Deezer provides paid-for and advertising-funded digital media services under the commercial brands "Deezer" and "Stitcher" (herein together referred to as the "Service") through which Producer desires to have its audio programming ("Submitted Content") distributed.
The Service is available through the Stitcher mobile application and/or Deezer website and associated web and mobile applications (together "the Site").
I. License Terms
1. Producer shall continually maintain the production quality of the Submitted Content intended to be distributed through the Service at or above the level expected by a reasonable listener to similar types of audio programming. Production quality includes but is not limited to audio quality and, if applicable, update frequency.
2. Producer shall provide promotional consideration to Deezer as agreed upon between Producer and Deezer at a time subsequent to the Service's publication of Submitted Content on the Service. Examples of such promotional consideration include but are not limited to on-air mentions of Deezer, social media promotion, use of the Service player widgets and links from Producer's website to the Site.
1. Deezer will evaluate the information provided through the online application and determine, at its sole discretion, whether the Submitted Content will be distributed on the Service.
2. Should Deezer decide to distribute the Submitted Content, Deezer:
i. shall perform the necessary processing of Submitted Content to allow that content to be distributed more effectively over the Service. Such processing may include reproducing Submitted Content on Deezer servers. Deezer is responsible for paying all cost associated with technology maintenance, enhancements to server storage, hosting, serving and processing.
ii. shall provide Producer with reasonably detailed data regarding the use and distribution of Submitted Content. (e.g., number of Active Listeners to content, Stream Time, Starts) through the Service.
iii. may, at regular intervals, review Producer's compliance with the Producer Obligations and notify Producer's of failures to comply. It shall be at Deezer's sole discretion to determine a Producer's qualification for being a Partner in good standing.
II. Distribution of Submitted Content on the Service
B. By submitting the online application, Producer hereby grants to Deezer a non-exclusive, royalty-free, world-wide license to:
1. Ingest, encode, transcode, edit, format, test, host, store, reproduce, display, transmit, communicate, exhibit, perform, distribute and/or otherwise make publicly available the Submitted Content, in whole or in part, as part of the Service (with streaming and tethered download functionality, for free or payable access, to existing and new customers, through non-co-branded and co-branded versions of the Service -notably associated with any partners' trademarks-, available on any compatible devices, distributed or billed by any partners);
2. Create, distribute and make publicly available excerpts of the Submitted Content for promotional and/or advertising purposes;
3. Create and use derivative works there from;
4. Unless otherwise agreed between the parties, the right to host, reproduce, digitize and encode the Submitted Content in all necessary formats, now known or hereafter devised, on Deezer servers.
D. Deezer shall have no obligation to post, exhibit, distribute or otherwise make use of any Submitted Content and may delete any Submitted Content at any time.
III. Revenue Share.
A. Advertising Revenue: For each calendar month in which the Submitted Content generates more than 5,000 Monthly Active Listeners on the Stitcher mobile application (to the exclusion of Deezer website and applications), Producer is entitled to participate in Advertising Revenues generated through the Stitcher mobile application.
Advertising Revenues means all sums received from the sale of advertising inventory on the Stitcher mobile application, less any agency fees, VAT (or its local equivalent) and any withholding taxes.
The amounts owed to Producer ("Producer Advertising Revenue Share") shall be calculated as follow:
Producer Advertising Revenue Share = [((Submitted Content total Stream Time / All Content total Stream Time) X 25%) + ((Submitted Content Starts / All Content total Starts) X 75%))] X 20% X Advertising Revenues.
* All Content is the all submitted content provided by any Partners of Deezer through the online application.
* A Monthly Active Listener is an end-user who starts listening to at least one piece of Submitted Content during the month.
* Stream Time: listening duration for an end-user who listens to any content (including Submitted Content) on the Stitcher mobile application.
* Start: each time an end-user starts to listen to a piece of content (including Submitted Content) regardless of the duration.
B. Representation: Unless Producer opts out in writing by emailing firstname.lastname@example.org, Stitcher shall have the non-exclusive right to represent Submitted Content to advertisers for inclusion in potential media purchase agreements. Should an advertiser become interested in purchasing advertisement inside any of Submitted Content, Deezer shall present that offer to Producer. Producer, at its sole discretion, may decide whether to accept the offer to purchase advertisement. The economic terms of such an agreement shall be negotiated between Producer and Deezer on a case-by-case basis.
C. Opt Out: At any time, Producer may opt out of any of the Revenue Share programs (Sections III.A III.B) in writing by emailing email@example.com. Such election will become effective on the first day of the subsequent calendar month.
D. Payment: Deezer shall accrue Producer Advertising Revenue Share owed to Producer on a monthly basis and make quarterly payments in dollars to Producer 60 days after the receipt of a valid invoice. Deezer will pay only accrued amounts greater than $100. If during any payment period, the Producer Advertising Revenue Share owed to Producer is less than $100, Deezer shall accrue that amount to the Producer's account for future payout.
In the event that Deezer is obliged to withhold any tax from the payments, then the amount of such tax shall be deducted from the gross amounts otherwise payable hereunder and paid by Deezer to the relevant taxation authority. If, for any reason, Deezer has not withheld tax but is required, in relation to any payment, to do so, then such tax shall be treated as an advance recoupable on the quarterly remuneration due to Partner hereunder.
IV. Removal of Content. If Producer requests that any portion of the Submitted Content be deleted, replaced, or made inaccessible because such Submitted Content may contain errors, is or could be subject to a third party claim or for any other reasonable business purpose, then Deezer shall remove the particular piece of Submitted Content as soon as practicable, but in any event by the end of five (5) business days following the receipt of such written notice sent to firstname.lastname@example.org..
