Terms and Conditions (Terms)
1.1 The digital online music distribution service "YouTunez.com", provided under the URL "http://youtunez.com" (hereinafter called "Website"), is an offer by YouTunez.com Music Ltd. & Co. KG, Holsteinische Str. 32a, 12161 Berlin, Deutschland (hereinafter called "YouTunez.com").
1.2 These terms and conditions (hereinafter called "Terms") apply to the free registration of the user on the Website (hereinafter called "Master Agreement") as well as to each further agreement between the user and YouTunez.com about paid services (hereinafter called "License Agreement").
1.3 The subject-matter of the License Agreement offered by YouTunez.com is A) the electronic distribution of the content provided by the user (e.g. audio recordings, digital pictures, product and track information etc., hereinafter called "Content") to the music download portals or other online music service providers (hereinafter called "Providers") and B) to provide further optional services, like e.g. offering electronic tools for the promotion of the Content (all together hereinafter called "Services").
1.4 Any deviating terms and conditions of the user will not be accepted even if they were not explicitly objected against.
2.1 Precondition to the use of the Services offered by YouTunez.com is the creation of an user account (hereinafter called "Account") and the associated conclusion of the Master Agreement, which can only be exercised by legal persons, partnerships acting as trusts or adult individuals (hereinafter called "User").
2.2 As part of the registration process, the User or an authorized representative shall sign up on the Website with his full name, current address, email address and date of birth (hereinafter called "Registration"). The Master Agreement shall be concluded with the first login of the User on the Website with his email address and the password, which will automatically be sent to the User by email after the Registration.
2.3 In case the User agrees to receive the YouTunez.com newsletter during the Registration, the YouTunez.com newsletter with current news and offers will be sent to the User. This service will be made available from that date until YouTunez.com receives a revocation by the User. However, there shall be no legal claim to such service.
3.1 The description of the services listed on the Website does not constitute a legally binding offer. By clicking the button "Order now" the User places a binding order of the chosen service(s). YouTunez.com will confirm receiving and accepting the order by immediately sending an automated confirmation email. Additionally to the Master Agreement, the sending of this confirmation concludes a separate License Agreement about the ordered service(s).
3.2 The main service to be provided by YouTunez.com is digital music distribution, i.e. electronic storage and transmission of the Content provided by the User to the Providers for the purpose of commercial exploitation, especially the sale in all popular configurations and formats to private consumers, including technical sales tracking and commission accounting. The User is aware and expressly recognizes that the decision, whether the Content will be published and offered for sale in the Online Shops of the Providers, is at the sole discretion of the Provider of the respective Online Shops and beyond the control of YouTunez.com. YouTunez.com merely acts as a technical service provider on behalf of the User. Therefore, the User has the sole responsibility for the digital music distribution of the Content. YouTunez.com is not liable for success in the sense of publication of the Content in the Online Shops of the Providers, but only for supplying the Providers by transmitting the User’s Content. In the case of a rejection of the Content by one or more Providers, the already paid service fees will not be refunded.
3.3 YouTunez.com will distribute the Content of the User to all currently available, and in the case of a an expansion of its portfolio also the newly added Providers immediately after the contract conclusion. A list of the currently available Providers can be viewed on the Website at any time. YouTunez.com is continually trying to keep, and if necessary expand, the number and quality of the supplied Providers to offer the User the widest possible coverage. However, YouTunez.com expressly reserves the right to change or reduce the Provider portfolio for legitimate reasons, as long as the User is not subjected to significant disadvantage. Legitimate reasons are e.g. changes of performance of the Providers and other cooperation partners, as well as modification of technical requirements at unreasonable expense for YouTunez.com.
3.4 The Services and according License Agreements shall always be bound to one specific distribution product of YouTunez.com, i.e. either a single audio recording ("Single") or bundling of more than one audio recordings to a commercially-available virtual product ("EP" or "Album") (hereinafter called "Product"). Multiple audio recordings, which have been bundled to a single Product by the User form a technical, economic and legal linked unit (hereinafter called "Bundle") during the respective period of the License Agreement. The liberation or deletion of a single audio recording from a Bundle is therefore excluded. However, the User has the possibility to cancel the License Agreement of the Bundle and conclude a new License Agreement for the remaining audio recordings.
