Included here are the terms and conditions for participation in Talents for Brands B.V. (hereinafter "TFB"), a limited liability company established and domiciled in Amsterdam at the Luchtvaartstraat 2A, 1059 CA. Registered at the Chamber of Commerce under number 63427060, Talents for Brands B.V. can be reached by email at email@example.com.
Article 1 Definitions
|Content||Audio (visual) files consisting of (audio) visual information, materials and / or content otherwise, of whatever nature, which by means of having been uploaded by the Participant has been or will be placed on the Platform, including but not limited to Recordings, Works, biographical information, photos, etc.|
|Copyrights||All copyrights and/or rights under law, treaty or legislation, of any kind, anywhere in the world, including licenses and so-called ‘grootrecht’, including but not limited to the rights to publish, reproduce, mechanically reproduce, distribute, make available, store and communicate to the public, by any means and through any method known whatsoever, now and in the future, as well the right to grant (sub)licenses, video rights, reproduction rights and synchronization rights.|
|CRO||Collective Rights Organization|
|Existing Recordings||Audio (visual) files that are uploaded to the Platform by Participant on the Participant’s own initiative|
|Master Purchase Agreement||The applicable agreement available at Master Purchase Agreement, an agreement by parties that contains rights and obligations with which Participant, among other things, confirms the transfer of Neighboring rights to TFB on Existing or New Recordings, which rights and obligations are part of these Terms of Participation.|
|Neighboring rights||All neighboring rights and/or claim under law, treaty or legislation, of any kind, anywhere in the world, including licenses and the so-called ‘sound recording copyrights’ or similar exploitation rights, including but not limited to the rights to publish, reproduce, mechanically reproduce, distribute, make available, store and communicate to the public, by any means and through any method known whatsoever, now and in the future, as well the right to grant (sub)licenses, video rights, reproduction rights and synchronization rights.|
|New Recording||Audio (visual) files that are uploaded to the Platform by Participant commissioned by TFB.|
|Participant||The natural person who participates in the Platform|
|Pitch||An invitation to compete for a commission, for example, music for commercials, etc. as described in FAQ|
|Platform||Talents for Brands platform, available at the URL www.talentsforbrands.com.|
|Profile page||The web page on the Platform where Participant can consult and modify data and where the Content is available and can be placed by means of uploading.|
|Services||All products, channels, software, data feeds and/or services delivered from or in connection with the Platform by TFB.|
|Session Agreement||The applicable agreement available at Session Agreement, an agreement by parties that contains rights and obligations with which Participant, among other things, confirms the transfer of Neighboring rights to TFB on a performance, which rights and obligations are part of these Terms of Participation.|
|Standard Publishing Agreement||The applicable agreement available at Standard Publishing Agreement, an agreement by parties that contains rights and obligations with which Participant, among other things, confirms the transfer of Copyrights to TFB on Works whose performance is captured on the Recording, which rights and obligations are part of these Terms of Participation.|
|Terms of Participation||These terms and conditions|
|TFB||Talents for Brands B.V., a limited liability company established and domiciled in Amsterdam at the Luchtvaartstraat 2A, 1059 CA.|
|TFB Recording||The by TFB produced version of a Musical Work and/or New Recording as a result of an Existing or New Recording.|
|Work||A musical work, with or without text, that is performed for the production of a Recording on which Work Participant has any copyrights or claims under law, treaty of legislation of any kind, including licenses, so-called ‘grootrecht’, alone or with third parties, of any kind, anywhere in the world.|
USE OF THE PLATFORM
Article 2 Applicability of Terms
2.2 To use the Platform and/or Services, Participant must first agree to the Terms of Participation. It is not allowed to use the Service or the Platform if the Terms of Participation are not accepted.
2.3 By using the Service and/or the Platform, Participant accept the Terms.
Article 3 Use of the Platform and Content
3.1 When a Participant is registered, the Participant has access to the Platform and is able to upload Content under the conditions as set out in these Terms of Participation.
3.2 By default, the Platform only provides the ability to create a non-public profile. A non-public profile means that the profile of the Participant and its Content is only accessible and/or available to (potential) clients selected by TFB.