Deezer may remove Submitted Content at its sole discretion at any time and will alert Producer as to the removal.
V. Deezer Intellectual Property Rights. All recordings, text, graphics, multimedia content or other material (such content being the "Materials") that can be heard or read on the Service, excepted for Submitted Content, is wholly and exclusively owned or under licensed by Deezer.
VI. Copyright and Trademarks
Producer agrees that all right, title, and interest (including, without limitation, all intellectual property rights) in and relating to the Service and the Site are wholly owned by Deezer.
VII. Representations, Warranties and Indemnities.Producer represents and warrants that:
A. All information provided in the online application is true, accurate, current and complete information about Producer as prompted by the Service's application form;
C. Producer shall be responsible for all rights and related payments due to all persons involved in the production and distribution of the Submitted Content and all payments that may be required under collective agreements applicable to such persons. No third party consents, licenses or permissions are needed for Deezer to use and exploit the Submitted Content free from third party claims, and no monies shall be payable to any third parties in connection with the use and exploitation of Submitted Content by Deezer, including in respect of musical works and sound recordings embodied therein.
In case the Submitted Content includes any advertisement, such advertisement shall not mention or promote any of Deezer's competitors. Deezer shall be entitled to require, at any time and on reasonable grounds, the take down or replacement of any advertising included in the Submitted Content.
D. The Submitted Content (i) is not unlawful, obscene, fraudulent, indecent; does not defame, abuse, harass, or threaten others; and is not hateful or racially, ethnically or otherwise objectionable, (ii) does not contain any software viruses, Trojan horses, worms, bombs, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, (iii) does not and will not infringe or violate any right whatsoever, including, without limitation, any contractual rights, personal rights (e.g., defamation, privacy, false light, moral right, etc.) or any property rights (e.g., copyright, patent, trademark, trade secret etc.) of any person or entity, (iv) does not violate any applicable local, state, national or international law and (v) is not, and will not be, subject of any threatened or pending litigation, claim or dispute. Producer has not done anything which has impaired and will not do anything to impair the rights granted to Deezer in any way.
D. Notwithstanding the foregoing, Producer acknowledges that Deezer may:
2. Bring an action in court to protect or interpret any of Deezer's purported intellectual property rights; and/or
3. Bring an action to enforce the decision of the arbitrator before any court of competent jurisdiction.
IX. Limitations on Liabilities; Remedies.PRODUCER UNDERSTANDS AND AGREES THAT:
A. ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH SUBMITTED CONTENT WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION;
B. ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS ON BEHALF OF PRODUCER WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED;
C. THAT UNDER NO CIRCUMSTANCES WILL DEEZER, ITS AFFILIATES OR SUBSIDIARIES, THEIR SPONSORS, CONTRACTORS, SPONSORS, VENDORS OR OTHER PARTNERS, ANY OF THEIR SUCCESSORS, ASSIGNS OR LICENSEES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES (COLLECTIVELY "RELEASED PARTIES") BE RESPONSIBLE OR LIABLE TO PRODUCER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE, THE USE OR THE INABILITY TO USE THE SERVICE, UNAUTHORIZED ACCESS TO OR ALTERATION OF PRODUCER TRANSMISSIONS OR DATA, THE MATERIALS AVAILABLE ON THE SERVICE, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE SERVICE OR ANY OTHER MATTER RELATING TO THE SITE INFORMATION CONTAINED WITHIN THE SERVICE, EVEN IF ANY OF THESE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES.
D. PRODUCER'S SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE AND/OR SERVICE-RELATED MATERIALS IS TO STOP DISTRIBUTING SUBMITTED CONTENT THROUGH THE SERVICE. PRODUCER AGREES THAT THIS LIMITATION OF LIABILITY AND RELEASE IS MADE WITH THE KNOWING INTENT OF RELEASING ALL KNOWN AND UNKNOWN CURRENT AND FUTURE CLAIMS AND WITH THE INTENT OF WAIVING ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 OR OTHER LAWS REQUIRING SIMILAR WAIVERS TO BE KNOWINGLY MADE.
X. Disclaimer of Warranties. PRODUCER EXPRESSLY UNDERSTANDS AND AGREES THAT:
A. PRODUCER'S USE OF THE SERVICE IS AT PRODUCER'S SOLE RISK. ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SITE IS PROVIDED "AS IS" WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.
B. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, DEEZER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
C. PRODUCER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR PRODUCER'S USE OF THIS SERVICE AND ANY SERVICE-RELATED MATERIALS. IN ADDITION, DEEZER DOES NOT WARRANT THAT THE FUNCTIONS ON THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OR ON THE SERVICE WILL BE CORRECTED, OR THAT THE SITE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
D. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT PRODUCER'S OWN DISCRETION AND RISK AND PRODUCER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO PRODUCER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. UNDER NO CIRCUMSTANCES WILL DEEZER BE LIABLE IN ANY WAY FOR ANY MATERIAL, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MATERIAL POSTED, EMAILED OR OTHERWISE TRANSMITTED VIA THE SERVICE.
XIV. Entire Agreement; Modification and Termination. Deezer reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time any materials, information or content available on the Partnership and any functionality or features in or on the Service, including the cessation of all activities associated with the Service, with or without notice. Producer agrees that Deezer shall not be liable to Producer or to any third party for any modification, suspension or discontinuance of the Service.
A. Deezer may, in its sole discretion and without notice, terminate Producer's use of the Service for any reason, including, without limitation, if Deezer believes that Producer has:
2. Infringed the intellectual property right of a third party;
3. Provided any information that Deezer is unable to verify or authenticate;
4. Uploaded or transmitted unauthorized Submitted Content to the Service; and/or
Last Revised: 13th March 2015