PUBLISHING ADMINISTRATION ADDENDUM
Last Updated: June 2, 2022
This CD Baby Publishing Administration Addendum (the “Publishing Addendum”) governs the terms upon which CD Baby, a division of Audio & Video Labs, Inc., (“CD Baby”) will provide you (“you” or “Writer”) with music publishing administration services (the “Publishing Services”) as described in this Addendum in accordance with the options you select in connection with your CD Baby account registration (“Account Registration”) or as you may later update in connection with your account settings. Please read these terms carefully prior to using or registering for the Publishing Services. BY REGISTERING FOR A CD BABY PACKAGE THAT INCLUDES PUBLISHING SERVICES OR SIGNING UP TO ADD PUBLISHING SERVICES, YOU AGREE TO THE TERMS OF THIS PUBLISHING ADDENDUM AS WELL AS TO THE TERMS OF THE CD BABY ARTIST AGREEMENT (THE “ARTIST AGREEMENT”) AND THE CD BABY TERMS OF SERVICE (THE “TOS”). If you do not agree to all these terms, then you may not use the Publishing Services. To the extent that there is any conflict between the terms of this Publishing Addendum and any term(s)in the Artist Agreement of the TOS, the terms of this Publishing Addendum will control.
If you are registering for CD Baby or otherwise signing up for the Publishing Services on behalf of one or more other writers, a group, or a company or other entity, then you represent and warrant to us that you are duly authorized to do so on their behalf and to bind them to this Addendum. The term “you” and “your” and “Writer” includes all such people and entities.
1. GRANT OF RIGHTS
During the Term and Exploitation Period (as defined in Section 6(b) below), you hereby grant to CD Baby, its successors, licensees and assigns, the sole and exclusive rights of administration, promotion and collection throughout the world (the “Territory”) with respect to one hundred percent (100%) of all of your right, title and interest (“Writer’s Interest”) in and to the musical compositions you submit to CD Baby via the CD Baby Website (the “Compositions”), except that this grant does not include the right to grant or administer any synchronization rights for the Compositions and with respect to the manufacture and distribution of physical copies of the Composition, the rights granted hereunder shall be nonexclusive. The rights you grant to CD Baby include, without limitation, the sole and exclusive (except as set forth above) right, license, privilege and authority throughout the Territory with respect to Writer’s Interest in and to all Compositions, whether now in existence or whether created during the Term, to do the following:
- (a) To register the Compositions, if you have not already done so, at your request and on your behalf, with the relevant performance rights organizations (e.g., ASCAP or BMI) (each a “PRO”, collectively “PROs”) and other licensing agencies (e.g., The Harry Fox Agency) for which CD Baby may offer such registration services (the “Third-Party Registrations”). Such Third-Party Registrations will be made in accordance with the then current rules, terms and conditions of the applicable PRO or licensing organization and will require the payment of the applicable fees as specified by CD Baby. As CD Baby makes additional PROs and licensing agency registrations available, you may request registration with such additional PROs and agencies at any time. If you are already registered with such PROs or other third parties, you will need to execute such letters of direction as we provide to enable us to administer your account with such PROs or other third parties on your behalf during the Term and Exploitation Period. For the avoidance of doubt, you understand that we will not be able to start collecting publishing income on your behalf unless and until the necessary Third-Party Registrations and/or letters of direction are accurately completed. To the extent we are unable to register your compositions with a PRO in your country of residence, or the PRO of your selection, you understand and agree that it is your responsibility to register works and collect the local publisher share or any writer share royalties from such PRO directly.
In the event we subsequently affiliate with the PRO of your choice in your country of residence, you agree to execute such letters of direction as we provide to enable us to administer your account with such PRO for the purpose of claiming your existing works, registering your new works, and collecting publishing income on Your behalf.
- (b) To perform and license others to perform the Compositions publicly or privately, for profit or otherwise, by any means or media whatsoever, whether now known or hereafter conceived or developed, including, without limitation public or private live performances, radio broadcast, television, Internet, mobile telecom.
- (c) At your request or with your permission, to do or allow others to do the following:
- (i) substitute new titles for any of the Compositions;
- (ii) make any arrangement, adaptation, translation, dramatization or transposition of any of the Compositions or of the titles, lyrics or music thereof, in whole or in part, and in connection with any other musical, literary or dramatic material;
- (iii) add new lyrics to the music of any Composition or new music to the lyrics of any Composition, and
- (iv) prepare derivative works based on the Compositions, regardless of any so-called moral rights.
