Terms of Service

These terms and conditions, as well as the Copyright Policy, collectively referred to as the “Terms of Service”, govern your access to and use of the acappellarecords.com website (the “Site”), including any content, information, products and/or services (the “Services”) therein. This is a legal agreement between you and A Cappella Records, Inc. (“ACR”). ACR reserves the sole right at any time to modify, discontinue or terminate the Site and Services, or modify these Terms of Service without notice. All modified terms and/or conditions will be in effect after they are posted to the Site. By continuing to use or access the Site and/or Services after ACR makes any such modification, you agree to be legally bound by the revised Terms of Service. You may not alter the terms and conditions of the Terms of Service without ACR’s express written consent.

You hereby understand that by using the services offered by ACR through the site or with respect to your account, you agree to be bound by these terms of service. If you do not accept the terms of service in their entirety, you may not access or use any service offered by ACR.

1. GRANT OF RIGHTS.

(a) The rights granted hereunder shall include the sale of Recordings (as defined in Section 2 below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, cloud services and so-called “disc-on-demand” services. By clicking the “I Agree” button, you irrevocably grant to ACR, throughout the world and during the Term (as defined in Section 8 below), the exclusive right:

    (i) to sell, copy, distribute and otherwise exploit the Recordings by all digital means and media (whether now known or existing in the future) (“Sale”) through any and all Consumer Stores now operational or hereafter available;
    (ii) to collect all income deriving therefrom; and
    (iii) to use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you or the artists whose performances are embodied on the Recordings in connection with the Recordings and ACR’s general business.

(b) You agree that you will not use the Site or Services to transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. You acknowledge and agree that ACR may disable access to and/or terminate your account and/or remove or disable access to any Recordings or any associated materials you provide to ACR in the event that ACR receives any claim that, if true, would constitute a violation of your representations and warranties hereunder.

(c) You agree that ACR may freeze any and all revenues in your account that are received in connection with Recordings or other materials submitted by you which ACR believes, in its good faith discretion, violate the Terms of Service, and that such revenues will be forfeited by you if ACR determines, in its good faith discretion, they are the result of fraud and/or infringement. You agree that you will not be entitled to reimbursement for any fees paid by you to ACR in the event ACR disables access to your account, your Recordings and/or any other materials you provide to ACR, or to any revenues forfeited by you as set forth in the preceding sentence. You agree that ACR may terminate your account if you violate the Terms of Service or, in ACR’s good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.

2. RECORDINGS.

The term “Recordings” shall be defined as the sound recordings and audiovisual recordings that you submit to ACR at any time. ACR, in its sole discretion, reserves the right to reject any materials (including, without limitation, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images and artwork at your sole expense, in the format(s) required by ACR. Technical descriptions of such format(s) will be provided to you upon request. You agree that ACR and/or its suppliers will have the right to supplement existing artwork necessary to complete any packaging or other digital delivery. Reasonable efforts will be made to provide you with approval rights over such artwork, but in the event that you object to any such artwork your only remedy shall be to (a) provide appropriate replacement artwork or (b) request prospective discontinuation of delivery of your materials in such manner. In no circumstances shall ACR have any liability to you with respect to the quality, sufficiency or other aspect of the creation and delivery any materials.

3. PAYMENTS.

(a) ACR will pay you fifty percent (50%) of Net Income (as defined in Section 3(b) below). All such income will be posted to your account in a timely fashion after ACR’s receipt thereof. Once payment has been credited to your account, you will be able to withdraw all or any portion at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals.

(b) “Net Income” shall be defined as ACR’s actual receipts from Consumer Stores less any tax, fee, applicable royalty or other charge related to the Sale of your Recordings. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.

(c) To the extent that you owe any amounts to ACR as a consequence of the Terms of Service or otherwise, ACR shall have the right to deduct all or a portion of such amounts from any income otherwise payable to you.

(d) In the event that ACR has, in its good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, ACR reserves the right to discontinue the posting of Net Income to your account and block your ability to otherwise withdraw funds therefrom until resolution of the suspect activities to the satisfaction of ACR is obtained. Furthermore, you agree that such revenues will be forfeited by you if ACR determines, in its good faith discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by ACR (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by ACR from any monies otherwise payable to you hereunder. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies, if any, and such policies shall be binding upon you hereunder.

