Thematic Artist Agreement
This agreement (“Agreement”) represents a legal contract governing the terms by which, Thematic, Inc. (“Thematic”, “us”, “our” and “we”), a Delaware corporation, makes musical Works available to Creators that you, as an Artist, have provided and/or uploaded to us as a registered user of our Service, (you being referred to “Artist”, “you”, and “your” hereunder), to be part of Thematic’s music Catalog via the Thematic Website and the terms of your provision of such Works. By your signifying your acceptance to the terms and conditions of this Agreement by clicking “I Accept” below, or in our introductory service registration pages where noted, and/or by your providing Thematic, or otherwise uploading of, any Works to Thematic’s Catalog, and in consideration of the promises hereunder, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, you and Thematic agree to the following terms:
1. Definitions.
a. “Account” means the user account of those registered users of the Website.
b. “Artist” means the author and/or owner (or authorized administrator) of the Works, including but not limited to the performer(s) of, musician(s) appearing on, and/or composer(s) of, the Works collectively.
c. “Catalog” means a catalog of the musical sound recordings and compositions, including the Works where uploaded by you, owned and/or controlled via license or otherwise by Thematic for use by registered Thematic/Website users pursuant to the terms of this Agreement and the Website Terms of Use.
d. “Channel” means a Creator’s specific Platform channel or similar account, as registered to, or otherwise controlled by, the Creator with such Platform and as registered with Thematic in the Creator’s Website registration profile and/or their Account.
e. “Content” means audiovisual properties, including but not limited to customary videos and audiovisual content, and podcasts, uploaded to and broadcast on a registered user’s Chanel through such registered user’s Platform account, as identified in a user’s registration profile.
f. “Creator” means the creator of the Content who owns and/or controls the Channel or their licensee and/or assign.
g. “Credits”/”Credit” means those items of Artist attribution and meta data required by each contributing Artist of the Works as delineated via the Website.
h. “Platform” or “Platforms” – means a Creator’s specific media platform authorized by Thematic as listed in the attached Schedule “A” of Thematic Platforms as updated from time to time, for which a Creator is a registered user and/or owner. Thematic reserves the right, in its sole discretion, to modify, add or remove, available Platforms, and what Works are available for use on selected Platforms, in its sole discretion, including but not limited to where directed by a Platform or where such Platform ceases operations or limits its terms of use, service offerings, etc., as well as determine what Works will be available on the Platforms serviced by Thematic and what Platforms will be available to Creators, and in what subscription and/or payment tiers (e.g. free, paid, pro, etc.) available to Creators Works will be placed.
i. Privacy Policy” means our privacy policy as posted on our Website and updated from time to time.
j. “Service” means Thematic’s licensing, administration and music/talent collaboration service as provided by our Website, applications and any mobile offerings.
k. “Term” The term (“Term”) of this Agreement shall consist of a one (1) year period, commencing from the date of our formal upload of each specific Work to the Thematic Catalog on a Work-by-Work basis such that it is public facing and available for use, expiring one (1) year thereafter, or earlier terminating upon our notice to you of our termination of the Term, or your termination and/or removal of said Work(s) pursuant to Section 6, whichever comes first. Notwithstanding the foregoing, with respect to each Work, where notice of termination is not provided by you, the Term shall automatically extend for additional ongoing and consecutive one (1) year periods for each individual Work until terminated by you via notice to Thematic or by Thematic at any time prior to the end of such respective additional period, commencing from the respective expiration date related to each such respective Work.
l. “Terms of Use” means Thematic’s terms of use and guidelines, including but not limited to community rules and restrictions pursuant to the Terms of Use, where posted, registered users must agree to in order to create an Account, access our Website and upload and/or download Works, as the case may be. Terms of Use may be added where not available as of the date of your registration and updated from time to time.
m. “Territory” means the World.
n. “Website” means our website www.hellothematic.com and any other sites and/or destinations, including burt not limited to mobile applications, owned and/or controlled by Thematic and its affiliates, licensees and assigns.
o. “Works” mean sound recordings (“Recording(s)”) and the underlying musical compositions embodied in such Recordings (including but not limited to, vocals, arrangement, production, performances, and lyrics), as coupled together, and separately with respect to lyrics embodied in such Recordings (if any), which have been uploaded to the Thematic music Catalog or otherwise provided to Thematic by you. Each individual Recording and underlying embodied musical composition as coupled together where uploaded or otherwise provided by you to the Catalog, and the respective lyrics embodied therein (if any), to be referred to as a “Work”.