3.3 Participant may indicate in his profile that he agrees to a “public profile”. TFB may, but is not required to, make Content available from Participants who have indicated that they agree with a public profile through the publicly accessible part of the Platform, including but not limited to the display of Participant’s (artist) name, (selected) biographical data of the Participant, the Participant’s photos, artwork and logos and Participant’s preview clips up to 30 seconds of Recordings of Participant.
3.4 When uploading Content, Participant must at least always fill in the required fields as shown on the web page on the Platform. Filling in these fields should be complete and accurate. Participant is responsible for the accuracy and completeness of this information.
3.5 When uploading Content, Participant should always observe the technical requirements as specified by TFB.
3.6 The Content placed on the Platform by Participant should remain as accessible as possible so that potential clients of TFB can make a selection for a specific Participant out of the available Recordings.
3.7 New Content, produced for a Pitch, must remain accessible on the Platform and cannot be removed, except with prior written permission of TFB, which consent shall not be unreasonably withheld.
3.8 If Participant for the creations of the Recordings and/or Works has used a fragment, sampling, recording, performance and/or (musical/film) work by a third party on which rest copyrights and/or neighboring rights or rights of equal scope, portrait and image rights, rights in persona, biographical details, or rights relating to privacy protection, trade names, trademarks and/or registered or unregistered design rights, Participant must notify TFB in writing prior to placement of the Content as well as specify the source/origin of said fragment, sample, recording, performance or (musical/film) work. Participant is not permitted to use said fragment, sampling, recording, performance and/or (musical/film) work on the Platform or in the Content unless and before necessary consent by holder(s) of the rights and TFB has irrevocably and unconditionally been given.
If Participant puts content such as images, photographs, logos, artwork and similar items on the platform, on which rest copyrights and/or neighboring rights or equivalent rights, portrait and image rights, rights in persona, biographical details or rights regarding protection of privacy, trademarks and/or registered or unregistered design rights, Participant must notify TFB prior to placement of the content in writing to inform TFB of the origin of said Content. Participant is not permitted to use this Content on the platform before the necessary consent is irrevocably and unconditionally given by the beneficiary and TFB.
3.9 Without prejudice to what is stipulated in Articles 9 through 13, Participant grants TFB a worldwide, non-exclusive, irrevocable, royalty-free, transferable license (with the right to sublicense) to use (including reproduce, distribute, create derivative works of, show and perform) the Content made available by Participant (or on his behalf) on the Platform so that TFB can make the Content and/or profile of the Participant available to potential clients. Where a Participant has indicated to use a public profile, this license also includes the right to make this content available via the platform to the general public in a manner as set out in section 3.3 above.
Article 4 Conditions of participation in Pitch and other assignments
4.1 TFB may request Participant to participate in a Pitch thereby request the production of new Works and/or Recordings from Participant and that these be uploaded to the Platform and/or are provided another way to TFB.
4.2 TFB will specify for the request stipulated in 4.1 above, which specific possible conditions apply for this request. This is in addition to the terms contained in these Terms of Participation. TFB’s request may specify these conditions:
- Conditions relating to availability required by Participant during a by TFB estimated time period in which the Recording/Work needs to be produced, modified and/or recorded, applicable deadlines, etc.;
- Conditions regarding the duration, versions of the Works and/or Recordings, etc.;
- Conditions regarding the fees that will accrue to Participant upon acceptance of what is provided by Participant.
- Conditions regarding the acceptance by TFB of what is provided by Participant.
4.3 By uploading at the request of TFB or other otherwise making available to TFB (a) New Recording(s) and/or Work(s), Participant unconditionally and irrevocably agrees to the terms of the Pitch, expressly including the obligation to transfer the Copyrights and Related Rights as mentioned in Article 8, Article 9, Article 10 and Article 11 of these Terms of Participation and the agreements on fees listed in Article 7.
4.4 During the period in which these New Recordings are available on the Platform, Participant is expressly not permitted to offer and make available these New Recordings in any manner whatsoever, unless there is specific prior written consent of TFB, which shall not be unreasonably withheld.
OBLIGATIONS OF PARTIES
Article 5 Obligations TFB
5.1 TFB will endeavor to present the Works and Recordings on the Platform to potential clients. Additionally, TFB will endeavor to promote, market and communicate the Platform and the underlying concept of TFB and to exploit the Content.
