Updated 7th April 2009
ARTIST TERMS AND CONDITIONS OF BIGSONG.CO.UK
Your access to and use of BigSong.co.uk (BigSong) is subject to the following Terms and Conditions. In order to access and use BigSong you agree to be bound by these Terms and Conditions which form a legally binding contract between BigSong and you. It is your responsibility to read and understand any terms and conditions that apply to your use of the website and its Services. We reserve the right to amend or update these Terms and Conditions at any time, without notice, and your continued use of the website/Service following any changes shall be deemed to be your acceptance of such change. It is therefore your responsibility to check the Terms and Conditions regularly for any changes. We will indicate the effective date at the top of this page.
If you do not accept these Terms and Conditions, or you cannot comply with them, then you must immediately stop using the website and its Services.
1. Account creation
1.1 As part of our account creation process you will submit a user name (email address) and password which, if verified by us, will be the username and password that you will be required to enter each time you log onto BigSong. You are responsible for maintaining the confidentiality of your username and password and you agree that we are entitled to assume that anyone using your username and password to log on to BigSong is either you or someone doing so with your permission. You agree to accept responsibility for all activities that occur under your username and/or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform BigSong immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or likely to be, used in an unauthorised manner. You will be responsible and liable for any actions of any person logging into BigSong using your username and password including, without limitation, uploading music and artwork, setting prices for downloads and entering payment information.
1.2 We reserve the right to refuse to create an account or to allow access to the website for any person for any reason at our absolute discretion. Your BigSong account may be terminated by us at any time if we feel that it is being used inappropriately.
1.3 You must be at least 18 years of age to agree to and enter into a contract on your own behalf and to use any BigSong Services. If you are under 18 but at least 13 years of age, you must present these terms and conditions to your parent or legal guardian, and he or she may consent on your behalf.
1.4 We will only keep and use any data collected during the account creation process for the purposes set out in the privacy policy section of these terms and conditions.
2. Making Content Available for Sale
2.1 You may make available for sale, via a link to our BigSong server, certain music and artwork (collectively, “Content”). In order to make this Content available, you must upload your music and artwork using the track manager and artwork manager section of your control panel.
2.2 By uploading Content, you confirm that you have the relevant rights to do so, and that you also have rights to sell this Content, and are either the owner of such Content or hold the relevant license to upload and sell the Content.
2.3 You will select the price you wish us to use when making your Content available for sale to consumers. This is subject to our minimum price (currently £0.50/€0.50/$0.50). We reserve the right to amend the minimum price at any time and without notice.
2.4 In the event that we suspect, believe or are notified that any Content uploaded by you to BigSong in any way infringes the rights of any third party, or is otherwise in breach of these Terms of Use (including without limitation your warranties as to no defamatory, obscene or racist material), we may, in our sole discretion, elect not to make such item(s) of Content available to end users of BigSong unless and until we are reasonably satisfied that such Content does not in fact infringe any such third party rights or is not in breach of your other obligations hereunder. Whilst carrying out such investigation we may remove some or all of the Content uploaded by you to BigSong pending completion of any investigation to our reasonable satisfaction.
2.5 In the event that we discover that such item(s) of Content does in fact infringe third party rights or you are otherwise in breach of these Terms of Use, then we may in our sole discretion elect to either suspend or terminate your user account in accordance with the suspension and termination provisions set out in clause 9 below.
2.6 Due to the need to keep our servers efficient, and ensure a good Service for all users BigSong reserves the right to remove Content from its server if monies earned from sales for the preceding six (6) calendar months are less than the Minimum Payment Level (as outlined in 5.4). An email will be sent to you one (1) week prior to any removal.
2.7 You continue to own all Content and all rights not expressly granted to BigSong hereunder.
2.8 BigSong reserves the right to access your account and edit or remove Content, should we feel it necessary to do so.
3. Grant of Rights to BigSong
3.1 You will grant to us the non-exclusive right to make available for sale any Content included in your account.
3.2 In order for us to make the Content available for sale via BigSong you hereby grant to us the right in respect of the Content to make copies.
3.3 You hereby acknowledge and agree that once a consumer has paid for any Content, they will be entitled to download and use the Content and shall be entitled to use any such Content purchased from BigSong for personal, non-commercial purposes.
