Digital Music Promotion and Broadcast Agreement between you and Last.fm (the “Agreement”).
This Agreement was last updated on 1st June 2011.
THE MAIN TERMS OF THE AGREEMENT IN A NUTSHELL:
1. You confirm that you have permission to upload all of your content and make it available worldwide (without restriction) or have obtained permission from the relevant rightsholder(s).
2. Last.fm may (but shall have no obligation to) use your tracks for its Internet radio streaming service and for 30 second previews, and if you choose, for “full length promo” and / or “free downloads”, worldwide.
3. During the registration process, you were given the option to share in royalties from the use of sound recordings of your tracks on the Last.fm services.
4. Last.fm will pay royalties for the use of any musical compositions for Internet radio streaming directly to collection societies who administer music publishing rights (for example, PRS for Music in the UK) as described in this Agreement.
5. Last.fm does not claim any ownership rights in your content. You will continue to own your content and can use it in any way that you choose.
6. It is up to you whether to make your tracks available on the Last.fm services as a “full length promo” and/or “free download” (which will automatically make the tracks eligible for inclusion in the podcast and download service). This service is offered to help users readily access our tracks and help promote your music, and by selecting the “full length promo” and/or “free download” option, you expressly agree that you waive, and have obtained a waiver from the relevant rightsholder(s) to, any royalties for the use of your tracks in this manner (including if such royalties arise from the use of musical compositions, sound recordings, performances or otherwise).
7. You or Last.fm can terminate this Agreement at any time by: (i) you removing your content using the facility provided by the Last.fm services; or (ii) one party providing the other party with 7 days’ prior written notice of termination.
THE PARTIES AGREE AS FOLLOWS:
This Agreement sets out the terms and conditions agreed between you (“You”, “Your”) and Last.fm Limited (“Last.fm”) on the basis that:
- Last.fm intends to promote and make available music over the Internet on its website, through players, apps and affiliated sites and 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 on which music can be played) and where relevant, by linking to online music stores and other third party providers;
- You own or have the right to exploit and to grant a worldwide licence to Last.fm to use the sound recordings (and, where You choose to make Your Content available for “full length promos” and/or “free downloads” on the Last.fm and affiliated services (which will automatically make the tracks eligible for inclusion in the podcast service and download service), the underlying musical compositions and lyrics) and any performance of any artist and/or performer embodied in Your track, together with any metadata, artwork, images, lyrics and sleeve notes which You upload and provide to Last.fm (together, “Your Content”).
1. GRANT OF LICENCE
1.1 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 and its affiliated services (such as, for example, embedding a Last.fm player on third party websites)) 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 through the Last.fm services (including through affiliated sites and outlets); and
(b) to copy, cache and otherwise exploit Your Content as necessary for all purposes associated with the Last.fm services (including through affiliated sites and outlets).
Subject to clause 3.2 below and depending on the options selected in Music Manager, the licence is either royalty-free or in return for royalties as set out in this Agreement.
1.2 Reserved Rights
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.
2.1 You shall deliver to Last.fm:
(a) Your Content, including copies of the master versions of Your Content from which Last.fm shall be entitled to make copies for the purpose set out in this Agreement (see clause 2.4);
(b) All necessary, related artwork for use by Last.fm in connection with the marketing and promotion of Your Content;
(c) A written schedule of the names and contact information of the author(s), composer(s) and music publisher(s) and performers of the songs embodied in Your Content, together with any additional copyright information and metadata in Your possession or under Your control relating to such songs and Your Content; and
(d) The following information shall be included in metadata associated with Your Content which is delivered to Last.fm:
(i) Artist name
(ii) Track name
(III) Version name
(IV) Composer name
(iv) Album name (if applicable)
(v) ISRC (if available); AND
(vi) Credits that You are contractually obliged to provide to Last.fm to display on Last.fm’s website at www.last.fm (the “LAST.FM Website”) in connection with the use of Your Content under this Agreement (If Applicable).
2.2 Last.fm requires the information set out above to ensure that Your music is displayed correctly and to enable Last.fm, where applicable, to report to collection societies so that the relevant payments can be made.
