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The terms and conditions in this document represent the standard terms and conditions on which AWAL may agree to distribute recordings but AWAL will not be bound by this document unless and until AWAL has sent you an email specifically accepting to be so.
KEY DEFINITIONS: “AWAL” is AWAL Digital Limited (Company Number 4430703); “You” is the individual or legal entity which registered your application via the AWAL website and, to the extent you are a legal entity, "You" shall also mean any data subject (from within your organisation) whose personal data is shared with us at any time; “Territory” is World, unless otherwise specified by you when uploading Recordings via the Product Uploader in the AWAL Portal; “Term” commences on the date AWAL sends to you an email agreeing to be bound by these Terms & Conditions and continues until terminated by either party on 30 days’ written notice; “Recordings” is all audio and/or audio‐visual recordings delivered by you in your sole discretion to AWAL during the Term, including via the Product Uploader; “Your Revenue Share” is 85% of Revenue and “AWAL’s Revenue Share” is 15% of Revenue; and “Accounting” is monthly, within 45 days of the end of each calendar month.
You grant to AWAL on behalf of all of the relevant rights holders the rights below in and to the Recordings throughout the Territory during the Term (“Rights”):
“Digital Distribution”, being the exclusive right to make copies of, distribute, sell, make available and otherwise use all or any part of the Recordings by way of digital distribution and/or transmission online and by way of mobile application (including by way of downloading, interactive and non‐interactive streaming, webcasting and monetising user generated content), save that in the event you notify AWAL that you do not grant AWAL the right to monetise user generated content via the YouTube platform, such notification to be given via the AWAL Portal or via your application via the AWAL website, AWAL will not monetise user generated content via the YouTube platform. For the avoidance of doubt, all other grant of rights given by you to AWAL under this Agreement will remain in full force and effect.; and
the following non‐exclusive rights in connection with and intended to give effect to the other Rights (and the following materials are “Ancillary Materials”): to perform, communicate or broadcast all or any part of the Recordings for promotion of the Recordings only; to reproduce and use the approved artist / label’s name, professional name, logos, trade and service marks, trade names, photographs, likenesses, images, biographies or URLs, and all artwork and materials provided by you, or otherwise created, for use in connection with this Agreement and in connection with the promotion of the AWAL business (AWAL acting reasonably in all cases); if not provided by you, to obtain for and assign to the Recordings ISRC and EAN/UPC‐A codes (as needed); and to digitise and encode the Recordings and related materials into digital files (including any related processes, such as fingerprinting), to make any necessary modifications to the Recordings and related materials in connection with such digitisation and encoding, and to store and manage such files. “Artist” will be the recording artist whose performances are embodied in the Recordings delivered by you and if you deliver Recordings by various artists, “Artist” will be all recording artists whose performances are embodied in any Recordings delivered by you (and each is an “Artist”).
You retain copyright ownership of all Recordings and expressly reserve all rights in and to the Recordings and Ancillary Materials not expressly granted to AWAL. AWAL exercises the rights granted to it as principal and not as an agent. AWAL is not obliged to distribute Recordings Delivered by you (including if a Recording is technically unsatisfactory or inappropriate in any way) but AWAL will promptly notify you of any decision not to distribute and all Rights in the relevant Recording will revert to you on notification. AWAL will use reasonable commercial efforts to credit artist where possible in line with industry practice in connection with commercial release of the Recordings but AWAL, its licensees and agents will not be in breach of this Agreement for any failure to credit. AWAL will use reasonable commercial efforts to rectify any such failure prospectively following notice, where rectification is feasible, practical and within AWAL’s control.
You are solely responsible at your cost for creation, clearance (as per the “Warranties” and “Mechanicals, Clearances & Licences” clauses below) and Delivery to AWAL of all Recordings and Ancillary Materials. “Delivery” is complete once all Recordings, Ancillary Materials and any related metadata and label copy has been received via, and as required by, the AWAL Product Uploader, or as otherwise agreed by AWAL. Following Delivery, AWAL will not remix, re‐master, edit or alter any Recording (except as required for technical or timing reasons), without your prior written approval. AWAL is responsible for storage costs and audio encoding costs in connection with the Recordings. You are responsible for video encoding costs in connection with the Recordings. If AWAL incurs any approved video encoding costs on your behalf at any time, AWAL may in its discretion deduct such amounts from any payments due to you, or request reimbursement of any such amounts and you will promptly pay AWAL such amounts.
