FREEPLAY MUSIC LLC. TERMS OF USE AGREEMENT
1. The
Freeplay Music Terms Of Use (.Agreement.) is a legal and binding agreement
between you and Freeplay Music LLC. (.FPM.), which governs your use of all FPM
materials, information, content, products and services made available to you by
FPM (collectively, the .Site,. including but not limited to freeplaymusic.com and subdomains). Please read the Agreement carefully
prior to using the Site. By using or otherwise accessing the Site, or any
component thereof, you hereby consent to and do become a party to this
Agreement and you agree to be bound by and comply with the terms and conditions
contained herein. If you do not accept and agree to all of the terms and
conditions of this Agreement, please do not access or use the Site in any
manner. .Use. of the Site means any access or attempted access or use of the
Site whatsoever, including but not limited to any content contained or related
to this Site.
2. Conditions
to qualify for FPM.s .Free Terms of Use.
2(a) Free
Broadcast Uses:
Subject to your
full compliance with the terms of this paragraph 2 (a) and full execution of a
FPM license, FPM grants free master recording and synchronization rights, to
the entire Freeplay Music Library, excluding Sound Effects, when FPM music is
used in program content, which is included in and limited to a U.S. broadcast
on any National U.S. TV Network or Cable Broadcast, as well as later
rebroadcasts of the same within the U.S. The TV Network or Cable Channel must
hold a current valid ASCAP, BMI and SESAC annual .Blanket. license (as more fully described below). (This
free use EXCLUDES local-only TV, regional-only TV, public and community access
TV, closed circuit TV, web broadcasts, advertising commercials or promos,
infomercials, radio broadcast use, and any TV broadcast outside the U.S. These
uses require a paid FPM sync and master license.)
The ASCAP, BMI or
SESAC license must be a current "Blanket License. to qualify for free
master recording and synchronization rights. For the purposes of this
agreement, a blanket license (.Blanket License.) shall be defined in the same
terms and conditions that are required by the performing rights societies in
the United States. These licenses include a general license from a particular
performing right society which allows a broadcaster the right to use the
society.s entire catalog and obligates that broadcaster to pay fees and file
cue for its programming. For the purposes of this agreement, blanket licenses
shall not include so called .interim. licenses or other conditional licenses.
Complete show music cue sheets must be timely filed in
accordance with the terms and conditions of ASCAP/BMI/SESAC´s license agreement
for any FPM music used in broadcast programming content under FPM's Terms Of
Use. In the event such license agreement does not require the filing of cue
sheets on a regular basis, cue sheets must be filed on no less than a
calendar-quarterly basis. Simultaneous copies of all music cue sheets
containing any FPM Music must be sent to FPM either via e mail
(Cuesheets@Freeplaymusic.com) or by fax 212 664 7737 in order for you to
qualify for free synchronization of FPM music. Failure to either file the cue
sheets or to simultaneously send copies of such cue sheets to FPM shall void
this agreement. Such termination shall render the use of the FPM music
actionable as acts of infringement under and subject to the remedies provided
in the Copyright Act.
2(b) Free
Theatrical use:
(i)
Subject
to your full compliance with the terms of this paragraph 2 (b) and full
execution of a FPM license, FPM grants free master recording and
synchronization rights, to the entire Freeplay Music Library, excluding Sound
Effects, when FPM music is used in, Feature-Length Films for U.S. theatrical
release by a .Major. U.S. film studio as generally understood in the industry
(i.e. Warner Bros, 20th Century Fox, Universal, etc). To the extent
that you are unsure whether an individual film studio qualifies as .major,.
please contact FPM at 212 974 0548 or Julie@freeplaymusic.com.
Complete show music cue sheets must be timely filed in accordance with the
terms and conditions of ASCAP/BMI/SESAC´s license agreement for any FPM music
used in broadcast programming content under FPM's Terms Of Use. In the event
such license agreement does not require the filing of cue sheets on a regular
basis, cue sheets must be filed on no less than a calendar-quarterly basis.
Simultaneous copies of all music cue sheets containing any FPM music must be
sent to FPM either via e mail (Julie@freeplaymusic.com) or by fax 212 664 7737
in order for you to qualify for free synchronization of FPM music. Failure to
either file the cue sheets or to simultaneously send copies of such cue sheets
to FPM shall void this agreement. Such termination shall render the use of the
FPM music, actionable as acts of infringement under and subject to the remedies
provided in the Copyright Act.
