GTS - Skyrock Music Terms of Service - API Terms of Use
Specific Terms of Use ("STU") for the "Independent Artist" Skyrock Music Service I Introduction 1 Telefun has developed a new hosting service, known as Skyrock Music, which enables pieces of music to be made available to the public on the Internet, within the limit of the storage space provided by Telefun in accordance with these STU. This service will also make it possible, in due course, to make these pieces of music available on mobile telephone networks and on other electronic communication networks that are open to the public. 2 The Service also offers the public a certain number of search tools that make it easier to have access to listening facilities for the pieces of music hosted and to the rankings of the pieces of music, which are determined according to the number of hits on the Skyrock Music hosted. The Skyrock Music service also enables Artists to federate a community of Internet users around the works they disseminate and to be able to communicate with this community. 3 It is expressly stated that the service, currently known as Skyrock Music, is liable to change name without notice, at Telefun's discretion. Such change cannot be deemed a substantive amendment of these STU that gives the Artist the right to terminate or receive an indemnity of any kind or on any grounds whatsoever. 4 In order to use this Service, the Artist must (i) have unreservedly accepted the General Terms of Use for Telefun online services, (ii) unreservedly accept these Specific Terms of Use for the Skyrock Music Service; (iii) set up or hold a Skyrock Account. II- Definitions The terms and expressions that start with a capital letter are defined below and, where applicable, in the GTU. "Artist": refers to any person who uses this Service and who has accepted these Specific Terms of Use. "Contract": refers to the set of provisions formed by these Specific Terms and the GTU. "Rights": refers to the various types of copyright, in particular reproduction and performance rights, as well as to related rights, in particular performers' rights and the rights of phonogram producers, as provided for in the French Intellectual Property Code and the international agreements to which France is party. "Identifiers": refers to the username and all confidential codes or passwords attributed by Telefun that allow Artists to identify themselves in order to create and administer their Skyrock Music on line. "Visual Components": refers to all items such as: text, images, photographs, graphics, jackets, etc. that Artists may associate with the Pieces of Music in order to present them to the public. "Piece of Music": refers to an original piece of music, including its lyrics and title, as defined by the French Intellectual Property Code, which is recorded using the MP3 format, and for which the Artist is the Holder of the Rights. "Service": refers to the Skyrock Music Service, which forms the purpose of these Specific Terms of Use. "Skyrock Music": refers to the Artist's Blog, which is dedicated to hosting and disseminating Pieces of Music, which is accessible at the URL http://www.skyrock.com/blog/music, or any URL that may be substituted by Telefun. "Holder": refers to an Artist who, in his/her own name or on behalf of third parties such as, in particular, co-authors, performers, producers, photographers and illustrators, holds all the Rights to the Piece of Music and the Visual Components, for all forms of use within the scope of these STU, which enable the Artist to comply with these STU. III- Purpose 1 The purpose of these Specific Terms of Use (hereinafter "STU") for the Skyrock Music Service is to define the terms and conditions under which Telefun makes available to the Artist, free of charge, and for the term stipulated in Article 4, a storage space and a web administration interface, which enable the Artist to disseminate the Pieces of Music and the Visual Components for which the Artist is the Holder of the Rights, on the Internet, and in due course on mobile telephone networks and on all other electronic communication networks that are open to the public and that may be added to the Service by Telefun. 2 These STU complete the General Terms of Use for Telefun online Services, the latest version of which is available at the URL http://www.skyrock.com/cgu/ (hereinafter the "GTU"). The Artist acknowledges having read and accepted said GTU. IV- Term The Service is provided by Telefun for an indefinite term that shall start on the date the Skyrock Music is placed on line. Given the free nature of the Service, the Artist expressly acknowledges that Telefun has the option of terminating the Service, by right, without any notice or indemnity of any kind whatsoever, without justification, following ordinary notice served on the Artist by email. The Service shall end upon expiration of a minimum period of 1 (one) day starting from the sending of said email. V- Price 1 The Service is provided to the Artist free of charge. 2 In consideration for the free nature of the Service provided to the Artist by Telefun, the Artist grants Telefun authorisation, free of charge: a) to make the Pieces of Music and Visual Components available for downloading or dissemination on the Internet and mobile telephone networks and on other electronic communication networks that are open to the public; b) to associate, on behalf of Telefun or third parties, advertising or promotional messages using text, images, video and/or sound with the Pieces of Music and the Visual Components that the Artist disseminates via the Service, under the terms laid down in Article 8. 