3.5 As additional service to the digital distribution of the User’s content, YouTunez.com offers the User various applications to enhance the promotion of his Content (hereinafter called "Promotion Tools"), which are currently provided free of charge, as long as at least one License Agreement with YouTunez.com is existing. However, YouTunez.com reserves the right to make certain Promotion Tools only available for a fee or discontinue the offer of certain Promotion Tools, in whole or in part, in the future. There is no legal right to the usage of certain or all Promotion Tools and YouTunez.com is not taking responsibility for the proper functioning of Promotion Tools nor does YouTunez.com guarantee any desired sales or other success, if the Promotion Tools are used by the User. The User's attention is explicitly drawn to the fact, that the usage of Promotion Tools and the according exploitation activities are in the sole responsibility of the User. Therefore, YouTunez.com strongly recommends, that the User shall inform himself about the essentially legal contexts, especially about the conditions for admissibility and the consequences of the usage. In case YouTunez.com is being exposed to third party claims resulting from the usage of the Promotion Tools, the User will indemnify and hold YouTunez.com harmless from any and all liability.
3.6 YouTunez.com is trying to keep the Services on the Website available uninterrupted and in a fully operating condition for the User at all times, but only guarantees an annual average Website availability of 95%. This does not include times in which the Website is not available due to technical reasons or other problems that are beyond the control of YouTunez.com. In such cases, the distribution of already published Content will not be affected.
3.7 YouTunez.com reserves the right to individually deny the User’s request to conclude a License Agreement for any legitimate interest. In such cases, any payments received will be refunded, unless YouTunez.com can offset the payment against any outstanding debts.
4.1 The User is hereby notified, that some of the Providers supplied by YouTunez.com have high quality requirements on the distributed Content, and therefore established certain technical and creative standards, which are necessary to meet for a publication by the respective Providers. The User is obliged to inform himself about the technical requirements listed on the Website under "Frequently asked Questions (FAQ)", even before the transmission of his Content and the according conclusion of a License Agreement, and to observe and adhere to the standards for correct labeling of the Content, especially the product, title and track information. Therefore, it shall be the sole responsibility of the User, if the Providers refuse the Content, in whole or in part, if the User did not follow the guidelines for the provided Content complying with the acknowledged industrial standards for professional audio recordings and/or if the Product-related information is incomplete or inaccurate.
4.2 In case YouTunez.com recognizes a violation of the foregoing obligations and requirements on the User’s Content, YouTunez.com shall be entitled but not obliged to deny the distribution of the User’s Content. In this event, the License Agreement continues existence and the User has the possibility to replace the Content or correct the according information. Any resulting additional expenses shall be covered by the User.
4.3 The User is obligated to use the Services of YouTunez.com exclusively in accordance with the relevant regulations of the law and these Terms. The distribution or transmission of unlawful Content is strictly prohibited. It is particularly prohibited to distribute or transmit Content to YouTunez.com with pornographic, violence glorifying, racist, discriminating or defamatory substance, Content which is violating aspects of criminal law or third parties’ rights, or to misuse the Services of YouTunez.com in any other way. Content with audio recordings which are potentially harmful to minors because of explicit, i.e. offensive but not illegal, lyrics has to be marked by the User, accordingly to the voluntary self-commitment of the music industry and the respective requirements of the "Recording Industry Association of America (RIAA)", with the warning "Explicit Lyrics" during the upload process.
4.4 Due to mass distribution, YouTunez.com is not able nor legally obliged, because of a lack of realistic opportunities for monitoring, to review or control the Content transmitted by the User in regards of legality. However, if YouTunez.com recognizes or receives information about Content, which is clearly illegal or violating any third parties’ rights, YouTunez.com shall be entitled and obliged to delete the respective Content immediately, and take all necessary measures to avoid right violations in the future and prevent further distribution of the Content.
4.6 The User shall be obligated to keep his password secret at any time. Personal access data may not be provided to third parties and must be protected against third party access. If there is cause to presume that unauthorized persons have obtained knowledge of the access data, the User shall change his password immediately.
4.7 It is prohibited to use the Services offered by YouTunez.com for the purpose of commercial resale or lease to third parties; in particular to grant access to an Account against payment.
4.8 If the User violates a major contractual obligation, or YouTunez.com has clear and well-founded accusations in this respect, YouTunez.com shall be entitled to temporarily suspend the User’s Account or the access to respective services or functions. In this case, it shall be explicitly prohibited to the User to circumvent the suspension, by registering on the Website with misrepresenting information and/or a different identity.