(ii)
To
the extent that credits roll in a program, FPM shall be accorded appropriate
screen credit, with size and placement on a so called .most favored nations.
basis with all other music providers, as follows: "Music Provided By
freeplaymusic.com.. Failure to provide such credit shall void this agreement.
Such termination shall render the use of the FPM music, actionable as acts of
infringement under and subject to the remedies provided in the Copyright Act.
2(c) Free
Personal Use:
Subject
to your full compliance with the terms of this paragraph 2 (c) and full
execution of a FPM license, FPM grants free master recording and
synchronization rights, to the FPM Production Music Library, excluding the FPM
Indie Artist and Sound Effects Library, when FPM music is used for personal
non-commercial purposes (personal listening pleasure, personal family slide
show, (cannot be posted on a website.). The use / purpose must be non-revenue
generating, either directly or indirectly (promo, demo or other similar uses
are consider indirectly revenue generating for the purposes of the preceding
sentence). Free Personal use excludes broadcast use of any kind, including,
without limitation, web, blog, and podcast, gaming or shareware.
2(d) Free
Student Educational Use:
Subject to your full compliance with the terms of this paragraph 2 (d)
and full execution of a FPM license, FPM grants free master recording
and synchronization rights to students, to the FPM Production Music Library,
excluding the FPM Indie Artist and Sound Effects Library, when FPM music is
used by students within a school or class assignment. The assignment
must be part of student curriculum, must only be viewed or heard within
the classroom, campus, on a school’s closed circuit television and/or
public announcement system and shall be free from any charge or admission fee.
Free Student Educational Use excludes the use by any school in extra-curricular
activities including, without limitation, the use in clubs and the use of any
kind in performance, non-broadcast multimedia, DVD duplication, distribution
and/or broadcast on a public or educational access TV, cable or radio channel,
web, blog, and podcast.
For
further clarification, of the conditions to qualify for Free Student
Educational Use and to confirm qualifications for FPM.s free master recording
and synchronization rights, please contact FPM at 212.974.0548 or
Julie@freeplaymusic.com or Licensing@Freeplaymusic.com.
For the sake of clarity, all of the above grants, except free personal use under 2(c)
and 2(d), require a fully executed agreement.
3. FPM
Uses Requiring A Signed Paid License:
(a) Broadcast
(i) Any local,
regional, national, standard or cable broadcaster that does not have an
ASCAP/BMI/SESAC .blanket. license as defined above.
(ii)Television
use premiering outside the U.S.
(iii)
Advertising and promo or other similar uses
(iv)
Infomercials
(b) All radio use
(c) Direct-to-video, DVD, CD, CDR DVDR, downloads or
other similar media, including replication, distribution, promotional, or sale;
(d) Books / Magazines
(e) Games / Toy Use
(f) Non-broadcast Multimedia
(i) Live events
(ii)
Power Point presentations
(iii)
Trade shows/conventions
(g) Music
on hold
(h) Internet
(i) Any
website including but not limited to personal websites and any website used to
promote a business, product, service, organization or club;
(iii)Any
videos including videos posted, viral or disseminated in any other fashion.
(iii)
Gaming / Shareware / Freeware
(iv)
Podcasting
(v)
Blogs
(i) Email
(i) Greeting cards
(ii) Brochures
(j) Film Festivals / Competitions -
Students securing FPM master recording and synchronization rights for a
competition or festival, which has a corporate sponsor, awards prizes or prize
money, or if they charge the public admission to view the entries, or if viewed
on the Internet; are required to secure an initial minimum paid license with
FPM of $25.00 USD per FPM title (per song), per festival entry. If you should
win and be awarded prizes or prize money equal to $500.00 USD or more, you
would be responsible for paying FPM an additional $100.00 USD. This license
shall be limited to the use of the FPM music in that particular competition or
festival and does not grant any further rights to perform or distribute the
film containing the FPM music.
(k) Ring
Tones
(l) Religious
Uses
(m) Political
Uses
(n) Non-Profit
(o)
Distribution
(p)
Any change to any of Freeplay.s music,
including but not limited to a change or addition to any of Freeplay.s music,
use of Freeplay.s music in the creation of a new copyright or the creation of a
derivative work of any of Freeplay.s music.
(q) All other uses that do not qualify for a free
license under paragraph 2 (a), 2 (b), or 2 (d).
A
signed, paid license is required for all of the above and must be completed
prior to any of the above uses. Please contact Julie@freeplaymusic.com or Licensing@Freeplaymusic.com
For an estimate
of the licensing fee please see our see our rate cards at http://www.freeplaymusic.com/licensing/ratecard.php and contact us so we may issue a license. Please note that the rates
on the card are provided as examples of possible fees, but are not meant as
price quotes and are not binding upon FPM. All fees will be determined on a
case by case basis.
