Thematic/Twitch “Soundtrack by Twitch” Streaming Agreement
Reference is made to that certain Thematic Artist Agreement (“Artist Agreement”) between Thematic, Inc. (“Thematic”), and you, the Artist, entered into by Artist upon Artist’s registration with Thematic, as amended. Except as otherwise provided herein, all capitalized terms not specifically defined herein will have the same meanings ascribed to them in the Agreement. This agreement (“Agreement”) by and between Artist and Thematic is made as of the date of your acceptance of the terms of this Agreement as provided for hereunder (“Effective Date”). In consideration of Thematic reviewing and considering or otherwise facilitating Artist’s Works for streaming opportunities for use on the Twitch Interactive, Inc. (“Twitch”) platform and streaming application, “Soundtrack by Twitch”, or otherwise named or branded streaming applications owned and/or controlled by Twitch, (individually and collectively “SBT”), and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned mutually agree as follows:
1. Rights. For a period of nine (9) months from the Effective Date or for one hundred twenty (120) days from the date of SBT’s formal public (non-beta) worldwide release of the SBT application, whichever comes later, (“Initial Period”), Artist expressly grants to Thematic, and its applicable parents, subsidiaries and affiliates, and any sublicensees (including Twitch), on a worldwide basis (“Territory”), the non-exclusive right to stream the Works via Twitch and the SBT application as further noted below. Such right shall include and not be limited to Thematic’s right to provide the Works, along with other Artist Works, under this license individually and together with other Thematic artists’ Works as a whole catalog to Twitch for use in their SBT application. Upon the expiration of the Initial Period noted above, the parties agree unless written notice of termination is received from Artist by Thematic at least forty-five (45) days prior to the expiration of the Initial Period, the Term shall automatically continue thereafter on a quarterly basis (“Extension Period”), terminable by Artist upon forty-five (45) days from Thematic’s receipt of Artist’s written notice to terminate the Term (email notice where received by Thematic shall suffice). The Initial Period and any Extension Period shall constitute the term (“Term”) Thematic shall maintain the right to terminate the Term at any time upon notice to Artist.
Thematic will review and facilitate the Works for inclusion in Twitch and SBT streaming initiatives and provide the Works to Twitch for consideration and possible use by Twitch (and SBT users) on the SBT application. With respect to the right to use the Works, and Artist Materials, under this Agreement, Artist grants to Thematic and its applicable parents, subsidiaries and affiliates, and any sublicensees (including Twitch and its users), all rights necessary, in the Territory and throughout the Term, on a non-exclusive basis, to do the following by means of and in connection with the SBT application and Twitch platform: (a) to utilize the SBT application to enable functionality on the Twitch platform whereby Twitch and its users can incorporate and otherwise use the Works (or portions thereof) and/or the associated Artist Materials, together with other content and/or materials provided by Twitch, such users and/or other third parties, solely in and in connection with audiovisual and/or audio-only streaming transmissions and/or recordings created by Twitch and/or such users (collectively, “Authorized Content”); (b) transmit, distribute and otherwise make available such Authorized Content (including the Works and/or Artist Materials as incorporated within) and portions thereof via Twitch the platform and the SBT application (including any native sharing or export functionality that may currently exist or later be developed), solely on a live streaming basis with respect to use of the Works; (c) otherwise reproduce, display and use Artist Materials as part of SBT application functionality and Twitch platform to identify and promote the applicable Works(s) as being available within the SBT application and to promote the Work(s) and associated recording artist(s) as contemplated herein; (d) without limiting the foregoing, transmit and otherwise use excerpts of the Works and/or Artist Materials (solely on an “in context” basis as incorporated within Authorized Content and solely on the SBT application), solely for the purpose of advertising, marketing and promoting the SBT application and the availability of the same on the Twitch platform; and, (e) reproduce, edit (but solely for timing or technical purposes), encode, host, distribute, transmit, publicly perform, communicate to the public, display and otherwise make available and use the Work(s) and Artist Materials, or any portion(s) thereof, solely to facilitate the exercise of the rights granted above. Neither Thematic nor Twitch shall edit, remix or otherwise materially alter any of the Works or Artist Materials except with respect to linear edits and format coding for the purpose of creating aforementioned streaming properties. Notwithstanding the foregoing, nothing shall require or guarantee the actual use of one or more of the Works or Artist Materials by Thematic (or Twitch) on the Twitch platform or SBT application.
