Terms and Conditions of Use (“TCU”)
Please read this combined document of Terms and Conditions of Use (“TCU”) carefully prior to using our website.
1. Parties & Rights:
- SmartSound LLC, using the label name “Create Music” (hereinafter referred to as „CREATE MUSIC”) offers its customers the possibility to purchase a license to use musical compositions, musical master recordings and sound effects (hereinafter referred to as the “CONTENT”) either and as an ongoing subscription or on a per project base (hereinafter referred to as the “LICENSE FEE”), through the internet site www.createmusic.com (hereinafter referred to as the “WEBSITE”).
- The CUSTOMERS of CREATE MUSIC are any individuals, companies, associations, governmental or educational entities in the whole world, who want to access the CONTENT through said licensing models either as a subscription or on a project-based usage for usage in any type of media production (hereinafter referred to as the “CUSTOMERS”).
- As used in the TCU, “CONTENT” includes the text, software, scripts, graphics, photos, sounds, songs, music and scores, videos, audiovisual combinations, interactive and adaptive audio features and other materials that are accessible on and through the WEBSITE. The “SERVICE” includes all aspects of CREATE MUSIC, including but not limited to, all products, software, and services offered via the WEBSITE, and all features and functionalities, website, and user interfaces. The music which is part of the CONTENT is being offered in a special, unique and patented adaptive format, that is accessible through a software service run by CREATE MUSIC to customer for live access on the WEBSITE (hereinafter referred to as the “SOFTWARE SERVICE”). CREATE MUSIC gives no guarantee that the SOFTWARE SERVICE will always be accessible for CUSTOMER. CUSTOMER understands and agrees that such temporary interruptions of the WEBSITE may occur as normal events that are out of CREATE MUSICs control and agrees that the CONTENT, SOFTWARE SERVICE and WEBSITE is provided “as is” without any further liability nor responsibility of CREATE MUSIC for any downtime, mis-delivery, failure to store, or other failures that may occur in respect of the WEBSITE and the SOFTWARE SERVICE.
- The copyright of the CONTENT offered by CREATE MUSIC is protected by the copyright law of the Federal Republic of Germany. The CUSTOMER can purchase various types of usage licenses on the CONTENT through the WEBSITE, such types of licenses are explained and displayed on the WEBSITE (hereinafter referred to as the “MEDIA LICENSES”) and may be changed from time to time. All licenses and attached rights of usage given to the CUSTOMER are non-exclusive. By purchasing such MEDIA LICENSES, the CUSTOMER does not gain ownership on the CONTENT. The license and the according rights of usage are only valid after full payment has been remitted by the CUSTOMER. The CUSTOMER is not allowed to use the CONTENT without having purchased a valid license.
- The CONTENT is royalty-free and free from third-party claims or rights (e.g. third-party labels, publishers, musicians, composers and producers). The CUSTOMER only must purchase the MEDIA LICENSES at CREATE MUSIC and no other cost will apply.
- The CUSTOMER is not allowed to grant sub-licenses to any third party other than related to the project the usage has originally been reported for. The CUSTOMER needs to specify each project that uses CONTENT and what CONTENT has been used, with a project name and the project owner (e.g. the client of the CUSTOMER, for whom the CUSTOMER is producing any media content). The CUSTOMER is not allowed to share the WEBSITE account with any third-party.
- The CONTENT may only be used by the CUSTOMER for a project within the framework of the MEDIA LICENSES as listed on the WEBSITE. Any usages that is outside of the given framework of MEDIA LICENSES stated on the WEBSITE require an additional license that will be offered individually to CUSTOMER upon CUSTOMERS request by CREATE MUSIC.
- The SERVICE may contain links to third-party websites that are not endorsed, owned or controlled by CREATE MUSIC. CREATE MUSIC does not monitor or review the content of any third-party websites. CREATE MUSIC has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, CREATE MUSIC will not and cannot censor or edit the content of any third-party website. By using the SERVICE, CUSTOMER expressly releases CREATE MUSIC from any and all liability arising from CUSTOMERS use of any third-party website.