4. FPM
may add, delete or modify any of the terms and conditions contained in this
Agreement at any time at FPM.s sole discretion. If any modification is
unacceptable to you, you must stop using the Site. Unless otherwise
specifically set forth in any notice, all changes shall be effective
immediately upon the posting of notice of any such change (the .effective
date.). Your continued use of the Site following the effective date will
constitute your binding acceptance of and agreement to be bound by the changes
specified therein. You should check back frequently and review the terms and
conditions of this Agreement regularly so you are aware of the most current
rights and obligations that apply to you and the terms and conditions of your
agreement with FPM. Any new materials, information, content, products and/or
services becoming available are considered a part of the Site and your use of
them will be governed by the terms and conditions of this Agreement unless FPM
notifies you that different terms and conditions apply. You must also comply
with any additional terms which apply to third-party content, material,
information, software or other services or websites. FPM reserves the right at
any time and from time to time to modify or discontinue, temporarily or
permanently, functions of the Site with or without notice. You agree that FPM
shall not be liable to you or to any third party for any of the direct or
indirect consequences of any modification, suspension, discontinuance of or
interruption to the Site.
5. You
may not use, nor allow others to use, the Site, directly or indirectly, to attempt
to or actually disrupt, impair or interfere with alter or modify the Site or
any information, data or materials posted and/or displayed by FPM or any
related party; or act in a way that affects or reflects negatively on FPM, the
Site or any related party. You agree to comply with all local, state, federal
laws, statures rules and regulations, as well as any international treaties,
which are applicable to your use of the Site.
6. You
agree to pay FPM all reasonable attorneys. fees and costs incurred by FPM to
collect any past due amounts. Your agreement(s) with FPM may be terminated
with no notice if payment is past due, regardless of the dollar amount. You
agree to pay any outstanding balance in full within thirty (30) days of
cancellation or termination of your agreement(s). Client shall also pay Company
interest thereon at the maximum rate permitted by law at the time of such
failure, such interest to accrue from the time the amount was due until it is
paid to Company. The right to such payment is in addition to any other remedies
available to Company under this Agreement or at law. FPM reserves the right, at
any time, to change its fees and billing methods, including the addition of
supplemental fees or separate charges for content, effective thirty (30) days
after an online posting on the Fees page at [link]. FPM may additionally
provide notice of billing changes via email. If any such change is
unacceptable to you, you may terminate your use of the Site by providing FPM
with written notice of your termination and ceasing to use the Site. Your
continued use of the Site following the effective date of change to such fees
and billing methods shall constitute your acceptance of such change.
7. FPM's
Terms Of Use apply from your first access of the FPM material, use of the
website and/or your use or receipt of hard copies/files of FPM.s music,
whichever is earlier, and not at the time of download.
8. The
content available through the Site is the property of FPM or its licensors and
is protected by copyright and other intellectual property laws. You
acknowledge that FPM retains exclusive ownership of the Site and all
intellectual property rights associated therewith. In the event that you are
deemed to own or control any rights, you agree that all rights therein will be
deemed irrevocable transferred to FPM by virtue of this agreement. You will
execute and deliver to FPM such instruments of transfer and other documents
regarding the rights of FPM or its designees as FPM may request. FPM may sign
such documents in your name (and you hereby appoint FPM as its agent and
attorney-in-fact for such purposes) and make appropriate disposition of them
consistent with this agreement. Except as expressly provided herein, you are
not granted any rights or license to patents, copyrights, trade secrets or
trademarks with respect to the Site or its contents, and FPM reserves all
rights not expressly granted hereunder. You shall promptly notify FPM in
writing upon your discovery of any unauthorized use or infringement of the Site
or its contents or FPM.s patent, copyright, trade secret, trademarks or other
intellectual property rights. The Site contains proprietary and confidential
information that is protected by copyright laws and international treaty provisions.
9 (a) To
the maximum extent permitted by applicable law, neither FPM, its licensors,
suppliers, partners, affiliates or third party service providers shall be
liable to you or any third party for any direct, indirect, incidental, special,
exemplary, punitive or consequential damages, or any other form of damages in
any manner arising out of or in connection with this Agreement or your use of
the Site, regardless of the form of action or the basis of the claim or whether
or not FPM has been advised of the possibility of such damages. Some
jurisdictions do not allow the limitation or exclusion of liability for
incidental or consequential damages. Accordingly, some of the above
limitations and exclusions may not apply to you.
