Rightsholder’s Content and does not have any obligation to monitor Rightsholder’s Content for any purpose. Audiomack may choose, in its sole discretion, to monitor, review or otherwise access some or all of Rightsholder’s Content, but by doing so Audiomack assumes no responsibility for Rightsholder’s Content, no obligation to modify or remove any inappropriate elements of Rightsholder’s Content, or to monitor, review or otherwise access any other rightsholder’s content or artwork.
    2. Right of Removal. Audiomack reserves the right, in its sole and absolute discretion, to remove any of Rightsholder’s Content from the Website if such content: (i) is patently offensive, pornographic or defamatory; (ii) is the subject of a dispute between Rightsholder or Audiomack and a third party; (iii) is content to which Rightsholder cannot document their rights therein upon Audiomack’s request; (iv) violates the intellectual property rights or other protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in Audiomack’s sole and absolute judgment is necessary to protect the business interests of Audiomack and any of its business partners or Licensees. Audiomack may also remove Rightsholder’s Content from the Website if Rightsholder is abusive or rude or provide false or intentionally misleading information to any Audiomack employees or agents. Audiomack shall have no liability to Rightsholder for the removal of any of their Content from the Website or any Licensee website or service other than to provide Rightsholder a credit (but not a refund) for any fees previously paid by Rightsholder for making Rightsholder’s Content available through the Website or through Licensees. The removal of any of Rightsholder’s Content shall not relieve Audiomack of the obligation to pay Rightsholder any streaming royalties that may have accrued prior to the removal of Rightsholder’s Content.
    3. No Termination Due to Removal. This Agreement shall not be terminated automatically by Audiomack’s removal of Rightsholder’s Content from the Website or Licensee’s websites or services. In order for Rightsholder to terminate this Agreement following the removal of any of Rightsholder’s Content, they must send Audiomack a Termination Notice.
  11. Account Information; Disclosures:
    1. Rightsholder Account Information. In order to access some features of the Website or the App, including Rightsholder’s account information and periodic statements, Rightsholder will have to create an online account (“Account”). Rightsholder hereby represent and warrant that the information Rightsholder provides to Audiomack upon registration will be true, accurate, current, and complete. Rightsholder also hereby represents and warrants that Rightsholder will ensure that their account information, including Rightsholder’s e-mail address, is kept accurate and up to-date at all times during the Term of this Agreement. In the case of entities that are legally authorized to enter into this Agreement on behalf of one or more owners of content, such as record labels, said entity shall have the option whether to maintain a separate Account for each rightsholder on whose behalf this Agreement is entered into.
    2. Password. As a registered user of the Services Rightsholder will have login information, including a username and password. Rightsholder’s Account is personal to Rightsholder, and Rightsholder may not share their Account information with, or allow access to Rightsholder’s Account by, any third party, other than an agent authorized to act on Rightsholder’s behalf. As Rightsholder will be responsible for all activity that occurs under their Account, Rightsholder should take care to preserve the confidentiality of their username and password, and any device that Rightsholder use to access the Website. Rightsholder agrees to notify Audiomack immediately of any breach in secrecy of their login information.
      If Rightsholder has any reason to believe that their Account information has been compromised or that their Account has been accessed by a third party not authorized by Rightsholder, then Rightsholder agrees to immediately notify Audiomack by e-mail to Finance@Audiomack.com. Rightsholder will be solely responsible for the losses incurred by Audiomack and others (including other users) due to any unauthorized use of their Account that takes place prior to notifying Audiomack that Rightsholder’s Account has been compromised.
    3. Disclosure of Information. Rightsholder acknowledges, consent, and agree that Audiomack may access, preserve, and disclose Rightsholder’s Account information and Rightsholder’s Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to:
      1. Comply with legal process
      2. Enforce this Agreement
      3. Respond to a claim that any of Rightsholder’s Content violates the rights of third parties;
      4. Respond to Rightsholder’s requests for customer servic
      5. Protect the rights, business interests, property or personal safety of Audiomack and its employees and users, and the public.
