These Publishing Terms of Service, together with (i) the Kosign Privacy Policy and (ii) the Kosign Portal Terms and Conditions (including all processes and requirements referenced therein, referred to herein as the “Published Kosign Policies”), constitute the agreement between Kosign Services America, Inc. (“Kosign”) and you (hereinafter, “this Agreement”). Capitalized terms in these Publishing Terms of Service, if not defined herein, have the meanings set forth in the Published Kosign Policies.
GRANT OF RIGHTS
For good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you hereby grant to Kosign, its successors, licensees and assigns, during the Term, the sole and exclusive Rights of Administration (including certain Non-Exclusive Rights, as defined below) throughout the Territory with respect to one hundred percent (100%) of Your Interest in and to each Composition. If, following the Term (and subject to the Collection Period as defined below), Kosign continues to receive monies by reason of your not having timely engaged a new administrator to register and collect on Your Interest in the Compositions, Kosign’s receipt of such monies will not be a violation of this Agreement, and Kosign will process and remit Your Royalty Share of any such received amounts to you as and when Kosign would otherwise have accounted to you if this Agreement was still in effect or otherwise in accordance with this Agreement.
ROYALTY STATEMENTS AND PAYMENT
Subject to your having provided to Kosign the information required for Kosign to do so (including without limitation pursuant to the Published Kosign Policies), Kosign will account to you, via email and/or the Kosign Portal, for your Royalty Share on not less than a quarterly basis and in accordance with Kosign’s policy for its clients generally (currently within sixty-five (65) days following the end of each calendar quarter, for Net Sums received during the preceding quarterly period). Payment of royalties due to you shall be made electronically in accordance with the Published Kosign Policies. Where royalties otherwise payable to you for any quarterly period are less than twenty-five dollars (US$25.00), such royalties shall not be paid but shall be carried forward to the end of the next quarterly accounting period until the aggregated royalties payable to you is US$25.00 or more. All royalty statements and all other accountings rendered by Kosign to you shall be binding upon you and not subject to any objection for any reason unless specific objection in writing, stating the specific basis thereof is given to Kosign within one (1) year from the date rendered. No generalized objection (such as, but not limited to, a generalized claim of over-reporting of deductions or underreporting of income or any similar generalization) shall be deemed a valid objection.
DELIVERY OF COMPOSITIONS
Kosign reserves the right to decline to administer (or to revoke administration of) any of the Compositions or other content you deliver to Kosign hereunder if, in Kosign’s judgment, such Composition(s) or other content, in whole or in part, is a Non-Qualified Work, is legally or otherwise objectionable; violates any warranty or other provision of this Agreement; or imposes an undue burden on Kosign or its internal systems.
TERMINATION
The Term will continue until you send a cancellation request to Kosign via the Kosign Portal (or via any other method specified in the Published Kosign Policies). Termination will be effective at the end of the calendar quarter in which Kosign receives such request (or earlier, at Kosign’s election). Kosign may, at any time on notice to you via the Kosign Portal, elect to terminate the Term, in which case Kosign will continue to remit to you any royalties due or becoming due hereunder in accordance with the terms of this Agreement.
WARRANTIES AND INDEMNIFICATION.
You hereby warrant and represent to Kosign as follows:
(i) You have and shall continue to have the full right, capacity, power and authority to enter into and fully perform this Agreement in accordance with its terms;
(ii) You are at least eighteen (18) years of age and are not currently signed to an exclusive songwriter, co-publishing, administration or other agreement regarding Your Interest in any Compositions or your songwriting services;
(iii) All information you submit to Kosign is and will remain complete and accurate, including but not limited to as provided by you pursuant to the Published Kosign Policies. You will notify Kosign promptly if any information changes or needs to be updated. In the event Kosign is notified of any discrepancy or any inaccuracy with respect to information provided by you, Kosign will have the right, without limiting any of its other rights or remedies under contract, at law or in equity, to suspend your royalty account pending the resolution, to Kosign’s reasonable satisfaction, of the matter. You acknowledge that you are solely responsible for providing and updating all information provided pursuant to the Published Kosign Policies, and that Kosign will not register or collect on any Compositions unless the same are delivered to Kosign in accordance therewith.
(iv) Neither the music, title, lyrics or other materials comprising the Compositions nor any part thereof is or shall be a copy of any other copyrighted work. No Composition, or any element, component or part thereof, infringes or shall infringe upon any statutory, contractual, or common law rights of any third party, or violates or shall violate any statutory or common law.
(v) Each Composition is and shall be original and copyrightable, and is and shall be free from
any adverse claims, liens or encumbrances of any kind by any person or entity. You warrant that you will not deliver any Non-Qualified Works to Kosign.
(vi) Kosign shall not be required to make any payments of any nature for, or in connection with, the exploitation of the Compositions other than to you, in accordance with the information provided by you pursuant to the Published Kosign Policies.
(vii) You have had the opportunity to consult with independent legal counsel in connection with this Agreement.