2. Grant of Rights.
a. Subject to the terms and conditions of this Agreement, during the Term you hereby grant Thematic, and its licensee Creators respectively, a non-exclusive worldwide right and license, on a royalty free basis, to make copies of the Works, and use, license, copy, display, transmit, broadcast, stream, and publicly perform such Works, including for the avoidance of doubt, the use of lyrics of compositions embodied in the Recordings (if any) when used with such Recordings, in connection with the Catalog and Service and for use in Creator Content and synchronize the Works in Creator Content where selected via the Service. Notwithstanding any term of this Agreement, each Creator shall have the right to stream, download and utilize such Works, including use of composition lyrics as text or otherwise, and use all Credit information in Creator Content and meta data, on a royalty free basis in each case, for the duration such Content is uploaded to such Creator’s Channel on the respective Platform (including post Term) subject to such Platform’s respective content use policies, and shall have the right to sublicense the Works (as coupled with the Content) to such Platform pursuant to each Platform’s respective license requirements and user agreements, as amended and/or updated by such Platform from time to time, for Channel users and Content and content uploading.
b. With respect to each use of the Works during the Term, upon your uploading said Works to our Catalog, including the rights noted above, Thematic shall serve as a non-exclusive distributor of your Works and Thematic and its licensees (namely the Creators) shall have the non-exclusive worldwide royalty free right to utilize your Works in synchronization with Creator Content and on the Website and via the Service, as noted above, and publish and publicly transmit and broadcast such Content on the internet on such Creator’s Channel and via the Website and Service, as well as the right to utilize your name and listed biographical information, and all other Credit and user information, as provided by you when joining the Service, or otherwise logging in, for the purposes of promoting, marketing, and distributing the Works and promoting Creator’s Channels, Content, and our Service and any affiliate services or relationships. Such uses shall not entitle you to any consideration or revenue, not herein noted, nor create any additional relationship between you and Thematic. For the avoidance of doubt, Thematic shall only have the license and right to make available and sublicense the Works to its affiliated Creators and utilize said Works in connection with its Website, Service and business as contemplated herein, which shall include without limitation, the right, in its sole discretion, to determine Platform availability on a per Creator basis, and place Thematic selected Works in limited access areas and subscriber tiers of the Website and Service, and you shall retain all rights in and to the underlying copyrights to the Works not otherwise granted under license to Thematic herein.
c. Thematic (and all Creators) shall also have the non-exclusive worldwide right to utilize your name, image and likeness, and any artwork or other marketing and promotional materials provided to Thematic by you (“Artist Materials”) for all purposes in connection with the Service and Content, and for the avoidance of doubt, Thematic’s business, during the Term and extending beyond the expiration of the Term with respect to Creator Content and our Service and business as long as such Content continue to remain available on Platforms by the Creator without interruption, with such Creator’s right to cease within a reasonable time upon our notice of a Creator’s (or Platform’s) removal of said Content from the respective Platform.
d. Unless otherwise noted herein (e.g. administration right) the rights granted under this Agreement are non-exclusive, wholly assignable to Thematic Creators through the Service and Website, but otherwise non-assignable and non-transferable, and shall not be sublicensed by Creators unless otherwise expressly provided for under this Agreement (e.g. Platform sublicense grant). Notwithstanding any term of this Agreement, nothing shall prevent the assignment of any portion of and/or all rights granted hereunder to a parent, subsidiary or venture partner of Thematic, or any other business entity or third party, for the purpose of operating or otherwise administering the Thematic Service, business, and/or Website.
e. You irrevocably grant to Thematic, throughout the Territory and during the Term, the sole and exclusive right:
i. To serve as the administrator of the Works (and their individual Recording and composition elements, including the underlying copyrights thereto) submitted to our Service, including the copyright therein, with respect to all content and videos (including third party user generated content [e.g. “UGC” videos] but excluding Creator Content (unless said Creator is in breach of the Creator Agreement and are subject to claiming by Thematic or Artist), using the Works broadcast by, or otherwise made available via, all Platforms during the Term and in the Territory, where each such Platform, on a Platform-by-Platform basis, allows for Thematic administration. You may opt out of this administration right where an “opt out” alternative is provided via our Website and as noted in Section (iii) below.
