"Authorised Users", (i) where You are an entity other than an individual: those employees, agents and independent contractors of You and those employees, agents and independent contractors of End-user’s affiliate(s) and partners who are authorised by You to use or access the Services, and (ii) where You are an individual, You.
"Business Day", any day which is not a Saturday, Sunday or public holiday in Hong Kong;
"Company" means Transsnet Music Limited, a limited company with offices at Room 604, 6/F, South Tower, World Finance Centre, Harbour City, 17 Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong
"Company Data", the information and data used in or in conjunction with the Software or Services that is proprietary of, or licensed by third parties to, the Company;
"Confidential Information", information that is proprietary or confidential and is either clearly labelled as such, identified as confidential information or any information that You ought reasonably regard to as confidential;
"Consumer Stores", means digital services providers such as music download portals, music and video streaming services, mobile music platforms, digital (and terrestrial) radio stations and television networks, and mobile networks that enable the purchasing streaming or downloading of Content.
"Data Protection Legislation", all laws relating to the processing of Personal Data, privacy and information or data security including the European Union General Data Protection Regulation, "GDPR" and all applicable laws and regulations relating to the processing of personal data, including the opinions, guidance, advice, directors, order and codes of practice issued or approved by a data protection regulator in the European Economic Area;
"Deductions" means the deductions from the Income that is not retained by the Company, its authorised distributors, or its partners, including but not limited to money transfer costs, bank exchange costs and other deductions as may be applied from time to time;
"Fee" means the non-refundable fee You agree to pay the Company, its authorised distributors, or its partners, for providing the Services as referred to in Clause 6 below;
"Income" means income actually received by the Company from time to time on behalf of You from the Consumer Stores in respect of Content provided to the Consumer Stores deducting any fee, deduction or other charge levied by the Consumer Stores;
"Intellectual Property Rights", all intellectual property rights of whatever nature, including patents, copyright (present and future), trademarks, business names, trade names, domain names, rights in get-up, goodwill and the right to sue for passing of or unfair competition, rights in computer software, design rights, rights to inventions, database rights, rights in performances, (whether or not any of these is registered and including any applications for registration of any such rights), rights to preserve the confidentiality of information (including trade secrets and know-how) and any other intellectual property rights and including all applications, or rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
"Net Income" means the Income deducting the Fees and Deductions;
"Software", any software provided or used by the Company in the provision of the Services;
"Start Date", when You clicks "Accept";
"Streaming Manipulation", any activity and/or method which involves the artificial creation, by human or non-human means, of online or offline plays on audio and/or audio-visual streaming services, where such plays do not represent bona fide end-user listening and/or views initiated by genuine consumers and taking place in the reporting country. Streaming Manipulation may involve or include, but is not limited to, increasing, generating or manipulating play counts, sales, follow counts, engagement activity, or other key metrics used by the Services and/or any Consumer Store, through the use of (A) bots, scripts, viruses, worms or any other computer codes, files, programs or automated processes; and/or (B) click-farms, troll-farms, inauthentic accounts, shared account information, or virtual private networks. Streaming Manipulation can be the result of activities undertaken with respect to either individual or groups of Recordings in order to artificially improve chart positioning, increase market share, increase royalty or other payments, or for any other fraudulent or dishonest purposes. For the avoidance of doubt, any Streaming Manipulation done by a third party on Your behalf or that relates to Your Recordings is a violation of these Terms of Service. The factors used to determine whether any particular consumption or marketing activity is Streaming Manipulation will vary according to the specific circumstances of each case and the examples and descriptions of Streaming Manipulation set forth herein are not intended to be exhaustive. Certain Consumer Stores that use your Recordings may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to become aware of and follow such policies, and such policies shall be binding upon You hereunder.
"Virus", anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
"Artificial Intelligence", the use of machines/computers, aided by online and/or offline tools, that learn from experience, adjust to new inputs and perform human-like tasks for the purpose of creating and/or distributing music.
"Artificial Music Generator", Artificial Intelligence music composer that creates original and/or personalized music and/or creates variations of existing music.
"Robotic Means", machines/computers capable of performing human functions required in the creation and/or distributing of musical works.