(viii) You shall at all times defend, indemnify and hold harmless Kosign and its affiliates and their respective employees, affiliates, representatives, agents, administrators, subpublishers, licensees and distributors (collectively, the "Other Indemnitees") from and against any and all demands and/or claims by third parties and resulting damages, liabilities, losses, costs and expenses, including actual out-of-pocket legal expenses and reasonable counsel fees, arising out of any alleged breach or breach by you of any warranty, representation or agreement made herein, or pertaining to any act, error or omission committed by you or any person or entity acting on your behalf (or on whose behalf you are acting) or under your direction or control. You will reimburse Kosign and the Other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which Kosign or the Other Indemnitees are entitled to be indemnified, or Kosign may elect to deduct any such payments from all sums otherwise due you hereunder.
MISCELLANEOUS
In no event will Kosign be liable to you or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including damages for any lost profits or lost data arising from your use of the services, even if Kosign is aware or has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Kosign's liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to Kosign for the services. The services and the content related thereto are provided "as-is" and Kosign disclaims any and all warranties, whether express or implied, including without limitation implied warranties of title, merchantability, fitness for a particular purpose or non- infringement. Kosign cannot guarantee and does not promise any revenue or other specific results from use of the services. Except to the extent the disclaimers and limitations herein are limited by applicable law, they shall otherwise apply to the fullest extent of such law.
This Agreement sets forth the entire understanding between Kosign and you regarding the Services and the subject matter hereof, and supersedes any previous discussions or written communications between the parties. Kosign may assign or delegate this Agreement or any or all of its rights and obligations hereunder to one or more third parties without notice to you. You may not assign or transfer your account, rights, obligations, or interest under this Agreement to anyone else unless otherwise agreed in writing by Kosign. No waiver of any provision or default under this Agreement shall affect either party’s rights thereafter and no waiver by either party shall be deemed a continuing waiver. Except as expressly set forth
herein, neither party has made or shall make any representations or warranties, express or implied, with respect to any matter contained in this Agreement or with respect to the making of this Agreement, all of which are expressly disclaimed. If any clause, sentence, paragraph or part of this Agreement or the application thereof to any person, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall be limited and confined in its operation to the clause, sentence, paragraph or part thereof directly involved in the controversy and shall not affect the remainder of this Agreement. You agree to do all further things or execute any further documentation reasonably required by Kosign for the purposes of giving effect to the terms of this Agreement. This Agreement shall not constitute a partnership or joint venture between the parties.
You acknowledge that any exploitation of the Compositions is speculative and that Kosign cannot guarantee that the Compositions will be exploited at all or that any Net Sums will be generated or earned hereunder. You waive all claims and warrant, represent and agree that you will not make any claim, nor will any liability be imposed upon Kosign based upon a claim, that more Net Sums could have been generated or better business achieved than that which was actually generated or achieved by Kosign and/or its licensees.
In the event that Kosign has reason to suspect that your account has been subjected to and/or has been involved in fraudulent, infringing, illegal or other activities in violation of this Agreement or applicable law, including, without limitation, the submission of Non-Qualified Works, then, without limiting Kosign’s rights and remedies hereunder or otherwise at law or in equity, Kosign reserves the right to discontinue posting of Net Sums to your account and to block your ability to access your account and/or otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities has been obtained to Kosign’s reasonable satisfaction in Kosign’s good faith business judgment.
Kosign reserves the right at any time to modify this Agreement, including, but not limited to, adding new terms or conditions or otherwise amending the existing terms or conditions regarding your use of the Services. Kosign will inform you of any proposed modifications (e.g., by email or via the Kosign Portal) and you may terminate the Term of this Agreement if you do not wish to accept them. Otherwise, such modifications and additional terms and conditions will be deemed accepted and incorporated into this Agreement.
This Agreement is entered into in the State of New York in the United States, and shall be construed in accordance with the laws of said state in the United States applicable to contracts to be wholly performed therein, without reference to any conflict of laws principles. The Courts located in New York County, New York (state and federal), shall have sole and exclusive jurisdiction over any controversies arising out of, or in connection with this Agreement; any action or other proceeding which involves such a controversy will be brought in those courts, in New York County.
DEFINITIONS
“Collection Period” means a period of one (1) year following the Term, during which Kosign will have the right to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term.
“Composition” means each musical composition that you submit to Kosign pursuant to the Published Kosign Policies from time to time during the Term. For clarity, the Services will only be provided for Your Interest in each Composition. The Compositions expressly exclude Non-Qualified Works.
“Kosign Portal” means the dashboard where Kosign clients, when logged in, manage tasks such as submitting compositions for registration, updating account details, accessing statements, tracking earnings, and other functions.