2.3 Last.fm may encode or transcode Your Content as required.
2.4 You can deliver Your Content and the material set out in clause 2.1 through digital uploads or if agreed with Last.fm, some other form of digital carrier.
3.1 This Agreement shall commence on the earlier of the date that You deliver any of Your Content to Last.fm and the date that You upload any of Your Content using the facility on the Last.fm services, and shall continue until such time as You or Last.fm terminate this Agreement by:
(a) You removing Your Content using the facility provided by the Last.fm services; or
(b) one party providing the other party with 7 days' prior written notice of termination.
3.2 If You choose to terminate this Agreement by giving 7 days’ written notice and You do not remove Your Content following the end of such 7 day period, Last.fm shall have a royalty-free licence to use Your Content in accordance with Clause 1.1 until You remove Your Content.
3.3 Following termination of this Agreement, Last.fm may retain on a confidential basis one copy of any correspondence, information or data provided by You to Last.fm in order to comply with legal or regulatory requirements and/or internal document retention policies as well as any and all: (i) e-mails and any attachments contained in such e-mails; and (ii) any electronic files, each of which are automatically saved.
4. REPRESENTATIONS AND WARRANTIES
4.1 You represent, warrant and undertake to Last.fm that:
(b) You are the owner or authorised licensor of Your Content throughout the world and have obtained all necessary rights, clearances, consents, releases, waivers, and authorisations in respect of Your Content;
(c) You have full right and authority to enter into this Agreement and grant the licence in clause 1.1;
(d) There is no present or prospective claim or litigation in respect of Your Content;
(e) The use by Last.fm of Your Content shall not infringe the rights of any third party;
(f) You have cleared all rights (including in the form of waivers of all moral rights, neighbouring rights or similar rights held anywhere in the world from any contributor to Your Content) and made all payments due to any performing artist, collecting society, producer or contributor to Your Content (including but not limited to music synchronisation clearances and fees, where applicable), that such payments are equitable in accordance with relevant legislation and that no further payments shall be payable by Last.fm; and
(g) Your Content will not contain any contaminated file, viruses, worms, Trojan horses or other similar harmful or destructive code or program.
4.2 Last.fm warrants that it has the full right and authority to enter into this Agreement.
5. RIGHTS IN THE CONTENT
5.1 Last.fm enters into licence arrangements with collection societies who administer music publishing rights. In order to be paid any royalties due to You under this Agreement for the use of any musical compositions in Your Content, You should join Your local collection society and register Your Content with them.
5.2 During the Music Manager registration process, You were asked to select one of three options dependent on who owns the rights in any sound recordings within Your Content. The option You selected determines how royalties will be paid for the exploitation of Your Content, as further explained below:
- BOX 1: - I want to collect radio royalties for all my songs directly.
By selecting 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 account and selecting Box 2. You must also provide Last.fm with all relevant details of Your membership with any collection society.
- BOX 2: – I’m ineligible to collect royalties directly. I’m a member of a collection society for radio use.
By selecting 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.
- BOX 3: – I don’t want to collect royalties or have entered into a direct royalty agreement with Last.fm.
By selecting BOX 3:
(a) You confirm that as of the date when You tick BOX 3, 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.
5.3 You agree that the acceptance by Last.fm of Your Content for inclusion on the Last.fm services and the payment of any royalty (where applicable) represents the entire and satisfactory consideration for the grant of the licence at clause 1.1 above.
5.4 If, for any reason, You need to change how royalties are paid for the use of Your Content on the Last.fm services, You can do so by logging on to Your label account and clicking on the ‘Royalties’ tab. Any change will only become effective from the date on which You make the change to Your label account.
5.5 If You have a direct royalty agreement with Last.fm, regardless of which option You selected during the registration process, the terms of such direct royalty agreement shall apply. Royalties will accrue and be payable in accordance with the terms of Your direct royalty agreement. If there is any conflict between the provisions of Your direct royalty agreement and this Agreement, the terms of Your direct royalty agreement with Last.fm shall take precedence.
