Digital Music Promotion and Broadcast Agreement between You and
Last.fm (the “Agreement”)
This Agreement was last updated on
22 May 2008
THE TERMS OF THE
AGREEMENT IN A NUTSHELL:
THE
PARTIES AGREE AS FOLLOWS:
This Agreement sets out the terms agreed between You and Last.fm Limited ('Last.fm') on the basis that:
·
Last.fm intends to promote music over
the Internet on its online and desktop player and affiliated outlets, such as
third party software client applications, widgets, blogs and social networks and third party hardware applications
(for example internet radio players, media adapters and other hardware where
music can be played);
·
You own or have the right to exploit
and to grant a worldwide licence to Last.fm to use the music videos, sound
recordings (and, where you choose to make Your Content available for free
downloads (which will automatically make the tracks eligible for inclusion in
the podcast service) on the
Last.fm service, the underlying musical compositions and lyrics) and any
performance of any artist and/or performer embodied in Your track or video,
together with any artwork and sleeve notes which You upload and provide to
Last.fm (together, “Your Content”).
By uploading Your Content, You grant to Last.fm a non-exclusive licence
(including the right to sub-license for all purposes related to the Last.fm
service (such as, for example, embedding the Last.fm player on third party
websites or as personal blogs)) during the Term (as defined in clause 3)
throughout the world to:
(a)
communicate and make Your Content and any thirty (30) second preview clip of Your Content available on the Last.fm service; and
(b) to copy
and otherwise exploit Your Content as
necessary for all purposes associated with the Last.fm service.
Depending on Your
choices when You registered or the choice You
subsequently select, the licence is either royalty-free or in return for
royalties. Please see clause 5 below.
All rights and licences not expressly granted to Last.fm under
this Agreement are reserved by You. Ownership of Your Content shall remain with You or Your
licensors.
·
CDs
·
Digital uploads
·
Hard drives
·
Any other digital carrier
·
BOX 1: - I want to collect Radio and On-Demand royalties for all
my songs.
By ticking BOX 1:
(a) You confirm that You wish to participate in Last.fm’s
royalty share scheme:
(b) You warrant to Last.fm that as of the date when You tick BOX 1,
You are not a member of any collection society established for the collection
of royalties for the communication to the public of sound recordings (for
example, PPL in the UK or SoundExchange in the US);
and
(c) You agree that if You become a member
of such a collection society, sign a deal with a record label or assign the
rights in Your Content to a third party, You will immediately inform Last.fm by
accessing your label account and selecting Box 2 or 3. You must also provide
Last.fm with all relevant details of Your membership
with any collection society.
·
BOX 2: – I want to collect On-Demand royalties for all my songs.
I’m a member of a collection society for Radio use.
By ticking BOX 2:
(a) You confirm that You wish to participate
in Last.fm’s royalty share scheme;
(b) You warrant to Last.fm that as of
the date when You tick BOX 2, You are a member of a collection society solely
for the collection of royalties for the communication to the public of sound
recordings on the radio (for example, PPL in the UK or SoundExchange
in the US); and
(c) You will provide Last.fm with all
relevant information reasonably required by Last.fm for reporting radio usage
of Your Content to such collection society. If Your
membership with the collection society changes to include on-demand use of Your
content, You must immediately inform Last.fm by accessing your label account
and selecting Box 3.
·
BOX 3: - I’m ineligible to collect royalties directly. I’m a
member of a collection society for Radio and On-Demand use.
By ticking BOX 3:
(a) You confirm that as of the date when You tick BOX 3, You are a member a collection society for the collection of royalties for the communication to the public of sound recordings for both radio and on-demand use of Your Content; and ...
(b) You will provide Last.fm with all
relevant information reasonably required by Last.fm for reporting use of Your
Content to such collection society.
·
BOX 4: – I don’t want to collect royalties or have entered into
a direct royalty agreement with Last.fm.
By ticking BOX 4:
(a) You confirm that as of the date when You tick BOX 4, You are not a
member of a collection society for the collection of royalties for the
communication to the public of sound recordings; and
(b) You confirm that You do not wish to participate in Last.fm’s
royalty scheme, or
(c) You have entered into a direct
royalty agreement with Last.fm, in which case the terms of such royalty
agreement shall govern the way in which royalties accrue and are paid to You.
You hereby indemnify and will at all times keep Last.fm fully
and effectively indemnified from and against all actions, proceedings, claims,
damages, costs and losses whatsoever made against or incurred by Last.fm in
consequence of any breach or non-performance by You of any of the
representations, warranties or covenants on the part of Last.fm contained in
this Agreement.
You should not have ticked BOX 1 if You are a member of a
collection society for the collection of royalties (such as the PPL in the UK
or SoundExchange in the US) for radio and/or
on-demand use of sound recordings because in those circumstances, Last.fm will
pay the relevant royalties set out below to the relevant collection society.
You must provide details of the collection society to Last.fm.
·
for the free radio service, 10% of the Share
of Last.fm’s Net Revenue from the free radio service.
