Terms and conditions

Terms and Conditions

The following are our terms and conditions of use and govern your use of the e-Licensing of SOUND FOUNDATION Pty Ltd Web site. Our Site is made available by SOUND FOUNDATION Pty Ltd and Eye Design. We may change the Terms and Conditions from time to time, and at any time without notice to you, by posting such changes on the Site.

Acceptance of Terms and Conditions

BY USING THE SITE, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF THE SITE. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Site. By using our Site following any modifications to the Terms and Conditions, you agree to be bound by any such modifications to the Terms and Conditions.

Age Requirement for Use of the Site

Soundfoundation.com is not intended for use by persons under the age of 18 years old. You must be 18 years old or older to access or otherwise use the Site and related services and/or have adult supervision.

Services Available on the Site

We may make certain content and services available to visitors, members and registrants of Soundfoundation.com For example, you may be able to view content, search or browse through music samples, request quotes for and obtain music licenses to use certain material for certain discrete purposes, monitor your account with us, and browse through an online catalogue of items available for purchase

(these services are collectively referred to herein with the Site as the “Site”).

Price Quotes for Music Licenses

Through the Site, you may be able to request price quotes for licenses to use certain music for certain purposes. To obtain such a quote, please contact the Site administrator in the contact area. We will return to you a quote for the applicable license(s).

A PRICE QUOTE IS NOT TO BE CONSIDERED AS AN OFFER OR THE ACCEPTANCE OF AN OFFER. IN NO WAY SHALL A PRICE QUOTE CREATE ANY AGREEMENT, LICENSE OR GRANT OF RIGHTS, AND EXCEPT AS EXPRESSLY SET FORTH ON THE SITE, ALL LICENSES WILL BE SUBJECT TO TERMS AND CONDITIONS WHICH ARE MUTUALLY AGREED TO AND EXECUTED OFF-LINE.

Proprietary Rights.

All original content contained on the Site (including the results of any song data searched conducted on the Site) is the property of SOUND FOUNDATION Pty Ltd and the artists. and is protected by all applicable Federal, State laws, as well as the applicable laws of jurisdictions outside Australia. Your use of the Site does not grant to you ownership of any content, features or materials you may access on the Site.

Any commercial use of the Site is strictly prohibited, except as expressly allowed herein or otherwise expressly approved by us. You may not copy, reproduce, distribute or otherwise exploit any music or other content on the Site without our prior written consent. We reserve the right, at our sole discretion, to terminate any registration and deny access to the Site to any one, for any reason, without notice. Further, any such misuse of music, materials or content contained on the Site may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.

We do not grant any license or other authorisation to any user of our name and image, other copyrightable material or any other intellectual property by including them on the Site. You also agree and acknowledge that any ideas, concepts, methods, systems, designs, plans, techniques or other similar materials that you submit or otherwise communicate to the Site may be used by us in any manner.

User Information

In the course of your use of the Site, you may be asked to provide certain information to us (such information referred to hereinafter as “User Information”). Our information collection and use policies with respect to such User Information are set forth in the Site Privacy Policy which is incorporated herein by reference for all purposes. You acknowledge and agree that you are solely responsible for the accuracy and content of the User Information.

Customers terms & conditions

You warrant and agree that, while using this Site, you will not upload, post or transmit to or distribute or otherwise publish through this Site any materials that:

(a) are protected by copyright, or other proprietary or intellectual property right, or derivative works without first obtaining permission from us or the copyright owner;

(b) are unlawful, threatening, harassing, defamatory, vulgar, obscene, libellous, deceptive, fraudulent, contain 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), invasive of another’s privacy, or hateful.

(d) Constitute or encourage conduct that would constitute a criminal offence or give rise to civil liability.

(e) Contain a virus or other harmful component, advertising of any kind, or false or misleading indications of origin or statements of fact.

You also warrant and agree that you will not.

(a) Impersonate or misrepresent your affiliation with any other person or entity;

(b) Upload, post, publish, transmit, reproduce, distribute or in any way exploit any information or other material obtained through the Site for commercial purposes (other than as expressly permitted by the provider of such information or other material);

(d) Retain or attempt to retain copies of audio files that are “streamed” from the Site (sometimes referred to as “stream-catching”) or

(e) Attempt to gain unauthorized access to other computer systems through the Site. Except as otherwise expressly permitted herein, you may not upload, post, publish, reproduce, transmit or distribute in any way any component of the Site itself or derivative works with respect thereto, as the Site is copyrighted as a collective work under Australian © copyright laws.

