Usage & Licensing Conditions
1.1 The services available at the URL "http://youtunez.com" including the subpages belonging thereto (hereafter "Website") constitute an offer of YouTunez.com Music Ltd. & Co. KG, Holsteinische Str. 32a, 12161 Berlin (hereafter "YouTunez").
1.2 The services offered by YouTunez consist of the electronic storage and transmission of audio files, image files and product information (hereafter "Releases") provided by the User, to the download and streaming services connected with YouTunez and/or other online services (hereafter "Portals") for the purpose of commercial exploitation of the releases (hereafter "Digital Distribution"). This includes commercial exploitation in all prevalent configurations and formats to private consumers as well as sales tracking and commission settlement.
2.1 In order to use the services of YouTunez it is necessary to set up (hereafter "Registration") a free User profile (hereafter "Customer Account"). Registration is limited to persons of legal age, legal persons and partnerships (hereafter "User" or "Licensor") and is restricted to one customer account per person/company.
2.2 During registration the User is to sign up on the website by providing his complete name, address and email address. The User guarantees that all data provided at the time of registration is correct and complete. The User is obligated to keep his data current and to promptly change the data in his customer account if it requires modifications or to notify YouTunez in writing thereof. If the data provided by the User is apparently incorrect in whole or in part, then YouTunez is entitled to immediately delete the customer account.
2.3 Upon registration the User will choose a password for access (hereafter "Login") to his customer account. The User is to keep the password confidential and may not pass it on to third parties. As soon as the User has reason to suspect that unauthorized third parties know the password, the User has to promptly change the password.
2.4 If, at the time of registration, the User agrees to receive a newsletter, then he will continue to receive it until he notifies YouTunez that he no longer wishes to receive it.
2.5 If the User is subject to VAT, then he must include his VAT identification number (hereafter "VAT ID") in his customer account. If the User does not provide a valid VAT ID, then YouTunez will make payments of credits (see below) VAT-free. A subsequent request for the VAT, that is to be transferred and/or has been transferred to tax authorities, for already settled credits is excluded.
3.1 Several fee-based service packages (hereafter "Flatrates") are made available to the User. Their Pricing & Features can be called up at any time on the website. Each flatrate consists of a certain number of releases that are available to the User within the contractual year. The User can see the date of the next contract extension as well as the number of releases available to him for the current contractual year in his customer account at any time. Unused releases expire at the end of the contractual year.
3.2 Each release is combined to a virtual audio product that contains 1-25 tracks in the form of audio files (hereafter "Tracks"), an image file (hereafter "Cover Picture"), as well as the according product meta data (hereafter "Product Information"). As a contractual product, each release constitutes a technical, economic and legal unity.
3.3 Before the transmission of releases, the User is obligated to observe and comply with the rules and guidelines for the proper disclosure of product information made available by YouTunez on the website under Frequently Asked Questions (FAQ).
3.4 The decision as to whether portals are to publish releases and offer them for sale lies with the corresponding portals. YouTunez is therefore not obligated to the User for the faultless publishing of releases, but rather merely for their transmission to the portals. YouTunez reserves the right to change the list of connected portals at any time.
3.5 If, during the course of the contract, the User requires more releases than available in the chosen flatrate, then he has the opportunity to expand the flatrate contract (hereafter "Upgrade"). An upgrade is possible at any time to a flatrate of higher value. An upgrade involves entering into a new flatrate contract that replaces the existing flatrate contract. Already existing releases are thereby incorporated into the new flatrate contract at no cost. Unused releases associated with the old flatrate contract expire in the case of an upgrade.
3.6 The User has the opportunity to subsequently modify the cover picture and/or the product information associated with releases that have already been published (hereafter "Data Revision"). A data revision costs 10.00 € incl. VAT processing fee. YouTunez will promptly forward the request for modification to the portals. However, YouTunez has no influence on the actual duration and correct implementation of the complete data revision.