2.2 In relation to the Authorised Users, You undertake that each Authorised User shall keep a secure and confidential password for his use of the Services and that each Authorised User shall comply with good industry practice in respect of password security.
2.3 You shall not knowingly access, store, distribute or transmit any Viruses, or any material, data or Content during the course of its use of the Services that, in the sole opinion of the Company:
2.3.1 Is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
2.3.2 violates or infringes any Intellectual Property Rights or other rights of third parties;
2.3.3 facilitates illegal activity;
2.3.4 depicts obscenity content;
2.3.5 promotes unlawful violence;
2.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
2.3.7 causes damage or injury to any person or property,
and the Company reserves the right, without liability to You, to disable Your access to any material that breaches the provisions of this Clause 2.3.
2.4. You shall not and shall ensure that the Authorised Users do not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Services (as applicable) in any form or media or by any means including any part of the Company Data, the data models or screens, and any data that has been entered by the Company or one of its agents; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
i.access all or any part of the Services or Software in order to build a product or service which competes with the Software and/or the Services;
ii.license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software or the Services available to any third party except the Authorised Users;
2.5. You shall not, and shall ensure that the Authorised Users do not, do any of the following while using or accessing the Services or the Software:
2.5.1. disable, hack, circumvent or otherwise interfere with security related features of the Software or the Services;
2.5.2. use any metadata, meta tags or other hidden text utilising the Company name, Intellectual Property Rights, URL or product name;
2.5.3. upload, submit, post, email or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
2.5.4. forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Services or the Software to send altered, deceptive or false source-identifying information;
2.5.5. attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Services or the Software;
2.5.6. collect or store Personal Data about any third party except in accordance with the Data Protection Legislation; or
2.5.7. misrepresent or impersonate its affiliate with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud.
2.6. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Company.
2.7. The Company may amend the Services in its sole and absolute discretion from time to time on notice to the End- user.
3.1 You shall submit all Content at its sole expense in the format(s) required by the Company or the Consumer Stores. Technical descriptions of such format(s) will be provided to You on request. In the event that Content is provided by You in the incorrect format, You shall be liable to pay any resubmission or similar fees levied by the Consumer Stores in respect of any such Content provided by the Company to the Consumer Stores.
3.2.1 use the Content to provide the Services;
3.2.2 sell, copy, display, distribute and otherwise exploit the Content by all means and media (whether now known or existing in the future) through any and all Consumer Stores or the Company website (including for permanent download by End-users);
3.2.3 supplement any artwork provided for use with the Services;
3.2.4 make and perform clips of any Content of up to thirty (30) seconds in length via streaming or download free of charge, for the purposes of promotion of the Content, the relevant artists or the Services;
3.2.5 to use the Content in connection with the Company's business purposes; and
3.2.6 collect all income deriving from the activities specified in this clause 3.2.
3.3 The Company shall make the Content available ‘as is’ through the Services and shall not be liable for any reliance placed by You or any third party on the Services, Software or Content.
3.4 The Company engages the services of third party providers who also provide back-up services for data stored in or entered into the Software, including Content. In the event of any loss or damage to Content, You's sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to have its service providers restore the lost or damaged Content from the latest back-up of such Content maintained in accordance with the archiving procedure described in the relevant back up policies. The Company shall not be responsible f or any loss, destruction, alteration or disclosure of Content caused by any third party (except those third parties sub-contracted by the Company to perform services related to Content maintenance and back-up or the Company's duly authorised contractors or agents).
3.5 You warrant and represents that:
3.7 You acknowledge that in providing the Services and payments hereunder, the Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores shall be within the sole discretion of the Company.
3.8 Nothing in this Agreement shall require the Company, and the Company does not guarantee, that it will use or exploit any Content or upload it to any Consumer Stores.
3.9. Not to use Artificial Intelligence, Artificial Music Generator, or any other artificial and or robotic means.
4.Third Party Providers
5. The Company's Obligations
5.1 The Company warrants that the Services and any Software: (i) will be performed in accordance with reasonable skill and care, and (ii) does not infringe any third-party Intellectual Property Rights.