You hereby indemnify and will at all times keep Last.fm its parents, subsidiaries and affiliates (including CBS Corporation and its direct and indirect subsidiaries) fully and effectively indemnified from and against any and costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses whatsoever, including attorneys' fees arising out of or in connection with this Agreement, made against or incurred by Last.fm in consequence of any actual or alleged breach or non-performance by You of any of Your representations, warranties, undertakings or covenants, or Your violation of any material term or condition, contained in this Agreement. You will cooperate as fully and reasonably as required by Last.fm in the defence of any claim. Notwithstanding the foregoing, Last.fm retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against Last.fm.
7. ROYALTY SHARE
7.1 Subject to clause 7.3, Last.fm will pay You royalties from making Your Content available on the Last.fm services. If You ticked BOX 1 or BOX 2, You are eligible to take part in the royalty scheme.
7.2 If You ticked BOX 2, royalties will be paid to the applicable collection society, the details of which You must provide to Last.fm.
7.3 If You ticked BOX 3, You have granted Last.fm a royalty-free licence pursuant to clause 1.1 above (unless You have entered into a direct royalty agreement with Last.fm as described in paragraph (c) under the Box 3 terms above). This means that Last.fm will be able to use Your Content without direct payment to You or payment to the applicable collection society unless and until You either:
(a) terminate this Agreement by removing Your Content using the facility provided by the Last.fm services; or
(b) become a member of an applicable collection society, in which case You must immediately inform Last.fm by logging on to Your label account and selecting Box 2 and provide all relevant details of Your membership.
You should not select 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 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.
7.4 Last.fm shall pay the following royalties in respect of the streaming of Your Content as permitted by You:
- for the free radio service, 10% of the Share of Last.fm’s Net Revenue from the free radio service.
- for the subscription radio service, the greater of 20% of the Share of Last.fm’s Net Revenue from the subscription radio service or a per minima amount of US $0.0005 for each complete playback to an end user on the Last.fm subscription radio service of a track which forms part of Your Content.
In this section:
“Share” means a share of the Net Revenue royalty pool which is calculated by dividing the number of times a track which forms part of Your Content is played back to the end user by the total number of complete performances of sound recordings on the Last.fm services and multiplying that figure by the Net Revenue;
For the free radio service, “Net Revenue” means all advertising revenue (including sponsorship revenue but excluding subscription revenue), directly attributable to the actual playback of Your Content to a user through Last.fm services (including through affiliated sites and outlets) after the deduction of any advertising agency commissions paid to advertising agencies, sales houses or re-sellers.
For the subscription radio service, “Net Revenue” means the subscription fee paid by a user and received by Last.fm on all pages of the Last.fm Website where a user has accessed ad-free playback of Your Content through through Last.fm services (including through affiliated sites and outlets) after the deduction of any advertising agency commissions paid to advertising agencies, sales houses or re-sellers. All and any trial periods which Last.fm may grant to its users from time to time shall be treated as part of the free radio service for the purposes of this Agreement.
7.5 You expressly acknowledge and agree that no royalty shall be payable by Last.fm to You or any third party for preview clips, “full length promos”, “free downloads”, any streams of Your Content that are less than 30 seconds in length or for Your Content which is cached (and not played back to the end user), or for any metadata, artwork, images, lyrics, sleeve notes or other similar material provided by You.
7.7 Royalties shall only start to accrue from the date on which Your Content is first used on the Last.fm Services provided that You have accepted these Terms and Conditions. Last.fm shall not be liable to You or any third party for any retrospective use of Your Content on the Last.fm services or for any royalties that are or have been incorrectly paid by Last.fm to any third party who claimed ownership of Your Content.
7.8 The minimum royalty amount payable pursuant to Clause 7.9 is either US$10.00, £5.00, €7.00 or ¥1000 depending on your local currency (the “Minimum Royalty”). Where the royalty payable to You in any given quarter does not amount to the Minimum Royalty, the sums due to You shall accrue until the amount owing is at least the Minimum Royalty.
7.9 Where Last.fm is paying royalties directly to You, payments shall only be made following a written request from You via the Music Manager system and shall be made to the person identified as the nominated payee in Your label account on the date that You request the payment to be made (the “Nominated Payee”). Payments shall be made 30 days after the end of each quarter via a payment method chosen by Last.fm in its sole discretion and provided that the Minimum Royalty has been met.