  12. Prohibited Use of the Website and Licensee Websites and Services: Rightsholder agrees not to use the Website, the App, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage Audiomack, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, Rightsholder agrees that they will not, whether through the Website, the App, Audiomack’s Licensees or Rightsholder’s Content, do or attempt any of the following:
    1. Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended.
    2. Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website or App, use of the Website or App, access to the Website or App or content obtained through the Website or App, as a result of Rightsholder’s being granted permission to upload their Content to the Website or App.
    3. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website or App, features that prevent or restrict the use or copying of any part of the Website or App or features that enforce limitations on the use of the Website or App.
    4. Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties.
    5. Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information.
    6. Create a false identity or impersonate another for the purpose of misleading others as to Rightsholder’s identify, including, but not limited to, providing misleading information to any feedback system employed by Audiomack.
    7. Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, bots, cancelbots, or any other type of malware, any other harmful, damaging or deleterious software programs, or any other malicious code that is specifically designed to or would have the effect of damaging, disrupting, stealing or generally inflicting some bad or illegitimate action on Audiomack or its licensee’s data, hosts or networks.
    8. Interfere with or disrupt the Website or App, networks or servers connected to the Website or App or violate the regulations, policies or procedures of such networks or servers.
    9. Knowingly upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in Rightsholder’s Content.
    10. Use the Website or App or any Licensee website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
  13. Availability of Services: Audiomack may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available through the Website or App, at any time and without notice and without liability to Rightsholder. The features, media, content, products, software or services available on and through the Website or App may be out of date, and Audiomack makes no commitment to update any aspect of the Website.
    Audiomack makes no representations and warranties with respect to availability of the Website or App and may discontinue the Service at any time with or without notice. Rightsholder is solely responsible for maintaining back-up copies of any elements of their Content uploaded to the Website or App otherwise delivered to Audiomack as Physical Product.
  14. Additional Representations and Warranties:
    1. Mutual Representations and Warranties: Each party represents and warrants to the other that it:
      1. Is authorized to enter into this Agreement on the terms and conditions set forth herein.
      2. Will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party interferes with the performance of its obligations under this Agreement.
      3. Has the capacity to, and will perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
    2. Representations and Warranties by Rightsholder: Rightsholder represents and warrants to Audiomack that:
      1. They have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to Rightsholder’s Content, including, but not limited to, all musical works embodied in their Content, and that they are authorized to provide Rightsholder’s Content to Audiomack for the uses specified in this Agreement. For the avoidance of doubt, if Rightsholder is acting on behalf of an artist, band, producer, group or corporation, Rightsholder hereby represent and warrant to Audiomack that Rightsholder is fully authorized to enter into this Agreement on behalf of such artist, band, group or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.
      2. Rightsholder owns or controls all of the necessary rights in their Content in order to make the grant of rights, licenses, and permissions herein, and that Rightsholder has permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Rightsholder’s Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Rightsholder’s Content) as contemplated by this Agreement.
      3. The use or other exploitation of Rightsholder’s Content, including, but not limited to, any musical works embodied in Rightsholder’s sound recordings, by Audiomack and Audiomack’s Licensees as contemplated by this Agreement does not and will not, on Rightsholder’s part, knowingly and willfully, infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
      4. To the extent Rightsholder is the songwriter of any or all of the musical works embodied in Rightsholder’s Content, whether in whole or in part (e.g., as a cowriter), Rightsholder has the full right, power, and authority to grant the rights set forth in this Agreement.
      5. Rightsholder has not assigned any of the rights in and to the sound recordings embodied in Rightsholder’s Content to any third party (e.g., a record label) that obtained exclusive rights in and to such sound recordings.
  15. No Representations and Warranties with respect to Streams Distributions: Audiomack makes no guarantees regarding the minimum number of streams of Rightsholder’s Content.