3.7 The User can have his releases deleted from the portals at any time and free of cost, thereby terminating the digital distribution of the respective releases (hereafter "Take Down"). Take downs do not have any influence on the existing flatrate contract. YouTunez will promptly forward the request for deletion to the portals. However, YouTunez has no influence on the actual duration and correct implementation of the complete take down.
3.8 During the course of the contract the User is permitted to use electronic tools for advertising and marketing of releases that have been made available by YouTunez in a non-binding fashion (hereafter "Promotion Tools"). No claim exists to have the promotion tools made available. YouTunez does not guarantee that the promotion tools will function correctly or lead to the sales success sought by the User. The User is hereby expressly informed that he alone is fully responsible for the use of promotion tools and the exploitation activities associated therewith. It is therefore suggested that the User acquaint himself with the legal context associated with the usage of the promotion tools before using them. Should YouTunez be made subject to third-party claims based on the Users' use of the promotion tools, then the User is to free YouTunez from all liability and to fully indemnify YouTunez.
3.9 By clicking on the button "Make Payment" the User places a binding order for the chosen services. The confirmation of order takes place directly upon receipt of the order by means of a confirmation email. The sending of the confirmation email concludes the contract concerning the ordered services. The releases contained in the chosen flatrate will be made available after receipt of payment by YouTunez.
4.1 The current prices for service packages (hereafter "Flatrate Fees") can be called up at any time at the YouTunez website under Pricing & Features. All prices are incl. VAT.
4.2 By using his customer account, the User can call up the sales figures and settlements of his releases (hereafter "Sales Data") that have been transmitted from the portals to YouTunez. The sales data is provided without guarantee and is subject to any corrections by the portals. The User acknowledges that YouTunez is not in a position to investigate the correctness of the sales data. If the User has reason to believe that the sales data are incorrect, then he is to directly address the respective portal.
4.3 YouTunez is to retain a sales commission in the amount of 15% (hereafter "Commission") of the net revenue from the digital distribution of the Users' releases (hereafter "Net Revenue"). The net revenue corresponds to the sales price less the sales share of the respective portal as well as the taxes, copyright fees and other necessary and/or mandatory expenses and charges depending on the country of sale.
4.4 The net revenue paid out to YouTunez by the portals will be credited to the User after deduction of the commission, as well as any flatrate fees that are due or other outstanding YouTunez claims (hereafter "Credit").
4.5 As soon as the credit reaches a minimum amount of 25.00 € the User can have the credit in his customer account transferred to a German bank and/or international PayPal account (hereafter "Payout"). The payout will take place within 60 days after the payout request.
4.6 YouTunez invoices to the User are generally to be paid immediately by means of one of the payment methods offered by YouTunez, however, at the latest 30 days from receipt of the invoice by the User. If the User falls in arrears in regard to payments, then YouTunez is entitled to block access to the customer account until all invoices due have been completely settled.
4.7 The User agrees to exclusively receive invoices and credits from YouTunez digitally by email at the email address provided by the User in the customer account.
5.1 The flatrate contract between YouTunez and the User is to be initially entered into for the period of one year (hereafter "contract period"). The flatrate contract is automatically renewed by another year if it has not been terminated in the customer account before the date of contract renewal (hereafter "termination"). Termination may be sought at any time without giving reasons or compliance with a termination period. However, the period of the contract only ends – even in cases of an effective termination – after any outstanding flatrate fees and/or other YouTunez claims against the User have been completely settled. At the end of the contract period, YouTunez will inform the corresponding portals to delete all releases of the User from the market (hereafter "Take Down"). However, YouTunez has no influence on the actual duration and correct implementation of the complete take down.
5.2 A proportional calculation or reimbursement of flatrate fees due to termination during the contract period – even if the contract was renewed recently before the termination – is excluded.
5.3 The customer account as well as access to his sales data and his credit remain accessible to the User free of cost even after the end of the contract. If the User expressly wishes to have his customer account completely deleted (hereafter "Account Deletion") then the User waives, in favor of YouTunez, any present or future credits currently in or later accruing to the customer account.