In consideration of the Rights granted to AWAL, AWAL will pay Your Revenue Share to you and will retain AWAL’s Revenue Share to its own account. “Revenue” is gross revenue actually received by or credited to AWAL directly and identifiably arising from exploitation of the Recordings less any VAT, other sales taxes, refunds or credits.
AWAL will account to and pay you on a monthly basis, within 45 days of the end of each calendar month, with AWAL to make all payments to you in the currency and to the bank account provided by you via the AWAL Portal, save where the amount due is less than the equivalent of GBP£50, in which case such amount will not be paid and will be carried forward to the end of the accounting period in which aggregate amounts due to you are equivalent to GBP£50 or more. If any amounts are legally required to be deducted or withheld from any amounts due to you, AWAL may deduct or withhold such amounts but will notify you and on request provide you with reasonable assistance and documentation to enable you to recover the same or receive an appropriate tax credit. You may at your sole cost audit AWAL’s books and records solely to the extent that they relate to the exploitation of Recordings under this Agreement on giving AWAL reasonable advance written notice but in any event no more than once per annum. If any such audit reveals an underpayment that is accepted by AWAL or adjudicated by a court of competent jurisdiction as being due, AWAL will promptly pay such underpayment to you.
You warrant, represent, undertake and agree that: you have the full right and authority to enter into, perform all of your obligations under, and grant the rights granted in accordance with this Agreement, provided that if you are entering this Agreement on behalf of a group of individuals or a registered organisation, you agree to these Terms & Conditions on behalf of that group of individuals or registered organisation and you warrant that you have authority to bind that group of individuals or registered organisation and its parents, subsidiaries and sister companies (where applicable) to these Terms & Conditions; AWAL’s exercise of the Rights and use of the Recordings and Ancillary Materials as per this Agreement will not violate or infringe upon the rights of any third party; you have a valid and enforceable agreement with, and have secured all necessary consents, clearances and rights from, all third parties whose rights, work, performances or services are embodied in any Recordings or Ancillary Materials (including all artists, producers, (re)mixers, session musicians and rights holders of any “sample” embodied in any Recording) to allow you to grant the rights granted in accordance with this Agreement; you will be solely responsible for all payments, fees or royalties that may be due to any such party arising from AWAL’s exercise of the Rights; none of the Recordings or Ancillary Materials contain material which is obscene, defamatory or may expose AWAL to civil or criminal proceedings; all metadata, label copy, credits and similar information supplied by you is complete and accurate in all respects; you will procure that artist will not assert any “moral rights” arising in connection with this Agreement against AWAL, its licensees or agents authorised by AWAL (whether under a specific or blanket licence); that you are at least 18 (eighteen) years of age as of the date of your application via the AWAL website; and if you are sales tax registered, you will inform AWAL via the AWAL Portal and if you are UK VAT registered you will enter into a Self‐Billing Agreement with AWAL in a form reasonably required by AWAL; that you will comply with all relevant data protection / privacy legislation (including the General Data Protection Regulation (GDPR EU 2016/679)). You indemnify AWAL and agree to hold AWAL, its licensees, authorised third parties and affiliates harmless from and against all costs, claims, damages and expenses (including reasonable external legal costs) arising from any third party claim inconsistent with or in breach of your obligations, warranties, representations or undertakings in this Agreement (“Claim”) subject to that Claim being reduced to a judgment in a court of competent jurisdiction, settled with your prior written approval (not to be unreasonably withheld or delayed), or withdrawn or not proceeded with (as determined by AWAL acting reasonably and in good faith) by the claimant. If proceedings are to be issued by a claimant in respect of a Claim, you will at your cost use best efforts to cause AWAL to be dismissed from such proceedings.