5.2 TFB will, according with good business practice, strive to publish the Works and Recordings from which Participant transferred the rights to TFB as well as exploit the Copyright and Neighboring Rights of said works, and monitor and administer the potential revenue generated hereby.
5.3 Without disregard for the administrative responsibilities of collective rights organizations in relation to the Works, TFB shall endeavor to adequately administer the revenue generated by the exploitation of the Works and Recordings insofar that it is revenue intended for Participant that the collective rights organization(s) and user(s) of Works and/or Recordings directly are paid to TFB.
5.4 Participant understands that TFB, regardless of the manner or circumstances in which any Content is offered or made available to TFB, does not guarantee confidentiality with respect to such Content.
Article 6 Obligations Participant
6.1 Participant will keep up to date the information on the Profile page, such as biographical information, etc.
6.2 Participant will always see to it that sufficient Recordings are available on his Profile page.
6.3 TFB can request Participant to produce a New Recording in the context of a Pitch. Participant is free to participate or not participate.
6.4 If Participant agrees to the request of TFB to produce and upload a New Recording as specified in Article 4, Participant shall within the period specified by TFB ensure that the requested Content and information is uploaded and transmitted, including but not limited to, uploading the New Recording.
6.5 If Participant agrees to the request of TFB to produce and upload a New Recording as stipulated in Article 4, Participant will cooperate unconditionally at the first request of TFB with the production of a (re-)recording based on an Existing Recording or New Recording, possibly with Participant and/or different musicians at the discretion of TFB, in a studio indicated by TFB. Participant unconditionally grants TFB permission to make this recording (the TFB Recording), for which TFB will serve as producer within the meaning of Article 6 ‘Wet op de naburige rechten’, as specified by Article 10 of these Terms.
6.6 Participants grants TFB the irrevocable and unconditional right to use Content for the implementation of these Terms of Participation, including but not limited to the right to use the profile and biographical information, photos, etc. from Participant for promotion of the Recordings and the Platform.
Article 7 Stipulations on exploitation/payment
7.1 TFB will (insofar possible) negotiate with its clients for the following fees:
- A fee for launching and organizing a pitch, hereinafter: “the Pitch fee”;
- A fee for for the production of the final version of the Work and/or Recording which TFB will provide to its client, hereinafter: “the Production fee”;
- A fee for the usage of the final version of the Work and/or Recording which TFB will provide to its client, hereinafter: “the License fee”.
7.2 Participant is entitled to the following share of the fees that TFB receives:
- Participants in the Pitch who have submitted a by TFB approved Recording, are entitled to a share of the Pitch fee that TFB has received, in accordance with the information provided by TFB. Payment of Participant’s share of the Pitch fee to Participant occurs after receiving an invoice to this effect, which will be sent after that which is supplied by Participant is accepted by TFB;
Participants and/or rights holders are entitled to a share of the Production fee that TFB received, in accordance with the information provided by TFB. Payment of Participant’s share of the Production fee to Participant occurs after receiving an invoice to this effect, which will be sent after acceptance of the final version of the Work and/or Recording;
Once each calendar year, within 1 month after its end, TFB will send to Participant a statement with Participant’s share of the License fee that TFB has received in the previous calendar year or since the last statement. Payment occurs after receiving an invoice based on the statement that TFB sent.
7.3 TFB uses a payment period of 30 days, which starts on the date that the invoice was received.
7.4 The fees included in this article are the only fees to which Participant is entitled on account of carrying out work for TFB and the transferring, granting and waiving rights as specified in these Terms of Participation. All this does not affect any (potential) claims of Participant to fees collected on his behalf by CROs, including but not limited to BUMA, STEMRA and SENA.
STIPULATIONS ON INTELLECTUAL PROPERTY RIGHTS
Article 8 Rights Existing Recording
8.1 Unless Participant is unable at the time of uploading an Existing Recording due to agreements with third parties, Participant hereby grants TFB irrevocably and unconditionally an exclusive option to acquire:
- The full Copyright on the music and/or text of the Work whose performance is captured on the respective Recording. This transfer is subject to the conditions stipulated in the Publishing Agreement.
8.2 This option will be considered to be invoked when TFB indicates to Participant that a client of TFB has, following an Existing Recording, expressed the desire to use the basis of this recording for a commercial, TV show or otherwise.