- (d) To make or cause to be made, and to license others to make phonograph records, master recordings, digital downloads, streams, podcasts, ringtones, transcriptions, soundtracks, pressings and any other mechanical, electrical or other reproductions of the Compositions, in whole or in part, including without limitation, the right to grant licenses to third parties authorizing so-called sampling and/or interpolation of the Compositions, and to use, manufacture, advertise, license, sell, or otherwise exploit such reproductions for any and all purposes, including, without limitation, private and public performances, radio broadcast, television, sound motion pictures, wired radio, phonograph records, and any and all other means and devices, whether now known or hereafter conceived or developed, but excluding any synchronization rights. Synchronization rights, if applicable, are covered by the Sync Distribution Addendum.
- (e) To print, publish, sell and distribute, and to authorize others to print, publish, sell and distribute, copies of the Compositions, in all forms, including, without limitation, sheet music, orchestrations, arrangements and other editions of the Compositions, separately or together with other musical Compositions, including, without limitation, in song folios, compilations, song books, mixed folios, personality folios and lyric magazines, with or without music.
- (f) To sublicense any or all of the rights granted herein to any persons or entities.
- (g) To exercise and exploit during the Term and Exploitation Period, exclusively, any and all other rights now or hereafter existing with regard to Writer’s Interest in any and all Compositions under and by virtue of any common law or statutory laws or provisions, including without limitation, copyright laws, including so-called grand rights and small performance rights, but excluding any synchronization rights.
- (h) To administer and collect all monies derived from the exploitation of the Compositions during the Term and Exploitation Period throughout the Territory. After the Term and Exploitation Period, we shall continue to have the right to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period for a period of 1 year after the Exploitation Period for such Composition. In addition, you understand that it is your responsibility to notify the relevant PROs or other third party licensing agencies or licensors at the end of the Exploitation Period, and if you fail to do so, we may continue to receive income on your behalf. If we receive monies that were earned after the applicable Exploitation Period for a particular Composition(s) from a PRO or other third party licensing agency, licensor or other entity due to their acts or omissions or your failure to notify the relevant third party of the expiration of the Exploitation Term, you acknowledge that our receipt thereof will not be a violation of this agreement and that we have the right to accept such monies on your behalf. In such event, our Administration Fees will apply to such monies, and we will remit all Net Income to you as and when we would otherwise have accounted to you if this Addendum and Exploitation Term were still in effect.
- (i) To use the names (real and professional), biographical information and likenesses of the writers of the Compositions (including but not limited to Writer) in connection with the marketing and/or promotion of the Compositions and of our Website and the Publishing Services.
2. PUBLISHING SERVICES
The specific Publishing Services to be provided will be as specified on the Website in accordance with the options you select in your Account Registration and is contingent upon the payment of all applicable fees. You or your designee will be the contracting party in any licenses entered into in connection with the Publishing Services.
You acknowledge that the term of individual licenses may extend beyond the Term and/or Exploitation Period hereof and you authorize CD Baby to enter into such licenses on your behalf.
3. YOUR ACCOUNT
- (a) In order to use the Publishing Services, you must create a CD Baby account (the “Account”). Writer will be asked as part of the Account Registration to select a unique username and password and to provide CD Baby with accurate, complete registration information to obtain access to the Website and the Publishing Services. Writer will be solely responsible for any and all activity transacted and charges incurred under Writer’s Account, so please ensure that you keep you username and password confidential and safe. If at any time Writer’s registration information changes or if you learn or suspect that your Account has been used or obtained by a person not authorized to use it, please notify CD Baby immediately at [email protected]. Any materials submitted to CD Baby will not be returned.
- (b) Writer may not assign or transfer Writer’s Account, rights, obligations, or interest under this agreement to anyone else unless otherwise agreed in writing by CD Baby. Any assignment, encumbrance or other transfer of Writer’s Interest in any Composition(s) will remain subject to this agreement during the Term and Exploitation Period. A purported assignment, encumbrance or other transfer not in accordance with this paragraph will be void and without effect ab initio.
- (a) In consideration of the Publishing Services rendered hereunder, you shall pay to CD Baby the registration fees described in the relevant Account Registration (the “Registration Fees”) and the administration fee as set forth below (the “Administration Fee”). You shall also pay any applicable Third-Party Registration fees and any other fees as specified in your Account Registration or otherwise authorized under your Account. Registration Fees are nonrefundable once paid, and will not be prorated upon termination.
- (b) When you sign up for the Publishing Services, you will be providing CD Baby with credit card information and authorization to charge your Registration Fee, any applicable taxes, and other charges you may incur in connection with your use of the Website and the Publishing Services directly to your credit card account. If, at any time, we are unable to charge or otherwise recover the relevant fees from the credit card provided at Account Registration, you hereby authorize us to deduct said amounts from any monies then existing or accruing in the future to you in your CD Baby account (i.e., your share of Net Income); otherwise, we may suspend our Publishing Services and/or terminate the Term.
- (c) CD Baby shall retain an Administration Fee of fifteen percent (15%) of the “Gross Receipts.” As used herein, Gross Receipts shall mean the total amounts actually collected on your behalf by CD Baby which are attributable to the exploitation of Writer’s Interest in the Compositions.