ii. (a) In connection with said administration right, to collect the Gross Revenue earned by the Works placed on a Platform in content and audiovisual and other Works coupled properties (including for the avoidance of doubt, videos and UGC content) not consisting of Creator Content (unless to be claimed as noted above due to Creator breach) during the Term that Thematic has the ability track and/or does track. For the purposes of this Agreement, “Gross Revenue” shall be defined as all revenue remitted by a Platform to, and actually received by, Thematic exclusively in connection with the exploitation of the Works (e.g. their recording and publishing components) on such Platform, excluding any deductions taken for any reason by the Platform or their respective partners or affiliates or where whitelisted for use by Creators, less twenty percent (20%) of such Gross Revenue as a fee (“Fee”) to be retained by Thematic as a processing and administrative fee. Said Fee is retained by Thematic to provide for the on-going maintenance of your Works on the Service and as an administrative fee for the provision of services with respect to the Works hereunder. The Fee may be amended from time to time by Thematic upon notice to you (email notice to suffice in all instances). Upon collection of such Gross Revenue, your account shall then be credited with the remaining eighty percent (80%) of such Gross Revenue received by Thematic, such sum to be credited to your Thematic account or otherwise made payable to you, less only third party administrative/transaction payment processing fees. For the avoidance of doubt, Thematic shall have no duty to collect Gross Revenue from any Platform, even where authorized by the Artist, where such Platform does not have a music monetization and administration system in place accessible to Thematic or Thematic is otherwise prevented from utilizing such system. Further, notwithstanding any term of this Agreement, Thematic, in its sole discretion, may engage third parties to assist in the administration of rights and collection of Platform generated Gross Revenue as such rights are granted to Thematic by Artist herein.
(b) You shall receive accountings and payment with respect to Gross Revenues, in a timely manner following Thematic’s receipt of accounting and payment from a payment remitting Platform, but no later than one hundred twenty (120) days from Thematic’s actual receipt of such Gross Revenue. Once payment has been credited to your account, you will be able to withdraw all or a portion at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals. Any objection relating to any accounting statement or any legal claims arising therefrom must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is initially sent to you, and you waive any longer statute of limitations that may be permitted by law. No other audit or accounting right shall be permitted hereunder unless otherwise provided for in this Agreement. Notwithstanding the foregoing, or any other provisions of the Terms of Use, Thematic will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts owed, determined or reasonably suspected by Thematic in its sole discretion to have resulted from fraudulent, misleading or false activities. Thematic reserves the right to withhold or deduct payment, if applicable, pending Thematic’s reasonable investigation of any of the foregoing or any breach of the terms of this Agreement by you. Further, notwithstanding any term of this Agreement, Thematic shall have no duty to commence legal action against any Platform, provider or other third party distributing the Works to collect Gross Revenue as noted herein, or demand or otherwise dispute any accounting and/or payment remitted to Thematic, or otherwise contest or otherwise dispute any non-payment by a Platform, in any manner or for whatever reason, any such action to be solely at Thematic’s discretion.
(c) Taxes. You agree that it shall be your sole responsibility to, and you shall, file all tax returns, tax declarations and tax schedules as necessary and when due, and pay, when and as due, any and all payroll, income or other taxes incurred as a result of any monies paid to you hereunder. Thematic will not withhold any taxes from monies it collects and remits to you. Rather, Thematic will report the amount it pays under IRS Form 1099 or other required forms, to the extent required to do so under applicable Internal Revenue Code provisions and state, local and/or international law.
iii. You may opt out of granting this administration right on a Work-by-Work basis when uploading your Works by selecting the opt out option.
iv. In the event that Thematic has, in its good faith discretion, reason to suspect that any Works submitted by you to Thematic are not in compliance with the terms of this agreement, including but not limited to the representations and warranties hereunder, or if Thematic is presented with a claim of infringement of copyright, right of publicity, trademark or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties and agreements hereunder, you agree that Thematic may discontinue the posting of your share of Gross Revenues with respect to such Works to your account and block your ability to otherwise withdraw funds therefrom until satisfactory resolution of the matter is obtained and you agree that you will forfeit such revenues where Thematic determines that they are the result of infringement or fraud in its good faith reasonable judgment.
v. Third Party Obligations/Disposition of Rights.
(a) You shall be solely responsible for securing and paying (i) all fees and/or royalties due to performers, composers, producers and other persons who contributed to the production of the Works or to whom you are otherwise obligated to pay a portion of the income from any of the Works, (ii) all payments that may be required under collective bargaining agreements, union payments, or pursuant to any statutory regulations (including but not limited to the US Copyright Act of 1976, as amended), and (c) to the extent that such rights are not licensed directly by a Platform, digital, mechanical and public performance royalties payable with respect to musical compositions embodied in the Content broadcast on Platforms or otherwise in all forms including, as such musical compositions are made available on our Website for download, streaming, or otherwise. Notwithstanding any term of this Agreement, we shall not be responsible for the accounting of musical composition uses, downloads or streams, by those using our Website and/or Service, nor shall we have any obligation to pay or otherwise remit mechanical, digital, performance or any other royalties therefore. You warrant and represent that all third parties to whom you are obligated to pay a portion of the income from the Works shall look solely to you for any such payments and you hereby agree to indemnify Thematic and hold Thematic, its licensees and assigns, harmless from any and all claims, demands or actions by any such third parties for any such payments in accordance with the indemnification provisions noted herein and no use of any Works as expressly authorized under this Agreement by Thematic (and Creators) shall be limited in any manner by agreements you may have entered into with such third parties, including but not limited to music distributors, music publishers, rights administrators, etc., regardless of when such third party agreements are entered into.
