ARKADE TERMS AND CONDITIONS FOR SUBSCRIBERS
www.arkade.com, is a website ("the Site") operated by Arkade Ltd. ("us", "our" or "we").
The following constitutes a legal agreement between the Subscriber ("you") and us with respect to the services provided by our Site, the terms of which are set out below. By using the Site you are agreeing to these Terms and Conditions.
You must be at least 18 years of age to agree to and enter into this Agreement on your own behalf and to register for use of this Site. If you are under 18 but at least 15 years of age, you must present this Agreement to your parent or legal guardian, and he or she must check the box below to enter into this Agreement on your behalf. Children under the age of 15 may not register for this Site, and parents or legal guardians may not register on their behalf. By checking the box indicating your acceptance of this Agreement, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 18 years old, either entering into this Agreement for yourself or entering into it on behalf of your child or a child in your legal care. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of this Site, including all legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Site.
Material: All content which incorporates intellectual property, including but not limited to recordings in MP3 or other file format, artist's photographs, biographies, videos, artwork and physical products / merchandise.
The Microsite: The part of the www.arkade.com website designated for the Subscriber's Material.
Download: The electronic transfer of Material from the Site that may be saved to the hard drive of a computer.
Upload: The electronic transfer of Material to the Site that may be saved to the hard drive of a computer.
Our Providers: Our agents, employees, consultants, subsidiaries, affiliates, subscribers, licensors, licensees and/or suppliers.
As soon as credit card payment of your subscription has been received and accepted we will open a Microsite designated for your use, for one year (the "Subscription Period") within the Site or for one month in the case of the Free Trial Pack subscription and will permit you to upload your Material upon and subject to the following terms and conditions regarding the access, use and distribution of your Materials on The Microsite or the Site.
NO REFUND POLICY
Arkade operates a strict NO REFUND POLICY. You may add and/or remove your Material or any part of it from The Microsite and/or cancel your subscription at any time during the Subscription Period but we will not refund your subscription fee or any part of it if you decide to do so.
If you cancel your Site subscription any monies owed to you from the sale of your products will be paid to you at the next accounting date in accordance with these Terms and Conditions - see Cl 2.6.2 and Cl2.6.3
If you cancel your Site subscription you will NOT be able to reactivate it and all of your Material will be deleted from the Arkade servers. Consequently, if you wish to reactivate your Site you will have to re-subscribe and re-upload your Material.
NOTE: Arkade does allow you to change the Artist Site name at any time.
Please note that if you have a dispute with us which cannot be resolved amicably, the European Commission provides a platform (the “ODR platform”) for the out-of-court resolution of disputes concerning contractual obligations arising from online contracts for sales or services.
The ODR platform is accessible via the following link: http://ec.europa.eu/consumers/odr.
Our email address for disputes is firstname.lastname@example.org
1. You CONFIRM AND WARRANT that
1.1 all Material uploaded by you to The Microsite is your property or property that is licensed to you under an express written agreement which entitles you to upload the Material to The Microsite;
1.1.2 a Ringtone created online, using the Arkade Ringtone Generator is your property and is treated by us as a new track, owned by the owners of the track from which it was generated;
1.2 your Material does not and will not infringe the intellectual property rights or any other rights of any person or entity;
1.3 your Material will not be defamatory, vulgar, offensive, obscene, pornographic, false, misleading, racist, illegal, potentially libellous or likely to encourage the same or to bring the Site or our name or the name of Our Providers into disrepute. We are the sole arbiters of whether or not your Material falls into any of these categories;
1.4 your Material will not breach any applicable law whether criminal or civil nor will it give rise to the commission of a wrongful act of any sort;
1.5 you can stream video from YouTube via Arkade provided that at all times you are complying with the YouTube Terms and Conditions, particularly in that you have the permission of the rights owners to use their Materiel in this way, as well as these Terms and Conditions;
1.6 you will not permit any Third Party advertising or sponsorship on The Microsite;
1.6 you will only use the Site for the purposes referred to in this Agreement and will not access the Site or use information gathered from it to send unsolicited e-mails other than via the Direct Marketing facility provide by us;
By ticking the box labelled “If you have recorded a version of a song that was not written by you” on the Copyright Declaration page after uploading your track.