8.3 Immediately after this option has been invoked, Participant is obligated to irrevocably and unconditionally transfer the rights as defined in Article 8.1 to TFB by signing at first request of TFB the standard Publishing Agreement.
Article 9 Rights New Recording
9.1 Unless Participant is unable at the time of uploading an Existing Recording due to agreements with third parties, Participant is hereby obligated to irrevocably and unconditionally grant TFB the following:
- The full and unrestricted Neighboring rights of each New Recording. This transfer is subject to the conditions contained in the standard Master Purchase Agreement;
- The full Copyright on the music and/or text of the Work whose performance is captured on the respective Recording. This transfer is subject to the conditions stipulated in the standard Publishing Agreement;
- The full and unrestricted Neighboring rights of each performance produced for the purpose of a New Recording. This transfer is subject to the conditions contained in the standard Session Agreement.
9.2 If Participant at the time of entering into these Terms of Participation is unable to give effect to the provisions of Article 9.1 due to agreements with third parties, Participant will stipulate of these third parties that he is authorized to irrevocably cooperate on the production of each New Recording and demand of these third parties that they will share ownership of the Neighboring rights and Copyright on each New Recording, which – if required – Participant will unconditionally and at the first request of TFB cooperate by (getting the necessary formalities in order to) transferring to TFB a to be agreed upon share that is at maximum fifty percent (50%) of his Neighboring rights and Copyright by (signing) the Master Purchase Agreementand standard Publishing Agreement.
Article 10 Rights TFB Recording
10.1 Participant grants TFB irrevocably and unconditionally permission to create recordings of the performance of Participant for the purpose of the TFB Recording.
10.2 Participant is obligated to irrevocably and unconditionally transfer the following to TFB (whereby SENA claims from Participant will always be respected):
- The full and unrestricted Neighboring rights to each performance of Participant for the purpose of the TFB Recording. This transfer is subject to the conditions contained in the attached standard Session Agreement.
Participant shall at the first request of TFB unconditionally undertake the signing of the standard Session Agreement.
Article 11 General stipulations regarding the transfer/grant of rights
11.1 To conform the transfer of Copyrights and/or Neighboring Rights contained in these Terms of Participation, Participant will at the first request of TFB immediately sign and provide to TFB the standard agreements, which are attached to these terms.
11.2 Participant hereby irrevocably and unconditionally waives the rights, to the extent legally possible, defined in article 5 paragraph 1 under a, b and c of the ‘Wet op de naburige rechten’, as well as the rights defined in articles 25 paragraph 1 under a, b and c and 45 e of the ‘Auteurswet’.
11.3 Participant hereby grants TFB an irrevocable authorization to take legal action against any unauthorized recording and reproduction of the Recordings and the Works and the publishing and/or exploitation thereof that took place when TFB possesses the (exploitative) rights. By the act of granting rights, TFB has the right to use all enforcement agents in its own name (including actions for prohibition, compensation, profit remittance, issuance) that originally exclusively belonged to TFB. TFB may (but is not required) also undertake legal action on behalf of Participant to be paid compensation for damages suffered by Participant due to the breach of (to TFB transferred) rights.
DURATION OF THE AGREEMENT, TERMINATION AND CANCELLATION
Article 12 Duration of the agreement and termination
12.1 These Terms of Participation apply as long as Participant makes use of the Service (which includes having an active account) and/or Platform.
12.2 Participant can at any time – except when Article 12.3 is applicable – terminate the agreement with TFB by: (a) notification to TFB; (b) deactivating the TFB-account. The (written) notice must be sent to the address of TFB as stated at the beginning of these terms.
12.3 Termination of the agreement by Participant is not possible for the duration of any commitments with respect to a Pitch.
12.4 The end of an agreement with TFB, for whatever reason, will not affect rights already granted or transferred to TFB.
GUARANTEES AND INDEMINITIES; LIABILITY
Article 13 Guarantees and indemnities
13.1 Participant hereby declares and guarantees that he is in no way hindered in any way to enter into these Terms of Participation or fulfill its obligations, and that he is fully authorized and continues to submit Recordings and/or Works to TFB and – taking into account the agreement(s) between Participant and his collective rights organization(s) – transfers his copyright and/or Neighboring rights to TFB fully, unburdened and unencumbered.