2. Acceptance of TCU
- The TCU form a legal agreement between CUSTOMER and CREATE MUSIC in relation to CUSTOMERS USE of the WEBSITE. By using the WEBSITE or by clicking to accept or agree to the TCU when this option is made available to CUSTOMER, CUSTOMER accepts and agrees to the TCU.
- CREATE MUSIC provides the WEBSITE as well as the copyrighted CONTENT the MEDIA LICENSE and the SOFTWARE SERVICE all of which are subject to CUSTOMERS compliance with the TCU as well as Additional Terms (altogether “TERMS”) between CUSTOMER and CREATE MUSIC.
- CREATE MUSIC reserves the right to change these TERMS from time to time with or without noticing the CUSTOMER. The CUSTOMER acknowledges and agrees to take the responsibility to periodically review the WEBSITE and these TERMS. The continued use of the WEBSITE by CUSTOMER does constitute acknowledgment and acceptance of any modified TERMS.
- By using this WEBSITE, accessing the CONTENT and using the SOFTWARE SERVICE, the CUSTOMER agrees to be bound by the TERMS. If the CUSTOMER does not wish to be bound the TERMS, the CUSTOMER must exit the WEBSITE and cease using the CONTENT and / or the SOFTWARE SERVICE.
3. Use of the SERVICE
- Subject to the license terms given within the MEDIA LICENSES on the WEBSITE, the concession of rights of usage also comprises the right to convert the CONTENT technically into the required format according to the technical requirement of a project, to store and to compress it, and/or to unpack it. Furthermore, CUSTOMER can remix, expand and shorten the CONTENT.
- Other changes to the CONTENT that include copyright relevant changes of the CONTENT are not allowed. This includes but is not limited to cover versions and musical adaptations. In all such cases and other cases, the copyright and ancillary copyright to the CONTENT also with permitted adaptations and modifications remain with the relevant copyright holder. Therefore, modified CONTENT may not be distributed or sold by the CUSTOMERS with any CUSTOMER or third-party related copyright claim.
- In addition, the CONTENT may not be used, circulated or made available as music archives or music data banks. It is also prohibited to offer the CONTENT to third persons through exchange markets or electronic peer-to-peer file sharing networks as downloads or to make it available in any other form.
- The CUSTOMER is not permitted to reproduce CONTENT or parts thereof for the purposes of resale as a stand-alone product or relicensing; either in their original form or as an adaptation thereof.
- Any usage that contravenes the laws of the Federal republic of Germany, the European Union, or is harmful to the public order or to public morality is not allowed. This applies especially for uses which are racist or which are in violation of the constitution.
- In the case of violation of the above licensing conditions, CREATE MUSIC reserves the right to initiate proceedings under civil and criminal law.
- The SERVICE and any CONTENT accessible through the SERVICE are for the use of the CUSTOMER only. For each license purchase, CREATE MUSIC grants a limited, non-exclusive, non-transferable license to CUSTOMER in accordance with the MEDIA LICENSE and TERMS to access the SERVICE and use the CONTENT through the SERVICE. Except for the foregoing limited license, no right, title, or interest shall be transferred to CUSTOMER.
- CUSTOMER agrees not to access the CONTENT through any technology or means other than the audio and/or video playback pages of the SERVICE itself or other explicitly authorized means CREATE MUSIC may designate.
- CUSTOMER agrees to use the SERVICE, including all features and functionalities associated therewith, in accordance with all applicable laws, rules, and regulations, or other restrictions on use of the SERVICE or CONTENT therein. Except as explicitly authorized in the TCU and the MEDIA LICENSE the CUSTOMER agrees not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use content and information contained on or obtained from or through the SERVICE without express written permission from CREATE MUSIC. CUSTOMER also agrees not to: circumvent, remove, alter, deactivate, degrade or thwart any of the CONTENT protections in the SERVICE; use any robot, spider, scraper, or other automated means to access the SERVICE; decompile, reverse engineer, or disassemble any software or other products or processes accessible through the SERVICE; insert any code or product or manipulate the CONTENT of the SERVICE in any way; or, use any data mining, data gathering, or extraction method. In addition, you agree not to upload, post, email, or otherwise send or transmit any material designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment associated with the SERVICE, including any software viruses or any other computer code, files, or programs.
