Thank you for choosing Encore ("Encore", “Sonomo”, also: "we", "us" and "our") to distribute your music! We offer any person or legal entity that wants to make use of our services ("you", also: "your") the opportunity to release music on Digital Streaming Stores. In these "Terms" we stipulate the provisions that apply to your use of our platform, application, website and (distribution) services (together the "Services").
1.1 Encore facilitates distribution of music through various "Digital Streaming Stores" (such as Spotify, Apple Music and Deezer).
1.2 A recording that you intend to make available through digital streaming (a "Recording") can be sent to your account manager by email. You may also share access to your bandcamp account or any service you use to manage your music and its meta-data.
1.3 Part of our service is that you can configure how the revenue generated by your Music under this Agreement should be distributed. For example, you can configure how much the artist(s) should receive, the label and any other persons who are entitled to a percentage of the revenue based on your existing contractual agreements.
1.4 We do not charge a fee for distributing your Music. You will receive 100% of what we receive from the Digital Streaming Stores and/or third party distributors ("Digital Streaming Revenue", as further defined in clause 4). How you subsequently distribute this revenue, remains your responsibility.
2 The License
2.1 We do not require you to transfer ownership of (intellectual property vested in the) Music to us.
2.2 By accepting these Terms and/or using our Services, you grant us and our sub-licensees to the fullest extent permitted under statutory law a non-exclusive, revocable, royalty-free, fully sub-licensable, transferable, worldwide "License":
2.2.1 to distribute, publicly perform, exhibit, broadcast, transmit, digitally make available the Music on (without limitation) the Encore website, application and/or platform, all Digital Streaming Stores and any other similar digital media for sale by downloading, interactive and non-interactive streaming, cloud services and streaming-on-demand, now known or future developed similar means of making use of the Music, in any form and/or digital format;
2.2.2 to sell, market, advertise, promote the music, in the broadest sense, by all means and media, and to perform all actions that may be necessary or conducive to this end;
2.2.3 to collect from Digital Streaming Stores (and or their sublicensees or licensors) the revenues generated in relation to exploitation of your Music by Digital Streaming Stores;
and you agree that we may subcontract some or all of the operations permitted under the above License to any third party ("Third Party Service Provider").
2.3 However, there may be various parties involved in the creation of such Music and you might not be the sole rightsholder. Therefore, you represent and warrant that you (i) are the sole rightsholder or (ii) have obtained all necessary rights, licenses, waivers, clearances and permissions, including without limitation all music publishing rights and licenses needed for the grant of the License with respect to any Music you upload, in order to enable us to fully exploit the Music free of any claims, liens, encumbrances or other restrictions.
3.1 You will retain 100% of the revenue earned from the Digital Streaming Stores by your Music, excluding any fees from third-party aggregators and/or distributors as well as any applicable taxes legally owed by you and any payment and bank charges, as well as any amounts to cover costs associated with handling money and payments on your behalf.
3.2 Encore shall receive all revenue in US Dollars and make any and all payments to the Company in US Dollars. You shall bear all risk and costs in respect of any conversion of currencies in respect of transactions effected in relation to or execution of these Terms.
3.3 Any and all payments are processed through bank transfer.
3.4 Payment restrictions might prevent us from paying revenue to entities established in certain countries. On our website we will list the countries to which we cannot process payments. If your entity is established in such a country, please do not make use of our Services.
3.5 You acknowledge that for the payment of royalties we are depending on the accuracy of reports on royalties provided by Digital Streaming Stores and/or other third parties engaged by us. We do not assume any liability with respect to such reports. We reserve the right to at all times retroactively correct payments pursuant to wrong or inaccurate reporting.
3.6 We may at any time and in our sole discretion remove all or part of your Music, deny you access to the Services without notice and withhold all Digital Streaming Revenue in relation to the Recording(s) that infringe or are alleged to infringe any intellectual property right(s) or violate the rights of third parties.
4 Royalty split
4.1 Through Appendix A you can configure, on a track-by-track basis, the applicable "Royalty Split". We can only pay out to parties that have an Encore account set up. Our Royalty Split configuration functionality is merely a tool for you to distribute the Digital Streaming Revenue in accordance with your existing agreements with entitled parties.
4.2 You represent and warrant that the configuration of the Royalty Split is at all times accurate, in accordance with all agreements existing between any and all rightsholders of the Music you upload and that there are no expected or known disputes regarding entitlement to any revenue (to be) generated by the Music.
4.3 You are responsible in all respects for paying any other rightsholders and any applicable taxes according to the applicable tax laws of your country.
5 Registration and Account
5.1 You can only use our Services with an Encore account ("Account"). If you sign up for an Account, you can do so via your e-mail address.
5.2 You are fully responsible for non-disclosure of your login credentials and the use of your Account.
5.3 When you create your Account, you agree to only provide correct and complete information. You are responsible for the accuracy of any and all data in your Account and we cannot be held liable in that respect.
5.4 You may only create one (1) Account. If, for whatsoever reason, your Account is blocked or deleted, you are no longer entitled to use our Services in any way (whether through that Account, another Account, or without an Account).
5.5 You may not allow use of your Account by any unauthorised third party nor others that do not have the authority to represent you. You guarantee that any third party that uses your Account is authorised to represent you.
5.6 Any fraudulent, abusive, misleading or otherwise illegal account activity will constitute a basis to terminate your Account. This includes any (attempt to) manipulate streaming numbers including but not limited to plays of Music by bots, hijacked accounts, or through other inauthentic listening methods. You agree to indemnify us against any liability and costs arising from such improper use of your Account.
