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Sync Distribution Addendum

SYNC DISTRIBUTION ADDENDUM

Last Updated: 5 August, 2023

Welcome to the CD Baby Sync Distribution Addendum between you and CD Baby. This Sync Distribution Addendum (“Sync Distribution Addendum“) is part of and incorporates the terms of the CD Baby Artist Agreement, and contains additional terms under which CD Baby offers the Sync Distribution Service. To the extent that there is any conflict between the terms of this Sync Distribution Addendum and any term(s) (a) in the CD Baby Artist Agreement (including any other Addenda), and/or (b) in the Terms of Service, the terms of this Sync Distribution Addendum will control.

1. ADDITIONAL AUTHORIZATION.

As further described below, this Addendum allows us to provide Your Authorized Content (defined below) to our Licensees that specialize in licensing sound recordings (and the musical works embodied therein) for a variety of contexts, including film, television, video games, websites, multimedia, user-generated content, and various application programming interface (“API“) services.

Please keep in mind that, although you may have defined the Authorized Territory for the use of Your Authorized Content for other purposes (e.g., for purposes of the Digital Download and Distribution Service), all licenses and authorizations granted, and all representations, warranties, undertakings and covenants made by you under this Sync Distribution Addendum are for uses and exploitations throughout the universe.

You understand and agree that it is your responsibility to register the musical work(s) (i.e., the music and lyrics) embodied in each sound recording of Your Authorized Content with Performing Rights Organizations to collect the local publisher share or any writer share royalties for the licensed performance, and that failure to register the musical work(s) may result in Your Authorized Content to be ineligible for use under this Addendum.

2. ADDITIONAL DEFINITIONS.

For the purposes of this Sync Distribution Addendum, the following capitalized terms shall have the following meanings:

  • (a) “Album Artwork Videos” means videos where album artwork constitutes all or part of the visual element.
  • (b) “Authorized Term” has the meaning set forth in Section 5 of this Sync Distribution Addendum.
  • (c) “Gross Revenues” means all license fees, revenues, or other consideration (including barter transactions) paid or payable to a Licensee for any licensed use of Your License Content pursuant to the provisions of this Addendum.
  • (d) “New Media Project” means a production or project which makes use of new media or multimedia platforms, including website-music, animations and presentations, videos, slideshows, PowerPoint presentations, online or mobile video sharing, so-called apps (including app-games), and web-based online video games, but not any productions or projects that might be deemed to be for traditional distribution channels or platforms, such as traditional broadcast television, theatrical release, or DVDs/CDs (except for the limited number of copies described in Section 3(f) herein).
  • (e) “UGC Networks” means, without limitation, YouTube, Facebook, and such other services that permit user-generated content to be uploaded to the service; but only to the extent that CD Baby has entered into a written agreement with a Licensee specifically authorizing such other online video services.
  • (f) “Your Authorized Content” means the sound recordings, including the musical and/or literary works embodied in such sound recordings, and any album-related artwork, photos, liner notes, metadata and other material related to your sound recordings that you have provided to CD Baby and that you elect in your CD Baby Account to make available pursuant to this Sync Distribution Addendum. Any such sound recordings (and the musical works embodied therein), artwork, photos, liner notes, metadata, or other materials must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized under this Sync Distribution Addendum. For the avoidance of doubt, Your Authorized Content includes each sound recording and the musical work(s) (i.e., the music and lyrics) embodied in each sound recording, and any copy or copies of Your Authorized Content in digital form, whether created by you or CD Baby.