4.9 The User shall be liable for all damages, costs and expenses resulting from negligent infringement of the contractual relation resulting from the contract and/or these Terms, in particular under 4.2, 4.3 and 4.4, and shall indemnify YouTunez.com, including its staff, representatives, shareholders and agents against all resulting claims by third parties.
5.1 By entering into a License Agreement, the User approves the (first-)publication of the provided Content and grants YouTunez.com the respective exclusive and geographically unlimited property rights during the according contract period, especially copyright, ancillary copyright and title right, to reproduce, broadcast and make the Content available to the public, for the purpose of digital distribution and commercial exploitation of the Content in all available electronic configurations and formats, especially as single download, virtual compilation and ringtone, as well as all other currently and in the future available distribution channels and systems (e.g. online shops, streaming services, apps, subscription models, mobile telecommunications systems, value-added services etc.) to private consumers, as long as these rights have not already been effectively granted to a copyright collecting society (e.g. ASCAP or PRS). The rights granted shall also include the right to process the Content of the User and/or have the Content processed by contracted third parties, insofar as such is necessary to the fulfillment of the contract. Furthermore, YouTunez.com is authorized to transfer the rights granted to YouTunez.com by the User, in whole or in part, to third parties, especially to the Providers and other cooperation partners and to authorize these third parties to offer the necessary usage rights for the User’s Content to private consumers.
5.2 The User is aware and expressly acknowledges that with the conclusion of a License Agreement, the User grants YouTunez.com the worldwide exclusive digital distribution right for the provided audio recordings (hereinafter called "Recordings") and also warrants that the Recordings shall not be digitally distributed, by the User or a third party, through another comparable service provider or directly to an associated Provider – also not by using a different name or pseudonym (so-called "title exclusivity").
5.3 The License Agreement shall not be personally binding for the User or any artist involved into the production of the Recordings (so-called "personal exclusivity"). Therefore, the User shall always be free to distribute audio productions, other than the contractual Recordings by himself or through third parties. Also excluded from the grant of rights aforementioned is the distribution of the Recordings on physical sound recording carriers, like e.g. CDs, vinyl records or other physical sound storage media. Therefore, the User shall be entitled to distribute the Recordings or any other audio productions – also parallel to the digital distribution – on physical sound carriers, like e.g. through conventional music retail channels.
5.4 The Providers supplied by YouTunez.com precondition very diverse digital rights management (DRM) specifications for the publication and sale of the Content to private consumers. In order to ensure a frictionless and efficient distribution, the User explicitly authorizes YouTunez.com to define, and if necessary adapt, the respective specifications and therefore also the end user's rights to the Content, according to the requirements of the Providers or at its own reasonable discretion.
5.5 YouTunez.com is on a non-exclusive basis entitled to use and integrate the Content, with due regard to the User’s copyright interests, worldwide and for an unlimited period, for promotional purposes free of charge, in own advertising measures, especially print and online advertisement, commercials or social media campaigns.
6.1 The User warrants and shall be responsible to YouTunez.com that the granted rights on the Content endure to the full extent, i.e. the Content – including the product and track information, as well as the design of the cover, in whole or in part – is free from third parties’ rights, especially concerning copyright, ancillary copyright, title, naming, trademark or other rights, or that the User is entitled to use all respective contractual rights and that he is not otherwise bound to agreements which interfere with these rights. The User explicitly warrants that the contractual rights have not already been granted to a third party, like e.g. a producer, label, music distributor or other service provider.
6.2 In case the User utilizes third parties’ creations (esp. by another composer and/or songwriter) or services (e.g. by a graphic designer, photographer, producer, musician etc.) during the production of the Content, the User warrants that he has effectively obtained all necessary usage rights, licenses, permissions, approvals and the like, from the relevant right holders. This applies in particular for cases, in which the exploitation rights on existing creations ("compositions/lyrics") and/or third parties’ recordings ("master rights") – regardless of the amount of usage ("song" or "sample") – can not or only in part be obtained from a copyright collecting society.