- CUSTOMER agrees to log each use of CONTENT for any publicly released project in CUSTOMERS user account. Publicly released means any Project using the CONTENT which will be available for listening or viewing in any kind of way to anyone except CUSTOMER. Logging a use creates an individual project-based license. Without such a project-based license, the use is invalid.
4. Cancellation & Refunds:
- CREATE MUSIC does not offer any refund on once signed subscription agreements and / or MEDIA LICENSES. CREATE MUSIC may, at its own discretion decide to offer refunds in special situations.
- With the cancellation of a purchase the CUSTOMER loses the rights of usage associated with the cancelled license.
5. Termination of Use:
- CUSTOMER agrees that CREATE MUSIC can at its sole discretion, terminate or suspend CUSTOMERS access to all or parts of the WEBSITE, the CONTENT and the SOFTWARE SERVICE with or without notice and for any reason, including, without limitation, breach of these TERMS. Any suspected fraudulent, abusive or illegal activity may be a valid reason for barring CUSTOMER access.
- Upon termination and regardless of the reason(s) motivating such termination, CUSTOMERS right to use the CONTENT for future productions will immediately cease. CREATE MUSIC will not be liable to CUSTOMER or any third-party for any claims for damages arising out of any termination or suspension or any other actions taken by CREATE MUSIC in connection therewith.
6. Limitation of Liability:
- Except as otherwise provided herein, the CUSTOMER hereby expressly releases CREATE MUSIC for any loss or liability incurred by the CONTENT, the WEBSITE or the SOFTWARE SERVICE fully allowable by law, including loss business profits resulting directly or indirectly from the performance of any CREATE MUSIC product. Except for CREATE MUSICS indemnification obligations herein, CREATE MUSICS liability is limited solely to replacement of the CONTENT after contacting CREATE MUSIC. The rights and remedies of CREATE MUSIC in the event of a breach of this AGREEMENT shall be limited to CREATE MUSICS right to recover damages, if any, in an action at law.
- Create Music does not assume any liability regarding demands of collecting societies outside of Germany. The musical pieces are royalty-free, meaning there will not be any charges from the German collecting society GEMA concerning performances or other uses of the compositions. However, CREATE MUSIC does not know whether other national collecting societies can make demands. If required, the CUSTOMER should clarify the legal circumstances of the respective collecting society prior to the actual use of the CONTENT.
The TCU, and any rights and licenses granted hereunder, may not be transferred or assigned by CUSTOMER, but may be transferred or assigned by CREATE MUSIC without restriction. Nothing in the TCU shall be deemed to confer any third-party rights or benefits.
8. Force Majeure:
- In addition to any excuse provided by applicable law, CREATE MUSIC shall be excused from liability for non-delivery or delay in delivery of CONTENT, SOFTWARE SERVICE or WEBSITE arising from any event, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond CREATE MUSICs control, whether or not similar to those which are enumerated above.
- Savings Clause. If any part of these TERMS is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
- No Waiver. Any failure by CREATE MUSIC to enforce or exercise any provision of these TERMS or related rights shall not constitute a waiver of that right or provision.
- Entire Agreement. These TERMS (including the MEDIA LICENSES on the WEBSITE) constitute the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. To the extent that anything in or associated with the WEBSITE is in conflict or inconsistent with these TERMS, these TERMS shall take precedence.
- Neither party shall be authorised to disclose or use any information to which they have obtained access during the activities for this AGREEMENT, whether related to persons or matters, business or trade secrets, processes or other information pertaining to business or operations of the other party, other than solely for the purpose of AGREEMENT performance. Dissemination or disclosure of such information shall require the express prior written consent of the other party. Both parties will use reasonable effort to maintain secrecy with regard to said information beyond the termination of the contractual relationship until so released from this obligation in writing by the other party.
- Both parties will use reasonable effort to properly store all documents provided for the purpose of AGREEMENT performance which pertain to business and operations, and to prevent inspection by third parties. Both parties shall be responsible for maintaining confidentiality of all and any documents and media, including all material pertaining to matters concerning this AGREEMENT.
- CUSTOMER may transfer CONTENT to local hard drives and servers as required to be able to edit CONTENT to any media file of CUSTOMER. It is the obligation of the CUSTOMER to limit access to CONTENT and SOFTWARE SERVICE only to CUSTOMER and CUSTOMERS ELIGIBLE USERS as defined in the MEDIA LICENSE.