3. ADDITIONAL GRANT.

In addition to the rights granted in the CD Baby Artist Agreement, you hereby grant to CD Baby the nonexclusive, sublicensable right, and to our designated Licensees the nonexclusive right, to:

  • (a) reproduce and distribute Your Authorized Content in any and all media whether now or hereafter known or devised and by any and all technologies and means of digital delivery whether now or hereafter known or devised;
  • (b) synchronize, perform (including public and private performance), display, communicate to the public, reproduce, deliver, transmit, license others to perform, and/or otherwise use Your Authorized Content, including the underlying musical work(s) and compositions, for profit or otherwise, in connection and/or in timed relation with any and all media, and by any means, now known or hereafter devised, including, without limitation films, videos, television programs (including cable and digital cable), advertisements, games, background music, corporate projects/works, video blogs, and merchandise, New Media Projects, and to exploit Your Authorized Content in any and all online or mobile media;
  • (c) make, publicly perform (including public performance), synchronize, display, communicate to the public, reproduce, deliver, and transmit a musical arrangement from Your Authorized Content to the extent necessary to exercise the rights granted herein without changing the basic melody, fundamental character or the lyrics of the composition, which arrangement will not be considered a “derivative work” by law;
  • (d) publicly perform, communicate to the public, publicly display, reproduce and distribute, without payment to you (or any third party, including any collection society(ies)) Your Authorized Content (including by way of offering permanent digital copies, full-length streaming transmissions, or both), through any online or mobile stores or other services operated by a Licensee, for purposes of permitting a Licensee’s customers to preview Your Authorized Content for potential licensed use(s);
  • (e) publicly perform, communicate to the public, publicly display, reproduce and distribute, without payment to you (or any third party, including any collection society(ies)) Your Authorized Content for promotional purposes by way of full-length streaming transmissions, except that, in the case where such promotional streaming transmissions are not being accessed on a website or application of an online or mobile store or service offered by a Licensee, the streaming transmissions will be limited to (90) seconds in duration;
  • (f) specifically as to New Media Projects, make a limited number of physical reproductions (e.g., DVD, CD) of the Licensed Content in each New Media Project in which Your Authorized Content is used, not to exceed 100;
  • (g) reproduce, distribute, publicly display, communicate to the public, and/or otherwise use, and authorize others to reproduce, distribute, publicly display, communicate to the public and/or otherwise use, the names and approved likenesses of, and biographical material concerning any artists, bands, producers and/or songwriters, as well as track and/or album name, and all artwork related to your sound recordings, or musical works, in connection with the use of Your Authorized Content;
  • (h) exercise or grant those rights which are not expressly granted under this Sync Distribution Addendum, but which may be reasonably necessary for Licensees or customers of a Licensee to have in furtherance of the intended purposes of this Sync Distribution Addendum; and
    • (i) fully sublicense (through single or multiple tiers) any of the foregoing rights or any of the other rights that CD Baby or Licensees are authorized to exercise pursuant to this Sync Distribution Addendum. You understand and agree that the foregoing rights include the rights to allow Licensees and their customers and users to synchronize Your Authorized Content in timed relation to any and all media and to perform, reproduce, and otherwise transmit such media embodying Your Authorized Content on UGC Networks.

For the avoidance of doubt, you understand and agree that CD Baby shall have sole discretion over the Licensees to be granted sublicenses pursuant to this Addendum.

4. TERM.

The term of this Sync Distribution Addendum (“Authorized Term”) commences on the date on which you clicked the “I Agree” button related to this Sync Distribution Addendum and will continue unless and until terminated. If you wish to terminate the Authorized Term, you must provide us with written notice at [email protected]. Within seven (7) business days of our receipt of your Termination Notice we shall advise Licensees that they are no longer authorized to exercise the rights granted as to Your Authorized Content pursuant to this Sync Distribution Addendum. If a Licensee fails to discontinue further licensing of Your Authorized Content following receipt of a notification of termination of a license, you shall remain solely responsible for enforcing the removal of Your Authorized Content from any Licensees’ websites and services; provided, however, that CD Baby may, in its sole and absolute discretion, continue to assist you to effectuate the removal of Your Authorized Content from Licensees’ websites and services. You hereby agree that you shall have no claims or causes of action, including, but not limited to, for monetary damages or injunctive relief, against CD Baby for any third party’s unauthorized use of your licensed content. However, any licenses that, during the Authorized Term, shall have been issued by a Licensee, or by a customer of a Licensee, for the use of any of Your Authorized Content as permitted in this Sync Distribution Addendum, shall continue and remain in full force and effect, it being agreed that the term of any such licenses shall be separate and apart from the Authorized Term and will, accordingly, survive termination of the Authorized Term. Provisions of this Sync Distribution Addendum, which, by their nature or sense, are intended to survive the termination of the Authorized Term, such as, but not limited to, the provisions in Sections 5, 6, 7, 8, 9, 10 and, 11, will survive the termination of the Authorized Term.