Mechanicals, Clearances & Licences
To the extent that any digital retailer or service provider (“DSP”) authorised by AWAL to distribute the Recordings does not agree to be responsible for obtaining and paying for any mechanical, public performance or other clearances and licences from rights holders of the compositions embodied in the Recordings (“Compositions”) necessary in connection with exploitation of the Recordings, you will be responsible for obtaining and paying for such clearances and licences. You warrant, represent, undertake and agree that mechanical, public performance and any other necessary clearances and licences from all rights holders of the Compositions will be available at rates and on terms no less favourable than the statutory or other customary rates and terms in effect in the applicable country of the Territory. AWAL will advise you when accounting whether any relevant DSP has agreed to be directly responsible for such licences and payments and where they are not, your share of Revenue will include the mechanical and/or performance royalty. You further acknowledge and agree that AWAL is making the Recordings available in accordance with this Agreement on the basis that the following applies: unless otherwise expressly provided for in any applicable governing industry agreements in the local territory, AWAL will not be required to pay mechanical or public performance royalties on Recordings distributed free of charge for promotional or other purposes, or which are otherwise non‐royalty bearing; AWAL may for no additional consideration reproduce and authorise others to reproduce lyrics of Compositions on any applicable digital Recording packaging and make other customary promotional uses of the Compositions solely in connection with marketing and promotion of the Recordings (eg: listening clips on Amazon.com, iTunes or similar, promotional uses of “lyric videos” embodying the Compositions and advertising materials for the Recordings); and if AWAL exploits a video embodying a Composition, the sole music publishing payment due in respect of such use will be payment of mechanical and public performance royalties to the extent already provided for in this clause and AWAL will be granted any necessary synchronisation rights for the use of such Composition on a gratis basis solely for such purposes. If AWAL is required to pay mechanical, public performance or any other payments to the rights holders of any Compositions at any time, AWAL may in its discretion deduct such amounts from any payments due to you, or request reimbursement of any such amounts and you will promptly pay AWAL such amounts.
On termination of the Term: AWAL will issue formal take down notices to all DSPs and use reasonable commercial endeavours to ensure take downs are effected within the periods provided under the relevant DSP licences but AWAL will not be responsible or liable for any take down delay or default by any DSP; and AWAL will on request transfer a digital copy of the Recordings and any associated metadata to you at your cost (such cost not to exceed the actual cost of AWAL’s reasonable time and materials in making such transfer). If, following the Term, AWAL through no fault of its own continues to receive Revenue, AWAL will pay you that Revenue subject to deduction of AWAL’s Revenue Share.
AWAL reserves the right to amend or update these Terms & Conditions or any part thereof upon notice to You, such notice to be given via the AWAL Portal. For clarity, AWAL will not amend or update the definitions of Recordings, Term, Territory, AWAL Revenue Share or Your Revenue Share without Your prior approval, such approval to be given via the AWAL Portal or by email.
You (which for the purposes of this clause shall also mean any data subject (from within your organisation) whose personal data is shared with us at any time) should read the Privacy Statement set out in Exhibit A of this Agreement before submitting personal data to us. Whenever you submit personal data to us, you consent to the collection, use and disclosure of that data in accordance with the Privacy Statement.
Exhibit A – Kobalt Group Privacy Statement
Kobalt Group Privacy Statement
This Privacy Statement describes the information Kobalt Music Group Limited and our affiliates, including without limitation AWAL Digital Limited, Kobalt Music Services Limited, Kobalt Neighbouring Rights Limited and AWAL Recordings Limited (collectively, "Kobalt", "we" and "us"), collect when a person or business enters into a client agreement with us.
You (which for the purposes of this Privacy Statement shall include any data subject (from within/contracted to your organisation to the extent you are entering into the client agreement on behalf of a group of individuals or an organisation) whose personal data is shared with us at any time) should read this Privacy Statement before submitting personal data to us.
You confirm that before you submit personal data to us, you have read and understood the practices set out in this Privacy Statement.