(b) You
agree to indemnify and hold FPM harmless against any losses, expenses, costs or
damages (including FPM.s reasonable attorneys. fees, expert fees and other
reasonable costs of litigation or proceedings) arising from, incurred as a
result of, or in any manner related to any claim or action based upon your
breach of or failure to comply with, the terms and conditions of this
Agreement, your use of the Site, and/or the use of the Site by any other person
using your identifying information. FPM may in its discretion participate in
the defense of any such claim or action and any negotiations for its settlement
or compromise. No settlement which may adversely affect FPM's rights or
obligations shall be made without FPM's prior written approval. FPM reserves
the right, at FPM.s expense and on notice to you, to assume exclusive defense
and control of any such claim or action and in such circumstance your
indemnification obligation will terminate. You will use reasonable efforts to
prevent introduction, and will not introduce into the websites, software or
network of FPM, any virus, worm, .back door,. Trojan Horse,. or similar harmful
code.
10. FPM
may terminate this Agreement, restrict, suspend or terminate your use of the
Site immediately and without notice or liability, if you violate, breach or
fail to comply with this Agreement in any way, and this will not limit any
other rights or remedies which are available to FPM. You may terminate this
Agreement by providing FPM with written notice of your termination and ceasing
to use the Site and all FPM content. Termination is your sole right and
exclusive remedy if you are not satisfied with the Site. Upon the effective
date of any such termination, your right to use the Site and all FPM content
shall immediately cease. Termination of this Agreement shall not relieve you
of any obligations to pay accrued or ongoing charges. Without limitation of
any other provisions hereof regarding termination, FPM reserves the right to
terminate your use of the Site or the FPM content for any reason, without
cause, upon three (3) days. notice.
11. This
Agreement is governed by the laws of the State of New York without regard to
its conflicts of law provisions and you hereby consent to the exclusive
jurisdiction of any venue in the federal state courts located in New York County, New York with respect to all disputes arising out of or relating to the
Site. In addition, you hereby consent to the exclusive jurisdiction of any
venue in such courts for any action commenced by you against FPM or its
affiliates. Use of the Site is unauthorized in any jurisdiction that does not
give effect to all provisions of these terms and conditions, including, without
limitation, this section. FPM.s performance of this Agreement is subject to
existing laws and legal process, and nothing contained in this Agreement is in
derogation of FPM.s right to comply with governmental, court and law
enforcement requests or requirements relating to your use of the Site or
information provided to or gathered by FPM with respect to such use. Any
process in any action, suit or proceeding arising out of or relating to this
agreement may, among other methods be served upon you hereto by delivering it
or mailing it to you. Any such delivery or mail service shall be deemed to have
the same force and effect as personal service in New York.
12. These
terms and conditions and any other policies, rules and provisions which are
described, linked or otherwise referred to and form a part of this Agreement
constitute the entire agreement between you and FPM, superceding any and all
prior or inconsistent understandings, representations or agreements regarding
the Site.
If any part of
this Agreement is determined to be invalid or unenforceable pursuant to
applicable law, including, but not limited to the warranty disclaimers and
liability limitations set forth above, then the invalid or unenforceable
provisions will be deemed superseded by a valid, enforceable provision that
most closely matches the intent of the original provision and the remainder of
the Agreement shall continue in full force and effect. No failure or delay in
enforcing any provision, exercising any option or requiring performance shall
be construed to be a waiver of that or any other right in connection with this
Agreement. Any provision which must survive in order to allow FPM to enforce
its meaning shall survive the termination of this Agreement, provided, however,
no action arising out of this Agreement or your use of the Site, regardless of
form or the basis of the claim, may be brought by you more than one (1) year
after the cause of action has arisen (or if multiple causes, from the date the
first such cause arose) and you hereby waive any longer statute of limitations
that may be permitted by law. If you've found FPM Music bundled with any third
party product such as Apple products, HP products, Nokia products, or with your
.Mac account, this Agreement applies to your use of FPM Music and supersedes
any agreement you may have with such third party.
If you
feel you may have used our product unintentionally or in violation of our Terms
Of Use, please contact Julie@Freeplaymusic.com or
call 212.974.0548 to get the proper retro-active FPM Music license.
If you don't see your intended use of FPM Music listed, or have questions or comments,
please contact our office:
New York Office - tel. 212.974.0548
Julie@Freeplaymusic.com
Copyright © 2009 Freeplay Music LLC. All Rights Reserved.