1.8.1 you confirm that you own all the performance rights and/or have the permission of those, whose performances are contained on this recording, to upload this material to Arkade and to sell the tracks that you have uploaded on the Arkade platform;
1.8.2 you request that Arkade pays the standard “Mechanical Royalty” for use of the song contained in the Track(s) not composed by you (“Cover Version(s)”) on your behalf and accept that this will be deducted from the price you set for the sale of this material;
Further to your request in this Cl 1.8.2 Arkade will deduct the standard Mechanical Royalty from the revenue received from the sale of the Cover Versions(s) and will pay, on your behalf, the full deduction to a Collection Organisation for re-distribution to the appropriate Publishers and Composers.
The Standard Mechanical Royalty is currently: GBP £0.04, USD $0.07, Euro €0.05 or Yen ¥5.51 (the “Minimum Price”) or 8% of Sales Price, whichever is higher.
1.8.3 you agree that you remain solely responsible for the payment of Mechanical Royalties and indemnify Arkade from any litigation which may arise. Arkade will provide the documentary accounting which will demonstrate the Mechanical Royalties that have been paid by Arkade on your behalf for the sales of each “Cover Version”;
1.8.4 you accept full responsibility to pay all royalties, commissions or other payments due to third parties;
1.8.5 you agree that as you do not own the publishing rights to this material the Arkade system will not allow you to offer downloads free of charge or to stream more than 30 seconds of the “Cover Version” or to set preview segments of the “Cover Version” longer than 30 seconds;
You are allowed to set any price of your choosing for your tracks and products however;
you agree that the Arkade systems will not allow you to set a price for any product containing a “Cover Version” at less than the “Minimum Price” and that if you set the price for your tracks(s) at this Minimum Price the entire amount of revenues generated from sales of your products containing “Cover Versions” set at the Minimum price will be retained by Arkade and paid over to a Collection Organisation by Arkade on your behalf for re-distribution to the appropriate Publishers and Composers as per Cl1.8.2 of these Terms and Conditions.
2. OUR AGREEMENTS
We AGREE that
2.1 Arkade supports the following currencies: GBP (£), USD ($), Euros (€) and Yen (¥);
2.2 At registration the default currency will be determined by the country of the User’s IP address;
2.3 Users can select their preferred currency in any one of the Arkade supported currencies;
2.4 All prices will be displayed in the User’s preferred currency;
2.5 At checkout Users will be given the option to pay in their preferred currency or chose to pay in one of the other Arkade supported currencies;
2.6.1 it is our responsibility to ensure that we account to you for one hundred per cent (100%) of the net receipts from the sale of downloads of your Material from your Site on Arkade and in this connection "net receipts" shall mean the price you set for the sale of your Material less the bank transfer charges, commissions and currency conversion charges (if any) incurred in the transfer of the net receipts to your PayPal account. A processing charge will be added by us to the price you set and this sum will be retained by us to meet the charges for credit card processing which we incur in the sale of your Material to consumers. For the avoidance of doubt a sale is deemed to have been effected once we have received confirmation from our clearing bank that payment has been received.
For the avoidance of doubt, Arkade derives no benefit from the sales of Downloads.
2.6.2 it is our responsibility to account to you within sixty (60) days of each three (3) month period ending on 31st March, 30th June, 30th September and 31st December in each year at which time payment of the amount due to you will be made if above GBP £5, Euros €5.50, US $8 or Yen ¥650 If the sum due to you is under this amount then the amount due to you will be carried forward to the next three (3) month accounting period or such later period when the sum of GBP £5, Euros €5.50, US $8 or Yen ¥650 shall have been earned;
NOTE: Arkade cannot pay unless the subscriber has provided us with a valid email address. It is the responsibility of the subscriber to ensure that a current validated email address is registered with Arkade in the User’s Personal Details;
2.6.3 it is our responsibility to ensure that all sums which are outstanding at the end of your Subscription Period are paid pursuant to this Clause 2;
2.6.4 we will not store your credit card or debit card details anywhere on our servers.