  16. Indemnification: Rightsholder agrees to indemnify and hold Audiomack and its respective, successors, assigns, agents, distributors, licensees, officers, directors, employees, agents and representatives harmless from and against any third party claims (collectively “Claims”), liabilities, costs and expenses (including reasonable attorney’s fees and legal costs) in connection with any claim which is inconsistent with any agreement, covenant, representation, or warranty made by Rightsholder herein or any act or omission by Rightsholder, provided that such claim has been settled with Rightsholder’s consent or has resulted in a final judgment against Audiomack or its licensees, including, but not limited to, any Claims made by a PRO or music publisher with respect to any public performances or communications to the public of any musical works embodied in Rightsholder’s Content, any contributor to any sound recording included within Rightsholder’s Content, including claims from any unions, guilds, background musicians or vocalists, engineers, etc., or any other party for any use or misuse of any other forms of intellectual property or proprietary rights in Rightsholder’s Content, including, but not limited to, trademark rights and invasions of the right of privacy or publicity.
    Rightsholder will reimburse Audiomack upon demand for any payment made by Audiomack at any time after the date hereof (including after the Term of this Agreement terminates) in respect of any claim, liability, damage or expense to which the foregoing indemnity relates. Upon the making or filing of any such claim, action or demand, Audiomack shall be entitled to withhold from any amounts payable under this agreement such amounts as are reasonably related to the potential liability in issue unless and until Rightsholder post a suitable undertaking or bond by a reputable bonding company satisfactory to Audiomack in it’s sole discretion in the sum equal to the amount of Audiomack’s potential liability hereunder (including legal expenses and reasonable counsel fees). Audiomack will have the right to utilize any such sums so withheld to pay for any costs and reasonable attorneys’ fees as incurred by Audiomack during the pendency of the determination of any such claim.
    If Audiomack has withheld and reserved any monies pursuant to this subparagraph with respect to any claim and if said claim has not been followed by commencement of a legal action or proceeding within one (1) year from the date first made, Audiomack will release such monies to Rightsholder unless the claim is in the process of being settled or Audiomack has a good faith reason to believe an action will be commenced in the future, without prejudice to its rights to again withhold and reserve monies in the future if any legal action or proceeding is later commenced. Rightsholder shall be promptly notified of any such claim, action or demand and shall have the right, at Rightsholder’s own expense, to participate in the defense thereof with counsel of Rightsholder’s own choosing; provided, however, that Audiomack’s decision in connection with the defense of any such claim, action or demand shall be final. In the case of entities that are legally authorized to enter into this Agreement on behalf of one or more owners of content, such as record labels, said entity shall be solely responsible for any acts or omissions by the Rightsholder that result in any liability under any of the terms and conditions of this Agreement.
    Audiomack shall not be liable for any acts or omissions by the Rightsholder under this Agreement nor does this Agreement create any form of a contractual relationship between Audiomack and the Rightsholder beyond the one stated herein.
    1. Indemnification Request. If Audiomack make an indemnification request to Rightsholder under this Section, Audiomack may permit Rightsholder to control the defense, disposition or settlement of the matter at Rightsholder’s own expenses, provided that Rightsholder shall not, without Audiomack’s prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by Audiomack or imposes any conditions or obligations on Audiomack other than the payment of monies that are readily measurable for purposes of determining Rightsholder’s monetary indemnification or reimbursement obligations to us.
      If in Audiomack’s reasonable and good faith judgment conclude that Rightsholder is not capable of defending the Rightsholder’s or Audiomack’s interests against any Claims, then Audiomack shall have the option to control the defense in any matter or litigation through counsel of Audiomack’s own choosing to defend against any such Claim for which Rightsholder owes Audiomack an indemnification, and the costs of such counsel, as well as any court costs, shall be at Rightsholder’s expense.