3 The Artist shall not be entitled to any remuneration or compensation in respect of the licensing, as provided for in Article 8. VI- Terms, conditions and limits on use of the Service 1 Artists are liable for the use, allocation and storage of the Identifiers they choose when signing up for the service. Artists are personally responsible for the risks, in particular financial risks, linked to the disclosure or improper use thereof. Artists must therefore, and in their own interest, take all steps they deem necessary to ensure the security and strict confidentiality of the Identifiers. Telefun's liability cannot be triggered in the event of fraudulent or wrongful use of the Service caused by voluntary or involuntary disclosure of the Identifiers to any other party. 2 Use of the Service is permitted within the following limits and under the following conditions: a) Artists must offer at least one complete Piece of Music for listening or downloading; b) the storage space provided to Artists on their Skyrock Music is limited to four Pieces of Music, defined as four different MP3 files; c) the size in megabytes of a Piece of Music stored by an Artist on his/her Skyrock Music cannot exceed 10 megabytes, with an overall limit of 40 megabytes for all the Pieces of Music; d) the Pieces of Music must be stored in digital, MP3 format; e) each Visual Component must be in one of the following formats -- jpeg, gif or png -- and must not exceed 1 megabyte per Visual Component. 3 Telefun is entitled to change the characteristics of the Service, as provided for in Article 6.2 above, at any time. 4 Artists may, at any time, via the administration interface for their Skyrock Account, delete or add Pieces of Music and Visual Components within the limits laid down in Article 6.2. 5 Artists are informed that they can only use their Skyrock Music to disseminate original works for which they are the Holder of the Rights. Artists are informed that all sound (in particular samples, excerpts and midi files), voices or text that they use for the composition, writing or recording of a Piece of Music and that all text, graphics and photographs used for the design of a Visual Component, are liable to be protected by intellectual property rights or third party rights of publicity, for which Artists must first obtain express authorisation for the purposes of the complete performance or any use referred to herein, as stated in Article 7 below. Artists are informed that any person who contributed to the writing, composition, performance or recording of a Piece of Music or the design of a Visual Component is liable to be the holder of an intellectual property right, concurrently with the Artist, to the Piece of Music or the Visual Component. 6 Artists are informed that the Service is not a backup or data storage facility for the Artists' data. Artists must, under all circumstances, keep a copy of the digital files hosted by Telefun within the scope of the Service. Telefun may not, under any circumstances, be held liable in the event that hosted digital files are destroyed. Should this occur, it is the responsibility of the Artist to place his/her data on line again, in accordance with Article VI.4. 7. Artists are informed that a User who holds a Blog may make one of his/her Pieces of Music available for listening (without the possibility of downloading, file exporting, etc). 8 The Artist hereby acknowledges that Telefun may retain, at its discretion, with no limitation in terms of time, the content of Skyrock Music, which shall be made anonymous. VII- Artist's Representations and Obligations 1 The Artist represents: a) that the Artist alone wrote, composed, performed and recorded the Pieces of Music and holds all the Rights thereto; b) that the Artist is the sole author of the Visual Components and alone holds all the Rights thereto; 2 In the event that the Artist does not fulfil any one of the conditions whatsoever laid down by Article 7.1, the Artist irrevocably represents and warrants to Telefun that the Artist has obtained in writing, prior to placing on line and using a Piece of Music and the Visual Components in any way referred to herein, either from all the author(s), composer(s), publisher(s) and performers of the Pieces of Music and the Visual Components, or via the intermediary of the copyright collection and allocation organisations that represent them, all the authorisations or rights required to place on line or use a Piece of Music and Visual Component in any way via the Service, which are needed for the Artist to comply with these STU, in the Artist's own name and, where applicable, in the name and on behalf of all the aforementioned persons. Said authorisations must include and expressly permit, in the form of online downloading or dissemination, free of charge or in return for payment, on the Internet, mobile telephone networks and all other electronic communication networks that are open to the public, the use of compositions, lyrics, performances and recordings and the Visual Components that the Artist takes the initiative, at his/her sole discretion, to place on line in his/her Skyrock Music. The Artist undertakes to provide written justification thereof to Telefun whenever required and to provide Telefun, at Telefun's first request, with a copy of all the written documents that justify said authorisations, which the Artist undertakes to do and hereby irrevocably acknowledges. 