5. PAYMENT OF NET INCOME; ACCOUNTING
- (a) CD Baby shall remit to you, in accordance with Section 5(c) below, all Net Income (as defined below) collected on your behalf in connection with the exploitation of Writer’s Interest in the Compositions. “Net Income” shall mean the Gross Receipts actually received by CD Baby on your behalf in connection with the exploitation of your Writer’s Interest in the Compositions, less the Administration Fee applicable to such Gross Receipts, and less all actual and reasonable non-overhead costs or expenses paid or incurred by or on behalf of CD Baby in connection with the administration and exploitation of the Compositions, the performance of this Agreement and the collection of income, including, without limitation audit fees, collection expenses, and any taxes required to be deducted. With respect to licensees outside the United States, if applicable, monies received by or credited to CD Baby directly attributable to exploitation of the Compositions in the United States shall be calculated “at source”. CD Baby will make payment to you in accordance with the policies and procedures set forth in Section 4(h) of the Artist Agreement.
- (b) In the event that CD Baby has, in its reasonable business judgment, reason to suspect that Writer’s account has been subjected to and/or involved in fraudulent activities, CD Baby reserves the right to suspend the payment of the Net Income to Writer’s Account and to block your ability to otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates’ actions or omissions, any costs incurred by CD Baby (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by CD Baby from any monies otherwise payable to you hereunder. Certain of CD Baby’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
6. TERM; TERMINATION
- (a) The initial term of this Publishing Addendum will commence when you register for the Publishing Services (either by specifically signing up for the Publishing Services or for a package that includes the Publishing Services) and will continue for a period of one year (the “Initial Term”) unless earlier terminated by CD Baby as set forth below. Thereafter, the term will automatically renew quarterly (i.e. for additional three month periods) (each a “Renewal Term”) unless you terminate prior to the end of the previous term by submitting a request through the CD Baby Pro Publishing Help Center form by selecting the “Cancel my CD Baby Pro Administration Service” option under the “Select what you need assistance with” dropdown menu and completing all required fields, including providing your account username, email address on file, artist name, and submission title as prompted on the form (a “Cancellation Notice”). Together, the Initial Term and any Renewal Terms will constitute the “Term”. Regardless of when you send your Cancellation Notice, termination will not be effective until the end of the Term in which the notice is sent. No additional Registration Fees will be payable for any Renewal Term.
- (b) Notwithstanding any termination of this Publishing Addendum, the rights granted and the Publishing Services provided under this Addendum will continue with respect to any particular Composition until the end of the Exploitation Period (as defined below) for such Composition. The “Exploitation Period” for a Composition shall commence upon the date on which you submit such Composition and will continue until the later of (a) the end of the Term or (b) twelve (12) months after you submit the Composition to us, unless earlier terminated by CD Baby as set forth below. For example, if you submit a Composition on January 1st and the Term ends on February 1st of that year, then the Exploitation Period for that Composition shall continue until December 31st of that year.
- (c) CD Baby shall continue to have the right to collect all income payable with respect to a Composition that was earned during the Exploitation Period for a period of one year after the Exploitation Period for such Composition. CD Baby will continue to account to you for all such income.
- (d) CD Baby may terminate this Publishing Addendum and/or may also terminate the Exploitation Period for any of all of the Compositions at any time upon written notice, for any reason or for no reason. Termination of your Account or of the CD Baby service as a whole will also constitute termination of this Publishing Addendum.
- (e) The following Sections will survive any termination of this Addendum: Sections 1 and 2 (for the duration of any applicable Exploitation Periods) and Sections 3, 4, 5, 6, 7, 8, and 9. After the Term and Exploitation Period, we shall continue to have the right, but not the obligation, to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period. We will continue to account to you for all such income.
7. WARRANTIES AND INDEMNIFICATION
Writer hereby warrants and represents as follows:
- (a) Writer is at least eighteen (18) years of age and not currently signed to an exclusive songwriter, copublishing, administration or other agreement regarding Writer’s Interest in any Compositions or Writer’s songwriting services.
- (b) All registration information and other information you submit to CD Baby is and will remain truthful and accurate. You will notify us promptly if any information changes or needs to be updated. In the event we are put on notice with respect to a discrepancy or any inaccuracy with respect to information provided in the Registration, we shall have the right to suspend payments generated in connection with the Compositions in question until the discrepancy or inaccuracy is resolved to our reasonable satisfaction, without limitation of our indemnity rights as set forth below.
- (c) Writer has and shall continue to have the full right, power and authority to enter into and fully perform this agreement and grant the rights granted herein. Without limiting the foregoing, no consent or other permission of any third party is required, nor shall it be required, in order to effectuate the grant of rights made to CD Baby under this agreement, or CD Baby’s enjoyment of such rights and the proceeds thereof as contemplated hereunder.