  17. Disclaimers:
    1. THE WEBSITE, THE APP AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE OR APP, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
    2. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AUDIOMACK AND ITS AFFILIATES, PARTNERS AND LICENSORS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY RIGHTSHOLDER FROM AUDIOMACK OR THROUGH THE WEBSITE OR APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. AUDIOMACK AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE, THE APP OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY AUDIOMACK, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. RIGHTSHOLDER UNDERSTAND AND AGREE THAT THE RIGHTHOLDER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE, THE APP OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER THE RIGHTHOLDER’S CONTENT THROUGH THE SERVICES, AT THEIR OWN DISCRETION AND RISK, AND THAT THE RIGHTHOLDER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO RIGHTHOLDER’S PROPERTY (INCLUDING THE RIGHTHOLDER’S COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE OR THE APP) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
  18. iability: AUDIOMACK SHALL NOT BE LIABLE TO THE RIGHTHOLDER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY PROVISION HEREOF OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF AUDIOMACK HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. AUDIOMACK SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY AUDIOMACK OR RIGHTSHOLDERS ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF RIGHTSHOLDER’S CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH AUDIOMACK OR OTHERWISE. AUDIOMACK’S TOTAL LIABILITY TO RIGHTSHOLDER FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO RIGHTSHOLDER BY AUDIOMACK FOR THE RIGHT TO STREAM THE RIGHTHOLDER’S CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RIGHTHOLDER’S CLAIM AGAINST AUDIOMACK.
    1. Applicable Law: APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO RIGHTSHOLDER. IN SUCH CASES, RIGHTSHOLDER AGREES THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN RIGHTSHOLDER AND AUDIOMACK, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RIGHTSHOLDER AND AUDIOMACK, AUDIOMACK’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. RIGHTSHOLDER UNDERSTANDS AND AGREES THAT AUDIOMACK WOULD NOT BE ABLE TO OFFER ITS PREMIUM PARTNER OPTION TO RIGHTSHOLDER ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
  19. Force Majeure: If by reason of failures of telecommunications or internet service providers, labor disputes, riots, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions or other causes beyond Audiomack’s control, Audiomack is unable to perform in whole or in part Audiomack’s obligations as set forth in this Agreement, then Audiomack shall be relieved of those obligations to the extent Audiomack are so unable to perform and such inability to perform shall not make Audiomack liable to the Rightsholder or other third parties.
  20. Dispute Resolution:
    1. Mandatory Arbitration: please read this carefully as it affects Rightsholder’s rights. RIGHTSHOLDER AND AUDIOMACK AND EACH OF AUDIOMACK’S RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR RIGHTSHOLDER’S USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
    2. Commencing Arbitration: A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by RIGHTSHOLDER to AUDIOMACK, to Rightsholder through any other method available to AUDIOMACK, including through e-mail. The Notice to Audiomack should be addressed to: Audiomack Inc., 648 Broadway, Suite 302, New York, NY 10012 (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If Rightsholder and Audiomack do not reach an agreement to resolve the claim within 30 days after the Notice is received, Rightsholder or Audiomack may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If Rightsholder is required to pay a filing fee to commence an arbitration against Audiomack, then Audiomack will promptly reimburse Rightsholder for their confirmed payment of the filing fee upon Audiomack receipt of Notice at the Arbitration Notice Address that Rightsholder has commenced arbitration along with a receipt evidencing payment of the filing fee, unless Rightsholder’s Demand is equal to or greater than One Thousand ($1,000.00) Dollars, in which case Rightsholder is solely responsible for the payment of the filing fee.
    3. Arbitration Proceeding: The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. Rightsholder and Audiomack agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
    4. No Class Actions: RIGHTSHOLDER AND AUDIOMACK AGREE THAT RIGHTSHOLDER AND AUDIOMACK MAY BRING CLAIMS AGAINST THE OTHER ONLY IN RIGHTSHOLDER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, RIGHTSHOLDER AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
    5. Decision of the Arbitrator: Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of New York in conducting the arbitration. Rightsholder acknowledge that this Agreement and Rightsholder’s use of the Services and the Website evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
    6. Applicable Law: This Agreement and Rightsholder’s use of the Services and the Website shall be governed by the substantive laws of the State of New York without reference to its choice or conflicts of law principles.
