Terms of service
1. User’s acknowledgement and acceptance of terms
These Terms of Service (“Terms”) cover your use of and access to the sites, products, applications, and services (collectively, the “Services”) provided by Kwettr.com, on the website and associated domains of www.kwettr.com.
“Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity or one or more of the other Affiliates of that entity (or a combination thereof).
“Agreement” means these Terms of Service and any Statement of Work made pursuant to it, each as may be amended from time to time.
“Confidential Information” means any and all information and materials which is: (i) confidential in nature or that is marked as being confidential by a party; (ii) a reasonable person having regard for the circumstances would regard as confidential. Confidential Information does not include information which: (i) is or at any time is made generally available to the public by the Disclosing Party (as defined herein); (ii) is known to the Recipient (as defined herein) (as substantiated by cogent written evidence in the Recipient’s possession) free of any restrictions at the time of disclosure; (iii) is independently developed by the Recipient through individuals who have not had either direct or indirect access to the Confidential Information; and (iv) is rightfully obtained by the Recipient, without any obligation of confidence, from a third party who had a right to transfer or disclose it to any Person free of any obligation of confidence.
“Deliverable” means the deliverables expressly set out in any Statement of Work that Kwettr.com is to provide to you pursuant to the Agreement.
“Intellectual Property Rights” means all the intellectual property, industrial and other proprietary rights, protected or protectable, under the laws of The Netherlands or any foreign country, or any political subdivision thereof, including, without limitation, patents, copyrights, neighbouring rights, moral rights, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights and any other statutory provision or common or civil law principle regarding the intellectual and industrial property, whether registered or unregistered and including rights in any application for any of the foregoing.
“Representatives” means, in the case of you, Kwettr.com or any other Person, its directors, officers, appointees, employees, agents, consultants or subcontractors, as well as the subcontractor’s directors, officers, employees, agents, consultants or subcontractors.
“Person” means, if the context allows, any individual, person, estate, trust, firm, partnership or corporation, government or any agency or ministry of any government, and includes any successor to any of the foregoing.
“Project” means a project identified in a Statement of Work and in relation to which Services are being provided.
“Services” means the services to be provided by Kwettr.com pursuant to these Terms of Service or any Statement of Work.
“Specifications” means, in respect of any Deliverable or Service, the technical, functional, physical, design, environmental, operational, performance or other relevant specifications or requirements, therefore, set out in the Statement of Work or to which you and Kwettr.com agree in writing.
“Statement of Work” or “SOW” means any written agreement (as amended from time to time) made between you and Kwettr.com that expressly states that it is a Statement of Work made pursuant to these Terms of Service. Each Statement of Work will include a description of: (i) the project to which the Services relate (the “Project”) and the Services; (ii) the tasks to be completed by you and any third parties; (iii) the Deliverables to be provided; (iv) the schedule for the Project; (v) the fees to be paid to Kwettr.com for such Services and Deliverables and a payment schedule, and (vi) such additional information as the parties agree to include.
2. Description of Services
Kwettr.com is a company focused on music marketing technology and music marketing services. Because Kwettr.com provides a range of Services, we may ask you to review and accept supplemental terms that apply to your interaction with a specific app, product, or service, such as may be set out in a Statement of Work or SOW. To the extent those supplemental terms conflict with these terms of service, the supplemental terms associated with the app, product, or service govern with respect to your use of such app, product or service to the extent of the conflict.
2.1 Statement of Work
(a) From time to time, you and Kwettr.com may enter into a Statement of Work governed by these Terms of Service, but neither party is obligated to do so.
(b) In the event of any inconsistency between the terms and conditions of Terms of Service and the terms and conditions of any Statement of Work, the terms and conditions of these Terms of Service prevail except in relation to a provision of the Statement of Work that specifically identifies a conflicting provision and states that the conflicting provision of these Terms of Service does not prevail.
Either you or Kwettr.com may propose changes to any Service or Deliverable. If a change is requested by you in writing, Kwettr.com shall respond within five (5) Business Days of receipt of your request with a draft addendum to the affected Statement of Work. Kwettr.com may propose a change by providing you with a draft Addendum to the affected Statement of Work. A draft addendum will include: (i) a reasonably detailed description of the proposed change(s); (ii) if applicable, any changes to the actual or estimated amounts to be paid pursuant to the affected Statement of Work; and (iii) if applicable, any changes to the Project schedule. The proposed change(s) will not become effective until you and Kwettr.com agree in writing on the terms and conditions of the draft addendum and sign it.