·
for the personalised premium radio service, the greater of 10% of the Share of Last.fm’s Net Revenue from the personalised radio service or US $0.0005 for each complete transmission on the personalised radio service of a track which forms part of Your Content transmitted on the Last.fm service. This service will be is discontinued as of 22nd April 2009
·
for the subscription radio service, the greater of 10% of the Share of Last.fm’s Net Revenue from the subscription radio service or US $0.0005 for each complete transmission on the subscription radio service of a track which forms part of Your Content transmitted on the Last.fm service. This service was started on the 22nd April 2009
·
for the free on-demand service, 30% of the Share of Last.fm’s Net Revenue from the free on-demand service.
for the premium on-demand service, the greater of 30% of the Share of Last.fm’s Net Revenue from the premium on-demand service or US $0.005 for each complete transmission on the prepaid or subscription on-demand service of a track which forms part of Your Content transmitted on the Last.fm service.
In this section:
“Share”
means a share of the Net Revenue royalty pool
which is calculated by dividing the number of times Your Content is played with
the total number of complete performances of sound recordings on the Last.fm
service;
For the personalised premium
radio service and premium on-demand service, “Net
Revenue” means all advertising revenue (including sponsorship revenue and
subscription revenue), actually received by Last.fm on all pages on the Website
where a user has streamed music content through Last.fm’s
media player and/or through a Last.fm widget after the deduction of any advertising agency commissions paid to advertising
agencies, sales houses or re-sellers.
For the free radio service and free on-demand
service, “Net Revenue” means all
advertising revenue (including sponsorship revenue but excluding subscription
revenue), actually received by Last.fm on all pages on the Website where a user
has streamed music content through Last.fm’s media
player and/or through a Last.fm widget after the deduction of any advertising agency commissions paid to advertising
agencies, sales houses or re-sellers.
The Music Manager service is intended as a fair platform to help emerging artists and labels find a legitimate audience online. By using the service, you agree that you shall not do or cause anything to be done that causes you to receive an unfair advantage or revenue or in any way prejudices the operation of the Last.fm website or any part of it. In particular, you will not authorise, enable or engage in any activity which is or is intended to be fraudulent, unlawful, false or which artificially alters any information on or relating to the website, including (by way of example) falsifying the number of site impressions, uploading content that is already licensed to Last.fm or uploading duplicates of Your Content. Last.fm reserves the right, but is not obligated, to delete, move or edit Your Content and any information relating to Your Content on the website, in whole or in part, in our sole discretion. Last.fm reserves the right to suspend or terminate your access to the Website, with immediate effect and without notice to you, and pursue all legal remedies if Last.fm believes, in its sole discretion, that you are in breach of any part of this clause.
The terms of the Website Terms of Use and Privacy Policy, also form part of
this Agreement. Please read the terms and ensure You
accept and are familiar with them. To the extent that there is any conflict
between the Website Terms of Use and this Agreement, the terms of this
Agreement shall prevail.
You acknowledge and agree that this Agreement sets out the
business relationship between You and Last.fm.
The business relationship between You and Last.fm is of licensor
and licensee and nothing in this Agreement shall be construed (i) to give
either party the power to direct or control the daily activities of the other
party; or (ii) to constitute the parties as principal and agent, employer and
employee, franchisor and franchisee, partners, joint venturers, co-owners, or
otherwise as participants in a joint undertaking.
Last.fm shall be under no obligation to stream or use Your
Content.
All notices or other communications required under this
Agreement shall be given by email to the relevant party at the email addresses
stated below and shall be deemed to have been given on the date that the email
is read by the recipient (evidenced by a read receipt automatically sent to the
sender).
Last.fm: labels@last.fm
You: The email address supplied by You when You registered.
For the
purpose of the Contracts (Rights of Third Parties) Act 1999, nothing in this
Agreement shall confer or purport to confer on any third party any benefit or
the right to enforce any term of this Agreement.
If any
provision of this Agreement (or part of any provision) is found by any court or
other authority of competent jurisdiction to be invalid, illegal or
unenforceable, that provision or part of such provision shall, to the extent
required, be deemed not to form part of this Agreement, and the validity and
enforceability of the other provisions of this Agreement shall not be affected.
This
Agreement is governed by and shall be construed in accordance with English law
and in the event of a dispute the parties shall submit to the exclusive
jurisdiction of the English Courts.
Last.fm
may, at its sole discretion, make changes to this Agreement at any time. If
Last.fm does this, it will post the changes on this page. In certain circumstances, Last.fm may
send an email to You notifying You of the change. You
should, however, check this page from time to time to take notice of any
changes.
If You find any change unacceptable, You should terminate this
Agreement by removing Your Content
using the facility provided by the Last.fm service. Failure to terminate this
Agreement by removing Your Content
following any change shall constitute Your acceptance
of the new terms of the Agreement.
THIS AGREEMENT SETS OUT THE TERMS AND CONDITIONS
GOVERNING USE OF YOUR CONTENT ON THE LAST.FM SERVICE. IF YOU ARE UNSURE ABOUT
ANY OF THESE TERMS AND CONDITIONS YOU ARE ADVISED TO OBTAIN INDEPENDENT LEGAL
ADVICE BEFORE ACCEPTING THEM.
Great,
You made it to the end ;) We look forward to establishing a long term, mutually-beneficial relationship with You.