Backingtracks.pro Marketplace Agreement (Seller)
Effective January 1, 2020
Plain English Version
What this Agreement says:
Our site allows you to upload backing tracks, whether they’re your original work or are covers, for sale to people who want to buy them. We help you make that music available to the world. If someone wants to buy it, you and we split the price the buyer pays. If your music is a cover work, we will try to obtain the license to the underlying work from Harry Fox Agency or a similar clearinghouse, and we will take care of the royalties required for the mechanical license. This agreement covers this arrangement and describes it in detail.
What you’d be giving us:
There are two transfers of your rights that can take place through our site. First, when you upload any music, you grant us a pretty general license to reproduce your work, to have it available on our site so people can hear a portion of it (to see if they want to buy it), among other things, all of which are detailed in the agreement below. We will not create derivative works of your music except for purposes of marketing our site (and your song’s availability for purchase). The second transfer takes place only when someone purchases a license to use your music, and the transfer is from us to the buyer. This second grant is very limited, and allows the buyer to do only two things, to practice and perform your music and to create demo recordings for the purposes of getting gigs. That’s it.
What you’d get:
We will set a price for each of the tracks you upload, and will split the profits with you 50-50. We’ll send you money through PayPal by the tenth of each month.
This is just an overview. In order to upload any music to backingtracks.pro, you must read the following agreement and agree to its entirety. If you do not agree, you may not use this site.
If you have any questions, let us know! We’re happy to help.
This Marketplace Agreement concerns the website located at backingtracks.pro, as well as the service owned and operated by SaxLove Productions, Inc. (“SaxLove,” “we,” “us,” or “our”), including any mobile software applications offered or published by SaxLove (the “Service”), and is between SaxLove and you (“Seller, “you,” or “your”) when you, through a Seller Account that you create on the Service, upload content whose rights and licenses you control to the Service (the “Marketplace Agreement”).
Acceptance of the Agreement
If you are using or opening a Seller Account on behalf of a company, entity, or organization (including but not limited to a recording label) (each, an “Artist Entity”), then you represent and warrant that you (i) are an authorized representative of that Artist Entity and any recording artists represented by such Artist Entity (each, a “Represented Artist”) with the authority to bind such Artist Entity or Represented Artist to the Agreement and (ii) agree to be bound by this Agreement on behalf of such Artist Entity or Represented Artist.
The Service is available only to individuals who are at least 18 years old. You represent and warrant that if you are an individual, then you are of legal age to form a binding contract, and that all registration information you submit is accurate, complete, and truthful. SaxLove may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
By creating a Seller Account, you represent that you understand all terms in the Agreement and that you agree to be bound by them without modification until your Account is terminated by you or by us.
To offer User Content on the Service, you must register as a Seller by creating a Seller Account. If you upload, post, or create any sound recordings and any associated copyrightable works or metadata, including without limitation song lyrics and musical notations, album cover artwork, photographs, graphics, and descriptive text (“User Content” or “Track,” as applicable) via the Service, you are responsible for such User Content, including securing and maintaining all rights and clearances relating thereto. If you tell us that your User Content is a cover work, we will try to obtain the mechanical license to the underlying work and pay the required royalties to the Harry Fox Agency or similar. We will reject any User Content whose mechanical license we are unable to secure.
When we use the term “Service”, we include the ability to upload your User Content to the Service for licensing of permanent digital downloads by others, including any technology, platform, solution or application program interfaces (“APIs”) included in or a part of such service, whether owned by us or licensed or otherwise made available to us by rights holders.
SaxLove does not guarantee that any User Content will be made available on the Service. We have no obligation to monitor the Service or User Content. However, we reserve the right to (i) remove, edit, or modify any User Content in our sole discretion uploaded to the Service at any time, without notice to you and for any reason or for no reason at all, including but not limited to upon receipt of claims or allegations from third parties or authorities relating to such User Content or if we are concerned that you may have violated this Agreement.
Buyers of Seller’s Tracks are given only limited rights as described in the Website User Terms and Conditions. Selling prices for Tracks will be determined by SaxLove, and we reserve the right to change the sale price between transactions.
You agree that we may redistribute previously purchased copies of your Tracks to Buyers who have, in our sole determination, received a corrupted copy of your Track, an incorrect file format version of your Track, an incomplete copy of your Track, or suffered a loss of your Track through hard drive failure, damage, theft, or destruction on a no-fee basis to the Buyer. Such redistribution may be effected by allowing the Buyer to redownload a replacement copy. A Buyer who has a Buyer Account will also be permitted to redownload any previously purchased Track. In the event of any of the foregoing redistributions, no additional payments shall be made to you.