7.10 Last.fm shall have discharged its obligation to pay royalties pursuant to clause 7.9 by paying the amount to the Nominated Payee. Last.fm shall have no further liability in this regard. It is Your responsibility to make sure that the Nominated Payee details are correct.
7.11 You can use royalties that have accrued to You to purchase Last.fm products to promote Your Content on the Last.fm services at any time, even where the amount accrued is less than the Minimum Royalty.
7.12 Payments shall be converted from US dollars to Your local currency at the spot rate on the last date of the relevant quarter before payment is made.
7.13 You shall be able to access information online via the Music Manager system detailing how many times Your Content is played and any royalty payments due to You. This information will be updated by Last.fm once every three months (in April, July, October and January) or as soon as is reasonably practicable.
7.14 If this Agreement is terminated by You or Last.fm for any reason, any royalties equal to or above the Minimum Royalty owing to You shall be paid in full 30 days after the end of the calendar month in which the Agreement is terminated to the Nominated Payee. Any royalties owing to You that are less than the Minimum Royalty shall be credited to You for the purchase of Last.fm products on the Last.fm services.
8. FULL LENGTH PROMOS, FREE DOWNLOADS AND PODCASTS
8.1 Last.fm gives You the opportunity to make Your Content available as “full length promos” and/or “free downloads” (to the extent available) on the Last.fm services. Where You choose to make Your Content available as “full length promos” and/or “free downloads”:
(a) You acknowledge and agree that Your Content will automatically become eligible to be included as a podcast, as a download, or as a playback service with additional functionality and made available on through Last.fm and its affiliated services. For more information please see the Music Manager FAQ.
(b) You acknowledge and agree that neither You nor any third party are entitled to receive any royalties from the exploitation of such “full length promos” and/or “free downloads” and/or podcasts and that Last.fm (or its affiliates) shall not be liable to pay royalties for the use of the sound recordings and/or any musical compositions (including without limitation, from the making available, performance or mechanical rights) in such previews, downloads or podcasts to collection societies who administer music publishing rights (for example PRS for Music in the UK). You further agree that you have cleared all rights (including in the form of waivers of all moral rights, neighbouring rights or similar rights held anywhere in the world) for the exploitation of such “full length promos” and/or “free downloads” and/or podcasts as set out in this Agreement.
(c) in addition to the warranties set out in clause 4, You represent, warrant and undertake to Last.fm that:
(i) You are fully authorised to make Your Content available for “full length promos”, “free downloads” and podcast on a worldwide basis; and
(ii) You own or control the copyright in the sound recording and the underlying musical composition(s) and lyrics.
9. ABUSE OF THE LAST.FM WEBSITE
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 unjust 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 Last.fm 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 Last.fm Website, in whole or in part, in our sole discretion. Last.fm reserves the right to suspend or terminate Your access to the Last.fm Website with immediate effect and without notice to You, and to pursue all legal remedies if Last.fm believes, in its sole discretion, that You are in breach of any part of this clause.
You agree that Last.fm may use Your Content (including screenshots) to demonstrate the functioning of the Last.fm services, provided that Last.fm shall not use Your Content as a direct product endorsement.
11. OTHER TERMS
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.
13. NO OBLIGATION
You acknowledge that Last.fm may change the scope of its services from time to time and without notice to You. Last.fm shall be under no obligation to stream or otherwise 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).
You: The email address supplied by You when You registered to use the Music Manager services.
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 and will post any changes on this page. In certain circumstances, Last.fm may send an email to You notifying You of the change. You should, however, check these Terms and Conditions from time to time to ensure You are aware 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 services. Failure to terminate this Agreement by removing Your Content following any change shall constitute Your acceptance of the new terms and conditions of this Agreement.
THIS AGREEMENT SETS OUT THE TERMS AND CONDITIONS GOVERNING THE USE OF YOUR CONTENT ON THE LAST.FM SERVICES. IF YOU ARE UNSURE ABOUT ANY OF THESE TERMS AND CONDITIONS YOU ARE ADVISED TO OBTAIN INDEPENDENT LEGAL ADVICE BEFORE ACCEPTING THEM.
Phew! You made it to the end ;-) We look forward to establishing a long term, mutually-beneficial relationship with You.