THIS TUNESAT, LLC SUBSCRIBER AGREEMENT ("SUBSCRIBER AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN EACH END USER (I.E., A PURCHASER OF THE TUNESAT, LLC SERVICE REQUIRING A FEE) ("YOU" OR "YOUR") AND TUNSESAT, LLC ("TUNESAT" OR "COMPANY"). BY CLINKING ON THE "I AGREE" BUTTON BELOW, YOU ARE INDICATING THAT YOU HAVE READ THIS SUBSCRIBER AGREEMENT, THAT YOU UNDERSTAND IT, THAT YOU CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS, AND THAT YOU ARE OVER THE AGE OF EIGHTEEN. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD CLICK "I DO NOT AGREE," AND STOP THE REGISTRATION PROCESS.
1. The Service
1.1 You hereby engage Company to perform certain services agreed to by the parties in connection with your particular business needs (collectively, the "Service"). The Service includes Company using its proprietary software system to: (a) detect performances of Audio (defined below) in certain media ("Media") as selected by you at the time of signing up for the service or as later amended; (b) collect data detailing such performances, which data shall include time, date, duration and source of each such Audio performance (the "Reports") and will be made available to you through the online portal on the Website.
1.2 "Audio" is defined as musical compositions and/or sound recordings submitted to Company by you for the purposes described herein and related thereto.
1.3 "Acoustic Fingerprint" is defined as a unique code generated from Audio.
1.4 "Detection Territory" shall mean the territory specified as part of your registration.
1.5 "Popular Music" is defined as music that is generally created for sale to the general public for use their recreational use and is usually associated with an artist (i.e. pop singers, rock bands, indie artists, hip-hop artists, singer-songwriters etc).
1.6 "Production Music" is defined as music that is primarily created to be used as part of a production, such a TV show, movie or a radio program and is generally owned by production music libraries and/or individual composers and is not generally offered to the public for sale and typically not related to a particular artist or band.
2.1 The term of this Subscriber Agreement shall commence as of the date you click the "I Agree" button ("Effective Date") and shall terminate one (1) year after the Effective Date (the "Term"). The Term shall be automatically renewed for successive one (1) year periods, however either party may terminate the renewal by written notice or by following the cancellation process located in your account section of the Website received by the other party no less than thirty (30) days prior to the end of the Term or any succeeding period. Notwithstanding the foregoing, Company may terminate this Subscriber Agreement immediately in the event of a breach of this Subscriber Agreement by you.
2.2 No termination of this Subscriber Agreement will relieve the parties of their obligations with respect to events that occurred prior to the termination, including but not limited to your obligation to pay Company all fees described below in paragraph 4.
You will upload to the Website via the on-line tools provided by Company a digital file of all Audio data you want Company to monitor and evaluate (the "File"), which File shall be of CD quality, currently standardized as a 44.1 KHZ 16-bit.WAV file. You will also upload to the Website via the on-line tools provided by Company all digitally embedded identifying information reasonably required by Company (the "Metadata"), in the form attached hereto as Exhibit A. Company reserves the right to revise the Metadata format by written notice to you. Company shall use reasonable efforts to include newly uploaded Files within five (5) business days following such upload of new material. You understand and agree that the Service may not detect Audio which is not uploaded in the proper format. You grant to Company during the Term a non-exclusive, royalty-free license to use, reproduce, modify and display the Metadata and Audio provided by you hereunder for the purposes described herein and for other related purposes.
Applicable fees for the Service may be based on the particular level of services (i.e., size of the Audio database monitored by Company) requested from Company. In consideration of your use of the Service during the Term you agree to the following:
4.1 Monthly Fees: You will pay to Company a monthly fee based on the number of Audio files allowed to be uploaded as part of your subscription plan as agreed upon by you when you register with the Service, or as later increased at your request. The initial payment shall be due upon registration. Each subsequent payment will be due monthly on the anniversary of the initial payment.
4.2 Setup Fee: You will pay to Company a setup fee based on the number of Audio files allowed to be uploaded as part of your subscription plan as agreed upon by you when you register for the Service, or as later increased at your request. The payment will be due upon registration or upon the increase in uploaded Audio files as requested by you.