(b) In the event your interest in any Works (and Artist Materials) changes (e.g. you license, assign, or otherwise transfer all or a portion of such rights to a third party label, music publisher, music administrator, or other rights obtaining third party, etc.) after your provision of Works (and Artist Materials) to Thematic (“Term Asset Transfer”), you acknowledge and expressly agree that it shall be your sole duty and responsibility to notify and inform all respective third parties of your pre-existing agreement with Thematic and the ongoing contractual rights granted to Thematic and the respective Creators, as well as your obligations hereunder, and such Term Asset Transfer shall not in any way change, limit, or otherwise alter or impact Thematic’s rights under this Agreement or the Agreement’s terms, nor the rights of those Creators who have utilized Thematic’s Service to license your Works for use in their Content. Further, all such third parties who take an interest in such Works via a Term Asset Transfer or otherwise, including but not limited to Recordings and/or music publishing rights, shall take title to such Works (or components thereof) expressly subject to the rights you have granted to Thematic under this Agreement. Further, due to the occurrence of claim of right conflict claims between assets using the same or substantially similar portions of the Works you have provided Thematic hereunder, you expressly agree not to license or otherwise assign or sell, dispose of, or otherwise make available, any interest in the Works provided Thematic to a third party whereby such interest is utilized as a component of a beat or sample (e.g. Works and/or underlying beats / topline embodied therein shall not be offered to services such as Beat Stars, Artbit, Traktrain, Artilist, etc.) or such other duplicative use (“Simultaneous Asset Transfer”). For the avoidance of doubt, in addition to any other resulting damages, you shall be responsible for all costs and expenses, including but not limited to administrative and legal fees, incurred by Thematic in resolving any such asset conflict claims arising from your breach of this Section (b) and the respective Term Asset Transfer or Simultaneous Asset Transfer limitations.
f. Thematic shall have the right Thematic’s its sole discretion, but not the duty, to accept or reject or otherwise use, or not use, any Works submitted by you, including but not limited to placing Works in some but not all of the non-subscriber available and/or limited access subscriber based Works offerings and/or Catalog libraries on our Service, allow for specific Works to be available for all or some but not all Platforms, or at any time for any reason, without notice, revoke Thematic’s acceptance of such Works and remove all or a portion of such Works from our Catalog and Service, as well as place Works in restricted areas and limited subscriber Work (and Platform) access tiers on our Service, increasing or limiting Work availability, including with respect to Platform availability, as Thematic determines in its sole discretion. For the avoidance of doubt, at no time does Thematic guarantee a minimum number of Works or Platforms will be available to any Creator at any time and nor does it agree that all works will appear on all Platforms at any time.
g. As a condition of uploading any Works and Artist Materials, you agree to waive, or have obtained an enforceable and valid waiver of, all so called “droit morale” rights (moral rights) related to the Works and Artist Materials, including the right to be identified as the author of the Works and the right to have the Works and Artist Materials altered with respect to their being coupled with Content, used on the Service and Website, and utilized in related meta data.
h. You agree that no license is required from, and no payments or reports are required to be made to you by Thematic for royalties from, any performing rights organization, such as ASCAP, SESAC or BMI, (“PRO”), related to Thematic or its Creators licensing, distribution, performance or broadcast of the Works, or for the use, synchronization, performance, broadcast, or distribution of such Works by Creators where such works are coupled with a Creator’s Content, and you waive all rights to such reports and payments, except where designated by you (and approved by us) upon registration of a Work with the Service, and in any instance, such payments shall solely and exclusively be the responsibility of the broadcasting Platform and in no case shall Thematic or the Creator be responsible for such reports and payments and in the absence of an affiliation with a performing rights organization, you grant Thematic, and the Creators using said Works, a royalty free worldwide performance license to broadcast such Works, including on all Platforms, for as long as they are utilized by Creators in Content.
i. As a registered user of our Website and Service, you may encounter third party applications, websites and other services made available by Thematic or otherwise integrated into our Website offerings and made available to you in connection with our provision of the Service to you as a user. You expressly approve of Thematic’s use of such third party applications, websites and other services in connection with the Creator and Content and your use of these third party applications, websites and services will be subject to the applicable terms and conditions for each such third party offering as each such application, website and/or service will have their own terms and conditions of use, registration, payment, etc. You agree that Thematic shall in no manner be responsible for the actions, conduct, available features or services provided by such third parties.