(e) Any income posted to your A Cappella Records account will be pooled in an interest bearing bank account with the income of other A Cappella Records customers until you withdraw such funds. You agree that you will not receive interest or other earnings on any income that ACR handles as your agent and places in such pooled account. In consideration for your use of the Services, you irrevocably transfer and assign to ACR any ownership right that you may have in any interest that may accrue on income held in such pooled account. In addition to or instead of earning interest on such pooled account, ACR may receive a reduction in fees or expenses charged for banking services by the banks that hold your Net Income.

(f) In the event that ACR is presented with a claim of infringement of copyright, trademark, right of publicity 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 or agreements hereunder, you agree that ACR may freeze any and all revenues in your account that are received in connection with the disputed Recordings or other materials submitted by you, and that such revenues will be forfeited by you if ACR determines, in its good faith discretion, they are the result of fraud and/or infringement. Furthermore, if in ACR’s reasonable business judgment it elects to engage an attorney to review and/or respond to such claim, ACR shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to ACR the costs of such associated legal fees and expenses.

4. WARRANTIES; REPRESENTATIONS; INDEMNITIES.

(a) You warrant and represent that you are at least eighteen (18) years of age, you have the right and authority to enter into this agreement and to grant to ACR all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, audiovisuals, images and any other materials furnished by you to ACR or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site and/or Consumer Stores’ websites shall not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity; and that ACR shall have the right to exploit the same in any manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity other than the amounts payable to you hereunder.

(b) You warrant that you have the full right, power, and authority to abide by the Terms of Service by your use of any service offered by ACR, and that the execution and performance of the obligations and duties of the Terms of Service will not violate any prior agreement to which you are bound. Any and all activities undertaken by you will be performed in compliance with applicable laws, rules, and regulations.

(c) You further represent and warrant that you are authorized to designate ACR as your agent to secure and/or administer any necessary composition licenses on your behalf. You hereby assign any applicable composition rights to which you hold the copyright to ACR. You agree that you will be solely responsible for any royalties due to any third parties involved in the production of Master Recordings or Original Compositions, including but not limited to recording artists, unions, or guilds.

(d) ACR shall indemnify, defend, and hold you harmless from and against any and all third-party claims, damages, liabilities, costs, and expenses (including reasonable outside attorneys’ fees) arising out of any breach or alleged breach of any of its representations, warranties, covenants or obligations under this Terms of Service, excluding any claims by any copyright owner or other party, including but not limited to copyright owner agents, performers, unions, and guilds, who have interests in an original composition or Master Recording for any exploitation protected under the intellectual property or other laws of the United States or any state, including but not limited to under Section 106 of Title 17 of the United States Code (17 U.S.C. § 106).

(e) You shall defend and indemnify ACR and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach or a claim which, if true, would constitute a breach of the foregoing warranties and the Terms of Service, including reasonable attorneys’ fees and expenses.

(f) ACR shall give you prompt notice of any claim that is subject to the foregoing indemnification obligation and you shall defend ACR at your expense with counsel approved by ACR, which approval shall not be unreasonably withheld. In the event you fail to retain approved counsel, ACR may, if it so elects, defend itself at your cost and expense and you agree that ACR may require your participation in such defense as a third party or otherwise and you hereby waive any objection or claim to compensation in respect of same. If a claim is made ACR shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to ACR’s prior written approval.

(g) There are no representations or warranties by ACR, express or implied, statutory or otherwise, beyond those as expressly set forth in the terms of service.

5. FEES.

In consideration of the services rendered hereunder, all Recordings submitted by you and distributed by ACR to the Consumer Stores require that you pay a per-release fee, currently twenty-five US dollars ($25) per single, or one-hundred US dollars ($100) per album so distributed. These fees may be amended from time to time or adjusted on a case-by-case basis by ACR without prior notice. You expressly agree that ACR is authorized to deduct any applicable licensing or distribution fees, any taxes and/or other charges you may incur in connection with your use of the Services directly from your account or charge such fees to any Payment Method you provide to ACR. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your account by you or anyone else using your account. If you notify ACR in writing that you wish for one or more of your Recordings to be removed from A Cappella Records’ coverage, all such revoked Recordings will be promptly removed from their respective Consumer Stores. You will not be entitled to reimbursement of any pre-paid fees with respect to any revoked Recordings. It is your responsibility to notify ACR if your Payment Method has changed by making the appropriate changes to your account settings. If you do not provide a valid Payment Method your service may be disconnected or interrupted at ACR’s sole discretion.

6. TERM.

These Terms of Service shall apply at all times while you utilize the Site or the Services.

7. CONFIDENTIALITY.

You acknowledge and agree that, in the course of negotiating and transacting business with ACR, you may become aware of certain otherwise confidential information related to ACR’s business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential. You hereby expressly agree that ACR shall have the right to provide information relative to the sales of your Recordings hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.