3 In the situation referred to in Article 7.2, the Artist irrevocably warrants to Telefun that the Artist has paid all the rights and obtained all the authorisations from the copyright and related rights organisations and from the members thereof that are concerned, for the use of their compositions, lyrics, performances, recordings and Visual Components in the form of online downloading or dissemination, whether free of charge or in return for payment, on the Internet, mobile telephone networks and all other electronic communication networks that are open to the public. 4 As a result, the Artist shall be responsible for the payment to said authors, composers, publishers, performing artists, producers and copyright collection and allocation organisations (in particular the SACEM/SDRM, SPEDIDAM, and ADAMI), of all monies that are owed to them in respect of the reproduction, performance and any use, whether free of charge or in return for payment, of their works or their performances within the scope of the Service. The Artist undertakes to reimburse Telefun in full, at Telefun's first request, for all royalties, damages or legal expenses that Telefun may have had to pay as a result of the reproduction, performance or any use of the Pieces of Music and Visual Components via the Service. 5 The Artist represents that s/he: a) has not contributed all or part of the Rights to the Pieces of Music and the Visual Components to a copyright collection and allocation organisation provided for in Article L. 321-1 of the French Intellectual Property Code, such as the SACEM; b) has not assigned, licensed or transferred or otherwise conveyed to a third party, all or part of the Rights to the Pieces of Music and the Visual Components, including priority rights, preferential rights or rights of first refusal, under conditions that do not allow the Artist to comply with the terms of these STU, in particular Article 8 thereof, and shall refrain from so doing throughout the term during which the Artist disseminates and uses his/her Pieces of Music and Visual Components via the Service. 6 If the Artist wishes to conclude a contract with a publisher, phonogram producer or copyright collection and allocation organisation, the Artist must, prior to the signature of such a contract, withdraw from his/her Skyrock Music the Piece(s) of Music concerned under the conditions of Article 6.4 and inform his/her co-contracting party of the fact that his/her Piece(s) of Music were first disseminated and used via the Service. 7 The Artist is informed that any erroneous representation on his/her part is liable to trigger his/her liability. Telefun shall be entitled to require the Artist to reimburse all monies that Telefun has to pay, on any grounds whatsoever, to a licensee, due to the reproduction and/or performance and/or making available to the public of the Pieces of Music and Visual Components by Telefun as part of the provision or promotion of the Service. VIII Intellectual property of the Artist and of third parties 1 The Artist hereby grants to Telefun, on a non-exclusive basis and free of charge, for the entire world, for the term provided for in Article 8.3, the Rights described below, for the sole purposes (i) of providing the Service by Telefun, including any use by Telefun of the works, free of charge or in return for payment, in the form of online downloading or dissemination on the Internet, mobile telephone networks and all other communication networks open to the public, and (ii) of disseminating advertising or promotional messages on the Service relating to Telefun or third party products or services. 2 In this respect, the Artist authorises Telefun to: a) reproduce all or part of the Pieces of Music and the Visual Components or have all or part of the Pieces of Music and Visual Components reproduced, using any process, in any form, using any known or unknown media, whether in paper, electronic, magnetic, optical or digital form, such as, in particular, hard discs, whether or not associated with other works of any kind whatsoever; b) carry out or have carried out any changes that Telefun deems necessary for the use and dissemination of the Pieces of Music and Visual Components; c) perform all or part of the Pieces of Music and the Visual Components or have all or part of the Pieces of Music and Visual Components performed, on any of the networks referred to above, using any process, in any form, whether known or unknown, whether or not associated with other works of any kind whatsoever. 3 This licence is granted: a) for Pieces of Music, excluding the titles thereof: for as long as the Piece of Music is placed on line by the Artist using the Service and until the Artist withdraws the Piece of Music in accordance with Article 6.4; b) for Visual Components and the titles of Pieces of Music, for as long as the Artist holds a Skyrock Account. 4 In any event, the term of this licence may not exceed the statutory period of protection for Literary and Artistic Property in force at the time of performance of these STU and from which Pieces of Music and Visual Components benefit. 