3. License Restrictions.
a. Thematic shall not license the Works for use on, or in connection with, any content properties or other intellectual properties other than the Content on a Creator’s Channel and such Content shall be solely distributed on such Creator’s Channel on the respective Platforms.
b. Neither Thematic, nor any Creator through the Service, shall make audio only copies of the Works for commercial distribution, nor edit, modify, arrange, remix, create derivative works of, or otherwise change or alter the Works in any way other than linear edits to adjust and edit the length of the Works to comport with Content length (e.g. setting start and stop points, establishing fade-in/fade-out points, etc.). Notwithstanding the foregoing, Thematic shall have the right to distribute or otherwise make the Works available on the Website on a royalty free basis (including with respect to mechanical, digital and performance royalties) for preview and listening by Creators and royalty free download by Creators who may desire possible use of the Works in their Content. For the avoidance of doubt, we make no guarantees or representations with regard to whether a Creator who downloads a Work or Works will actually use your selected Work or Works in their Content, said use wholly at the Creator’s discretion.
c. You shall not take any legal, administrative or other actions against any Platform that provides for the monetization of content or “claiming” with respect to the Works and Artist Materials that would hinder or otherwise prevent the ability of the Creators to monetize or collect revenue from any such platform with respect to their Content. For the avoidance of doubt, once the Works are coupled with a Creator Content, you agree and acknowledge that the Works shall be “whitelisted” in such Content on the respective Platform (e.g. provided for use by a Creator on a claim free basis) so they may be used by the Creator on a royalty free basis until such time as the Creator is no longer featuring the Content on their Channel.
4. Works/Intellectual Properties/Performing Rights. Our Service functions as a marketplace and exchange for Artists and Creators to work with the Works in our Catalog for Content placement on a registered Website user’s Channel. Thematic does not own the Channel(s) or any elements of a Creator’s content thereof, as such we make no representation or warranty that any Work or the Artist Materials will not be utilized in an unauthorized manner by the Creator, subject to the warranties noted in Section 7 below. By using the Service, you understand and agree that, consideration, among other elements, shall be your ability to register and provide Works and Artist Materials to us and our review of such Works and Artist Materials, and you are not granted any right or interest in or to the trademarks, brands, tradenames or service marks of Thematic or the Creator(s) or any personalities featured in their Content. The Creator, its licensees, and/or assigns, subject to our agreements with such Creators with respect to the Works, shall be the sole owner of all content featured on their Channel, on an exclusive worldwide basis. Your uploading of the Works and Artist Materials does not convey any right or license to use a Creator’s name, image or likeness, or grant any other rights in and to a Creator, their Content or Channel, such rights wholly reserved by the Creator on an exclusive worldwide basis. You acknowledge and agree that Thematic shall have no responsibility for the compliance by Creators, Platforms, or any other person with the terms of our agreements with such parties and further agree that, notwithstanding any rights you may have to pursue third parties in an action at law or equity, Thematic shall have no liability to you or any third party for any breach of such third-party agreements or infringement or other unlawful conduct by any such parties.
5. Artist Credits. Thematic shall use commercially reasonable efforts to credit and identify you (and direct said Creator using your Work to credit you) in the meta data for the Content or otherwise, where customary, pursuant to the Credits and specific information (artist/composer/producer) you have provided in connection with your registration of each specific Work on our Service requirements for Creators. Notwithstanding the foregoing, no inadvertent failure by Thematic or any Creator to provide such Credit, shall constitute a breach hereof, Artist’s only remedy shall be to formally notify Thematic in writing of such credit omission, and upon actual receipt of said written notice Thematic shall use good faith reasonable efforts to cure such failure (or direct said Creator to cure such failure) on a prospective basis. For the avoidance of doubt, no Platform shall be responsible for any Credit attribution responsibilities.