5.4 Should the User not have any on-going flatrate contract and not sign into his customer account for a period of two years, or otherwise contact YouTunez during this time, then the customer account will be deemed inactive. This entitles YouTunez to provide – for the last time – the User of the inactive customer account with a time period of two weeks for reactivation of the customer account (by signing into his customer account, or contacting YouTunez) and to completely delete the customer account if the time period passes without result. In this case, any credits of the User currently in or later accruing to the customer account revert to YouTunez.
6.1 The Licensor, upon the transmission of releases to YouTunez (hereafter "Upload") agrees to their publication on all existing and future portals supplied by YouTunez. To this purpose the Licensor grants YouTunez an exclusive and geographically unrestricted license to reproduction, the making publicly accessible of, or the broadcasting as well as other non-physical distribution and fee-based exploitation of the releases in all prevalent electronic configurations and formats by means of all distribution channels and processes available either now or in the future for the duration of the current contract period for all existing rights to the releases (especially copyright, protective rights of title, and ancillary copyright). Included in the foregoing granting of rights, is also the right to process the releases or to have them processed in order to fulfill contractual services. In addition, YouTunez is entitled to assign the rights it has been granted by the Licensor in whole or in part to third parties, as e.g. the delivered portals or other exploitation partners.
6.2 Upon upload the Licensor grants YouTunez an exclusive digital distribution right for the respective releases. The Licensor thereby guarantees that the releases, during the course of the contract, will not be digitally sold or allowed to be sold by a service provider comparable to YouTunez or directly over a portal delivered to by YouTunez or any other portal (so-called title exclusivity).
6.3 During the course of the contract the Licensor is expressly granted the right to exploit or utilize his releases at his own responsibility in another fashion, e.g. in the form of CDs, vinyl albums, or other physical sound recording media, as well as in YouTube videos, on SoundCloud or as a direct download on his own website.
6.4 The portals delivered to by YouTunez are subject to varying digital rights management specifications (hereafter "DRM specifications"), which set forth the conditions for the publication and the sale of releases for end customers. In order to ensure a smooth and efficient digital distribution process, the Licensor grants YouTunez the right to adjust DRM specifications and thereby also the extent of the rights granted to the end customer according to the respective standards of the portals.
6.5 YouTunez is entitled to use the releases for the purpose of its sales promotions free of charge in advertising measures of all kinds, especially print and online ads, advertising spots or social media campaigns.
7.1 The Licensor guarantees and is liable to YouTunez for the ensuring that the rights granted under Number 6 are comprehensive, i.e. that the releases are free of third party rights, especially copyright, protective rights of trademark, name, and title, and ancillary copyright or other rights (hereafter "third party rights") and/or that he is entitled to dispose of all rights granted under Number 6 of this contract and that he is not hindered by other contracts in the fulfillment of his contractual duties. The Licensor expressly guarantees that he has not already granted the aforementioned rights to a third party, as e.g. a producer, label, distributor, etc. and he will not do so during the course of his contract with YouTunez.
7.2 If the Licensor, in the context of the production of his release, has incorporated third-party copyrighted works (e.g. compositions, lyrics, etc.) or third-party services (e.g. graphic designers, photographers, producers, musicians, labels, etc.) he guarantees that the necessary usage rights, permissions, and the like have been effectively received from the corresponding owner of the rights. The Licensor is responsible for the settlement and payment of any licensing fees or other compensation to the owners of the rights.
7.3 The Licensor is prohibited from distributing releases over YouTunez that contain content that is pornographic, glorifying of violence, racist, discriminatory, defamatory or in any other way contrary to law. Releases containing lyrics that are potentially morally harmful to use (but not contrary to law) are to be provided with the label "explicit lyrics" during the upload process.