6 (Prohibited) use of our services
6.1 You must ensure that your use of the Services is in accordance with these Terms and for the purpose for which we intended the Services. You may not use the Services in any way that impairs the integrity or continuity of our systems and/or Services.
6.2 It is your responsibility to use the Services in compliance with applicable law and with any third party rights. More specifically (without limitation), you are not allowed to use the Services:
a) in a way that infringes on a third party's intellectual property rights or otherwise promotes the infringement of or violates the intellectual property rights of any third party;
b) in a way that violates a person's privacy; and/or
c) to conduct any illegal activity or solicit the performance of any illegal activity or other activity that infringes the rights of third parties.
7.2 [You will provide us all necessary assistance in concluding all agreements required by applicably privacy legislation and regulations, if necessary.]
8 Representation and warranties
8.1 You hereby represent and warrant that:
8.1.1 you (if you are a corporate entity) are a corporate entity that is validly existing under the laws of the place of its establishment and/or incorporation;
8.1.2 you have the authority to enter into these Terms and adhere to all obligations imposed by these Terms;
8.1.3 (if you use our Services on behalf of a company, organization, or other entity:) that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity's behalf ("you" will in that case include you and that entity);
8.1.4 if the Music contains any (alleged) Intellectual Property Rights of third parties, e.g. any party involved in the creation of the Music, you have been authorized to submit (any part of) the Music on behalf of all such third parties;
8.1.5 your entering into these Terms and/or any action by you or us in execution of these Terms will not constitute any (alleged) infringement, violation, or misappropriation of any third party’s intellectual property right(s) or other contractual rights in connection to the Music;
9 Our Services are provided "as is" and "as available"
9.1 We provide our Services on an "as is" and "as available" basis without warranty of any kind, either express or implied. We make no warranty as to the completeness, accuracy, reliability, suitability, non-infringement, merchantability or fitness for a particular purpose of (any part of) our Services or of the materials, information, services, or graphics on or available through our Services, nor do we guarantee that our website, application or the materials, information or services will be error-free, secure or continuously available, or free of viruses or other harmful components. Any reliance you place on this website, or the materials, information, services, or graphics on this website are at your sole risk. The foregoing does not affect warranties which cannot be excluded under applicable law.
9.2 We reserve the right to refuse Services to anyone. We are entitled to suspend, block or delete your Account, including but not limited to cases where we receive a legitimate notice-and-take-down request, in case of violation of one or more of the applicable Terms, any form of fraud, intentional abuse or any wilful misconduct (or attempt thereto) in using any of our Services.
9.3 We reserve the right to amend, discontinue or terminate our Services under these Terms, at any time.
10 Liability & Indemnification
10.1 To the extent permitted by applicable law, in no event shall we, our affiliates, shareholders, employees, directors and officers, subsidiaries, legal successors and/or assigns, suppliers, or licensors be liable for any direct or indirect:
a) special, incidental or punitive consequential damages;
b) loss of profits, -income, -turnover, -savings, consequential loss, stagnation of commercial activities and/or reputational damages caused to you and/or any third party.
10.2 You shall indemnify and hold harmless Encore and its' sublicensees, subsidiaries, affiliates and Third Party Service Providers from and against any and all (in)direct damages, claims, losses, liabilities, expenses including (without limitation) all legal fees resulting from any breach of your provided warranties and representations or any other provision of these Terms.
11 Assignment and transferability
11.1 Encore is entitled to fully or partially assign, sell, transfer, otherwise license or sub-license any or all of its rights and/or obligations under these Terms to a third party. The Company shall not be entitled to sell, assign, subcontract, transfer, otherwise license, or sub-license the rights and/or obligations under these Terms to a third party. This clause excludes the assignment or transfer of rights of action of the Company (within the meaning of section 3:83, paragraph 2, of the Dutch Civil Code).
12 No waiver
12.1 No delay and/or failure by us in exercising any right, power or privilege under these Terms shall constitute a waiver by Encore towards the Company and/or any third parties to insist upon strict compliance of any such right, power or privilege, nor shall any single or partial exercise thereof preclude any further exercise of any such right, power or privilege.
13.1 Should one or more sections of these Terms be fully or partially null and void or voided at any time, all other sections of these Terms shall remain fully in effect. In the event of a null and void or voided section, Parties shall agree a new section that shall replace the null and void or voided section in such a way that the new section shall be in accordance with the purpose and scope of the original section. Moreover, the remaining sections shall be interpreted in accordance with the section that was held fully or partially null void and/or void voided.
14 No authority to rescind, suspend or offset
14.1 You do not have the right to rescind (ontbinden), suspend (opschorten) and/or offset (verrekenen) your obligations and/or any claim you may have pursuant to these Terms or related thereto.
15 Entire Agreement
15.1 These Terms constitute the entire agreement between you and Encore with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between us with respect to the subject matter hereof.
16 Amendment of these Terms
16.1 We have the right to amend these Terms in our sole discretion. Any material changes to these Terms, may be communicated to you directly, e.g., by sending an email or a notification. By continuing the use of the Services following an amendment, you accept the changes made to the Terms.
17 Applicable law and jurisdiction
17.1 These Terms shall be exclusively governed by and construed in accordance with the laws of the Netherlands.
17.2 Any dispute, controversy or claim arising out of or in connection with these Terms shall be exclusively settled by the competent district court of Amsterdam, the Netherlands.