6. Termination.
a. We may terminate this Agreement with respect to one or more (or all) of the Works, and any related administration rights, contributed by you to the Service, or otherwise terminate, suspend or discontinue the Service, at our election for any reason or no reason at any time by providing you with written notice specifying: i) our intention to terminate and ii) the effective date of such termination. All terminated Works will be removed from the Catalog and Service and we shall cease offering Creator’s the ability to sublicense such Works. We may remove Works and Artist Materials from the Catalog, temporarily or permanently, without notice to you for any reason in our sole discretion, and notwithstanding any term of this Agreement, terminate the Term and this Agreement for any reason.
b. You may remove any or all of the Works or Artist Materials from the Catalog (and Website respectively) or deliver to us formal written notice of your request that we remove one or more of your Works and Artist Materials from the Catalog as directed. Upon receipt of such notice by a verified party, we will use commercially reasonable efforts to stop offering the Works and Artist Materials to Creators and remove them from the Catalog and cease related ongoing administration with respect to such Works within one hundred twenty (120) days from our confirmation of your removal request subject to the Creator’s ongoing right to continue utilizing Works and/or Artist Materials pursuant to the terms of this Agreement in Creator Content.
c. Notwithstanding the foregoing, the termination or expiration of this Agreement or the removal of Works or Artist Materials noted above, will not limit, terminate, or otherwise alter or affect any rights granted to Thematic under the terms of this Agreement prior to the effective date of such termination, expiration or removal, including with respect to rights granted to Creators prior to such termination, expiration or removal date, under our agreement with such Creators or any sublicense permitted thereof, and all such terms shall remain in full force and effect in perpetuity. Creators who have downloaded a Work from our Catalog but not used it shall have thirty (30) additional days from our notice of termination and/or expiration to use the Work in new Content, and no right to thereafter to use the Work in new Content not already living or otherwise existing on their Channel.
d. Thematic shall have all rights in law and in equity, and any remedies provided for hereunder shall not be exclusive to our availability and use of all, or any other, remedies available to us in a court of competent jurisdiction. All obligations of the parties of a continuing nature, including without limitation those concerning the authenticity of your Account information, grant of rights, copyright, warranties and indemnities, disclaimers, remedies, and venue/law, shall survive the termination or expiration of this Agreement.
7. Representations and Warranties.
a. You warrant and represent that you have the exclusive authority and legal capacity to enter into this Agreement and grant the rights granted hereunder. You further warrant and represent that: i) the Works and Artist Materials, including the Recordings and underlying compositions of the Works, are wholly original works and do not infringe upon the rights any third parties and contain no uncleared samples or uncleared audio elements, ii) you are the sole and exclusive owner of the Works and Artist Materials, including the copyrights thereto, or otherwise maintain sole and exclusive control over such Works and Artist Materials directly from the owner(s) via license, grant or otherwise, and have all rights required to grant the uses of the rights granted hereunder, including but not limited to the right to sublicense such rights to Creators pursuant to our agreements with such Creators, iii) you have not granted any rights to (under license, assignment or otherwise), or entered into any agreement with respect to, all or any portion of the Works and Artist Materials that would in any manner interfere or conflict with the rights granted to Thematic under this Agreement or our agreement with a Creator, and iv) none of the Works or Artist Materials contain any disabling mechanism or protection feature to prevent such Works and Artist Materials use as contemplated under this Agreement and our agreements with Creators, and they are wholly free of any virus, program, or device that may be used to monitor, destroy, modify, damage, or disable any computer hardware, computer software or related computer system, including with respect to the Website, Service, a Creator’s Channel, and the Platforms.
b. You further warrant and represent that: i) all Account information provided to us by you, including when registering on the Website, for the use of our Service and the licensing of the Works and Artist Materials is true, accurate and legally verifiable, including but not limited to all information relating to your legal identity, credit attributions, contact information, payment information, Credit information, composer, publisher and producer information, and other data requested by us, and you agree to timely update such information and your Account, and inform us of such updates, so we may always maintain accurate and complete Account user information; ii) you are at least eighteen (18) years and may legally enter into binding and enforceable agreements; and, as a registered user of the Website you are the individual who is accessing our Service and uploading the Works and Artist Materials with the intention such items shall be licensed and utilized by Creators in connection with their Content; and, iii) you further consent to the receipt of all communications and notices to you by us hereunder via electronic communications (e.g. email) and you agree that all notices, agreements, disclosures, agreement amendments, and other communications provided to you by us satisfy any legal requirement that such communication be in writing.
c. Thematic warrants and represents that: i) it has the right and authority to enter into this Agreement, ii) all Creators utilizing the Works for their Channels have warranted and represented that they will adhere to the limits of the terms of the limited licenses granted herein (“e.g. Platform Channel use only”) and iii) Thematic has relied on such Creator warranties and the further representations by each Creator as a condition of their downloading the Works from our Catalog and using such Works in Content on their Channel(s).