We have no obligation to monitor any content on or through the Site and we assume no obligation. You acknowledge and agree, however, that we do retain the right to monitor the Site and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Site properly, or to protect ourselves or our users. We reserve the right to refuse to post or to remove any information or materials, in whole or in part, that, in our sole discretion, are unacceptable, undesirable, inappropriate or in violation of these Terms and Conditions.

You agree to defend, indemnify and hold the Site Proprietors and their directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Site or the placement or transmission of any message, information, software or other materials through the Site by you.

Privacy policy

This is the privacy policy for the e-Licensing of SOUND FOUNDATION Pty Ltd’s Web site. The Site is made available by SOUND FOUNDATION Pty Ltd and Eye Design. This Privacy Policy sets forth our policies regarding the collection, use and disclosure of certain information relating to your use of the Site. Your use of this Site signifies your understanding and acceptance of the terms of this Privacy Policy.

Age Requirement for Use of Site

This Site is not intended for use by persons under the age of 16 years old. You must be 16 years old or older to access or otherwise use the Site and related services. Unless permission and or consent from either a parent and or guardian. You may only use the products you purchase specifically on your personal profile page and via your social networks for promotional purposes only and to obtain credits for recommending purchased products, you may by no means sell, distribute, give away, license or use any and all the content on this site with our written permission from both soundfoundation Pty Ltd and the said © Holders. If found to be ignoring any and all of these requirements you agree to pay in full all © infringement fees, fines and or payments as in accordance with each state and country based with in the territory.

Personally Identifiable Information

This Site may request and collect certain personally identifiable information including, but not limited to, name, address, phone number, fax number and e-mail address through various means such as registration, online quotation requests, communications relating to quotation requests and intended uses of licensed compositions, other online forms, questions, comments and communications to the Site, as well as through postings to chat and bulletin areas, if any. Additionally we will require you to provide a credit card number and information for payment purposes.

Non-Personally Identifiable Information

We may also collect certain non-personally identifiable information at our Site, such as Site usage activity and preferences, also known as demographic or profile data.

Site Technology

As with many state-of-the-art Web sites, we may use “cookies” or other technology in the Site or in our communications with you to enhance the functionality of the Site and to make your transactions and other activities more convenient and efficient. These technologies may vary, but in some cases may involve a small file stored locally on the computer used to access your account, and may be used by us to collect information relating to your use of the Site. Using these technologies, we may collect your IP (Internet Protocol) address to help diagnose problems with our server, administer our Site and identify our users. We may also use such technologies to remember user preferences or minimise the need for you to re-enter information. Most Internet browsers include “preference” settings that can control and block the placement of cookies on a user’s computer. We have no control over what information your web browser or other third party software collects, and we have no responsibility or liability for any data collection or other activities of such software.

Usage and Sharing

We use information collected on and through this Site for a variety of purposes in the course of business and as otherwise set forth herein. For example, such information may be used to process your request for a quotation or to send you information about our and our business partners’ products and services and other information and materials that may be of interest to you. This information may also be used to evaluate what portions of the Site are more popular than others, determine where visitors came from, where they go, and how long they stay on a particular page, or the Site in general. We may use such information along with information obtained from other sources, including third parties. We may share this information with others, such as our affiliates, advertisers, third parties that provide services for or through the Site and other business partners. We may transfer, sell or assign such information to third parties as a result of a sale, merger, consolidation, change in control, transfer of assets, reorganisation or liquidation. We also reserve the right to disclose any information concerning you if required by law or to protect or defend our rights or the rights or well-being of our users or if you are involved (or are reasonably suspected to be involved) in any illegal activity, even without a subpoena, warrant or court order.

Posting Information on or Through the Site

You are solely responsible for the information and other content you post on or through the Site. You understand that personal and other information (e.g., user name, e-mail address, phone number) that you post on or through the Site (e.g., chat, bulletin boards) as well as your general communications with the Site are generally accessible to, and may be collected and used by, others and may result in unsolicited messages or other contact from others. Users of the Site are encouraged to exercise caution when providing personal information about themselves.