3.4 In the event that the download of any Content is unsuccessful, after receiving payment from the consumer, as a result of a technical problem, we are permitted to deliver that Content directly to the intended consumer by another means. You will still receive any applicable monies from this sale.
4. Hosting
4.1 You acknowledge and agree that Internet servers and links are susceptible to crashes and downtime. We shall maintain a consistent link with the Internet but we cannot and do not warrant that we shall maintain a continuous and uninterrupted link.
4.2 We shall endeavour to ensure that BigSong is available 100% of the time. Notwithstanding the foregoing we may, in our sole discretion, temporarily suspend operation of BigSong for the purpose of repair, maintenance and improvement of any of our systems. We will, if practicable, notify you in advance of any such suspension and shall restore operations as soon as reasonably practicable.
4.3 Backups of our server, including any Content uploaded will be taken by our 3rd Party Service provider. We cannot guarantee the reliability of these backups and so are not liable for any loss of Content as a result of any technical failure.
5. Accounting & BigSong Fees
5.1 We will pay to you all monies from sales of Music to consumers via your BigSong link, less our current fee for Services (the “Fees”). The current rate of our fees is 20% of gross receipts. BigSong reserve the right to amend this rate at any time, without notice.
5.2 If applicable, you are responsible for any and all Mechanical royalty payments to the relevant collection society. Including, without limitation, the MCPS, the Harry Fox Agency, GEMA or SACEM.
5.3 Notwithstanding anything set out in these Terms of Use to the contrary we shall not be required to account to you if the total monies owed to you on your Account are less than the current minimum payment level. Our Current Minimum Payment level is £20/€20/$20). If after the six (6) months preceding, your total monies owed are still below the Current Minimum Payment level then all monies will remain with BigSong. We reserve the right to amend this level at any time, without notice.
5.5 You must select your payment method in order to receive Monies due.
5.6 For the avoidance of doubt we will not be liable for any interest or other charges whatsoever for late payment of Monies in the event that you have failed to provide appropriate payment details to us.
5.7 Any Monies owed are paid within 10 days after the end of each calendar month.
5.8 Any and all statements of payment delivered by us to you in respect of Monies due shall be deemed final and binding in the event that they remain unchallenged after six (6) months from the date of issue.
6 PRIVACY POLICY
6.1 If you register for any of the Services you will be asked to provide basic personal information. The information is used solely for notifying you of changes or updates to the Website and/or its Services. In order to do this, we may send e-mails and announcements to the email address that you provided to us upon account creation. BigSong will never sell, rent or otherwise disclose any of your personal information, including your email address, to any third party without your consent unless: 1) we are required to by law; or 2) if it is necessary to provide the Services.
6.2 If you hold an account with BigSong, then you have certain rights under the 1998 Data Protection Act. You have the right to be told what personal information we hold about you on our database. Should you wish to exercise that right, or if you have any questions concerning the BigSong privacy policy, please write to: hello@BigSong.co.uk.
6.3 BigSong has implemented technology and security features to safeguard the privacy of your personal information from unauthorised access or improper use. We employ SSL encryption to secure your personal data and payment information, and hold a SSL certificate which is renewed annually. While we make every effort to ensure that your information is secure on our system, no data transmission over the Internet can be guaranteed to be 100% secure. As a result, we cannot guarantee the security of any information you transmit to us, and you do so at your own risk.
7. Intellectual Property Rights
7.1 Any and all intellectual property rights and goodwill in and relating to BigSong or the Content, material or information provided through BigSong (excluding only Content uploaded by you) (the “Intellectual Property Rights”) are either owned by or licensed to us. Except as expressly provided for in these Terms of Use, we do not grant you any right to use any such Intellectual Property Rights and nothing in these Terms of Use shall be construed so as to transfer or license any such Intellectual Property Rights to you.
8. Suspension or Termination of BigSong
8.1 We expressly reserve the right at any time, without notice, for any reason whatsoever and in our sole discretion to suspend or terminate your account and/or access to any of our Services.
8.2 In the event of suspension by us pursuant to 8.1(a) above we shall be entitled to suspend any and all reporting and accounting obligations hereunder pending resolution of any claim of infringement or suspected breach by you.
