1. SCOPE OF APPLICATION, DEFINITION OF TERMS
1.2 The website operator and contracting party for all users is Alexander Maas, Altforweilerstr. 12, 66740 Saarlouis, Germany (hereinafter “audiocabin”).
1.3 The offer is primarily tailored to professional artists who produce music. Consequently, the offer is intended only for entrepreneurs. According to the existing T&C, entrepreneurs can either be individual or corporate bodies or partnerships with a legal capacity, acting in their commercial, or self-employed capacity, when entering into a legal transaction (art. 14 German Civil Law, BGB).
1.4 audiocabin reserves the right to change the existing T&C. Changes will be effected only in the case that there is a valid and founded reason. Possible reasons for changing the T&C include legal or technical changes, experience of artist conduct or unintended gaps in the clauses currently included in the T&C. Artists shall be informed of these changes via e-mail and/or when they next visit the website. The artist has the right not to accept these changes. In the case that the changes are rejected, audiocabin reserves the right to immediately terminate any agreement. Changes shall be considered accepted and acknowledged, when the artist does not reject these changes within 14 days of the changes being announced by audiocabin.
2. OBJECT OF THIS AGREEMENT
2.1 audiocabin provides a website as a marketplace for music and gives artists the opportunity to license their music content through the said website. The artists hereby enter into a licensing agreement with audiocabin which enables them to offer their work through the website and to license music content to clients who express an interest in the said content. Entering into a licensing agreement does not constitute a form of employment. Payment of all tax and social security contributions remains the sole responsibility of the artist.
2.2 Clients may use the music content offered by entering into an agreement with audiocabin. This agreement does not constitute a contract between the artist and the client. The contracting party for the client and, as such, exclusive licensor for all works of music, shall be audiocabin.
2.3 audiocabin only accepts content from those artists, who have produced the said content themselves, and as long as such content is not subject to any third-party claims. Where the contents are subject to an agreement with a performance rights organization (P.R.O.), the artist must bring this to the attention of audiocabin, in order for the content to be marked accordingly.
3. ENTERING INTO AN AGREEMENT; CONTRACT TERM; TERMINATION
3.1 Registration shall be considered successful when the artist has completed the entire registration process correctly and in full, and subsequently clicked on “Register”. The artist hereby enters into an agreement with audiocabin.
3.2 The contract does not have a specific term. Both contracted parties have the right to terminate such a contract by giving notice of 30 days. Such a termination does not affect any licenses already given to clients, or those licenses that shall be given to clients during the notice period. Any licenses which clients have thus obtained shall remain valid. Upon termination of a contract, audiocabin assumes the obligation to remove all content of the artist from their website within 30 days. audiocabin is also entitled to use the content in question for a period of up to six (6) months in the case that this content is part of an ongoing marketing campaign.
3.3 If an account remains inactive, or is not logged into for a period of 24 months, audiocabin reserves the right to immediately terminate a contract, should trying to contact the artist prove to be futile. In this case, the artist loses their claim to any remaining balance.
3.4 audiocabin reserves the right to withhold remaining balances up to an appropriate amount, where the artist has infringed on the rights of third parties, or is found to be in breach of the regulations contained in the agreement held between the artist and audiocabin.
4. COMPENSATION, METHODS OF PAYMENT
4.1 Uploading the content to the website does not constitute a claim to compensation on behalf of the artist. Only after audiocabin has licensed any content of the artist to a client, the artist will gain a claim to compensation. audiocabin cannot guarantee that an artist shall receive any remuneration for offering their content on the website.
4.2 The amount of remuneration any given artist is due, depends on the number of clients who obtain a license, and on the types of licenses sold. The price for content shall be set at audiocabin’s sole discretion and shall be based exclusively on current market developments. The price for content may be changed at any time.
4.3 The basis for the assessment shall be 50% of the net revenue audiocabin achieves through sub-licensing of any given artist’s music content.
4.4 In the case that any given artist’s music is subject to a P.R.O.-agreement, audiocabin shall not be held liable for fees which the customer may have to pay directly to the performance rights organization.
4.5 Payments shall be effected minus all costs incurred (e.g. taxes, transaction fees) in the month after the month following that in which the content is licensed. Payments shall be effected through the payment methods offered by audiocabin (PayPal). In the case that the amount of remuneration is less than $ 50, audiocabin may withhold such a payment. In the case that audiocabin is obliged to pay additional taxes as a result of any given artist’s place of residence, these taxes shall be directly deducted from the remuneration that the artist is due, and audiocabin shall pay the said taxes directly to the authorities responsible.
4.6 In the case of fraudulent behavior, audiocabin is entitled to rescind or revoke any remuneration payments thus effected. audiocabin is obliged to provide information on such matters.
4.7 audiocabin strives to provide sales data in the account of any given artist, as quickly and as transparently as possible. This cannot, however, be guaranteed.
4.8 In the case that multiple authors hold the rights to any piece of content, payment of the agreed amount of remuneration shall also compensate for all claims made by any co-authors. The artist is the only party holding responsibility towards any co-authors.
5. THE ARTIST’S DUTIES
5.1 When registering on the website, artists are obliged to complete all data fields on the registration form, correctly and in full. For a successful registration, all obligatory fields must be filled in. The registration data (user name, profile picture) may not be offensive or constitute libel to others, nor may it be identical to those of others (e.g. celebrities) or companies. Login data shall be kept secret.
5.2 The artist may not take any action, which could may entail an unreasonable or undue burden to the platform or to audiocabin respectively, or which would contradict the purpose of this agreement.
5.3 Any artist may have only one member account on the website at any given time. In the case that the artist loses their login data, they are obliged to immediately bring this to the attention of audiocabin.