Security

Due to the open nature of the Internet, we cannot guarantee that any information stored on our servers, or transmitted to or from a user, will be free from unauthorized access. By using the Site, e.g. forum, you acknowledge that you understand and agree to assume these risks.

Our payment gateway is 128-bit encrypted SSL, the strictest security available which has been created to insure that all transactions and processing details are secure.

Consent to Processing

By providing any personal information to this Site, you fully understand and unambiguously consent to the transfer of such personal information to, and the collection and processing of such personal information in, the United States and other countries or territories.

Links

This Site may contain links or references to other Web sites outside of our control. Please be aware that we have no control over these sites and our privacy policy does not apply to these sites.

Your Acceptance of this Policy

By using this Site, you signify your acceptance of our Privacy Policy. If you do not agree to this policy, please do not use our Site. We reserve the right, at our discretion, to change, modify, add, or remove portions from this policy at any time so visitors are encouraged to review this policy from time to time. Your continued use of our Site following the posting of changes to these terms means you accept these changes.

This agreement relates to The Album The Album, which SOUND FOUNDATION Pty Ltd is compiling. SOUND FOUNDATION Pty Ltd requested a non-exclusive licence to incorporate the “subject track/s” in The Album and your approval for SOUND FOUNDATION Pty Ltd to “commercialise” The Album and in return, SOUND FOUNDATION Pty Ltd will pay you royalties as set out

below.

Content providers - usage and grants of rights

1. GRANT OF RIGHTS

By agreeing, you formally confirm that throughout the Term and everywhere in the World, SOUND FOUNDATION Pty Ltd has, in return for the royalties provided for below:

• The non-exclusive licence throughout the world to reproduce and commercialise the subject track/s in SOUND FOUNDATION Pty Ltd’s master of the Album recording as otherwise provided for herein and as may agreed from time to time.

• your consent to use your professional/band name, your approved likeness and biography and web address/ URL, for use in packaging and in relation to promotional materials related to The Album.

• SOUND FOUNDATION Pty Ltd may itself and may authorise and license your content for the exchange of credits where no income or royalty is received and for promotional give-aways for the sole purpose of promoting your content and that of the content of www.soundfoundation.com.au in these cases no payment or financial remittance is required. This includes granting SOUND FOUNDATION Pty Ltd licence to use your music to support non profit and charitable organisations to raise funds for particular causes from an environmental perspective and genres relating to such causes, in the event of donation style products you agree to donate your portion of sales normally received under the current membership you have selected and in such and doing so will receive a tax donation receipt from the organisation whom you have donated your sales to and grant permission to the relating organisation to promote the product externally from soundfoundation.

3. PROCESS

You confirm that you understand that SOUND FOUNDATION Pty Ltd can only include the subject track/s if you follow the delivery procedure as set out in “Appendix 1”. Please remember: non-compliance or late compliance may result in the subject track/s being precluded from appearing on The Album and could also result in SOUND FOUNDATION Pty Ltd incurring additional costs or liabilities, in which case SOUND FOUNDATION Pty Ltd will look to you for reimbursement for any consequential expenses.

5. ROYALTIES

SOUND FOUNDATION Pty Ltd will pay you (depending upon the source of the revenue and plan selected) either a royalty in relation to each virtual record, book and or film which SOUND FOUNDATION Pty Ltd sells on its own account, or a proportion of revenue SOUND FOUNDATION Pty Ltd “receives” from its licensees.

The royalties are as set out in Appendix 2.

SOUND FOUNDATION Pty Ltd is responsible for complying with prompt payment of all mechanical copyright fees in accordance with local laws. SOUND FOUNDATION Pty Ltd will calculate your royalty entitlement and remit it subject to reserves where applicable, with a royalty statement within 60 days of the end of each calendar quarter in which SOUND FOUNDATION Pty Ltd receives revenue relating to The Album/s, Book/s and or Film/s. Royalty statements are supplied within your personal profiles and pages for access any time in a transparent automated accounting interface updated in real time. You agree to send invoices for payments of royalties for no less than AU$100.00 If SOUND FOUNDATION Pty Ltd is required to deduct and pay withholding or similar taxes from remittances to you, it will upon request provide you with an appropriate certificate verifying same to assist you to claim a tax credit for such amounts. In addition, you may, at your own expense, conduct a royalty “audit”.