4.3 Payment: You hereby authorize Company to charge your credit card starting on the Effective Date and on a monthly basis thereafter during the Term. If any of your payments are rejected, you understand that you will be charged a late fee of up to 1.5 percent per month (18 percent annually) on the unpaid balance, or a flat $5 per month, whichever is greater if allowed by law in the state or jurisdiction of your billing address. You understand that this authorization will be in effect until the Term expires. Additionally, you hereby authorize Company to charge your credit card for all fees due under this Subscriber Agreement, including but not limited to those listed in this paragraph 4.3. Your account may be deactivated without notice to you if payment is due, regardless of dollar amount.
4.4 At any time after the first 12 month period of the Term, Company may change any of the fees it charges you. Such changes in fees shall be effective thirty (30) days after you receive written notice from Company of the change. You may reject any such fee changes by written notice to Company no later than thirty (30) days from the date you receive the fee change notice from Company. Within ten (10) days thereafter, Company shall elect to either continue to provide the Service under the prior terms or terminate your Subscriber Agreement, which decision shall be effective ten (10) days after notice to you. You hereby give consent to Company to email you with notices concerning a material change in the fees charged or billing methods.
4.5 All fees paid and charges made prior to termination as provided herein, including any advance charge or payment for the subscription term during which you terminate your subscription, are nonrefundable. Termination of your subscription will not relieve you of any obligations to pay accrued charges.
4.6 All payments must be made by VISA, Mastercard, American Express or Discover Card. We do not accept cash, check or any other payment form. As between you and Company, you are responsible for paying any amounts for the services billed to your credit card by a third party who had access to your credit card or credit card number, whether or not such amounts were authorized by you. You agree to pay all fees and charges incurred in connection with your subscription and its password (including applicable taxes) at the rates in effect when the charges were incurred. If Company does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Company.
4.7 This paragraph 4 shall survive termination of this Subscriber Agreement.
5. Ownership of Materials
As between you and Company, you understand and agree that: (i) Company solely owns and controls all material created, developed and/or provided hereunder (except the material specifically provided by you, including, without limitation, the Audio and Metadata), and the Acoustic Fingerprints and all modifications thereof including, without limitation, computer programming code, all technical data, improvements, reports and other materials, forms, images, text viewable on the Internet, trade secrets, know-how, and confidential or proprietary information created relating to the services to be provided hereunder or the Service, all documentation and other materials provided by Company, and comments relating thereto; and (ii) Company solely owns and controls all intellectual property rights in and to all materials provided by Company hereunder, Acoustic Fingerprints and all other aspects of the Service. You shall take such actions as Company may reasonably request to evidence and protect Company’s ownership rights. You shall not, and shall not permit or cause any other party to use any materials provided hereunder (except the material specifically provided by you), for any use or purpose not expressly permitted by this Subscriber Agreement. In the event that you are deemed to own or control any of the above rights, you hereby agree that all rights therein are deemed irrevocably transferred to Company by virtue of this Subscriber Agreement. You will execute and deliver to Company such instruments of transfer and other documents regarding the rights of Company as Company may reasonably request. Company may sign such documents in your name (and you hereby appoint Company as its agent and attorney-in-fact for such purposes) and make appropriate disposition of them consistent with this Subscriber Agreement.
6.1 The terms of this Subscriber Agreement and all Confidential Information that either party may learn in connection with the rights granted herein shall be treated as strictly confidential by such party and shall not be used by such party or disclosed to any third party by such party during or after the Term without the applicable providing party's prior written consent (except as specified in this Subscriber Agreement, for internal business purposes or as is necessary to fulfill that party’s obligation under this Subscriber Agreement). You shall have the right to disclose the conclusions of the Reports and the audio affidavits to third parties, upon written notice to Company. "Confidential Information" includes but is not limited to proprietary material, all details relating to Company’s portal, existing and contemplated products and services, personnel, computer programs and documentation, Service performance data, statistical information related to accuracy and all data that can be directly or indirectly related to the Service and/or its performance, and any other information deemed confidential by either party. Confidential Information shall not be deemed to include any information which (i) is generally available to the public other than as a result of this Subscriber Agreement; (ii) is already rightfully in such party’s possession without restriction and prior to any disclosure hereunder; (iii) is or has been lawfully disclosed to such party by a third party, not employed by or otherwise affiliated with such party, who is free lawfully to disclose the same; (iv) is independently developed by such party without the use of any Confidential Information; and/or (v) it is required to be disclosed pursuant to final, binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing party has been given reasonable notice of the pendency of such an order and the opportunity to contest it.