(a) Both you and Kwettr.com will use reasonable efforts to perform the tasks allocated to each of them in any Statement of Work by the deadlines set out in the Statement of Work. If either party believes that it will not meet any such deadline, it will promptly inform the other party of the potential delay and use reasonable efforts to prevent or minimize the delay.
(b) To the extent that your failure or delay to perform any task for which you are responsible in accordance with any Statement of Work interferes with Kwettr.com’s ability to perform the Services or provide the Deliverables, Kwettr.com will be excused from performing the Services or providing the Deliverables for the duration of the failure or delay and while you and Kwettr.com are working on a revised schedule for the affected Project. You and Kwettr.com will work together to adjust the schedule for the affected Project in accordance with section 2.3.
In relation to each Statement of Work, Kwettr.com agrees to provide to you the Deliverables described as being provided pursuant to the Statement of Work.
2.6 Grant of Limited License
Kwettr.com owns all Intellectual Property Rights in and to any Services provided under these Terms of Service, and to any Deliverables provided under any Statement of Work. However, Kwettr.com hereby grants to you a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Service and any Deliverables provided under any Statement of Work solely for your internal business operations in accordance with these Terms of Service.
3. Registration Data and Privacy
In order to access some of our services, you will be required to use an account and password that can be obtained by completing our online registration form, which requests certain information and data (“Registration Data”). By registering, you agree that all information provided in the Registration Data is true and accurate and that you will maintain and update this information as required in order to keep it current, complete, and accurate.
By posting content or otherwise using any communications service, chat room, message board, newsgroup, software library, or another interactive service that may be available to you on or through these services, you agree that:
(i) Restrictions on Use – you will not upload, share, post, or otherwise distribute or facilitate distribution of any content through the service that:
a. is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies
b. victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
c. infringes on any patent, trademark, trade secret, copyright, right of publicity, or another proprietary right of any party;
d. constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
e. contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
f. impersonates any person or entity, including any of our employees or representatives, or misleads other users as to your identity or the origin of any content or communication; or
g. is harmful to minors in any way;
(ii) Grant of Rights – By submitting content to our advertising service or any other service provided by Kwettr.com, or engaging in any other form of communication through our service you agree that we may copy, sub-license, adapt, transmit, publicly perform or display any such content to provide and/or promote the services and/or to respond to any legal requirement, claim or threat. If our use of such content exploits any proprietary rights you may have in such material, you agree that we have an unrestricted, royalty-free, non-exclusive and perpetual worldwide right to do so. You represent and warrant that you own or otherwise control all applicable rights to the content that you share with the service, upload, transmit or display; that the content is accurate; that use of the content you supply does not violate third-party rights or the terms and conditions of any agreement you may have with a third party, and will not cause injury to any person or entity. You also agree you will defend indemnify and hold harmless Kwettr B.V. and its Affiliates, officers, directors, employees, partners, and agents, as applicable, for all claims resulting from content that you supply. You agree that any claim, loss or damage of any kind that occurs as a result of the use of any content that you upload, post, transmit, display or otherwise make available through your use of the services, including as a result of your use of a third-party web service or service provided through the services, is solely your responsibility.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the services may be available to you or other authorized users of the services. You shall not interfere with anyone else’s use and enjoyment of the services or other similar services. Users who violate systems or network security may incur criminal or civil liability.
5. Third-Party Services and Information
6. Intellectual Property Information
Neither we nor our Affiliates warrant or represent that your use of the content displayed on, or obtained through, these services will not infringe the rights of third parties. See “Unauthorized Use of Content ” below for a description of the procedures to be followed in the event that any party believes that content posted on these Services infringes on any patent, trademark, trade secret, copyright, right of publicity, or another proprietary right of any party.
7. Unauthorized Use of Materials
Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise. We are also unable to accept your unsolicited ideas or proposals, so please do not submit them to us in any circumstance.
We respect the intellectual property of others, and we ask you to do the same. If you or any user of these services believes its copyright, trademark or other property rights have been infringed by a posting on these services, you or the user should send a notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon or other information sufficient to specify the copyrighted work being infringed).
2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above.
3. Provide information reasonably sufficient to permit us to contact you (email address is preferred).
4. Provide information, if possible, sufficient to permit us to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred).
5. Include the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”
6. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
7. Sign the paper.
8. Send the written communication to the following address:
Designated Agent for Claimed Infringement:
Contact: Bas Kruijssen
Address: Reduitlaan 33, 4818 AA Breda, The Netherlands.
You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our services without liability to you or any other party.