- (d) All Compositions are wholly original to Writer, and neither the Composition nor any portion thereof (including any music, title, lyrics or other material) infringes or shall infringe upon any copyright, trademark, publicity rights or other statutory, common law or other rights of any third party; violates or shall violate any applicable law, rule or regulation or will otherwise cause any harm to or liability for CD Baby. Without limiting the foregoing, no Composition embodies a “sample” or other portion of a musical composition owned or controlled by a third party.
- (e) The Compositions are and shall be free from any adverse claims, liens or encumbrances of any kind by any person or entity.
- (f) CD Baby shall not be required to make any payments of any nature for, or in connection with, the exploitation of the Compositions except as specifically set forth herein.
- (g) You will not interfere or attempt to interfere with the proper working of the Website or the Publishing Services or any transaction conducted on Website and will not take any action that imposes an unreasonable or disproportionately large load on the Website’s infrastructure.
- (h) You shall at all times defend, indemnify and hold harmless CD Baby and its affiliates and their respective members, employees, affiliates, representatives, agents, licensees and distributors (collectively, the “Other Indemnitees”) from and against any and all claims, liabilities, damages, judgments, losses, costs and expenses, including actual out-of-pocket legal expenses and reasonable attorneys’ fees, arising out of
- (i) any exercise of the rights granted under this agreement,
- (ii) any breach or alleged breach by Writer of any warranty, representation or agreement made herein,
- (iii) any act, error or omission committed by Writer or any person or entity acting on Writer’s behalf or under Writer’s direction or control, and
- (iv) the Compositions and any use or exploitation thereof as contemplated under this Addendum. You will reimburse CD Baby and the Other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which CD Baby or the Other Indemnitees are entitled to be indemnified, or CD Baby may elect to deduct any such payments from all sums otherwise due you hereunder.
8. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY
IN NO EVENT WILL CD BABY BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE WEBSITE OR THE PUBLISHING SERVICES, EVEN IF CD BABY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CD BABY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO CD BABY FOR THE PUBLISHING SERVICES.
THE WEBSITE AND THE PUBLISHING SERVICES ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE” BASIS AND CD BABY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND REGARDING THE WEBSITE AND THE PUBLISHING SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CD BABY CANNOT GUARANTEE AND DOES NOT PROMISE ANY REVENUE OR OTHER SPECIFIC RESULTS FROM USE OF THE WEBSITE AND/OR THE PUBLISHING SERVICES. TO THE EXTENT THESE DISCLAIMERS AND LIMITATIONS ARE LIMITED BY APPLICABLE LAW, THEY SHALL OTHERWISE APPLY TO THE FULLEST EXTENT OF SUCH LAW.
You acknowledge that any exploitation of the Compositions is speculative and that CD Baby cannot guarantee that the Compositions will be exploited at all or that any Net Income will be generated or earned hereunder. You waive all claims and warrant, represent and agree that you will not make any claim, nor will any liability be imposed upon CD Baby based upon a claim, that more Net Income could have been generated or better business achieved than that which was actually generated or achieved by CD Baby and/or its licensees.
CD Baby does not guarantee, represent, or warrant that your use of the Website or Publishing Services will be uninterrupted or error-free, and you agree that from time to time CD Baby may suspend the Website and Publishing Services for indefinite periods of time for technical maintenance or upgrade or otherwise, or may cancel the Publishing Services at any time, without notice to you. The functions and features of the Website and Publishing Services are subject to change without notice.
Your use of the Website and the Publishing Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR REGISTRATION AND ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR THE PUBLISHING SERVICES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
CD BABY®, the CD Baby logo, and other CD Baby trademarks, service marks, graphics, and logos used on the Website or in connection with the Publishing Service are trademarks or registered trademarks of Audio & Video Labs, Inc., in the United States and/or other countries. You are granted no right or license with respect to any of the foregoing.
10. SPECIFIC REGIONS AND TERRITORIES
Each region and territory may have specific rules or terminology that may impact your relationship with your PRO. The substantial Grant of Rights and Publishing Services shall remain the same, but please be sure to reference the region and territory list below to see if your relationship with your PRO is affected.
In regard to registrations with PROs in Australia, New Zealand, and Papua New Guinea (e.g. with APRA AMCOS), CD Baby will provide you with a Letter of Confirmation, confirming the relationship between the Writer and CD Baby.
FOR USERS SUBJECT TO TERRITORY BASED RIGHTS ORGANIZATIONS THAT DIFFER FROM TRADITIONAL U.S. BASED PUBLISHING, CLICK HERE TO SEE FURTHER LANGUAGE AND TERMS IN THE TERRITORY SPECIFIC PUBLISHING SUBADDENDUM.
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