6. WARRANTIES

You warrant that you are the sole owner of the subject track/s and have the unrestricted power, right and authority to grant this licence to SOUND FOUNDATION Pty Ltd. You warrant that you have the unrestricted power, right and authority to authorise SOUND FOUNDATION Pty Ltd to reproduce the song in The Album. SOUND FOUNDATION Pty Ltd will attend to paying appropriate mechanical copyright royalties.

7. INDEMNITIES

SOUND FOUNDATION Pty Ltd promises to you, and you promise to SOUND FOUNDATION Pty Ltd, to defend, indemnify and hold the other harmless against any and all liability, loss, damage, cost or expense, by reason of any breach or claim of breach of any of each’s covenants, warranties or representations to the other under this Agreement.

8. TERMINATION

SOUND FOUNDATION Pty Ltd and you may agree at any time to terminate the agreement or alternatively, either may terminate this agreement if the other is in breach. Termination for breach may only be done by giving written notice to the other, specifying the breach and requiring its remedy. If the breach is not remedied within 21 days, the party who gave the notice may give notice of termination. Either party may terminate the agreement if the other becomes bankrupt or (being a company) is wound up otherwise than for amalgamation or

reconstruction; or threatens to cease trading permanently.

9. NOTICES

E-mail is appropriate for day-to-day communications but notices, for example, alleging a breach, must be in writing and will only be effective if delivered by personal delivery or fax or by letter sent by registered mail. Such notices will be deemed to have been given on the date when personally delivered or five working days after posting. If notices are sent by fax, actual receipt must be verified by the sender.

10. MISCELLANEOUS

This agreement is entered into in Australia and the proper law for the contract is Australian law. This agreement is between independent parties on an arm’s length basis and is neither a partnership nor a joint venture of any kind.

Prior to taking any legal action (but this does not preclude either SOUND FOUNDATION Pty Ltd nor you from seeking urgent equitable relief) SOUND FOUNDATION Pty Ltd and you will attempt in good faith to use alternative dispute resolution to resolve any disputes. Any disputes as to the interpretation or operation of this agreement will be referred to an independent expert for arbitration. The arbitration will be conducted under the auspices and under the rules of the Australian Commercial Disputes Centre. Each party will bear one half of any costs.

11. DEFINITIONS

Refer to Appendix 3 for defined terms and expressions. By accepting, you confirm that you have read the terms of the licence and agree with them.

APPENDIX 1

• Subject Track/s, Book/s, Film/s:the content you supply

• Artist:You and those you represent

• Composer/s (as per APRA registration):your agreement with APRA

• Publisher/Administrator: soundfoundation

• Delivery Deadline for Master and Materials: upon signing up for membership

• Delivery Format: MP3, AAC, AIFF, MOV, PDF

• Master: content uploaded by you

APPENDIX 2

Digital download royalty structure - After expenses, gst, APRA, merchant facilities and credit card charges, and any other additional expense occurred from increases in fees out side of our company.

00/00 Split percentage (%) represents Content provider (You)/Soundfoundation

Silver - 50/50 - FREE membership

$ 24.95 annually for 1GB of storage regardless of content + $24.95 each additional GB

Gold - 70/30 (Artist / Sf)

$200.00 annually - 1 GB INCLUDED of storage regardless of content + $14.95 each additional GB

Platinum - 90/10 (Artist / Sf)

$200.00 annually - 2 GB INCLUDED of storage regardless of content + $14.95 each additional GB

licensees - You give us permission to seek in which ever means necessary the opportunity to seek and organise ways to licence your music, in in the event of a successful license to only proceed with your written permission and consent and agree to pay fee’s to the value Percent (%) of the membership you have agreed to specifying either 50, 70 or 90 percent (%)

In relation to virtual records of The Album, which SOUND FOUNDATION Pty Ltd sells on its own account SOUND FOUNDATION Pty Ltd will pay you the equivalent of 50% 70% or 90% (depending on membership) 80% Labels pro rata of SOUND FOUNDATION Pty Ltd’s receipts after deduction of distribution fees and mechanical royalties paid in relation to the track/s and In relation to royalties received from third party licensees from sales and commercialisation: SOUND FOUNDATION Pty Ltd will pay you the equivalent of 50% 70% or 90% (depending on membership) 80% Labels pro rata of SOUND FOUNDATION Pty Ltd’s receipts

*Note: where any licensee or collection society makes a direct distribution to you (e.g the distribution schemes

used by PPCA and APRA) then the amount SOUND FOUNDATION Pty Ltd pays to you will be adjusted down by the same amount as such direct distribution you receive, to avoid “double-dipping”.