6.2 Company shall have the right to release general information, publicity, press releases and advertising regarding its relationship with the other party and the services and materials created and/or provided hereunder.
6.3 Paragraph 6 shall survive termination of this Subscriber Agreement by either party for any reason. The parties acknowledge that violation by a party of the provisions of Paragraph 6.1 may cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, the parties agree that the non-breaching party may seek injunctive relief to prevent any actual or threatened violation of any such provision(s). If any court determines that any of the restrictive covenants, or any part thereof, is unenforceable because of its duration or the area covered thereby, such court shall have the power to reduce the duration of such provision. In its reduced form, such provision shall then be enforceable and shall be enforced.
7. Representations and Warranties; Indemnification
7.1 Each party represents and warrants to the other that (i) it has full power and authority to enter into this Subscriber Agreement and to grant the rights granted by this Subscriber Agreement and to carry out its obligations hereunder, that no consent of any other person or entity is required to grant such rights or carry out such obligations, and that the entering into and performance of this Subscriber Agreement will not violate any other agreements to which it is a party; (ii) the materials and the Service provided hereunder, when used specifically as described herein, do not and will not infringe or misappropriate any copyright, trademark, patent, publicity right, trade secrets or any other rights of any third persons; and shall not be libelous or defamatory; and (iii) it is the owner of or otherwise has the right to use and distribute all materials and the Service provided hereunder.
7.2 You represent and warrant to Company that you have all rights necessary to grant to Company the use of the Audio and any other materials submitted by you to Company as permitted herein, and that any use whatsoever of the Audio or other materials by Company, including, without limitation, the playing, copying, and transmission thereof, and that such use will not infringe the rights of any other party or subject Company to any actions, claims or proceedings. You additionally represent and warrant to Company that you are not now, and will not be at any time during the Term, owned in whole or in part by a performance rights society.
7.3 Subject to paragraph 9 below, each party shall promptly indemnify and save the other (and its members, managers and employees) harmless from and against all third party claims, losses, damages, liabilities and expenses (including reasonable outside attorneys’ fees) incurred by an indemnified party resulting from the indemnifying party’s breach, alleged breach or default of its representations, warranties or obligations under this Subscriber Agreement.
7.4 This Service is provided “AS IS” and “AS AVAILABLE” without any representation or warranty of any kind, express or implied, as to the Service or its operation. To the maximum extent permitted by law, Tunesat and its affiliates or partners disclaim all warranties, including without limitation, any implied warranties of merchantability and fitness for a particular purpose. Tunesat makes no warranty that the Service will meet your requirements, or that the Service will be uninterrupted, timely, secure, or error-free
8. Force Majeure; Third Party Actions
Neither party shall be liable to the other for its failure to carry out its obligations under this Subscriber Agreement if such failure is caused by fire, flood, riot, act of God, war hostilities, governmental interference, embargoes or any other cause beyond the control of such party, provided the non-performing party promptly notifies the other party in writing of such failure and the reason therefor. If such force majeure event continues in excess of four (4) weeks, the notified party may terminate this Subscriber Agreement immediately upon notice to the non-performing party.
9. Limitation of Liability
Company will use reasonable efforts to insure that the Company issues the Reports in an accurate and timely manner. However Company shall have no liability to you with respect to lost data, failures of detection, and/or errors in monitoring or reporting. The maximum liability Company will have to you or any third party under this Subscriber Agreement will equal the amount of the most recent Monthly Fee. In no event will Company be liable to you or any other party for lost profits, incidental and/or consequential damages. You shall not be entitled to recover damages or to terminate this Subscriber Agreement by reason of any breach by Company of its material obligations hereunder, unless Company has failed to remedy such breach within thirty (30) days following receipt of your notice thereof.