13.2 Participant hereby declares and guarantees that the Works and/or Recordings he submitted to TFB are in no way unlawful towards third parties and/or an infringement in any way on rights of third parties, including but not limited to intellectual property rights, copyrights, neighboring rights and personal rights.
13.3 Participant hereby declares and guarantees that the Works and/or Recordings are original works or are Copyrighted arrangements of non-copyrighted works. Participant is not authorized after transferring his Copyrights to produce Works and/or Recordings that are identical to or adaptations of Works or Recordings (or parts thereof).
13.4 Participant is solely responsible and liable for the so-called clearance of the Content uploaded to the Platform and/or submitted to TFB. This means that Participant is responsible for getting prior (written) consent from rights holder(s) with regard to this Content, including but not limited to any rights holder(s) processed in the musical works and (recorded) performances thereof, portraits and photographic works and distinguishing (brand) names, logos, designs, props and models. The participant guarantees that clearance is arranged before uploading Content.
13.5 Participant hereby declares and guarantees that there are no advance payments that have not been offset from any previous (publishing) agreements with third parties that can negatively affect the rights of TFB under these Terms of Participation.
13.6 Except with express prior written consent of TFB, Participant is not authorized to transfer existing or future claims on TFB to third parties or pledge Copyrights and/or Neighboring rights on the Works and/or Recordings to third parties.
13.7 Participant guarantees that he will keep his account information, including the password in combination with the user name, strictly confidential and will not disclose it to third parties. Each uploading of Content that is done with the combination of the password and the user name of Participant, shall be deemed to have been done by Participant or with the approval of Participant. Any abuse/misuse of the password in combination with the user name happens at the expensive and risk of Participant.
13.8 Participant indemnifies TFB against any liability and resulting damages of any kind, including reasonable attorneys’ fees, as a result of breach of the guarantees defined in these Terms of Participation.
13.9 The Services are conferred in the condition in which they are in [as is]. TFB gives with respect thereto no warranty or conformity. In particular, TFB does not declare or guarantee that the use of the Service will be uninterrupted, timely, safely or free of error, potential information obtained through the Service is reliable; and/or error errors in the operation or functionality of the software that is part of the Service to Participant will be restored.
Article 14 Liability
14.1 Participant understands and agrees that Participant is responsible for the Content offered to TFB and the consequences of posting or publishing thereof. TFB expressly rejects all liability in connection with Content.
14.2 TFB makes no guarantees and accepts no liability with respect to the failure of the Platform and/or Services, unless such liability arises from a legal obligation. TFB reserves the right to remove any Content at its sole discretion and assumes no liability for the consequences thereof.
14.3 TFB does not accept any liability if third parties take (parts of) Content from the Platform and use or otherwise exploit it, in any way whatsoever.
14.4 Participant is liable for damages suffered by TFB as a result of the use of any Content in violation of the provisions of these Terms of Participation.
Article 15 Modification of the Terms of Participation
15.1 TFB is allowed to modify the Terms from time to time, for example to accommodate changes in the law, changes due to regulatory requirements or changes in the effect of the Services offered. Participant should therefore periodically review the Terms of Participation. The modified version of the Terms of Participation are available at www.talentsforbrands.com or will be made available on the Platform. If a participant does not wish to agree with the modifications to the Terms of Participation, the Participant must cease use of the Service and/or Platform. By continuing to use the Service and/or the Platform after the date on which the amended Terms of Participation are published, the Participant accepts the amended Terms of Participation.
Article 16 Nullity
16.1 Any nullity or invalidity of one of these provisions shall not affect the validity of the remaining provisions. Should one of the provisions of these Terms of Participation prove to be invalid, TFB is required to always and unconditionally draft a new provision that is as close as possible to the original provision and require TFB and Participant to act accordingly.
Article 17 Annexes and other condition
17.2 The Publishing Agreement, the Master Purchase Agreement and the Session Agreement are all an integral part of these Terms of Participation.
Article 18 Applicable law and jurisdiction
This agreement is exclusively governed by Dutch law. Disputes between parties arising from (the interpretation of) this Agreement shall be exclusively submitted to the competent court in Amsterdam.