To the extent you are contracting on behalf of an organisation, you warrant that you have obtained such confirmation from all relevant data subjects within/contracted to your organisation and have received the necessary confirmation to enable Kobalt to process their data in accordance with this Privacy Statement.
Personal data we collect about you
The types of personal data typically we collect about you include: (i) contact information, such as title, name, postal address, email address, telephone number and company name; (ii) financial information, such as bank account details; (iii) online identifiers, such as IP address, and user IDs and passwords; and (iv) in certain cases limited identification documents, such as passport, driving licence, credit card statement(s) and social security/national insurance number, strictly for the purposes of registering your details with the collection societies as per their registration requirements (as applicable).
How we use your personal data
We use your personal data to verify your identity, to perform our obligations under the client agreement, to respond to any requests you may make, to follow up with you after you have communicated with us or submitted information to us, for our legitimate interests to improve our services and website, to notify you about important changes to our services and updates to this Privacy Statement, to communicate with you via our newsletters (depending on your marketing preferences), and as otherwise specified in our privacy policies made available to you at the point we collect your personal data on any of our websites or via our Apps.
You can tell us whether you would like us to contact you with email updates or information regarding our services, at the point such information is collected on our websites or Apps or, where you do not wish us to continue to use your information in this way, by following the unsubscribe instructions on any communications sent to you. You can also exercise this right at any time by contacting us (using the details set out in this Privacy Statement).
When we share your personal data
We may share personal data you provide to us with: (i) other companies within the Kobalt Group; (ii) pursuant to our obligations under the client agreement, any third party to whom disclosure is necessary to enable us to provide you with any services which you have requested, including consultants, collection societies and digital service providers (who will have agreed to keep the information confidential and use it only to provide the applicable service); (iii) where required to do so by court order or where we are under a duty to disclose or share your information in order to comply with (and/or where we believe we are under a duty to comply with) any legal obligation; (iv) with any person to whom disclosure is necessary to enable us to enforce our rights under this Privacy Statement or under the client agreement or to protect our rights or the rights of third parties. This includes exchanging information with law enforcement agencies or other similar government bodies; and (v) to any company or prospective buyer of all or substantially all of Kobalt Music Group Limited’s assets in connection with the sale or transfer of those assets to any prospective buyer.
We may transfer your personal data outside of the European Economic Area. This may include transferring it to or accessing it from other jurisdictions that may not provide a level of protection equivalent to the laws in your jurisdiction. Where we transfer personal data we will seek to take account of any applicable statutory obligations relevant to personal data transfers and, in the absence of an European Commission (EC) adequacy decision, we will seek to rely on appropriate safeguards, including Privacy Shield certification or EC approved standard contractual clauses: (see http://ec.europa.eu/justice/data-protection/international-transfers/transfer/index_en.htm).
We take appropriate steps to protect personal data from loss, misuse and unauthorised access, disclosure, alteration or destruction, whether in transmission or storage. Please keep in mind, however, that there is no such thing as perfect security, and no Internet transmission is ever completely secure or error-free. Moreover, you are responsible for maintaining the confidentiality of any user ID and password you use.
Your personal data will be retained by us for the duration of your account and may be retained for a period after this time as necessary and relevant to our legitimate operations, the terms of the client agreement and in accordance with applicable legal obligations. This may include retention necessary to meet our tax reporting requirements as well as time required to enforce the relevant terms of the client agreement or to identify, issue or resolve legal proceedings.
You have options and choices over how we use your personal data. These include the right to see the personal data we hold about you, and the right to request that we correct, erase and cease processing the data (in certain circumstances). You may also be entitled to receive the data or ask us to transfer it to a third party, in a commonly used electronic format.
Please contact us if you have any questions relating to these rights or this Privacy Statement in general, by email at: SAR@kobaltmusic.com or by writing to us, for the attention of our Data Protection Officer, Christiaan Winchester, at: Kobalt Music Group, 1 Cousin Lane, London EC4R 3TE.
If you remain unhappy with a response you receive from us, you can also refer the matter to your data protection supervisory authority: http://ec.europa.eu/justice/data-protection/bodies/authorities/index_en.htm.