Neither this Subscriber Agreement nor any rights or obligations hereunder may be assigned by either party hereto, provided either party may assign this Subscriber Agreement to any affiliate or in connection with a merger or sale of its assets or equity. Except as otherwise provided herein, the terms and conditions of this Subscriber Agreement shall inure to the benefit of, and be binding upon, the respective successors and assigns of the parties.
All notices required to or permitted to be given under this Subscriber Agreement to Company shall be in writing and shall be given by hand delivery, overnight mail, or by registered or certified mail, return receipt requested, to Company at 1650 Broadway, Suite 1108, New York, NY 10019, or at such other address of which Company may have sent notice under this paragraph. Notices shall be deemed to have been received one (1) business day after being sent if sent by overnight mail or via hand delivery, and three (3) business days after being sent by registered or certified mail. Copies of all notices to Company shall be simultaneously sent to Law Offices of Jeffrey B. Gandel, 1623 Third Ave, Suite 22A, New York, NY 10128, Attn: Jeffrey Gandel, Esq. All notices required to or permitted to be given under this Subscriber Agreement to you shall be sent via e-mail at the addresses set forth above in your registration, or at such other e-mail address to which the parties may have sent notice under this paragraph.
12. Entire Agreement
12.2 Each party is an independent contractor in relation to the other party with respect to all matters arising under this Subscriber Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
13. Choice of Law
This Subscriber Agreement shall be governed by and construed under the laws of the State of New York. Any controversy or claim arising out of or relating to this Subscriber Agreement shall be brought only in the state and federal courts located in New York County. You will promptly reimburse Company for any legal fees or expenses reasonably incurred by Company in collecting any payments due it from you under this Subscriber Agreement. The parties hereto specifically consent to personal jurisdiction of said courts. Any process in any action, suit or proceeding arising out of or relating to this Subscriber Agreement may, among other methods, be served upon either party hereto by delivering it or mailing it in accordance with paragraph 11 hereinabove. Any such delivery or mail service shall be deemed to have the same force and effect as personal service in New York.
Form of Metadata Input Sheet
Metadata shall be provided in the form of a Microsoft Excel 97-2003 workbook xls format file, that provides all the Audio associated data required by the creation of cue sheet in a consistent and systematic manner, compliant with the subsequently defined format.
This data includes the following information, for each unique piece of music/audio file:
Required Information Example
File Name My Fav Song 30.wav
File relative path in library Music/My Fav Band/My Fav Album/My Fav Song 30.wav
Title My Fav Song
Album/Collection Title My Fav Album
Composers/PRO John Doe,ASCAP(50%):Jane Doe,BMI(50%)
Publishers/PRO John Publishing, ASCAP: Jane Publishing, BMI
Optional Information Example
Song ID 543223
Arranger/PRO John Doe: Jane Doe
Artist/BandName My Fav Band
Library/Collection Name My Fav Library
Sub-Library Best Off
Year Published 1932
Track Number 3
Feeling/Mood Feel Good/Fun
Keyword/Tag Innovator, Top 40
Instruments Guitar, Bass, Drums, Piano, Woodwinds, Brass, Strings
Description Uplifting pop track with a memorable chorus
Country of Origin CG
Original Song ID 543220
Original Song Name My Fav Song
Cut Length 30s
Lyrics This is my fav lyrics
Lyrics Language English
Date Added 05/26/2001
Date Last Modified 07/26/2002
Custom Field 1 ALBUM_CODE_1XFGRRTDS
Custom Field 2
Custom Field 3
14. Refund Policy
Tunesat does not offer any refunds relating to the Site, the Service and/or anything related thereto.
Simply complete the fields below to sign up and we will send you a confirmation email with instructions on how to load your tracks (up to 100).
If you have any questions, please contact us.