APPENDIX 3 DEFINITIONS

As the physical compilation work is taking place in Australia, words and expressions used in this agreement which are defined in the Australian Copyright Act or are terms of art in the Australian music industry, will bear the relevant meaning wherever used in this agreement unless specifically defined below, in which case that

definition will apply.

“Audit”

means inspection by an independent accountant who will be allowed access to the relevant books of account, on a confidential basis, in order to conduct an audit on your behalf of the books and records relating to the calculation of royalties hereunder. SOUND FOUNDATION Pty Ltd has to be given at least 45 days advance notice by letter specifying the period to be audited. Each period may only be audited once. If an audit reveals an under accounting of 10% or more of the amount properly due for the period of the audit, SOUND FOUNDATION Pty Ltd will promptly rectify the error and reimburse you for the reasonable costs of the audit.

“Address”

means the address for you and for SOUND FOUNDATION Pty Ltd set out in this document. This will be the only address for the purposes of this agreement. A change of address will only be effective if done in writing.

“Album”

means one or more CDs or their equivalent in any other format or media sold together as a package.

“Base royalty”

means the equivalent of 60% of SOUND FOUNDATION Pty Ltd’s receipts from commercialisation of The Album other than sales by SOUND FOUNDATION Pty Ltd on its own account.

“Budget price”

means a recommended retail price half or less of the generally prevailing price for an equivalent a full price record sold through normal retail channels.

“commercialise”

includes reproduction, broadcast and diffusion of The Album in any media or format.

“Compilation album”

means an album having tracks licensed from more than one licensor.

“Mid price”

means a recommended retail price between three-quarters and half of the generally prevailing price for an equivalent a full price record sold through normal retail channels.

“Net sales”

means gross sales less returns and promotional items given away free or at cost-recovery price.

“Normal retail”

means wholesale supply to retail outlets without associated television advertising or unusual media sales campaigns.

“Pro rata”

means a proportion of the applicable royalty, calculated by a multiplying the relevant royalty by a fraction, the numerator being the number of subject tracks and the denominator being the total number of tracks in the relevant album.

“Records”

means all forms of reproduction of SOUND FOUNDATION Pty Ltd’s Master Recording, manufactured or distributed for home use, commercial use, school use, juke box use or use in means of transportation.

“Remit”

means transfer your royalty entitlement, in Australian dollars, to a bank account you nominate, subject to any withholding taxes or governmental imposts.

“Royalty”

means the remuneration as calculated according to the processes set out in Appendix 2.

“Receives”

means money SOUND FOUNDATION Pty Ltd actually receives or is credited, net of withholding tax, currency exchange costs and expenses SOUND FOUNDATION Pty Ltd expends in earning or collecting such money.

“Reserves”

means a reasonable allowance, based on generally accepted industry standards in the relevant country or sales territory, which SOUND FOUNDATION Pty Ltd may retain and hold in anticipation of returns, refunds and credits to its customers. All reserves will be assessed at the end of each applicable accounting period. Any reserves will be liquidated within three calendar quarters. Where reserves are held, the amount will be disclosed on the relevant accounting statement.

“Song/s”

means the musical work/s (music and, where applicable, lyrics) as reproduced in the subject track/s

“Subject track/s,”

means the sound recording/s or films (as the case may be) identified in Appendix 1

“Television advertising campaign”

means an advertising campaign (which includes test campaigns) in which one or more specially produced advertisements relating to the compilation album or the subject track/s are produced and telecast on free to air and/or cable television. The period of the campaign will be taken to run from four weeks sell-in period prior to the advertisements first being telecast and extend until 12 weeks following the last advertisement being telecast.

“Virtual records”

means digital copies of the subject tracks which are distributed and offered for sale via the Internet as so-called downloads or as viewable files.