9. Warranties & Indemnities
9.1 BigSong may contain links to third party websites that are not under our control and are provided to you for your convenience only. We make no warranties or representations whatsoever about any other website which you may access through BigSong. Without limiting the foregoing, these sites are in no way approved, vetted, checked or endorsed by us and you agree that we shall not be responsible or in any way liable for the Content, accuracy, compliance with relevant laws or accessibility of any information, data, advice or statements or for the quality of any products or services available on such sites. If you choose to access a website beyond our control, you do so at your own risk. In addition, use of any such third party website may be subject to your acceptance of additional terms and conditions.
9.2 You hereby specifically warrant and represent that you are free to enter and agree to these Terms of Use and that you are the owner or exclusive licensee of any and all rights in any and all Content uploaded to and made available on BigSong and that no Content shall:
(a) infringe the intellectual property rights (including by way of unlicensed sampling) or any other rights of any third party;
(b) not contain any viruses, worms, Trojan horses, bugs or any other computer code designed to (i) disrupt, disable, harm, or otherwise impede in any manner the operation of a computer program or computer system or (ii) damage or destroy any data files residing on a computer system without the user’s consent.
9.3 You agree to indemnify and hold BigSong, and any of its representatives or Directors harmless from any and all claims, liabilities, costs, losses, damages or expenses, including reasonable legal fees, incurred by BigSong by reason of your breach of the warranties contained herein. We reserve the right to assume the exclusive defence and control of any matter subject to indemnification by you, in which event you will fully co-operate with us in asserting any available defences.
10. Liability and Disclaimers
10.1 Nothing in these Terms of Use shall be construed as an attempt to limit or exclude our liability in respect of:
(a) death or personal injury caused by our negligence;
(b) any loss suffered by you as a result of your reliance on any fraudulent misrepresentation made by us to you;
(c) or any other liability which cannot be so limited or excluded at law.
10.2 Subject to Clause 10.1 above, you agree that we shall not be liable for any direct loss, claim or damage, or any punitive, special, incidental or consequential damages of any kind or any loss of profit (whether direct or indirect) in each case whether based in contract, tort (including negligence), strict liability, or otherwise, which arises out of or is in any way connected with:
(a) Any use of BigSong or its Contents;
(b) Any failure or delay in the use or any component of BigSong including, without limitation, any unavailability of BigSong irrespective of duration of any period of unavailability,
In all cases even if we have been forewarned of the possibility of such loss or damage.
10.3 Without limiting the effect of clause 10.2, due to the inherent risks of using the Internet, we cannot be liable for any damage to, or viruses that may infect, your computer equipment or any other property when using or browsing BigSong. The acquisition of any materials or information through BigSong is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system or any loss of data that results from the downloading or acquisition of any such materials.
10.4 You agree that you shall indemnify us against any claims or legal proceedings which are brought or threatened against us by a third party because your use of BigSong or submission of Content to BigSong that is in breach of these Terms of Use.
11. No Waiver
11.1 Any failure or delay by us to enforce any of our rights under these Terms of Use is not to be taken as or deemed to be a waiver of that or any other right unless we acknowledge and agree to such a waiver in writing.
12. Severability
12.1 If any clause or part of a clause of these Terms of Use is, or becomes, invalid, illegal or unenforceable, then that clause or part of a clause shall be deemed to be deleted from these Terms of Use. Any such deemed deletion shall not affect the validity, legality or enforceability of the remainder of these Terms of Use.
13. Entire Agreement
13.1 The warranties, exclusions and the other express provisions of these Terms of Use set out the full extent of our obligations and liabilities concerning its subject matter and supersede any previous agreements between the parties relating thereto. You shall have no remedy in respect of any untrue statement made to you upon which you relied in entering into these Terms of Use other than any remedy you may have for breach of the express terms of these Terms of Use.
14. Governing Law and Jurisdiction
14.1 These terms and conditions and the use of or any dealings in respect of the website or the company reports shall be governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
BigSong Limited. Registered office: 2, 214 Chiswick High Road, London, W4 1PD.
Registered in England and Wales. Registered No. 06825604.