8. OTHER AGREEMENTS.

You acknowledge that in providing the Services and payments hereunder, ACR will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores shall be within the sole discretion of ACR. You agree that the Terms of Service shall be subject to any applicable terms and conditions of such other agreements that ACR enters into with respect to such Consumer Stores. You expressly acknowledge that certain Consumer Stores may, with respect to audiovisual recordings, require that your audiovisual recordings be made available on their websites at certain times and in certain formats relative to the availability of such materials elsewhere in the marketplace. To the extent that such requirements are not met, the individual Consumer Stores may have the right to discontinue the availability of said audiovisual recordings in their store(s). ACR will, upon your written request, provide you with the current specifics of such requirements.

9. BAR CODES AND UNIVERSAL PRODUCT CODES.

ACR will provide you with free bar codes and universal product codes (“UPCs”). These are for your use only and may not be transferred or resold. Improper use of these codes may result in the freezing or forfeiture of income related to the improperly-used codes, at ACR’s sole discretion.

10. MISCELLANEOUS.

(a) The Site and Services may be used and accessed solely for lawful purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site and Services:

    (i) Disable, hack, circumvent or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any content or materials;
    (ii) Use any metadata, meta tags or other hidden text utilizing a A Cappella Records name, trademark, URL or product name, except as directly provided by ACR and without alteration by you or a third party;
    (iii) Upload, submit, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
    (iv) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
    (v) Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are, in the sole opinion of ACR, unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain pornographic or unlawful nudity, are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable;
    (vi) Destroy, interfere with or disrupt, or attempt to interfere with or disrupt, any web pages available on the Site, servers or networks connected to the Site or the technical delivery systems of ACR’s providers or break any requirements, procedures, policies or regulations of networks connected to the Site;
    (vii) Attempt to scan, probe or test the vulnerability of any ACR system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Site or Services;
    (viii) Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services;
    (ix) Attempt to search, meta-search or access the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by ACR or other generally available third party web browsers (e.g., Internet Explorer, Firefox, Safari), including, without limitation, any software that sends queries to the Site to determine how a website or web page ranks;
    (x) Collect or store personal data about other users of the Site or Services without their express and explicit permission;
    (xi) Misrepresent or impersonate your affiliation with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud;
    (xii) Use the Site or Services in any manner not permitted by the Terms of Service; or
    (xiii) Instruct or encourage any other individual to do any of the foregoing or to breach and/or violate any of the Terms of Service.
(b) ACR does not guarantee exploitation of the Recordings, which will depend on consumer preference, nor on the inclusion or participation of any given Consumer Store. ACR reserves the right in its sole discretion to decline to engage in business with any given Consumer Store. Except as specifically set forth in these Terms of Service, ACR shall have no obligations to you.

(c) ACR shall not be deemed in breach of the Terms of Service unless you have given ACR notice of the breach and ACR has failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder.

(d) In no event will ACR, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, Services, ACR products or any ACR content, no matter whether the damages are foreseeable and whether or not ACR has been advised of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and in no event will ACR’s aggregate liability to you exceed One Hundred Dollars ($100).

(e) The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of California. Any legal action or proceeding arising under the Terms of Service shall be brought exclusively in courts located in the State of California and County of San Francisco, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The parties to this agreement waive their respective rights to a trial by jury. In the event that any provision in the Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of the Terms of Service will not be deemed a waiver of such right or provision. You may not assign the Terms of Service (by operation of law or otherwise) without the prior written consent of ACR and any prohibited assignment will be null and void. ACR may assign the Terms of Service or any rights or obligations hereunder without your consent. The relationship of the parties under the Terms of Service is that of independent contractors and the Terms of Service shall not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that the Terms of Service and the rules, restrictions and policies contained herein, and ACR’s enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and ACR. The Terms of Service, together with the rules and policies of ACR, constitute the entire agreement between ACR and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given (a) by ACR via email (in each case to your email address of record), (b) a posting on the Site, or (c) by you via email to copyright@acappellarecords.com or to such other address as ACR may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.

(f) You acknowledge that ACR may utilize any information provided to ACR in the conduct of its business.

(g) It is your responsibility to deliver all necessary information, metadata, songs, graphic files or any other information or music in the format required. You acknowledge that ACR will not be obligated to furnish its services hereunder until receipt of said materials.