5.4 During the registration process, a password must be chosen. This enables the website account to be accessed by entering the member name and the password. The artist is obliged to regularly change their password and to maintain an appropriate password strength (e.g. passwords must contain a minimum of eight (8) characters and a combination of letters and numbers). The disclosure of passwords to third parties is not authorized.
5.5 The member account is non-transferrable and cannot be sold to third parties. This includes the use of any given member account by third parties.
5.6 In the case that the artist has authored their work together with others (co-authorship), the artist must obtain consent from their co-authors before uploading the said content to the website.
5.7 The artist shall ensure that he or she does not interfere with the services provided by audiocabin, nor with the content provided by other artists, or with the clients. This includes the artist’s obligation to only upload content, which has been checked for malware (viruses, Trojans, etc.) using the latest version of a security software.
6. RIGHTS OF USE
6.1 The artist shall concede all necessary rights held for the transferred content to enable audiocabin to grant manifold sub-licenses to clients. In particular, this includes the rights of use being transferred without limitations in terms of time, place and media, and the right to process and rearrange the said content.
6.2 After content has been uploaded, audiocabin has the right to thoroughly check the suitability of content and refuse any content on the basis of these checks, without giving any reason. Content may also be altered, processed or shortened after it has been accepted.
6.3 audiocabin also holds the right to multiply content after having accepted it, to publicly play the said content, to give a preview of the content, to create a server or temporary copies, and to use the content, the artist’s user name and the artist’s profile pictures for advertising in all well-established sales channels; this explicitly includes social media.
6.4 As audiocabin also grants its clients a commercial license, the artist correspondingly concedes the commercial rights of use to audiocabin.
6.5 By uploading content to the website, the artist confirms that the content uploaded is not subject to any third-party rights. Additionally, the artist must provide information as to whether the music is subject to a performance rights organization (ASCAP, BMI, etc.) charged with collecting royalties (subject to P.R.O.) or not (free of P.R.O.).
6.6 The artist also guarantees that content has not been produced using any software, samples or loops for which they do not hold rights of use.
6.7 By transferring rights of use to audiocabin, the artist waives any right to their name being stated together with the content (Art. 13 UrhG, German Copyright Act).
6.8 audiocabin reserves the right to advertise content offered by any given artist through different online channels. The artist agrees to audiocabin making use of the track description for advertising purposes. In this context, the artist also accepts that his or her content may be licensed for a limited time free of charge for website advertising purposes.
7.1 The relationship entered into by any given artist and audiocabin is not exclusive. Consequently, the artist is free to use non-exclusive content for their own purposes, to distribute such content or to sub-license the said content elsewhere.
8. LIABILITY EXEMPTION
8.1 The artist shall fully exempt audiocabin from any liability claims, which may made against audiocabin by other artists, clients or third parties against audiocabin in light of alleged breaches of contracts and/or rights due to the contents made available. It shall be at audiocabin’s sole discretion to decide if and how a breach of contract between audiocabin and one of its clients shall be dealt with. The liability exemption shall include the cost for audiocabin’s legal representation and all court and lawyer fees as they are prescribed by law.
8.2 In the case that other artists, clients or third parties make claims against audiocabin, the artist is obliged to provide necessary support, e.g. by immediately providing all information, correctly and in full, that may be necessary to assess the claims made and to prepare the legal representation in such a proceeding.
9.1 audiocabin accepts unlimited liability, where damages have been caused by gross negligence or by willful intent.
9.2 Additionally, audiocabin assumes liability in cases where main duties have not been met due to slight negligence. This covers all duties which failure to fulfil negatively impacts the contractual purpose, or the fulfilment of which is a prerequisite to executing the contract, and which the client has reason to trust shall be fulfilled on a regular basis. In this case, however, audiocabin only assumes liability for predictable damages typical for the type of contract. audiocabin shall not assume any liability for slightly negligent behavior in regard to any duties other than the aforementioned.
9.3 The aforementioned limitations to liability do not apply in case of death, bodily injury and damages to health, for defects after a guarantee for product conditions has been issued, or for defects that have been willfully concealed. Liability according to the German Product Liability Act remains unaffected.
9.4 Where liability limitations or exclusions for audiocabin apply, these also apply for the personal liability of its staff, representatives and assistants.
10. PRIVACY PROTECTION
10.1 audiocabin saves and processes artist-related data according only as required and in line with legal provisions. audiocabin uses the personal data provided for use of the platform (e.g. name, e-mail address, physical address and payment data) to execute and process the existing contract. All data will be treated with confidentiality and will not be disclosed to any third party other than those involved in the order, delivery or payment process, unless audiocabin has a legal obligation to do so (e.g. toward investigating and tax authorities).
10.2 All artists have the right to submit a free written request for information regarding their personal data which audiocabin holds about them. Additionally, all users have the right to amend incorrect data, and to request that their personal data is blocked or deleted, provided that there is no opposing legal obligation for this data to be retained. Incidentally, all data stored shall be deleted, once the purpose for which the data had to be saved has become obsolete, or in the case that deletion of the said data is required by law.
11. FINAL PROVISIONS
11.1 All agreements between audiocabin and its artists shall be governed by the law of the Federal Republic of Germany and both UNCISG, as well as reference provisions in German private international law shall explicitly not apply, unless legal provisions mandate a corresponding application.
11.2 In the case that an artist identifies as a tradesman or a special body governed by public law, the place of jurisdiction shall be audiocabin’s registered address.
11.3 Where individual provisions of the existing contract prove to be legally ineffective, this shall not affect the remaining provisions of the existing contract.