8. Disclaimer/Liability Limitations.
a. Our Website and Service, are provided “as is” without any warranty of any kind, either express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement of title, all of which are expressly disclaimed. Thematic disclaims any representation or warranty that: i) the Website or Service will meet your requirements or that their use will be uninterrupted, secure, virus free, or error free, ii) that the content and materials on the Website will be accurate, or iii) that users of the Works and respective distributing Platforms will perform legal obligations required of them.
b. Through use of the Website and Service, including but not limited to your uploading of Works, you assume the entire risk as to the quality and use of the Website and Service and our limitations with respect to the Creator’s use of the Works and Artist Materials. Neither Thematic nor any of its affiliates shall be liable for any damages or losses to the Works and Artist Materials uploaded or otherwise submitted to the Service and it shall be your sole responsibility to retain duplicate back up files of all Works, Artist Materials and any content submitted to Thematic.
9. Indemnification.
a. Each party to this Agreement shall indemnify, hold harmless and defend the other party, its parent, subsidiaries, affiliates and the other party’s officers, directors, employees, agents and contractors, respectively, from any and all liabilities, actual loss, damages, costs and expenses, including reasonable attorney’s fees and court costs, incurred by the indemnified party that arises out of any claim, demand, suit or action brought by a third party with respect to a breach by the indemnifying party of any of the provisions of this Agreement or the negligence or willful misconduct of the indemnifying party. No legal action with respect to this Agreement and our use of the Works and Artist Materials shall be brought by you more than one (1) year after the cause of action has accrued, which in the case of an indemnity obligation is deemed to be the date such original claim is made or litigation is commenced, whichever comes first.
b. You agree to indemnify, defend and hold all Creators harmless from and against any and all liabilities, actual loss, damages, costs, expenses, including reasonable attorney’s fees and court costs, incurred by the Creator arising out of any claim, proceeding or action by a third party based on a claim that a Creator’s use of a Work (or Artist Materials) in accord with our agreement with Creators infringes on the rights of any third party, or where such claim, if proven true would constitute a breach of any of the Representations and Warranties made by you pursuant to Section 7 above.
10. Damages. Notwithstanding any term of this Agreement, Thematic shall not be liable to you or any third party for any incidental, indirect, punitive, exemplary or consequential damages of any kind, including damages for business interruption, lost royalties, lost profits, or any other pecuniary loss, in connection with any claim, loss, damage, suit, action or other proceeding arising out of or under this Agreement, including but not limited to, your use of, access to, or reliance upon, the Service, Website, or any part thereof or any right granted to you under this Agreement, including where Thematic has been advised of the possibility of such damages, regardless of if such action is based on contract, tort, infringement of intellectual property rights, or otherwise. Further, Thematic’s total maximum aggregate liability under this Agreement, for all causes of action, for your use of the Website and Service, regardless of the number of Works or Artist Materials you have uploaded or have been utilized in Content by Creators, or otherwise related to this Agreement, your personal information, and/or the Service, in any manner whatsoever, shall be limited, subject to applicable law, to an aggregate of one dollar ($1), including where we have been put on notice of the possibility of such damages. Any cause of action or claim you may have with respect to Thematic and/or under this Agreement, must be commenced within one (1) year after the claim or cause of action arises and you waive any longer statute of limitations that may be permitted by law.
11. Third Party Claims. You grant Thematic the right, but not the obligation, in its sole discretion to make any claim or take any action or commence any lawsuit with respect to the Works and Artist Materials and a breach or claimed breach by a Creator of our agreement with such Creator, including but not limited to any infringement of any intellectual property rights or other rights with respect to the Works and Artist Materials by the Creator, and we, may but shall not be obligated to, commence such claim, lawsuit or action on your behalf at Thematic’s expense, and you will provide any information, assistance and cooperation that we reasonably request. Said right shall include, but not be limited to, the right to put monetization claims on Content for use of the Works in Creator Content that Thematic deems, in its sole discretion, are uses by Creators that are in breach of its agreement with Creators. For the avoidance of doubt, we shall have no obligation under any circumstance to make any claim, bring any lawsuit or commence any action regarding an infringement or claimed infringement of any intellectual property or other rights relating to the Works and Artist Materials by any third party and you wholly release us from any claims you might have now or in the future, directly or indirectly, with respect to any such third party claims, actions or lawsuits commenced by us or not commenced by us and the outcome of such actions if commenced. Where we do commence such claims, actions or lawsuits, any monetary recovery shall be divided between you and us equally after the deduction of all costs and expenses incurred (including reasonably attorney’s fees and costs) incurred by us in connection with the pursuit of such claims, actions or lawsuits.