- Should the CUSTOMER have reasonable cause to suspect that this AGREEMENT is being breached by any third party or CUSTOMERS ELIGIBLE USERS gaining unsolicited access to CUSTOMERS WEBSITE and / or SOFTWARE SERVICE account, it is the obligation of the CUSTOMER to investigate, and if necessary, enforce the terms of this AGREEMENT. Enforce, as used in this AGREEMENT, means to change passwords on CUSTOMERS account for the WEBSITE and the SOFTWARE SERVICE and report this breach to CREATE MUSIC within ten business days of discovery.
11. YouTube License:
If the MEDIA LICENSE purchased by CUSTOMER also covers YouTube as a publishing platform, the CUSTOMER needs to consider the current special situation concerning music usage of copyrighted music content for YouTube: YouTube’s YouTube Content ID provides a music recognition feature that checks every production uploaded to the YouTube platform for its musical content. Due to the way in which Stock Music is used (non-exclusive exploitation), this may also affect the CONTENT of CREATE MUSIC. Third parties may be able to recognize the use of CONTENT in CUSTOMERS projects via the YouTube Content ID system. It can be either original rights owners (like composers), sub-publishers or third-party service providers working for any music rights owners by offering the service to manage YouTube Content ID. These so-called music aggregators (such as AdRev, Tunecore, Audiam, HAAWK, etc.) can recognize the use of the CONTENT in the PRODUCTIONS and display them as copyrighted musical works. If this happens, the party who uploads the PRODUCTION to the YouTube platform (e.g.: CUSTOMER, or CUSTOMER’s clients) automatically receives a corresponding message that a copyrighted music work is used in the PRODUCTION and that the music rights holder may be entitled to the advertising revenue of the PRODUCTION on YouTube. This claim is not valid since the CUSTOMER has licensed the CONTENT correctly via CREATE MUSIC. Accordingly, the CUSTOMER can simply contradict this claim on the YouTube platform, by stating that the disputed CONTENT has been correctly licensed via CREATE MUSIC.
12. Digital Millennium Copyright Act:
- CUSTOMER should review the Digital Millennium Copyright Act (DMCA) provision regarding CREATE MUSIC’s rights under DMCA.
- DMCA Takedown Notice Procedure. CREATE MUSIC abides by the DMCA by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. If anyone accessing the WEBSITE or using the SERVICE believes that anyone’s copyright has been infringed on the CREATE MUSIC Service, the owner or rights holder, collectively, “Rights Holder”) should send notification to CREATE MUSIC immediately. The following notice requirements are intended to comply with CREATE MUSIC’s rights and obligations under the DMCA (in particular section 512(c)), and do not constitute legal advice. For a complaint to be valid under the DMCA, this information needs to be provided to CREATE MUSIC:
- Identification of the copyrighted work in question, or, in the case of multiple alleged infringements, a representative list of such works. This should include, title(s), author(s), any U.S. Copyright Registration number(s), URL(s) etc.;
- Identification to enable CREATE MUSIC to identify and locate the material that is allegedly infringing the Rights Holders’ work(s) (for example, file name or URL of the page(s) that contain(s) the material);
- Contact information for the Rights Holder so that CREATE MUSIC receives a valid point of contact (including the Rights Holder’s address, telephone number, and email address);
- A statement that the Rights Holder has a good faith belief that the use of the material identified above in 11.b.ii. is not authorized by the copyright owner, its agent, or the law;
- A statement, under penalty of perjury, that the information in the notification is accurate and that the Rights Holder is authorized to act on behalf of the copyright owner; and
- The Rights Holder’s physical or electronic signature.
- Any such notice may be sent by Email or by Mail.
13. Final Provisions:
- This agreement shall be exclusively subject to the laws of the Federal Republic of Germany. The place of jurisdiction for any disputes shall be Mainz, Germany.
- Should any provision of this agreement be or become void or not executable, the effectiveness of the remaining agreement shall not be affected thereby. Such void or not executable provision shall be replaced by a provision which best resembles the economic purpose of the original provision.
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