5. PAYMENT.

For exploitation of Your Authorized Content pursuant to the rights granted in this Sync Distribution Addendum, we will pay you an amount equal to sixty percent (60%) of the gross amount attributable to the use of Your Authorized Content and actually received by us from our Licensees for the licensed uses of Your Authorized Content, 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 Your Authorized Content, the performance of this Agreement and the collection of income, including, without limitation audit fees, collection expenses, third party fees, and any taxes required to be deducted (the “Sync Fees”). Distribution fees owed to CD Baby by any entity with whom CD Baby has entered into a contractual relationship that are not received or collected by CD Baby (e.g., as a result of the other party’s failure to perform under a contract) are not included within the Sync Fees or Content ID Fees. CD Baby will make payment to you in accordance with the policies and procedures set forth in the Artist Agreement.

6. THIRD PARTY CLEARANCES.

  • (a) Third Party Clearances. You are responsible for obtaining and paying for any and all clearances or licenses required throughout the universe for the use of Your Authorized Content. Without limiting the generality of the foregoing, you shall be responsible for and shall pay
    • (i) any royalties and other sums due to artists (featured and nonfeatured), authors, coauthors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Your Content,
    • (ii) all mechanical royalties or other sums payable to music publishers and/or authors or coauthors of musical compositions embodied in Your Authorized Content from sales or other uses of Your Authorized Content,
    • (iii) all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or AFTRA), and
    • (iv) any other royalties, fees, and/or sums payable with respect to Your Authorized Content or other materials provided by you to us. You agree that the amount payable to you is inclusive of any so-called artist royalties that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays, or communications to the public of the sound recordings and musical works constituting Your Authorized Content. To the extent permitted by law, you hereby waive any so-called moral rights in Your Authorized Content applicable under the laws of any jurisdiction.
  • (b) Notification of Collection Societies. If any portion of Your Authorized Content is now or in the future administered in any territory(ies) by any performance rights society, or any other collection society, you will be responsible for ensuring that such collection societies are notified of this Agreement, and of any other agreements or activities related to this Sync Distribution Addendum, in accordance with any obligations that may be applicable (e.g., obligations under agreements that relate to such collection societies’ administration of public performance rights in Your Authorized Content).
  • (c) Subject to the immediately succeeding sentence, and, except as expressly provided in this Sync Distribution Addendum, any Licensees shall have no right under this Sync Distribution Addendum to grant a free license for the public performance of any of your musical works embodied in Your Authorized Content to any party that is a licensee of a performing rights organization authorized to license your musical works as of the date such party obtains a license from a Licensee. The restrictions set forth in the foregoing sentence do not apply in the case of licenses for the public performance of any of the musical works embodied in Your Authorized Content where the applicable license shall have been issued for any New Media Project use.