8. Disclaimer of Warranties
ALL MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SERVICES FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THE SERVICE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
9. Limitation of Liability
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THESE SERVICES OR OF ANY WEB SERVICES REFERENCED OR LINKED TO FROM THESE SERVICES.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THESE SERVICES OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THESE SERVICES, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THAT EVENT, WE SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND LIMITATIONS ON DAMAGES AVAILABLE AT LAW OR IN EQUITY IN SUCH PARTICULAR CIRCUMSTANCE.
Upon a request by us, you agree to defend, indemnify, and hold us and our Affiliates, officers, directors, employees and agents harmless from all liabilities, claims, and expenses, including attorneys’ fees, that arise from your use or misuse of these services. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defences.
11. Security and Password
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account if you do transfer or share your account.
12. Termination of Use
Upon termination or suspension, regardless of the reasons, therefore, your right to use the services available on these services immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or these services. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
13. Governing Law
These services (excluding any linked service) are controlled by us from our offices within Breda, The Netherlands. Statutes and laws of The Netherlands are applicable to all services, deliverables and delivered works by Kwettr B.V..
All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at firstname.lastname@example.org, if by email, or at Kwettr B.V. Reduitlaan 33 4818 AA Breda, The Netherlands.
15. Entire Agreement
You agree not to sell, resell, reproduce, duplicate, copy or use for any commercial purposes any portion of these services, or use of or access to these services.
In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of products and services available through our services arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labour disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
17. Contact Information
Agreement made this 30th day of September, 2022, by and between Kwettr B.V., Reduitlaan 33 Unit 2.09, Breda, The Netherlands (hereinafter referred to as “we”, “us”, or “our”) and label name, address, City, Country (hereinafter referred to as “you” or “your”).
In consideration of the mutual promises and covenants herein contained, and other good and valuable consideration, which is hereby accepted and mutually acknowledged as sufficient, the parties hereto agree as follows:
Summary of terms & conditions
Upon the execution of this Agreement, you shall deliver to us on an exclusive basis all master recording(s) (“Masters”) to be released on your label(s) (“Label”) for manufacturing, distribution and sale by us subject the terms and conditions as stated below:
- Label(s): Label name and any sublabels thereof.
- Rights: Exclusive for Records in digital formats only.
- Term: Minimum Period of twelve (12) calendar months from the date of this Agreement. The Term shall be automatically renewed by successive one (1) year periods until terminated by either party upon written notice as specified.
- Termination: At any time after the Minimum Period upon ninety (90) days written notice.
- Territory: The Universe.
- Royalties: 85% of net receipts received by us from the relevant online or mobile shop.
- Accounting Payments: Monthly.
- Costs Incurred: Per track delivery a one-time recoupment of Eur. 0.10 per delivery.
- Masters: You shall upload through us all master recordings to be released on your label(s) during the Term, along with graphic elements and complete metadata. We shall have the right to decide not to release one or more particular Masters delivered by you in a particular format or in any format for commercial, legal or any other reasons (including ‘YouTube & YouTube Content ID Only’ releases). You shall have the right to release any Masters rejected by us through third parties.
- Rights Period: For each Master delivered, the Rights Period shall be as six (6) months from first commercial release by us on a master-by-master basis.
- Standard Conditions: The terms stated in this Summary of Terms and Conditions (hereinafter referred to as “Summary”) shall be subject to our Standard Terms and Conditions as set forth below. You hereby expressly confirm that you have read the attached Standard Terms and Conditions and agree to be bound by them and you acknowledge that the Standard Terms and Conditions are an integral part of this Agreement.
This Summary shall constitute a binding contract when signed by you and by us. You confirm that you have read, understood and agreed to all of the terms set forth in the Summary above and the Standard Terms and Conditions attached hereto and that you voluntarily enter into this Agreement.
Addendum A: fraudulent marketing activities
The purpose of this addendum is to protect Kwettr and its customers from fraudulent marketing activities.
To clarify fraudulent marketing activities:
- Streaming manipulation on DSPs such as YouTube, Spotify, Apple Music and any other DSP Kwettr is connected to now or in the future.
- Mimicking or copying another artists’ (online) identity, social media profile or artist profile on any DSP.
- Mimicking or copying another labels’ (online) identity, social media profile or label profile on any DSP.
- Manipulating sales of f.e. downloads on iTunes and any other download store.
- Any other form of manipulating streams, income, download sales or video views on any now-known platform or new platforms yet to come in the future.
- Label warrants not to use any ways of manipulating sales/streams (a.o. the methods mentioned above.)
- Kwettr will not pay any royalties accumulated through fraudulent activities.
- Kwettr is allowed to terminate the contract if such situation arises.