DISTRIBUTION TERMS AND CONDITIONS
The following terms and conditions and the agreement you sign (the “signed agreement”) form the agreement (the “agreement”) between you, the artist who has agreed to distribute their music with frtyfve (“you”, “your”, “Artist”), and us, (i) BC Music Media Limited trading as “frtyfve”, a company registered in England and Wales with company number 08275462 whose registered office address is at Scale Space, 1st Floor, 58 Wood Lane, London, United Kingdom, W12 7RZ or (ii) Instrumental Music Finance Ltd t/a “frtyfve”, a company registered in England and Wales with company number 12782535 whose registered office is at Scale Space, 1st Floor, 58 Wood Lane, London, United Kingdom, W12 7RZ (“us”, “our”, “we”, “frtyfve”). The particular frtyfve entity you contract with shall be as stated in your signed agreement. You and us are each a “party”, and together, the “parties”.
We reserve the sole right at any time to modify, discontinue or terminate our services, or modify these terms and conditions (but not the signed agreement) without notice. It is your responsibility to check these terms and conditions periodically for changes. By continuing to use our services after we make and post any such modification, you agree to be legally bound by the revised terms and conditions. You may not alter these terms and conditions without our express written consent.
Defined terms used in these terms and conditions shall have the meanings as set out in the signed agreement between you and us unless the context requires otherwise.
Accounting to you
A statement (“Statement”) of Your Share will be available for you to view and download via our royalty platform. We will ensure the Statement is updated every month.
To be clear, timely statement updates may be affected if there are delays of payment from the stores (Apple, Spotify, Amazon, Deezer etc), and you agree that we won’t be in breach of this Agreement for any such delays. You can audit the Statements in accordance with our audit policy (see Schedule 1).
2. Delivery of Recordings
For each Recording, you must deliver everything listed in Schedule 2 (i) within five (5) business days of the Agreement Date, for those tracks which have already been released, and (ii) at least twenty-eight (28) calendar days prior to the intended release date of such Recording, for those tracks which have not been released as at the Agreement Date.
“Full Delivery” is when we have received and accepted everything listed in Schedule 2 for each Recording and its associated materials. For the purposes of the preceding sentence, “accepted” means when we confirm by email that everything received is technically satisfactory and that none of the files are corrupt.
Full Delivery of all Recordings must occur by the date that is six (6) months after the Agreement Date.
3. Promoting Your Recordings
As part of the development deal, we will be able to use your Artist Name, approved pictures, photographs, and biography (together, “Your Details”) in connection with promoting the Recordings and our business in general (including on our website and social media accounts).
Anything you deliver to us will be deemed approved for this purpose unless you tell us otherwise. If we obtain your written approval (including by email), we can continue to use Your Details in case studies on our website and/or our social media after the Licence Term.
4. Restriction on you from releasing music
You cannot release any music, other than the Recordings, until after Full Delivery has been achieved (see clause 2).
We will get your prior written approval (including by email) for:
(a) the remixing, material alteration or material adaptation of any Recording (other than to accommodate timing limitations or radio edits);
(b) granting any synchronisation licences for the use of any Recording in television programmes, films, advertisements or computer games;
(c) granting any rights to use an extract of any Recording as a “sample”; and
(d) cover artwork (to the extent not delivered by you).
We may at times need to move quickly to maximise the potential of your Recordings and so if you don’t respond to any requests for approval within forty-eight (48) hours, your approval for that specific request shall be deemed given. We will use your email address detailed on page 1 of the signed agreement when requesting approval.
Your approval won’t be required for usage under so-called “blanket licenses” or similar “broadcast industry” agreements.
You warrant that:
(a) you have binding and legally enforceable agreements in place with each and every third-party who has contributed to a Recording (each a “Third Party Contributor”) and those agreements provide you with all rights necessary to allow you to fulfil your obligations in this Agreement without us being required to make payment to or reference to such Third Party Contributor in any way;
(b) you are responsible for any and all third party payments (excluding mechanical royalties) arising as a consequence of the exploitation of the Recording(s) hereunder (including without limitation any payments to Third Party Contributors) unless we have agreed in writing to make such payments on your behalf;
(c) we may be able to obtain mechanical licences for all compositions embodied on Recordings, and, provided that, where you have a writer share in a given composition, then, subject to any applicable law or regulation, we or our licensees shall be obliged to pay mechanical royalties at no greater than seventy five percent 75% of the statutory/industry rate in USA and Canada and subject to a cap of 10x per album, 4x per extended play and 2x per single and you shall procure that any co-writers of such composition shall comply with this clause;
(d) all Recordings, the compositions embodied thereon, and any other assets delivered by you hereunder do not and shall not contain any un-cleared samples, are not and shall not be criminally obscene, are not and shall not be defamatory and do not and will not infringe the rights of third parties;
(e) you hereby grant or shall procure the grant of all necessary performer consents and waive (or otherwise agree not to enforce) all so-called moral rights in respect of the Recordings and the compositions embodied thereon;
(f) you and we are free to use the Artist Name unrestricted to give effect to the intention of this Agreement and such use of the Artist Name will not infringe any third party rights;
(g) you will not make slanderous statements regarding us or that would materially reduce the potential value of the Recordings;
(h) there is currently no claim, action or other legal proceeding involving the Recording(s) now, pending or threatened, nor are there any basis for such (and you undertake to promptly inform us on becoming aware of any change in circumstances which may render this warranty untrue); and
(i) during the Licence Term, you will not re-record (or otherwise be involved (as a producer, mixer or otherwise) in a re-recording of), any of the compositions embodied on the Recordings and you shall procure that any companies (i) controlled by you and/or (ii) under common control with you and, in the event that you are a company, that your underlying beneficial owner(s) also do the same.