    7. Equitable Relief: The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Audiomack seeks equitable relief of any kind. Rightsholder acknowledge that, in the event of a breach of this Agreement by Audiomack or any third party, the damage or harm, if any, caused to Rightsholder will not entitle Rightsholder to seek injunctive or other equitable relief against Audiomack, and Rightsholder’s only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
    8. Claims: Rightsholder and Audiomack agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the Services or the use of the Website, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
    9. Improperly Filed Claims: All claims Rightsholder brings against Audiomack must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should Rightsholder file a claim contrary to this Dispute Resolution section, Audiomack may recover attorneys’ fees and costs up to Five Thousand ($5,000.00) Dollars, provided that Audiomack has notified Rightsholder in writing of the improperly filed claim, and Rightsholder has failed to promptly withdraw the claim.
  21. General Provisions:
    1. Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture between Rightsholder and Audiomack, and Audiomack shall not have a fiduciary obligation to Rightsholder as a result of their entering into this Agreement.
    2. Entire Agreement. This Agreement together with the Audiomack TOS contains the entire understanding of the parties relating to the subject matter hereof. This Agreement (including all Addenda) supersedes all previous agreements or arrangements between Rightsholder and Audiomack pertaining to the Services, provided that if Rightsholder previously entered into a digital distribution or consignment agreement with Audiomack in the past, and elected any options specifying or limiting the scope of the distribution of Rightsholder’s Content, the limitations and authorizations with respect to the distribution of Rightsholder’s Content shall remain in place under this Agreement and the applicable Addendum. This Agreement cannot be changed or modified except as provided herein.
    3. Waiver; Severability. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
    4. Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
    5. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by Rightsholder upon registration with Audiomack, or as properly updated, or, in the absence of a valid electronic mail address, through any other method Audiomack may elect in its sole discretion, including, but not limited to, through posting on the Website.
    6. Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of New York applicable to agreements entered into and to be wholly performed in New York, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the TOS.
    7. Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
    8. Headings. The titles and headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
    9. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    10. Assignment. Audiomack may assign its rights and obligations under this Agreement at any time to any party. Rightsholder may not assign their rights and/or obligations under this Agreement without obtaining Audiomack’s prior written consent.
  22. Definitions: The following capitalized terms shall have the following meanings for purposes of this Agreement:
    1. “Service” or “Services” means the streaming of Rightsholder’s Content on the Website, the App or any Licensee website for which Compensation shall be due to Rightsholder under this Agreement.
    2. “Audiomack Premium Partner” means an individual or group of individuals (for example a band) that authorizes Audiomack by way of this Agreement to run Advertisement(s) in connection with the streaming of their Content on Audiomack in exchange for Compensation.
    3. “Rightsholder’s Content” means sound recordings, video content (i.e., audiovisual works), and the musical works embodied in such sound recordings and video content, and any album related artwork, photos, liner notes, metadata and other material related to Rightsholder’s sound recordings and video content that Rightsholder has provided to Audiomack, either by digital upload to the Website, the App or by delivery of Physical Product, either directly or through a third party acting on Rightsholder’s behalf. Any such sound recordings and video content (and the musical works embodied therein), artwork, photos, liner notes, metadata, or other material provided by Rightsholder to Audiomack, must be owned or controlled by Rightsholder and/or have been cleared by Rightsholder for all purposes and rights granted and authorized under this Agreement. For the avoidance of doubt, Rightsholder’s Content encompasses each sound recording and the musical work (i.e., the notes and lyrics) embodied in each sound recording.
    4. “Licensee” or “Licensees” means any third party that Audiomack may authorize to use the Audiomack embedded player to stream Rightsholder’s Content pursuant to the terms of this Agreement.
    5. “Authorized Territory” means the universe.