6.3 In case YouTunez.com shall be exposed of any third parties’ claims regarding the Content, and there is no obvious right infringement, YouTunez.com will initially notify the User about the third parties’ objection and request the User to submit his observation within a specified time limit. If the User fails to invalidate the objection in the opinion of YouTunez.com or its legal assistance – if necessary after the immediate transmission of appropriate documents to YouTunez.com – within the given time limit, YouTunez.com shall, to avoid the loss of its privileged position as to liability, be entitled and obliged, to delete the respective Product in order to take the Product off the market and prevent further distribution of the Content.
6.4 The User shall indemnify YouTunez.com, including its staff, representatives, shareholders and agents against all third parties’ claims and/or demands, resulting from or affected by the distribution of the Content through YouTunez.com, in the case of a violation of the aforementioned guarantee obligation of the User or a respective duly reasoned suspicion of a third party, in full upon first request. This also includes any potential expenses for a lawyer or court costs to a reasonable amount.
7.1 The conclusion of a Master Agreement with YouTunez.com, and the use of the herewith to the User provided services, is free of charge.
7.2 The conclusion of a Product-related License Agreement, to use the herewith provided Services of YouTunez.com, will be charged. The current prices are made available on the Website and are always including statutory value added tax.
7.3 Additionally to the service fees, which shall be paid annually in advance, YouTunez.com shall obtain a distribution fee in the amount of 20 % of the achieved net revenue from the digital distribution of the Content. "Net revenue" as described aforementioned, means sales revenue, that has been accounted and actually paid out, deducted of copyright fees, sales commissions, taxes and other mandatory fees for YouTunez.com. The User's attention is explicitly drawn to the fact that, because of mass distribution, diverging market acceptance and a strong territorial approach of price policies, the end prices for private consumers for the respective usage of the Content are solely determined by the Providers and YouTunez.com has no influence on this.
7.4 The net revenue paid out to YouTunez.com will be credited to the User’s Account, deducted of any outstanding fees or other debts owed to YouTunez.com (hereinafter called "Credit").
7.5 All usage fees or processing fees are generally due for immediate payment. In case the balance of the User’s Account is sufficient to offset the current invoices of YouTunez.com in full, the payment will automatically offset against the User's Credit. If the Credit is not sufficient to offset the invoice in full, the full amount due shall be paid by using one of the given payment methods of YouTunez.com.
7.6 Whenever the Credit of the User reaches the minimum amount of 30 €, the User can request the payoff of his Credit in his Account to a German bank account or an internationally available PayPal account provided by the User (hereinafter called "Payoff"). All Payoffs shall be made within 60 days after the User’s request for Payoff.
7.7 The User can review the present sales reports provided by the Providers to YouTunez.com in his Account at any time. The User acknowledges, that YouTunez.com has no possibility to verify the accuracy of the sales reports provided and transmitted by the Providers. If the User has a duly reasoned suspicion that the sales reports are incorrect, the User shall directly contact the respective Provider.
7.8 The User expressly agrees to receive all sales reports, invoices and credit notes in electronic form only.
7.9 If the User is subject to sales tax within the European Union ("EU"), the User shall notify YouTunez.com immediately by entering his current tax number ("VAT ID") in his Account or otherwise. In case the User omits such notification, YouTunez.com anticipates until further notice, that the User’s revenue is not subject to sales tax and will perform accounting and Payoff of the Credit without sales tax. Any additional claims, in case the User has to pay sales tax for his sales revenue to the tax office for the already settled accounting periods, shall be excluded.
7.10 In the case the User wants to subsequently change the cover and/or product, title or track information of already distributed Products, the User can order a "meta data revision" for 10 € per Product. The period until the desired change comes into effect may vary depending on the respective Providers.
7.11 Distributed Products can be removed and deleted from the Online Shops of the Providers at any time for free. YouTunez.com will forward the Product removal request immediately to the Providers. However, YouTunez.com does not have any influence on the actual duration and correct execution of the Product removal.
8.1 The Master Agreement concluded between YouTunez.com and the User shall be valid for an indefinite period und can be canceled by both parties at any time without giving reasons. This does not apply if the User has also concluded a License Agreement with YouTunez.com. In this case, the Master Agreement can only be canceled in conjunction with the last existing License Agreement of the User and with a remaining term of 6 months after the last License Agreement has been canceled. This will allow YouTunez.com to credit the sales revenue of the User, which has not yet been accounted by the Providers at the time of the cancelation of the License Agreement, to the User’s Account. However, if the User explicitly requests the immediate cancelation of the Master Agreement, and respectively the deletion of the User's Account, all further incoming sales revenues will be forfeited to the benefit of YouTunez.com.
