Terms of Service | Dark Escapes Publishing

MUSIC DISTRIBUTION TERMS OF SERVICE

DARK ESCAPES MUSIC PTY LTD

Please read the following terms and conditions carefully. These terms and conditions (herein known as “Terms of Service”) govern the agreement between you and Dark Escapes Music Pty Ltd (ABN 18 647 419 994) of PO Box 8684 Gold Coast MC, QLD 9726, Australia (“Dark Escapes”), access to services provided by Dark Escapes including the use of any content, information, products and/or services (the “Services”) therein.

This is a legal agreement between you and Dark Escapes. Dark Escapes reserves the sole right at any time to modify, discontinue or terminate the Site and Services, or modify the Terms of Service without notice. It is your responsibility to check these Terms of Service periodically for changes. By continuing to use or access the Site and/or Services after the Company makes and posts any such modification, you agree to be legally bound by the revised Terms of Service. You may not alter the terms and conditions of the Terms of Service without the Company’s express written consent.

YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY DARK ESCAPES THROUGH THE SITE OR WITH RESPECT TO YOUR DARK ESCAPES SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY DARK ESCAPES.

KEY TERMS

Background
Dark Escapes provides exclusive access to a global digital distribution platform (the “DDP”), and owns and operates an online store for music files (the “Store”). The Owner owns or controls copyright in each Track, the Artwork and Metadata set out below, and grants Dark Escapes the exclusive right to distribute that material and collect income from sales via the Store, and all other terms set out in this Agreement.

Territory
The World.

Track
Each sound recording provided and uploaded by the Owner to Dark Escapes through it’s online platform or through other means and listed in Dark Escapes’ schedule of tracks.

Metadata
Any ISRC Code including country of origin of the Track, the copyright owners, the performing artists, the date of registration and the designation number for each Track, and any other metadata owned or controlled by the Owner and relating to each Track which is used for, or useful in, the distribution, or audio file recognition or similar, of sound recordings.

Artwork
Graphic design and label copy, an associated digital image and copy files, for display in association with each Track.

Term
Commencing on the date these terms and conditions are agreed to and continuing until the end of the Accounting Period in which the first anniversary of the date of this Agreement falls. The Term automatically extends for successive periods of 1 year, unless a party gives the other party at least 90 days’ written notice that the Term will end at the expiry of the then-current Accounting Period.

Distribution Fee
Dark Escapes can retain a distribution fee of 25% of all DDP Net Receipts; and 15% of Net Sales from the Store.

Net Sales
All income earned and received by Dark Escapes in Australia and directly attributable to the exploitation of the Tracks through the DPP and the Store, less: sales taxes (and any other taxes or withholdings required by law to be deducted); and reasonable and actual costs directly attributable to earning such income.

Administration Fee
The Owner will pay Dark Escapes the annual fee as provided at the time of signup.

Agreement
By accepting these terms and conditions online Dark Escapes and the Owner agree to the terms set out above and in the attached Standard Terms and Conditions and indicate their agreement. Acknowledgement of this agreement will be stored by Dark Escapes.

DARK ESCAPES MASTER LICENCE STANDARD TERMS AND CONDITIONS

1. GRANT OF LICENCE

1.1 During the Term and throughout the Territory, the Owner grants Dark Escapes:

(a) the exclusive licence of copyright and all other intellectual property rights in the Master Recordings; and communicate and distribute each Track for sale;

(b) a non-exclusive licence of copyright and all other intellectual property rights in the Artwork and the Metadata; and

(c) the right to use the approved name, likeness and biography of the Owner and the Artist in connection with its use of the Material under this Agreement,

in any format or media now known or later to be known, subject only to the prior rights of any PRO in relation to any Composition (except to the extent that the rules of the relevant PRO allow the Owner to grant Dark Escapes a direct licence to communicate the Compositions, in which case, the Owner grants that direct licence to Dark Escapes under this Agreement).

1.2 The rights granted to Dark Escapes include the right to:

(a) exercise all rights of copyright in the Compositions, Master Recordings, Artwork and Metadata (together the Material), and otherwise exploit the Material, in any manner whether now known or yet to be invented, including promoting, distributing and selling or licensing Records and Compositions according to the terms of this Agreement including registering Material with relevant societies and securing UPC, ISRC and IPI numbers;

(b) upload the Master Recordings and Compositions to any Dark Escapes channel or platform (including but not limited to Youtube, Spotify, iTunes, Tidal, and TikTok), and collect income in connection with the Master Recordings and Compositions and such channels or platforms. If Master Recordings and Compositions are placed on channels or platforms controlled by the Owner, the Owner must procure that Dark Escapes is paid all income associated with the Master Recordings and Compositions derived from such channels or platforms (which, depending on the platform, may be done by the Owner identifying Dark Escapes as the publisher of the Compositions and copyright holder of the Master Recordings). The Owner grants Dark Escapes the exclusive right to claim and monetise online user-generated content which features the Master Recordings or the Compositions on any channel or platform;

(c) use the approved name, likeness and biography of the Owner and the Artist in connection with its use of the Material under this Agreement.