5.2 The warranty at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services or the Software by any party other than the Company or the Company's duly authorised contractors or agents. If the Services or the Software do not conform with the warranty at Clause 6.1 above, the Company will, at its expense: (i) use reasonable commercial endeavours to correct any such non-conformance promptly, or provide You with an alternative means of accomplishing the desired performance; or (ii) re-perform the relevant Services (as applicable). Such correction, substitution or re-performance constitutes Your sole and exclusive remedy for any breach of the warranty set out in Clause 6.1. Notwithstanding the foregoing, the Company:
5.2.1. does not warrant that Your use of the Services or the Software will be uninterrupted or error-free, nor that the Software or the information obtained by You through the Services will meet Your requirements; and
5.2.2.is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Company shall use commercially reasonable endeavours to prevent and/or minimise any such delays or loss of data resulting from the transfer of data over communications networks and facilities to the extent that such matters are within the Company’s control.
6.1 By using the Service, You shall pay to Us the Fees corresponding to the Services contracted, which can be found at any time in the "Payment-Subscription Plans" section of your Account. The abovementioned Service Fees, sales commission percentage and the minimum payment threshold for You are listed in the Platform, in the "Payment-Subscription Plans" section.
6.2 All payments and associated claims: (i) will be made through the corresponding "Payment-Payout" section of the Platform; (ii) will be made in the currency stated by Us; and (iii) will be payable via PayPal transfer to the account designated by You. If any authority imposes a duty, tax, levy, or fee, You agree to pay that amount or supply exemption documentation. For the avoidance of doubt, such payment is non-refundable.
6.4. If any Digital Music Service deducts any amount due to any passed contingency, overpayment or conclusion in relation to Your Content or an investigation by Us reasonably demonstrates that any of Your fees for any prior month should have been lesser, The Company may, at the conclusion of such investigation and at our sole discretion, provide a revised sales report for the applicable month(s) and deduct the corresponding amount from future payments, what You acknowledge and accept.
6.5 Therefore, You expressly and irrevocably authorize Us to collect all incomes from the exploitation of Your Content through the Platform, including but not limited to author rights, performing rights, publishing rights and sound recording rights, any levy established by law for private copies, or for any other concept, without limitation. For this purpose, The Company may ask you to sign a specific authorization letter as solicited by the corresponding Performing Right Organization, which You undertake to provide as soon as requested by Us.
6.6 The Company will make any corresponding invoices and receipts, including mandatory taxes, available to You according to the applicable regulations.
6.7 The Company reserve the right to change in the future the Service price, the sales commission percentage or the minimum payment threshold, in which case the new terms will be notified to You not less than thirty (30) days prior to the eﬀective date and will be applicable to future incomes.
6.8 The Company may decide not to charge you initially for the use of the Service and any optional service, however, You authorize Us to deduct the corresponding amounts from your future payments.
6.9 In the event that after one year from the start of the relationship, You have distributed Your Content on credit, without having generated enough sales to pay back the outstanding balance, the Company reserve the right to request the payment of the outstanding balance.
6.10 The Company shall not be responsible for the payment of any income tax or corporation tax or comparable taxes levied on You or the Company in respect of the Net Income or Income. If any withholding tax is incurred under income tax or corporation tax enforced anywhere, the Company shall be entitled to deduct the statutory amount of withholding tax from the payments due to You.
6.11 The Company (on its own behalf or, where applicable, on behalf of its authorised distributors or partners) shall be entitled to deduct the Fee, taxes, sale commission from any Income prior to applying the Net Income to Your account.
6.12 To the extent that You elects to use Content to distribute free to any third parties (by whatever means), You agrees that it will be solely responsible for any fees or charges levied by Consumer Stores or taxes in respect of such distribution.
6.13 In the event that the Company determines, in its sole discretion, that Your account has been subject to and / or involved in fraudulent or infringing activities, the Company reserves the right to discontinue the application of Net Income to Your account and block You's ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of the Company. The End- user agrees that any Net Income obtained as a result of Your fraud or infringement of third party Intellectual Property Rights shall be forfeited to the Company. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and You agrees that it is its responsibility to investigate such policies and such policies shall be binding on You hereunder.