    6. “Digital Master” or “Digital Masters” means a copy or copies of Rightsholder’s Content in digital form, whether created by Rightsholder or Audiomack.
    7. “Copyright Management Information” means the digital information conveying information regarding a Digital Master, including, by way of example and not limitation, the title of the applicable album, the name of the song, the ISRC code, the marketing label, and the record company name.
    8. “Actual Costs” means any and all costs associated with Advertisement’s or Subscriptions on Audiomack that are actually incurred by Audiomack. For the avoidance of doubt, the following are some of the types of Actual Costs incurred by Audiomack in connection with Advertisements: revenue splits between the advertiser and Audiomack as well as design and development costs for custom campaigns. These are not the only types of Actual Costs that may be considered Actual Costs by Audiomack in connection with Advertisements and Audiomack expressly reserves the right to apply and consider other actual costs that are typically incurred in in connection with Advertisements as Actual Costs. However, hosting costs incurred by Audiomack shall specifically not be included as an Actual Cost under this Agreement. Additionally, the following are some of the types of Actual Costs incurred by Audiomack in connection with Subscriptions: payment processing costs. These are not the only types of Actual Costs that may be considered Actual Costs by Audiomack in connection with Subscriptions and Audiomack expressly reserves the right to apply and consider other actual costs that are typically incurred in in connection with Subscriptions as Actual Costs.
    9. “Advertisement” means on the Website, a Licensee website, or through the App, any communication of products or services that appears or is audible to Audiomack users directly in connection with the consumption of Monetized Content. Audiomack reserves the right to consider any form of communication of products or services that is communicated in connection with Rightsholder’s Content on the Website, a Licensee website, or through the App to be an Advertisement. For the avoidance of doubt, the following are potential revenue streams of Audiomack that are not considered Advertisements:
      1. Sharing or selling of data to any reputable third party partner or service, to enhance the functionality, reliability, utility, and profitability of the Services and to provide certain specialized services for Audiomack’s administrators and users
      2. Advertisement’s in connection with rightsholder upload pages
      3. Event sponsorships
      4. Sponsored emails or any instance of sponsored email marketing
      5. Any other instance of the communication of products or services on the Website, a Licensee website, or through the App that is not in the good faith estimation of Audiomack directly related to the consumption of Rightsholder’s Content and/or Monetized Content.
    10. “Subscription” means Audiomack’s “Audiomack Gold” and “Audiomack Platinum” subscription services and any forthcoming subscription service implemented by Audiomack in the future.
    11. “Stream” means any stream of a sound recording on Audiomack, including, without limitation the Website, a Licensee Website and/or the App that is streamed by an Audiomack user for thirty seconds (30) or longer. All instances where a sound recording is streamed by a user for less than thirty (30) seconds shall not be considered a qualifying Audiomack Stream.
    12. “Monetized Content” means sound recordings and video content on Audiomack services, including, without limitation, its app or through embeds from Audiomack, that have been indicated by Rightsholder on either the Website, a Licensee website or the App to be eligible for monetization and that Audiomack, in its sole discretion, has accepted as Monetized Content. For the playing of any sound recording or video content to qualify and be considered Monetized Content it must be streamed by an Audiomack user for thirty seconds (30) or longer. All instances where a sound recording or video content is streamed by a user for less than thirty (30) seconds shall not be considered a stream of Monetized Content and no Compensation shall be due in connection with said content.
    13. “Promotional Opportunity” means any communication of Rightsholder’s content that appears or is audible to Audiomack users. Audiomack reserves the right to consider any form of communication of Rightsholder’s content on the Website, a Licensee website, or through the App to be a Promotional Opportunity

THIS AGREEMENT, WHEN ACCEPTED BY YOU AFTER CLICKING “SUBMIT APPLICATION” WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY, OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, BAND, GROUP OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, BAND, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING “SUBMIT APPLICATION”. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “SUBMIT APPLICATION” BUTTON BELOW AND/OR SIGN AND RETURN THE COVER SHEET.