2. Warranties. Each party hereto represents and warrants to the other party that: (i) it has the full right, power, and authority to enter into and to perform this Agreement and that the person executing this Agreement on behalf of such party is authorized to do so; and (ii) the execution and performance of the obligations and duties of this Agreement by such party will not violate any agreement to which it is bound. The expiration or termination of the Artist Agreement shall not limit the rights granted to Thematic under this Agreement. Artist further represents, warrants and covenants to Thematic that: (i) Artist has all rights and applicable approvals and consents from all artists, other performers, producers, mixers, engineers, songwriters, publishers and other third parties in respect of Thematic’s (and Twitch’s) use of the Works and Artist Materials hereunder, and (ii) without limiting the foregoing, Artist agrees that no royalties (including without limitation, performance or similar royalties) or fees for any uses of the Works will be required or otherwise due and payable by Thematic and, as between the parties hereto, Artist will be solely responsible for complying with any and all obligations under, and paying any and all amounts that may be required pursuant to, any collective bargaining agreement or other contract or arrangement between Artist (or any parent, subsidiary or affiliate thereof) and any union, guild or other collective bargaining organization, and Artist will be solely responsible for making any and all payments that may be required to be made to any sound recording rights collective or similar body as a result of the use of any Works and/or Artist Materials hereunder (e.g., for so-called performer’s rights, equitable remuneration rights, neighboring rights, etc., to the extent applicable in any country of the Territory); and (iii) Thematic’s (and Twitch’s and its users’) exercise of the rights granted to it under this Agreement (and any sublicense to Twitch, and its user’s as the case may be) in accordance with the terms and provisions herein will not infringe upon or violate any law or any third party’s rights, including any rights of copyright.
3. Indemnities. Artist agrees to defend, indemnify and hold harmless Thematic, its parents, subsidiaries, affiliates, successors, licensees, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing, from and against any and all liabilities, damages, awards, settlements, losses, claims, suits, proceedings, assertions and expenses (including, without limitation, court costs, reasonable third-party legal fees and third-party costs of investigation) due to any claim by a third party: (i) based on facts that, if true, would constitute a breach by Artist of any warranty, representation or covenant made in this Agreement by Artist; or (ii) arising from or related to the rights and authorizations granted to Thematic in this Agreement or the exercise thereof. Thematic agrees to defend, indemnify and hold harmless Artist, its parents, subsidiaries, affiliates, successors, licensees, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing, from and against any and all liabilities, damages, awards, settlements, losses, claims, suits, proceedings, assertions and expenses (including, without limitation, court costs, reasonable third-party legal fees and third-party costs of investigation) due to any claim by a third party based on facts that, if true, would constitute a breach by Thematic of any warranty, representation or covenant made in this Agreement by Thematic.
WITHOUT LIMITING THE INDEMNITY OBLIGATIONS OF THE PARTIES PURSUANT TO THE FOREGOING PROVISIONS OF THIS SECTION 7, NEITHER PARTY HERETO WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THEMATIC MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, TO ARTIST AS TO THE QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SBY APPLICATION OR THE TWITICH PLATFORM OR ANY ELEMENT OF SUCH APPLICATION OR PLATFORM. THEMATIC MAKES NO GUARANTEE ABOUT THE SUCCESS OR EFFECTIVENESS OF ANY PROMOTIONAL BENEFITS THAT MAY BE PROVIDED HEREUNDER, INCLUDING ANY GUARANTEE THAT ANY WORKS OR ARTIST MATERIALS SUBJECT TO THIS AGREEMENT WILL BE USED BY TWITCH OR ANY USERS OF THE SBT APPLICATION OR HEARD AND/OR SEEN BY ANY USERS OF THE TWITCH PLATFORM. IN NO EVENT WILL (I) THEMATIC BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, AND (II) THEMATIC’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF $150.
4. Miscellaneous. Nothing contained in this Agreement will be deemed to create, and the parties hereto do not intend to create, any relationship of partners or joint venturers with respect to the transactions contemplated by this Agreement. Thematic may terminate this Agreement at any time upon the provision of written notice (email to suffice) to Artist. Thematic shall have the express right to sublicense the rights granted under this Agreement to Twitch and any related parties. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. This Agreement constitutes the entire understanding and agreement with respect to its subject matter (namely the use of the Works and Artist Materials on the SBT application) and supersedes any and all prior or contemporaneous representations, understandings, and agreements, whether oral or written, between Artist and Thematic relating to the subject matter of this Agreement. If any part of this Agreement is found to be unenforceable, the remaining portions of this Agreement will remain in full force and effect. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by an authorized representative of each party set forth below, and the waiver of any breach or default will not constitute a waiver of any other right under this Agreement or any subsequent breach or default. This Agreement is governed by the laws of the State of California without reference to its conflict of law rules. Exclusive jurisdiction of any and all disputes hereunder will lie in the state and federal courts in California, regardless of Artist’s domicile and notwithstanding any conflict of law principles to the contrary, and Artist consents to personal jurisdiction in the state and federal courts located therein and hereby waives all defenses of lack of personal jurisdiction and forum non conveniens. Nothing contained herein shall be construed to amend or otherwise modify the Artist Agreement, require additional consideration or royalty payment in any form under the Artist Agreement and any third-party law or code, or constitute a waiver of any of Thematic’s rights or remedies thereunder except as otherwise expressly set forth herein.
By “opting in” or otherwise demonstrating your acceptance of this Agreement as provided for through the Service or Website, such as acceptance indicated when logging in, uploading, or otherwise providing, Works to Thematic for Service use, or confirming and/or acknowledging your acceptance via responses to Thematic communications sent to you regarding this Agreement, you acknowledge that you have read this Agreement, understand this Agreement, and agree to be bound by all of its terms and conditions. Thematic similarly accepts the terms of this Agreement.
Last Updated 5-27-21