7. REPRESENTATIONS AND WARRANTIES BY YOU.

You represent and warrant to us that:

  • (i) you have the full right, power, and authority to act on behalf of any and all owners of any right, title, or interest in and to Your Authorized Content, including all musical compositions and literary rights embodied in Your Authorized Content, and that you are authorized to provide Your Authorized Content to us for the uses specified in this Sync Distribution Addendum;
  • (ii) If you are acting on behalf of an artist, band, group, or corporation, you represent and warrant that you are fully authorized to enter into this Sync Distribution Addendum on behalf of such artist, band, group, or corporation and to grant all rights and assume and fulfill all of the obligations, covenants, representations, and warranties set forth in this Sync Distribution Addendum;
  • (iii) you own or control all of the necessary rights in Your Authorized Content in order to make the grant of rights, licenses, and permissions herein, and that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Your Authorized Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in Your Authorized Content) as contemplated by this Sync Distribution Addendum;
  • (iv) the use or other exploitation of Your Authorized Content by us, or by Licensees, or by any customers of Licensees, all as contemplated and authorized by this Sync Distribution Addendum, will not infringe or violate the rights of any third party, including any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights;
  • (v) no rights in or to any of Your Authorized Content have been assigned or otherwise provided to any third party that obtained exclusive rights; and
  • (vi) no fees or payments of any kind shall be payable to any third party for the use of Your Authorized Content as contemplated by this Sync Distribution Addendum.

8. LIMITATION OF LIABILITY: BASIS OF BARGAIN.

THE LIABILITY LIMITATIONS APPLICABLE TO CD BABY UNDER THE CD BABY ARTIST AGREEMENT WILL ALSO BE AFFORDED TO LICENSEES AND LICENSEE CUSTOMERS (WITH LIABILITY BEING LIMITED TO THE AMOUNT THAT WAS PAID BY THE APPLICABLE LICENSEE TO CD BABY FOR THE LICENSED USE OF YOUR AUTHORIZED CONTENT IN THE SIX MONTHS PRIOR TO THE APPLICABLE DISPUTE). APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH CASES YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND OUR LICENSEES, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CD BABY, OUR LICENCEES’ AND LICENSEE CUSTOMERS’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT OUR LICENSEES WOULD NOT BE ABLE TO OFFER THEIR SERVICES ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILIY.

9. INDEMNIFICATION.

You acknowledge and agree that you are subject to the policies and procedures regarding indemnification set forth in Section 16 of the Artist Agreement.

10. DISPUTE RESOLUTION.

YOU AGREE THAT IN THE EVENT YOU INITIATE A CLAIM OR DISPUTE AGAINST A LICENSEE, SUCH CLAIM OR DISPUTE MUST BE RESOLVED EXCLUSIVELY IN THE MANNER THAT CLAIMS AGAINST CD BABY ARE RESOLVED UNDER THE CD BABY ARTIST AGREEMENT, AND THAT FOR CLAIMS OR DISPUTES AGAINST A LICENSEE, SUCH LICENSEE WILL BE ENTITLED TO ALL BENEFITS OF THE DISPUTE RESOLUTION PROVISIONS OF THE ARTIST AGREEMENT.

11. MISCELLANEOUS.

  • (a) Construction. Wherever the words “include,” “includes” or “including” are used in this Sync Distribution Addendum, they shall be deemed to be followed by the words without limitation. In relation to the rights, remedies, and benefits granted hereunder, and the representations and warranties herein, the term “Licensees” is deemed to include Licensees’ sublicensees as well as Licensees’ successors and assigns.
  • (b) No Minimum Use Guarantees. You agree that CD Baby makes no guarantees regarding any minimum amount of uses or minimum payments that may be generated from the use of Your Authorized Content pursuant to this Addendum.
  • (c) Third Party Beneficiaries. Licensees and any Licensee customers are intended third party beneficiaries of this Sync Distribution Addendum. This Sync Distribution Addendum confers rights, remedies, benefits, representations, and warranties to Licensee and Licensee customers. The rights granted in this Sync Distribution Addendum are assignable by CD Baby. The rights granted to a Licensee or a customer of a Licensee pursuant this Addendum shall be assignable by a Licensee or a customer of a Licensee except as otherwise limited in any agreement entered into between CD Baby and a Licensee.

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