12. Miscellaneous.
a. The parties intend this Agreement, and any schedules and exhibits thereto, as a final expression of their understanding and agreement with respect to the subject matter hereof and as a complete and exclusive statement of the terms thereof. Unless otherwise provided for herein, this Agreement may not be modified or amended except by a written instrument signed by each of parties hereto. Nothing in this Agreement shall be construed to require the commission of any act contrary to law, and wherever there is a conflict between any provisions of this Agreement and any statute, law, ordinance, order or regulation contrary to which the parties hereto have no legal right to contract, such statute, law, ordinance, order or regulation shall prevail; provided that, in such event, (i) the provision of this Agreement so affected shall be limited only to the extent necessary to permit the compliance with the minimum legal requirements, (ii) no other provisions of this Agreement shall be affected thereby, and (iii) all such other provisions shall remain in full force and effect. The parties hereto shall negotiate in good faith to replace any invalid, illegal or unenforceable provision (the “Invalid Provision”) with a valid provision, the effect of which comes as close as possible to that of the Invalid Provision. Paragraph headings in this Agreement are included solely for the convenience of the parties and shall not be deemed to describe, limit, modify or in any way affect the scope or interpretation of the paragraph themselves.
b. No failure by Thematic to perform any of Thematic’s obligations hereunder shall be deemed a breach of this Agreement, unless you have given Thematic notice of such breach in reasonable detail, and such breach has not been cured within 30 days after the giving of such notice; provided that if such breach cannot reasonably be cured within such period (e.g., due to reasons beyond Thematic’s reasonable control), Thematic shall not be in breach of this Agreement if Thematic cures such breach within a reasonable period of time. Thematic shall have no responsibility for any act or omission, or responsibility to cure any breach of contract, by any Platform and their respective licenses and/or assigns.
c. Notices to Thematic under this agreement shall be given in writing and deemed to have been made and received when i) personally delivered, ii) delivered by a commercially established courier service (e.g. Federal Express, UPS, etc.) and signed for by Thematic at its corporate office, iii) certified or registered mail return receipt requested, or iv) sent via email and a responsive email from Thematic evidences such receipt. Notices to you shall be sent to the email and/or the contact address listed in your registered user Account profile and deemed given when sent. You expressly agree to keep a current email contract address noted on your Account and we may terminate this Agreement and all rights hereunder where such email address is not kept current or “kicks back” for any reason.
d. Notwithstanding any term of this Agreement, Thematic reserves the right to make changes to, or otherwise amend or modify, this Agreement at any time without notice to you. You will be subject to the terms of this Agreement in place at the time of your initial uploading of each Work and Artist Materials (if any) to the Catalog. Uses of the Works and Artist Materials in Content uploaded to the Catalog shall be subject to the revised and/or amended Agreement only upon notice to you of such revision, however, your continued use of the Website and the uploading of Works and Artist Materials after notification, including your failure to remove Works and Artist Materials from the Service and Website after notice, will indicate that you have read, understood and agreed to the current version of these revised terms, and thus have been given notice, and such most recent Agreement terms shall apply to all of your Works and Artist Materials. From time to time Thematic may offer additional opportunities under separate agreements which Artist may partake in (including but not limited to label, publisher, streaming, and branded initiatives) and unless otherwise expressly agreed in such agreements, such agreements shall not terminate or limit the terms of this Agreement.
e. We shall have the right to assign all or any portion of this Agreement and the rights granted hereunder to any person or entity. You shall have no right to assign this agreement and the rights granted hereunder.
f. This Agreement has been entered into in the state of California and the validity, interpretation and legal affect of this Agreement shall be governed by the laws of the state of California applicable to contracts entered into and performed entirely within the state of California. The courts located in the Country of Los Angeles (state and federal), only, will have jurisdiction of any controversy regarding this Agreement; any action or other proceeding which involves such a controversy will be brought in those courts, and not elsewhere.
13. Agreement. By your clicking “I Accept” on our service registration pages, introduction page, or otherwise demonstrating your acceptance of this Agreement, such as by logging in, uploading, utilizing the Website, or otherwise providing, Works to Thematic for Catalog use, you acknowledge that you have read this Agreement, understand this Agreement, and agree to be bound by all of its terms and conditions. Additionally, you agree and acknowledge to be bound by the Terms of Use that govern the use of our Website and Service, if any, including our Privacy Policy, as updated from time to time respectively in Thematic’s sole discretion, and any other agreements that may be incorporated by reference herein and therein and Thematic similarly agrees to be bound by such terms and conditions and those of this Agreement.
Last Updated 07-18-2024
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