A Buyer who creates a new account receives, as a gift from our Service, a free backing track of their choice. You agree that the backing tracks that you submit do qualify for this free gift, and you understand that you will receive no commission on this transaction.
Your portion of the revenue we collect from any sales of your Tracks will be 50% of the then-current sale price (“Revenue”). Any Revenue will be sent to Seller via PayPal monthly by the tenth day of each month. Seller will not receive any Revenue for any order that is canceled, refunded, or charged back. You are solely responsible and liable for any PayPal fees, credit card transactions fees, and any finance charges you may incur.
Seller Account Obligations
You are responsible for maintaining the strict confidentiality of your registration information and you shall be responsible and liable for any access to or use of the Service by you or any person or entity using your registration information, device or other credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee. It is therefore critical that you do not share your registration information with anyone. You agree to immediately notify us of any unauthorized use of your registration information, account or device, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your registration information, (b) update, maintain and control access to your registration information, and (c) cancel your account on the Service.
Fees and Payment Terms; Independent Contractors
In order to maintain a Seller Account, you must maintain an account with PayPal and ensure that your PayPal account information shared with us for the purposes of your Seller Account is complete, accurate, and up to date. You are solely responsible for all income taxes incidental to Revenue. You agree that you and we are independent contractors, and that you are not an employee or partner of SaxLove’s.
Intellectual Property Rights
As between you and us, we shall remain the exclusive owner of all intellectual property rights in the Service (including the underlying technology, software and content).
We will not have any ownership rights in any elements of any User Content. By uploading User Content to the Service, you grant us and our authorized sublicensees and distributors, if any, during the term of this Agreement, the worldwide, non-exclusive, royalty-free right and license to (i) reproduce, distribute, publicly perform (including on a through-to-the-audience basis and by means of a digital audio transmission), publicly display, create derivative works of for the purposes of marketing, communicate to the public, synchronize, and otherwise exploit (1) the User Content and perform the Service on your behalf (e.g., reproduce, transcode, copy and store the User Content on computer servers owned or operated by or on behalf of SaxLove or its authorized sublicensees and distributors, and publicly perform, transmit, synchronize, stream, distribute, and play back the User Content) using any technologies or methodologies now known or hereafter developed or in the marketing, promotion or advertising of the Service, including in all forms of marketing, promotion, and advertising materials now known or hereafter created; (ii) allow users of the Service to receive public performances and public displays of the User Content and to reproduce the User Content on any and all devices owned or controlled by the user for non-commercial purposes and receive performances and displays of same; and (iii) reproduce, use, and publish, and to permit others to reproduce, use and publish, the name(s), trademarks, likenesses, and personal and biographical materials affiliated with the User Content in connection with the provision of the Service.
By uploading any User Content to the Service:
- you represent and warrant, and can demonstrate to our full satisfaction upon request, that (i) you own or otherwise control all rights to your User Content (or that such User Content is in the public domain or has otherwise been directly licensed to you in writing with a grant of rights sufficient to permit you to enter into this Agreement and to grant all of the rights with respect to your User Content as set forth in this Agreement); (ii) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any User Content you upload to the Service; (iii) you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the User Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the User Content) as contemplated by this Agreement, and (iv) you are authorized to grant all of the aforementioned rights to the User Content to us and all users of the Service;
- you represent and warrant that the use or other exploitation of your User Content by us and our authorized sublicensees and distributors or by users of the Service as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights;
- you represent and warrant that, to the extent you are the songwriter of any or all of the musical works embodied in your User Content, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any performing rights organization (“PRO”), whether based in the United States (e.g., ASCAP, BMI or SESAC) or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty-free license to us for the public performances and communications to the public of your User Content, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the public performance or communication to the public of your User Content; and
- you represent and warrant that no fees of any kind shall be due any third party, including, but not limited to, any union, guild, non-featured vocalist or musician, engineer or producer, for the use or re-use of your User Content as authorized under this Agreement.
If any agreement you have entered into with any third party, including but not limited to a PRO, music publisher, union, or guild, whether by law or contract, prohibits you from granting company the right and license set forth in this Agreement and making the representations and warranties set forth in the four paragraphs immediately above, then you are prohibited from uploading your User Content to the Service and shall be responsible for indemnifying and holding us harmless from and against any and all claims arising from the exploitation of your User Content on the Service, including but not limited to all court costs and legal fees.