(d) make, distribute and sell ringtones and other mobile applications (including wallpapers and voice messages) from the Tracks, including the right to edit the Tracks to enable such exploitation;

(e) exploit Records through all forms of online and mobile technology, by means of streaming, downloading, performance and by means of on demand and subscription services;

(f) create clips of the Tracks and stream such clips free of charge to consumers for the purpose of promoting sales of the Tracks (which right shall be non-exclusive);

(g) reproduce, broadcast, publicly perform, distribute, edit, alter, adapt, communicate to the public and synchronise the Tracks, solely for the purpose of exploiting the rights in this Agreement;

(h) approve compilation opportunities in respect of the Tracks, subject to obtaining the Owner’s prior written consent for each such proposed opportunity;

(i) authorise third parties approved by the Owner to exercise the rights granted to Dark Escapes; and

(j) determine the sale price of the Tracks on the Store.

1.3 The Owner unconditionally and irrevocably, to the fullest extent permitted by law:

(a) waives in favour of those other parties, all the Owner’s “moral rights” of attribution, and against “derogatory” treatment, under Part IX of the Act and any equivalent foreign legislation;

(b) consents to any acts or omissions of those other parties which would, but for this consent, infringe any of the Owner’s moral rights,

(c) The Owner will obtain and pay for any mechanical licences required for the reproduction of any Composition on the Tracks and Records, and the distribution of the Records, under this Agreement when a track is to be uploaded to the Store. Dark Escapes may agree, but is not obliged, to pay such mechanical fees on behalf of the Owner as may be agreed in writing.

2. ROYALTIES ACCOUNTING

2.1 Subject to the proper performance by the Owner of its obligations under this Agreement, Dark Escapes agrees to pay the Owner a sum equal to Net Sales less the Distribution Fee, within ninety (90) days following the end of the relevant Accounting Period.

2.2 Each payment of Royalties will be accompanied by a statement setting out the Royalties due to the Owner as Master Net Receipts, and how they have been calculated from the sums received by Dark Escapes in relation to the Compositions and the Master Recordings, together with applicable deductions.

2.3 No payment shall be made to the Owner when the Net amount due from the DDP is less than one hundred & fifty Australian Dollars ($150); or the Net amount due from the Store is less than one hundred Australian Dollars ($100). Dark Escapes shall pay any outstanding amount from previous months together with the amounts due in the current month where such sums in the aggregate exceeds the aforementioned thresholds.

2.4 The Owner authorises Dark Escapes to issue recipient-created tax invoices for the Owner’s share of Net Sales.

2.5 The Owner can instruct a firm of accountants to audit the books of Dark Escapes relating to the Net Sales, once per calendar year during the Term. If the inspection reveals an underpayment, Dark Escapes will promptly make good that underpayment. The Owner will pay all audit costs unless an underpayment is discovered of the greater of AUD $1,500 or 10% of the total sum due in the audited Accounting Periods. In such a case, Dark Escapes will reimburse the Owner for all reasonable costs of the inspection (excluding travel and accommodation), subject to a maximum of AUD $2,000. Statements will be deemed to be binding and accepted unless objected to within two years after delivery.

3. DARK ESCAPES’ OBLIGATIONS

3.1 In consideration of the Administration Fee and the terms of this Agreement, Dark Escapes will provided that the relevant Material is Delivered and that the Owner is not in breach of this Agreement, Dark Escapes will ensure that copies of the Master Recordings so delivered are made available to the public via recognised digital music service providers within 30 days of Delivery.

4. OWNER’S DELIVERY OF MATERIAL

4.1 Within fourteen (14) days of signature of this Agreement, the Owner will deliver to Dark Escapes in the format and by the delivery method specified by Dark Escapes:

(a) a mixed and mastered Track technically satisfactory (in the opinion of Dark Escapes) for the commercial distribution of records;

(b) all information necessary or useful in the manufacture and distribution of Records, including any existing ISRC codes (and for physical releases, relevant PQ sheet details), and any other metadata owned or controlled by the Owner and relating to the Master Recordings which is used for, or useful in, the distribution, or audio file recognition or similar, of sound recordings; including the Metadata;

(d) the correct title of the Track and the relevant Artists and, in relation to each Composition and to other musical works or lyrics reproduced on any Track, the correct names of the authors, composers and publishers of those works, plus any additional copyright information known to the Owner,

and “Delivery” has a corresponding meaning; including the “Materials”.