8.2 Each License Agreement between YouTunez.com and the User shall be for a period of one year and shall be renewed for further one-year periods unless the User cancels the License Agreement before the end of the ongoing period in his Account. After the cancelation YouTunez.com will automatically request the removal of the respective Product by the Providers. A partial or full refunding of the prepaid service fees for the canceled Product is excluded.
9.1 The liability of YouTunez.com for personal damage or injury shall be unlimited and governed by the statutory regulations.
9.2 For all other damages, YouTunez.com is only liable if YouTunez.com or its vicarious agents violated an important contractual obligation (hereinafter called "Cardinal Obligation") or if the damage is caused by malicious intent or gross negligence by YouTunez.com or its vicarious agents.
9.3 In the event of a slightly negligent breach of a Cardinal Obligation, YouTunez.com shall only be liable to the User for reasonably expectable damage, as was foreseeable at the time of the conclusion of the contract.
9.4 This limitation of liability shall apply to all contractual or non-contractual claims. However, it shall not affect any liability on the basis of mandatory legal requirements.
10.1 Right of Withdrawal
The User may revoke his contract declaration in written form (e.g. letter, fax, email) within 14 days without specifying any reasons. The period begins upon receipt of this notification in writing, but not before the conclusion of the agreement, and also not before YouTunez.com has fulfilled its duty to provide information as defined in Article 246 § 2 in conjunction with § 1 (1) and (2) of the Introductory Act to the German Civil Code ("EGBGB") as well as the duties under § 312e (1) sentence 1 of the German Civil Code ("BGB") in conjunction with Article 246 § 3 EGBGB. The User’s right of withdrawal is ensured, if YouTunez.com receives the User’s written revocation during the time limit. The notice of revocation should be addressed to:
YouTunez.com Music Ltd. & Co. KG
Holsteinische Str. 32a
10.2 Consequences of Withdrawal
In the event of an effective revocation, the services received by both parties and potentially drawn profits (e.g. interest), shall be returned. If the User is not able to return the services and benefits derived (e.g. benefits of use) to YouTunez.com, in whole or in part, or only in a deteriorated condition, the User shall be obligated to grant YouTunez.com an appropriate value replacement. In some cases, the User may be required to fulfill the contractual payment responsibilities for the period up to the revocation. Obligations for the refunding of payments must be met within 30 days. The period begins for the User at the time his notice of revocation is sent, for YouTunez.com with the reception of it.
10.3 Special Note
The User’s right of withdrawal expires prematurely if the contractual obligations are fully met by both parties at the express request of the User, before the User has exercised his right of withdrawal.
End of Right of Withdrawal Instructions
11.1 YouTunez.com may at any time modify these Terms by updating it.
11.2 In the event of a modification of the Terms, YouTunez.com will notify the User about the changes by email. The modification shall be deemed to have been approved by the User, unless the User refuses the modification of the Terms within 4 weeks of being informed about the modification. YouTunez.com will inform the User about the consequences of such an omitted objection in the modification notice.
11.3 The current version of the Terms is made available on the website "http://youtunez.com/terms".
12.1 YouTunez.com reserves the right to assign all agreements within the scope of the Terms, in whole or in part, to a third party with the effect of discharging the debt. The User already agrees to such an assignment of contract. If YouTunez.com avails itself of this possibility, the User is entitled to cancel his contractual relationships immediately and without notice.
12.2 All legal relations that arise between YouTunez.com and the User are governed by the law of the Federal Republic of Germany.
12.3 It is agreed that Berlin, Germany, shall be the exclusive place of jurisdiction, if the User does not have a general place of jurisdiction in Germany or in another EU country, is a qualified merchant or if the User moved his domicile or usual place of residence abroad after the conclusion of this contract, or if his domicile or usual place of residence is not known at the time the claim is raised. However, YouTunez.com reserves the right to take legal action against the User at his place of jurisdiction.
12.4 Should one or more of the conditions of these Terms be invalid, this has no effect on the validity of the remaining conditions.
12.5 The order details of the services or products requested by the User will be stored by YouTunez.com and transmitted to the User with the respective order confirmation by email. The order can be placed on the Website in German or English language.
Last update July 15, 2013