6.14 To the extent that any Net Income applied to Your account bears any interest prior to the withdrawal by You of such Net Income, You agrees that it will not receive interest or other earnings on the Net Income. In consideration for Your use of the Services, You transfers and assigns to the Company any ownership rights You may have in any interest or other earning that may accrue on Net Income prior to its withdrawal by You.
7. End-User's Obligations
7.1 You shall:
7.1.1. provide the Company with all necessary:
b.access to such information as may be required by the Company,
in order to render the Services and other Company services as may be available from time to time and in relation to security and configuration services;
7.1.6. ensure that its network, systems and devices comply with the relevant specifications provided by the Company from time to time and with good industry practice; and
7.1.7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Company's systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
7.1.8 not engage in (or to permit, encourage, enlist, retain, or employ third parties to engage in), activities that, in Company’s sole discretion, constitute Streaming Manipulation. In the event that Company has, in its good faith discretion, reason to suspect that your account or Recordings have been subjected to, involved in, or generated revenue from: violating the Terms of Service; fraud; infringement of copyright, trademark, right of publicity or any other intellectual property right; failure to comply with any third-party license requirement; or Streaming Manipulation (collectively, "Improper Conduct"), Company reserves the right to (i) discontinue the posting of income, including any Net Income or other payments to your account, (ii) block Your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of Company is obtained, and (iii) remove any or all of your Recordings from any or all Consumer Stores. You further agree that such revenues will be forfeited by you if Company determines, in its good faith discretion, that your account or Recordings have been subjected to, involved in, or generated revenue from Improper Conduct.
8. Proprietary Rights
9.1.1.is or becomes publicly known other than through any act or omission of You;
9.1.2.was in Your lawful possession before the disclosure;
9.1.3.is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
9.1.4.is independently developed by You, which independent development can be shown by written evidence; or
9.1.5.is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.4 You acknowledges that details of the Software and the Services constitute the Company’s Confidential Information.
11. Limitation of Liability
11.1.1.You assumes sole responsibility for results obtained from the use of the Services by You, and for conclusions drawn from such use. the Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by You in connection with the Services, or any actions taken by the Company at Your direction;
11.1.3.the Services are provided to You on an "as is" basis.
11.3 Subject to 11.2:
11.4 For the purposes of Clause 11.3, the Company is acting on its own behalf and as an agent for and on behalf of its authorised distributors and partners, and accordingly the Company may enforce and rely on Clause 11.3 on its own behalf and/or in its capacity as agent of its authorised distributors and partners.
12. Term & Termination
In the event of termination, You must pay all outstanding amounts to Us in a maximum period of five (5) days from the notification date or the Company will transfer to you any positive balance, whichever is the case. Prior to requesting the termination, You must remove the Content from the DMSs using the "Takedown" functionality that is available to you within the Platform. Moreover, in the event of termination, You authorize Us suspend your account, block your access to your account and delete all the files and information uploaded by You to the Platform. The termination shall not aﬀect the accrued rights and obligations of the parties at the date of termination.
12.2 Additionally, the Company may terminate our relationship and the Service:
In the event You breach any term or condition established by Us (here or in any other document accepted by You) and You fail to remedy such breach within two (2) days of the date of notice from Us;
In case the outstanding balance is not paid, the Company will have the right to terminate the relationship and cease the Service.
If You become the subject of any proceeding related to your liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within sixty (60) calendar days;
If You infringe our Intellectual Property Rights.
If You infringe our Anti-Fraud Policy.
In case you commit any unlawful activity using the Platform or the Service.
12.3 In all cases, all costs due for any Service provided by Us until the termination date, must be duly paid by You.
Regardless the termination of the Service, You and the Company agree to maintain in force those contracts signed by Us with third parties before receiving the notification of termination in the event the contracts with such third parties would be still in force.
12.5.2. You shall return and make no further use of any Software, property, documentation and other items (and all copies of them) belonging to the other party;
12.5.4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13. Force Majeure
15. Law & Jurisdiction