(h) You authorize ACR to make and perform clips of your Recordings up to ninety (90) seconds in length via streaming or download free of charge (the “Clips”) to promote the band, artist and/or Sale of applicable Recordings. To the extent that you own or control the publishing rights in the musical compositions embodied in your Recordings used in the Clips (the “Compositions”), you authorize ACR to make and perform clips of your Compositions up to ninety (90) seconds in length via streaming or download free of charge to promote the band, artist and/or Sale of applicable Recordings. Said Clips may be created by ACR or any third party affiliated with ACR by using any consecutive ninety (90) seconds of the applicable Recording(s).

(i) ACR reserves the right, in its sole discretion, to refuse to provide its services to you or any customer for any or no reason whatsoever.

COPYRIGHT POLICY

A Cappella Records respects the copyrights of others and expects its users to do the same. In compliance with the Digital Millennium Copyright Act of 1998 as embodied in 17 U.S.C. § 512 (the “DMCA”), a copy of which may be found on the United States Copyright Office website at http://www.copyright.gov/title17/92chap5.html#512, A Cappella Records will respond expeditiously to remove or disable access to material that is claimed to infringe copyrighted material or to be the subject of activity that infringes copyrighted material and was posted online using the A Cappella Records service.

DMCA Notification of Claimed Infringement

If you are a copyright owner or authorized to act on behalf of the owner of an exclusive right under copyright that is allegedly infringed, please notify A Cappella Records of the material that is claimed to be infringing or to be the subject of infringing activity and was posted online using the A Cappella Records service by completing a DMCA Notification of Claimed Infringement (the “Notification”) as described below and delivering it to A Cappella Records’ Designated Copyright Agent. It is important to emphasize that you should only submit a Notification if you own or control the copyrighted material that is claimed to be infringing because under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material is infringing may be liable for damages.

To be effective, the Notification must be a written communication provided to A Cappella Records’ Designated Copyright Agent that includes substantially the following:

    1. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works;
    2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit A Cappella Records to locate the material;
    3. Information reasonably sufficient to permit A Cappella Records to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted;
    4. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
    5. A statement that the information in the Notification is accurate, and under penalty of perjury, that the complaining party is the copyright owner or authorized to act on behalf of the owner of an exclusive right under copyright that is allegedly infringed; and
    6. The physical or electronic signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right under the copyright that is allegedly infringed.
Once completed, please deliver the Notification to A Cappella Records’s Designated Copyright Agent at:

Copyright Agent
A Cappella Records, Inc.
28 2nd Street, Suite 302
San Francisco, CA. 94105
copyright@acappellarecords.com

DMCA Counter Notification

If material you have posted online using the A Cappella Records service has been removed or disabled in response to a DMCA Notification of Claimed Infringement, A Cappella Records will promptly forward the Notification to you and inform you that it has removed or disabled access to such material. If you own or control the rights to the material you posted online using the A Cappella Records service and you believe that your material was removed or disabled by mistake or misidentification, you may send A Cappella Records’s Designated Copyright Agent a DMCA Counter Notification (the “Counter Notification) as described below. It is important to emphasize that you should only submit a Counter Notification if you own or control the copyrighted material that is claimed to be infringing because under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be liable for damages.

To be effective, a DMCA Counter Notification must be a written communication provided to A Cappella Records’s Designated Copyright Agent that includes substantially the following:

    1. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
    2. A statement under the penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
    3. Your name, address, and telephone number, and a statement that the you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which A Cappella Records may be found, and that you will accept service of process for the person who provided the DMCA Notification of Claimed Infringement (the “Claimant”) or an agent of such person; and
    4. Your physical or electronic signature.
Once completed, please deliver the Counter Notification to A Cappella Records’s Designated Copyright Agent at:

Copyright Agent
A Cappella Records, Inc.
28 2nd Street, Suite 302
San Francisco, CA. 94105
copyright@acappellarecords.com

Upon receipt of a Counter Notification, A Cappella Records will promptly forward it to the Claimant and inform the Claimant that A Cappella Records will replace the removed material or cease disabling access to it unless the Claimant notifies A Cappella Records’s Designated Copyright Agent within ten (10) business days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity with regard to the material posted online by you using the A Cappella Records service. If A Cappella Records receives notification that the Claimant has filed such a lawsuit, it will be unable to replace the removed material or cease disabling access to it. If A Cappella Records does not receive such notification, it may, in its sole discretion, replace the removed material or cease disabling access to it.

Please note that when A Cappella Records forwards the Counter Notification to the Claimant it includes your personal information. By submitting a Counter Notification, you consent to having your information revealed in this way. A Cappella Records will not forward a Counter Notification to any party other than the Claimant.

Last modified November 4, 2011