7.4 If claims should be brought against YouTunez based on a violation of the guarantees put forth in Numbers 7.1 to 7.3, then YouTunez will initially inform the Licensor by email of the allegation of infringement of rights and request a clarification thereof within a time period of three work days. If the Licensor is not successful within this time period in terms of sufficiently invalidating the allegation of an infringement of rights – if necessary by transmission of documents appropriate hereto to YouTunez - or if there are reasonable grounds for YouTunez to suspect the allegation of infringement is valid, YouTunez is entitled - however not obligated to the Licensor - to immediately take down the relevant releases from the portals. YouTunez is under no obligation of any kind to investigate beforehand whether the third party claims are valid or to undertake a legal process for clarification of the legal situation and can, based on its own judgment, delete the affected releases temporarily from the portals until the allegation is cleared up. If the claims brought concerning third-party rights constitute a serious infringement of rights on the part of the Licensor, or YouTunez has well-grounded suspicions thereof, then YouTunez is expressly entitled to immediately take down the relevant releases and to do so without consultation with the Licensor and to block the customer account of the Licensor temporarily until the matter of the allegations is cleared up.
7.5 If the Licensor can not refute an allegation of infringement of third-party rights within a time period of 14 days after he was asked by YouTunez to provide clarification, then YouTunez is entitled, in addition to take down, to also block the relevant sales data of the Licensor and to withhold any present or future credit concerning the releases for the purpose of covering any costs of third-party claims due to infringements. If there are reasonable grounds to suspect the allegation of infringement is related to a criminal offense, then YouTunez has the right to immediately remove all releases of the Licensor and to delete the customer account of the Licensor.
7.6 YouTunez is not obligated to investigate, in regard to the releases transmitted by the Licensor, the lawfulness thereof and/or compliance with contractual duties by the Licensor, especially the provisions put forth in Numbers 7.1 to 7.3. The Licensor is therefore liable for all damages, costs and expenses that YouTunez incurs through an infringement on the part of the Licensor of the duties arising out of these obligations. The Licensor is to fully indemnify YouTunez, including its employees, representatives, shareholders and vicarious agents, from all third-party claims resulting herefrom upon first request. This also includes any necessary legal and court costs (also written warnings) in an amount reasonable therefor.
7.7 YouTunez is only liable to the Licensor if YouTunez or its vicarious agents violate a material contractual duty (so-called cardinal duty) or if damages are due to intentional acts on the part of YouTunez or its vicarious agents. This liability applies to all contractual and extra-contractual claims and is limited to damages that were or should have been foreseen by YouTunez at the time of contract conclusion. Liability based on mandatory statutory provisions (e.g. for injury to life and limb) remain unaffected hereby.
8.1 This contract does not establish a company or an employee relationship between YouTunez and the User.
8.2 Because the User is not a consumer but rather a Licensor in relation to YouTunez, there is no corresponding legal right of revocation.
8.3 The User is obligated to use the services of YouTunez exclusively in compliance with statutory law and these terms. Terms of the User that differ from these contractual terms are not accepted and also do not become a part of the contract, if the User notifies YouTunez thereof and YouTunez does not expressly repudiate them.
8.4 The User grants YouTunez his consent and gives YouTunez the authority to transfer or assign this contract to third parties or to allow third parties to carry out and/or exercise rights thereunder, including the rights and individual claims accruing to YouTunez under this contract, in whole or in part, including authorization to further assign.
8.5 For all legal relations between YouTunez and the User the law of the Federal Republic of Germany applies. To the extent permissible the place of jurisdiction and the place of performance is Berlin. In addition, YouTunez is also entitled to institute court proceedings against the User at his general place of jurisdiction.
8.6 If one of these contractual provisions is or proves to be invalid, this does not affect the validity of the remaining provisions. Instead, the invalid provision is to be replaced by a valid provision that corresponds to the meaning and purpose of the contract between YouTunez and the User. The same applies to gaps in the contract.
8.7 The current contractual provisions can be called up at the YouTunez website at any time. YouTunez is entitled to change the contractual provisions at any time and will notify the User by email thereof. The consent of the User to the corresponding modifications of the contract is to be regarded as granted, if the User does not object in writing to the modifications within four weeks of receipt of notification thereof. YouTunez will notify the User of the consequences of failure to object in the notice of modifications. Modifications and supplements to these contractual conditions are otherwise only effective if agreed upon in writing. This also applies to the waiver of the written form requirement. Oral subsidiary agreements to this contract do not exist.
Last update January 01, 2017