You will hold us harmless from, and indemnify us against any and all losses, damages, costs, and expenses (including reasonable legal fees) from any third party claims arising out of or as a consequence of any breach of any warranty or representation made by you in this Agreement.
(a) If at any time any third-party claim, whether written or oral, is presented against us or any of our licensees, then we will promptly let you know.
(b) If we receive, or anticipate receiving, a written claim, we shall have the right, without prejudice to any other rights or remedies we may have, to cease exploitation of any relevant Recording or Associated Material and withhold a reasonable proportion of Your Share, reasonably calculated on the basis of our bona fide opinion as to the level of costs recoverable under such claim, to protect us and our licensees against the predicted damage (the “Withheld Monies”), provided that any Withheld Monies will be released within one (1) year if litigation is not imminent.
(c) You agree that we may use the Withheld Monies to (i) pay any monies as required under any legal proceedings, (ii) pay any outside-of-court settlement, and (iii) pay for our reasonable costs incurred as a result of such claim (including any and all legal fees). If there is any remainder of the Withheld Monies after deducting such costs, then we will credit the remainder to your relevant account.
9. Limitation of our liability
Our total liability to You under or in connection with this agreement shall be limited to the total amount of Our Share received by us in the preceding six (6) months to when the claim arose.
(a) This agreement does not constitute a partnership or joint venture, a fiduciary relationship or the relationship of employer and employee, between us and you.
(b) If any part of this agreement is deemed to be void, then the remainder shall remain in full force and effect.
(c) We may assign and/or sub-license our rights under this agreement in whole or in part as we see fit. You accept that this agreement is personal to you, and you may not assign your rights or obligations under this agreement in whole or in part without our prior written consent except to a company owned by you or your right to receive royalties under this agreement.
(d) This agreement contains all of the terms agreed between you and us and replaces any and all previous agreements, whether written or oral, concerning the subject matter of this agreement.
(e) Any failure or delay in exercising any right, power or privilege under this agreement shall not operate as a waiver. Similarly, any single or partial exercise by a party of any right, power or privilege will not prevent any further exercise of such right, power or privilege, or the exercise of any other right, power, or privilege. A waiver of any term or condition of this agreement in a particular instance won’t be deemed or construed to be a waiver of such term or condition in the future (unless the waiver expressly states that it should).
(f) You and we shall keep the contents of this agreement confidential and shall not disclose the provisions of this agreement to any third party except for (i) our professional advisors, (ii) as required by law, (iii) in connection with the proposed transfer of any or all of our rights and obligations under this agreement to a third party (iv) in connection with the proposed sale or reorganisation, merger, consolidation, acquisition, or other restructuring involving any or all of our voting securities or assets, (v) in connection with ordinary course discussions with members of the board of directors of either party, or (vi) in connection with any funding or equity investment negotiations with third parties where details of the agreement are part of a due diligence process.
(g) This agreement can be executed in any number of counterparts and all such counterparts will be deemed to constitute one and the same instrument. Executed signature pages of this agreement transmitted electronically in PDF or similar and/or executed by way of a digital signature program (such as “DocuSign”, “DocHub” or similar) shall, once executed in such manner by all parties, be deemed fully binding and with full legal force and effect.
(h) All notices under this agreement must be served by email to the relevant email address as noted on the signed agreement (as may be updated from time to time), and notices shall be deemed received 24 hours after successful transmission of an email (i.e. where the sender does not receive an unsuccessful transmission email).
(i) No one other than us and you shall have any rights under the Contracts (Rights of Third Parties) Act 1999.
(j) This agreement shall be governed by and construed in accordance with the laws of England and you and us submit to the exclusive jurisdiction of the English courts.
Schedule 1 – Audit Policy
You have the right to appoint a qualified music industry auditor or other representative experienced in music royalties to inspect our books and records of accounts provided that:
a. there shall be no more than one inspection per year;
b. you may not inspect any statement more than once;
c. no statement may be inspected more than three (3) years after the statement is rendered; and
d. the costs of such audit are covered solely by you.
If such audit correctly reveals an underpayment of monies properly due to you, then we shall credit such underpayment to your account (but we shall not use the underpayment to recoup advances). If such underpayment is in excess of the greater of (i) ten thousand pounds (£10,000); and (ii) ten per cent (10%) of the monies actually credited to you in respect of the audited period, we shall reimburse you with the actual and reasonable professional costs and expenses of such audit PROVIDED THAT such costs and/or expenses have been pre-approved in writing by us before they are incurred. We shall not be liable for any costs and/or expenses which were incurred without our pre-approval in writing.
Schedule 2 - Delivery
Items to be delivered for each Recording
Original release date
Other metadata (e.g. songwriters etc.)
A list of all featured performers, background vocal performers, instrumental performers, mixers, producers, and engineers who provided services in connection with the applicable Recording (and signed consent forms in respect of the same granting you full ownership in the product of their services which you hereby grant to us for the Licence Term)
Fully completed licences and clearances in respect of any so-called “samples”
Any other information reasonably requested by us which is necessary for us to exploit the Recordings pursuant to this Agreement.
NB. We may, from time to time, request the following to be able to deliver a sync license, promote, remix, or reproduce certain recordings but that will be with your prior agreement:
All work and/or file copies used during recording and/or mixing including & so-called “stems”
Instrumental WAVs and radio edits/versions as reasonably requested by us