5 If the Artist wishes to terminate this licence, it is the responsibility of the Artist to (i) either close his/her Skyrock Music, or (ii) close his/her Skyrock Account, or (iii) withdraw the Piece(s) of Music concerned via administration interface for his/her Skyrock Music. 6 The Artist expressly authorises Telefun: a) to rank the Pieces of Music hosted on its Service and to disseminate said rankings on its Service, in order, in particular, to enable web users to have easier access to the Pieces of Music hosted; b) to present the Pieces of Music and the Visual Components on the home page for the Service, in order, in particular, to enable direct listening access from the Service home page; c) to promote and/or advertise the Service and to disseminate advertising and/or promotional messages concerning third products or services; d) to pursue any advertising and/or promotional initiatives undertaken by Telefun prior to the withdrawal from the Skyrock Music of the Piece of Music or any Visual Component by the Artist; said advertising and/or promotional initiative shall be continued until complete. Within this scope, the Artist expressly authorises Telefun to realise and place hosted Pieces of Music on line. 7 The Artist shall hold Telefun harmless from all trouble, action, claims, challenges, objections and lack of peaceful enjoyment of any kind whatsoever that originate from a third party who claims that a Piece of Music or Visual Component breaches said third party's intellectual property rights or rights of publicity, as well as from any damage or liability caused or incurred when exercising the rights licensed, in particular under this Article VII and in general pursuant to these STU. IX- Warning concerning the Artist's intellectual property 1 The Pieces of Music and Visual Components disseminated by the Artist can be listened to, seen and reproduced by all persons who have access to the Internet, mobile telephone networks or any other electronic communication networks that are open to the public and that may be added to the Service by Telefun, which the Artist accepts and acknowledges. 2 The Artist may choose to make his/her Pieces of Music available in direct, listen-only format, on his/her Skyrock Music, using the dedicated media player, or via the downloading of the Piece of Music to the web user's computer or mobile terminal from the Artist's Skyrock Music. 3 Telefun does not warrant that the direct, listen-only format of Pieces of Music on the Artist's Skyrock Music is a procedure that precludes the reproduction of the Pieces of Music by a third party. 4 The Artist therefore represents that he/she is fully informed and aware of the fact that the Pieces of Music and Visual Components disseminated by the Artist and any use via the Service may be reproduced by third parties over which Telefun has no control. The dissemination of Pieces of Music and Visual Components is therefore at the Artist's risk and jeopardy and the Artist shall bear all the risks linked to the infringement of the Pieces of Music and Visual Components with no possibility of seeking a guarantee or remedy from Telefun. X- Content of the Pieces of Music 1 The Artist is reminded that all the provisions of the GTU are applicable to the Service, in particular those concerning Content. Therefore, the Pieces of Music and Visual Components must not include Content that would breach said GTU and, in general, that would breach the laws and regulations in force. 2 If Telefun is alerted by a third party or by any means whatsoever of the unlawful nature of Content that is accessible using the Service or transmitted by the Service, Telefun shall be entitled to immediately withdraw said Content or to make access thereto impossible, in accordance with Article 6. I. 7 of French Law no. 2004-575 of 21 June 2004 on trust in the digital economy, and shall deliver said Contents and the Artist's identification data to the court authorities, at their request. XI- Limitation on liability 1 Telefun's liability may only be triggered under the conditions laid down by ordinary law, in respect of direct, foreseeable harm suffered by the Artist, in accordance with the provisions of Articles 1150 et seq. of the French Civil Code. Telefun cannot be held liable for consequential loss under any circumstances. The parties expressly agree that all non-pecuniary or commercial loss, loss of profits, sales, orders, revenues or clientele, loss of data and any action taken against the Artist by a third party and the resulting consequences shall be assimilated to consequential loss. 2 Regardless of the nature, grounds, terms and conditions of action taken by the Artist, Telefun's liability for direct harm may not exceed, for the entire duration of the provision of the Service and all triggering events taken as a whole, an amount of 30 (thirty) euros for the entire term of performance of these STU. 3 The Artist acknowledges that the warranties and liability limitations stipulated above result in a reasonable allocation of risks and liabilities between the parties, given the context and absence of payment that characterise the provision of the Service. The Artist acknowledges that Telefun would not have concluded the Contract without the liability and warranty limitations contained therein.