“Net Sums” means all monies actually received by Kosign in the United States which are directly attributable to the exploitation of Your Interest in the Compositions, less all actual, reasonable, third party out of pocket non-overhead costs paid or incurred by Kosign solely in connection with the exploitation of the Compositions and the collection of income, including, without limitation, any taxes required to be deducted, and payments to unaffiliated licensees, agents and/or subpublishers. Notwithstanding the foregoing, Net Sums will be calculated on an “at source” basis, meaning there will be no deductions hereunder in respect of Kosign’s (or its administrator, Kobalt)’s territorial administrators or subpublishers (it being understood that AMRA will not be deemed to be a Kosign or Kobalt affiliate for such purposes). Kosign shall retain the remaining Net Sums for its own account as its administration fee.
“Non-Exclusive Rights” means that specific subset of rights referred to in the “Rights of Administration” definition below.
“Non-Qualified Work(s)” means: (i) works that are non-musical in nature, (ii) works that consist substantially of sound effects, so-called “sleep sounds” or “nature sounds”, (iii) works that consist primarily of spoken word(s), (iv) works that are in the public domain and (v) any other works not accepted by any of Kosign’s third party partners or societies as qualifying musical works.
“Rights of Administration” means the exclusive rights to administer Your Interest in and to each Composition, including but not limited to the rights to publish, reproduce, use, exploit, transmit, display, license, sublicense, publicly perform, make available, control and deal in the Compositions and any rights of whatsoever nature related thereto, throughout the Territory, in any form, media or manner, now or hereafter existing, and to directly register and collect on all income, compensation or consideration of whatsoever nature arising out of the exercise of such Rights of Administration. The Rights of Administration constitute an exclusive license of copyright to Kosign in each Composition (subject to all of the terms hereof), and include but are not limited to, rental and lending rights and rights of communication to the public; the right to initiate, join, pursue, and compromise any so-called “blanket”, “catalog” or industry-wide action, proceeding, agreement, rule, regulation or law affecting the Compositions; the right, but not the obligation, to prosecute, defend and settle all claims and actions with respect to the Compositions (provided, however, Kosign shall not settle claims without your consent other than settlements affecting all or substantially all of Kosign’s administered catalog); the non-exclusive rights to use your legal and professional name(s), approved image and approved
likeness of, and the approved biographical information concerning you and to produce, print, publish or disseminate the same in any medium or by any method, now or hereafter known, solely for the purpose of exploiting, administering and otherwise dealing with the Compositions and/or, within customary parameters (including on the Kosign website and in corporate marketing materials); and to authorize others to exercise any of the foregoing rights. Notwithstanding the foregoing, the Rights of Administration (and the Services) shall be non-exclusive to Kosign with respect to the following (the “Non-Exclusive Rights”): (i) synchronization licenses in respect of any specific Composition in film, television, commercials or online use, it being agreed that such licenses will be subject to your written approval (via the Kosign Portal and/or email); it being further agreed that you may, via the Kosign Portal, request that Kosign refrain altogether from soliciting or seeking your approval of such synchronization opportunities. Notwithstanding the preceding clause, the foregoing synchronization approval right will not apply to so-called blanket or catalog licenses by Kosign which includes synchronization rights (e.g., without limitation, YouTube), it being further understood and agreed that such blanket or catalog licenses are included within Kosign’s exclusive rights hereunder; (ii) so-called “sampling” or “interpolation” licenses for the use of any Composition as part of a newly created musical composition; and (iii) traditional print uses (it being understood and agreed that digital sheet music and digital lyrics exploitations are included in Kosign’s exclusive rights hereunder). For clarity, Kosign will have the right, but not the obligation, during the Term, to “pitch” and/or enter into licenses for the Compositions or any of them with respect to any of the Non-Exclusive Rights. In the event that you deliver to Kosign (in the manner prescribed by the Published Kosign Policies) one or more master recordings owned and controlled by you and embodying Composition(s), then Kosign will have the right to pitch and license such master recordings together with the corresponding Compositions in conjunction with the Non-Exclusive Rights. Kosign will credit you with your Royalty Share in respect of any such master use licenses so granted by Kosign (and the calculation of Net Sums hereunder will include any such master use licenses).
“Services” means those services generally provided by Kosign to its clients in respect of the Rights of Administration (e.g. onboarding, registration, licensing, collection, royalty accounting and payment), such services to be provided in accordance with the terms of this Agreement and on the same general basis as Kosign provides to its other music publishing administration clients.
“Site” means: www.kosignmusic.com and any and subdomains and other Kosign-branded web based properties (and mobile apps or other mobile versions of same) owned and operated by Kosign or its affiliates.
“Term” begins on the date of your execution and submission to Kosign of this Agreement in the manner prescribed by Kosign. The Term will continue on a rolling calendar quarterly basis, until the end of the calendar quarter during which Kosign receives your valid cancellation notice in accordance with Kosign’s requirements and practices (as set forth in the Published Kosign Policies. Notwithstanding the foregoing, Kosign may terminate the Term on notification to you via the Kosign Portal or otherwise in accordance with the Published Kosign Policies.
“Territory” means the universe.
“Your Interest” means that percentage share of each Composition that was written, composed, owned and controlled solely by you, as indicated by you in the information provided by you pursuant to the Published Kosign Policies.
“Your Royalty Share” means eighty percent (80%) of Net Sums.