The rights, licenses, and privileges described in this Agreement and granted to us shall commence immediately upon submission of your User Content and shall continue thereafter perpetually and indefinitely, irrespective of any maintenance or termination of your Seller Account and regardless of whether we accept your transmission.
Term and Termination
The term of this Agreement begins when you register as a Seller on the Service. The Agreement will remain in full force and effect for as long as you have an active Seller Account on the Service. Your Account is considered active until it is terminated by you or by us in accordance with the terms hereof. You may terminate your Seller Account at any time. Termination of your Seller Account constitutes termination of this Agreement.
We may terminate your Seller Account at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party. We may also reject any of your User Content for any reason, including if we cannot secure the rights for any underlying intellectual property, or for no reason at all.
The Service is provided "as is" and "as available” and is without warranty of any kind, express or implied, including but not limited to the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. SaxLove and its directors, employees, agents, suppliers, partners and content providers do not warrant that (a) the Service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the Service is free of viruses or other harmful components; or (d) the results of using the Service will meet your requirements. Your use of the Service is solely at your own risk.
Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
You shall defend, indemnify, and hold harmless SaxLove and its affiliates, authorized sublicensees and distributors, and each of their employees, contractors, directors, suppliers and representatives, from any and all liabilities, claims, and expenses, including reasonable attorneys' fees and court costs, that arise from or relate to your use or misuse of, or access to the Service, User Content or otherwise from your User Content, violation of this Agreement, or infringement by you or any third party using your Seller Account of any intellectual property or other right of any person or entity, and for breach of any of your representations and warranties in this Agreement. For the avoidance of doubt, you hereby agree to defend, indemnify, and hold harmless SaxLove from any and all claims by a third party owning, controlling or claiming any right in or to your User Content, including claims for performance royalties, synchronization royalties, mechanical royalties, and use or re-use fees. SaxLove reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with SaxLove in asserting any available defenses at your sole expense.
Limitation of Liability
IN NO EVENT SHALL SAXLOVE, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE HUNDRED U.S. DOLLARS ($100.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, THEN YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS THAT "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY SAXLOVE.
Choice of Law; Venue
You and SaxLove agree that any cause of action arising out of or related to this Agreement must commence within one year after the cause of action arose; otherwise, such cause of action is permanently barred. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, excluding its conflicts of law rules, and the United States of America. Any legal action between you and us must be instituted exclusively in the federal or state courts located in Washtenaw County, Michigan, and you consent to jurisdiction and venue in such courts.
Neither party shall be liable to the other party for any delay or default in performance of its undertakings of obligations under this Agreement if such delay or default is caused by force majeure, including wars, insurrections, fires, passing of laws or any governmental order, regulation or ruling, or any other act(s) beyond the reasonable control, and neither party shall have the right to terminate this Agreement unless such delay or default in performance is caused by force majeure for a period of three (3) weeks. During such force majeure event, the affected Party will use all reasonable efforts to avoid, reduce or eliminate the force majeure event’s prevention, restriction or delay of the performance of its obligations under this Agreement. A force majeure event does not excuse either Party’s obligation to make any payment under this Agreement.
Any notice or other communication to be given or served under or in connection with this Agreement will be sent either by notices published on our website or sent by e-mail to your stated email address. Our address for notices is firstname.lastname@example.org.
Modification of Agreement
We reserve the right, in our sole discretion, to modify or replace any of the terms in this Agreement, or change, suspend, or discontinue the Service (including without limitation the availability of any feature, database, or content) at any time by posting a notice on the Service or by sending you an e-mail. We may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check this Agreement periodically for changes. By continuing to use the Service after such changes are effective, you accept the changes. If you do not agree to the changes made, you must terminate your Seller Account in accordance with the applicable termination provisions. We will inform you by email or in the Service at our discretion of major changes to these terms. Notwithstanding the preceding sentences of this section, no modifications of this Agreement will apply to any dispute between you and us that arose prior to the date of such modification.
This Agreement contains the entire understanding and agreement between you and us concerning the Service and supersedes any and all prior, contemporaneous, or inconsistent understandings relating to the Service and your use thereof. This Agreement cannot be changed or terminated orally.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the minimal extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause of action arose).
No Waiver; No Assignment
Any failure of ours to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by either you or us.