5. OWNER’S WARRANTIES

5.1 The Owner warrants, undertakes and represents that:

(a) the Owner owns or controls the entire copyright in each Track;

(b) the Owner has the right, power and authority to enter and perform this Agreement;

(d) the Owner is under no restraints arising from any association or agreement with any third party which would prohibit, restrict or prevent the Owner from entering this Agreement;

(e) where rules of the relevant PRO allow the Owner to grant Dark Escapes under this Agreement a direct licence to communicate the Compositions, the Owner will grant, and will duly notify the PRO, of that direct licence;

(f) the Owner will properly pay and be solely responsible for all Artist or licensor royalties of any kind (including payments to performers and to music publishers) which arise from the exploitation of the Materials under this Agreement;

(g) all the Materials will be free of any encumbrance or adverse claim and none of the Materials will contravene any act of parliament, statutory instrument or regulation and will not (nor will Dark Escape’s use of them under this Agreement) infringe the rights of any third party;

(h) the Owner will do all things reasonably required by Dark Escapes to demonstrate Dark Escapes’ rights under this Agreement to third parties; and

(i) the Owner has obtained all necessary consents of all performers whose performances are reproduced in the Track and has obtained all necessary consents for the reproduction of any third party material in the Material, including artwork and the use of names, photographs and likenesses of any Artist.

5.2 The Owner indemnifies Dark Escapes and its officers, employees, agents, sub-licensees and assigns from any claims, damages, liabilities, costs, losses and expenses (including all legal costs of outside counsel on a solicitor/client basis) arising out of or connected with any breach or alleged breach by the Owner of any of the Owner’s warranties, representations, obligations or covenants in this Agreement.

6. TERMINATION

6.1 Either party can (but is not obliged to) terminate the Term of this Agreement immediately by written notice to the other party if:

(a) the other party is in default of this Agreement and such default is not cured within 30 days after written notice by registered post to the other marked “Notice to Cure Breach” and specifying the particulars of the default; or

(b) a trustee in bankruptcy, receiver, receiver and manager, liquidator or analogous person is appointed to the other party’s affairs or undertakings.

6.2 Dark Escapes may terminate the Term of this Agreement at any time on 30 days’ notice.

6.3 After the Term ends (for any reason), Dark Escapes can continue to collect any Net Sales accrued during the Term.

7. GENERAL

7.1 This Agreement is governed by and construed in accordance with the laws of Queensland in Australia and the parties submit to the exclusive jurisdiction of the courts of that jurisdiction.

7.2 This Agreement can be executed by electronic communications and in any number of counterparts and all such counterparts taken together will constitute one instrument.

7.3 Unless otherwise specified, all payments described in this Agreement are exclusive of any applicable Australian Goods and Services Tax.

8. INTERPRETATION

8.1 Words and phrases used in this Agreement bear the following meanings:

(a) Unless otherwise stipulated below, terms in the left-hand column of Key Terms have the meaning set out in the corresponding part of the right-hand column.

(b) “Accounting Period” means a 3-month period ending on 31 March, 30 June, 30 September and 31 December of each year during which Net Sales are received by Dark Escapes.

(d) “Artist” means each performing artist who has performed on a Track.

(e) “Composition” means all and any of the musical works reproduced on any Track and includes any accompanying lyrics.

(f) “Track” means all and any of the sound recordings identified in the Key Terms and includes available rearrangements, mixes and re-mixes of that recording, whether or not coupled with a visual image, by any method and on any other substance or material, which is used or useful in the recording, production or manufacture of Records.

(g) “Material” has the meaning given in clause 4.1.

(h) “Deliver” and “Delivery” have the meaning set out in clause 4.1.

(i) “Master Net Receipts” means all income earned, and received by Dark Escapes in Australia and directly attributable to the exploitation of the Master Recordings, less: sales taxes (and any other taxes or withholdings required by law to be deducted); payment processing charges; any mastering, re-mastering, remixing and manufacturing costs incurred by Dark Escapes with the Owner’s prior consent; mechanical royalty payments for the reproduction on Records of musical works; arms’ length third party distribution, marketing and promotion costs; costs incurred by Dark Escapes in securing any release; and reasonable and actual costs directly attributable to earning such income.

(j) “Master Recordings” means all and any of the sound recordings identified in the Key Terms and includes available rearrangements, mixes and remixes of that recording, whether or not coupled with a visual image, by any method and on any other substance or material, which is used or useful in the recording, production or manufacture of Records.

(k) “Material” has the meaning given in clause 1.2.

(l) “Record” means any form of reproduction of sound recordings of a Track now or hereafter known, manufactured, distributed or communicated primarily for consumer use, including recordings embodying or reproducing sound alone and audio-visual recordings and film.

(m) Words and phrases used in this Agreement which are defined in the Copyright Act 1968 (Cth) (as amended) and the regulations to it, have the corresponding meaning in this Agreement, unless defined otherwise in these standard terms and conditions or in Key Terms, or if the context otherwise requires.

8.2 In this Agreement, except to the extent that the context otherwise requires: words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and trusts and vice versa; words denoting any gender include all genders; a reference to a document or agreement includes reference to that document or agreement as changed, novated or replaced from time to time; and reference to a time and date concerning the performance of an obligation by a party is a reference to the time and date in Brisbane, Queensland, even though the obligation is to be performed elsewhere. In the event of any inconsistency between Key Terms and these terms and conditions, these terms and conditions will prevail to the extent of such inconsistency.