3. YOUR AGREEMENTS
3.1 it is your responsibility to administer the management and content of The Microsite from your administrative pages on the Site;
3.2 it is your responsibility to undertake to comply with all copyright laws and to check that the Materials you upload to The Microsite will not be in breach of copyright ;( see also 1.1)
3.3 it is your responsibility to ensure that you account properly and pay any person or entity for any or all rights to use the recorded performances and/or other Material which you have uploaded to The Microsite (including but not limited to writers, publishers, musicians, producers, and third party licensors; (See our online User Guide for some useful links regarding these issues.)
3.4 it is your responsibility to ensure that all costs associated with the Material, are paid in respect of (but not limited to) artwork, biographies, liner notes, photographs and recordings;
3.5 it is your responsibility to ensure that if you are not already registered for VAT or other applicable local sales taxes, you will regularly check your income level from time to time to determine whether you have become liable to register for payment of the same;
3.6 it is your responsibility to ensure that you account properly and pay applicable VAT or sales taxes in respect of Sales of your Material from The Microsite;
3.7 it is your responsibility to pay any monies due (if any) from all sums received by you from sales of your Material, to the Mechanical Copyright Protection Society or any other collection society of which you are a member in any part of the World. See Cl 1.7 regarding “Cover Versions”;
3.8 it is your responsibility when subscribing to provide accurate personal information ("Registration Data") and to update your Registration Data as necessary to keep it accurate. You undertake that all the details you provide to us for the purpose of uploading Material are correct and that the credit card or debit card that you propose to use is your own or that of a third party who has given you full permission and authority to use it and that you or such third party have sufficient funds to meet your credit card obligation to us;
3.10 it is your responsibility to maintain the confidentiality and security of your Registration Data, especially your user name and password. You will not allow others to use your user name or password and you will notify us immediately of any unauthorised use of your user name or password. We shall not be responsible for any losses arising out of the unauthorised use of your user name and/or password and you agree to indemnify and hold harmless us and/or Our Providers as applicable, for any improper, unauthorised or illegal uses of the same;
3.11 it is your responsibility to ensure that you back up all your Material off line. Whilst we will use our reasonable endeavours to ensure that back up procedures are run on our site we will not accept any responsibility for the loss of any or all of your Material for whatever reason;
3.12 It is your responsibility to monitor the download activity on the Microsite to ensure that you do not exceed the download allocation made to you in accordance with your subscription. If you are likely to exceed your download allocation, you must take immediate steps to upgrade your subscription. We will use our reasonable endeavours to notify you by e-mail when you are approaching your maximum download allocation and also if you have exceeded the same, but we accept no responsibility for failing to communicate with you in relation to this matter.
4. EFFECT OF A BREACH OF YOUR WARRANTIES OR AGREEMENTS
4.1 We may in our sole discretion terminate this Agreement and/or suspend The Microsite (or any part of it) or your account at any time without notice to you in the event that you breach (or we reasonably suspect that you have breached) any provision of this Agreement and we shall have no liability or responsibility to you for any loss or damage suffered. You understand and agree that your sole right and remedy with respect to any dispute with us is the cancellation of your account and Site membership. You can cancel your account at anytime via the Site Control Panel where you manage your Site.
4.2 We have the right to suspend or terminate your access to the administrative area of The Microsite or require you to edit your Material or any part of it which has been posted on the Site if you, or the Material so posted, appears in our absolute discretion to be in breach of any provision of this Agreement. If your access has been suspended or terminated you will not be permitted to re-register or to re-access the Site without our prior consent. You further agree that if The Microsite (or any part of it) is closed down or access to it is suspended by us, it will be withdrawn from public access and no part of your subscription fee shall be refunded to you.
You will only use the Site for the purposes referred to in this Agreement and not access the Site or use information gathered from it to send unsolicited e-mails.
5. YOUR MATERIAL REMAINS YOUR PROPERTY.
5.1 By agreeing to these terms and conditions you grant to us the non-exclusive right to use on your behalf on the Site, your name, professional and/or group name, photographs, likenesses, biographical material, digital music/MP3 files and any other information supplied by you as part of your Material.
5.2 The non-exclusive right granted in 5.1 gives us the right to:
• permit previews of your Material without payment. Track Previews are set by default to 90 seconds but can be reset by the Subscriber to include any part of, or the entire track; however in the case of “Cover Versions” previews are limited to 30 seconds as set out in Cl 1.7.5 of this agreement;
• sell on your behalf and pursuant to the terms of this Agreement and the Arkade Terms and Conditions for Consumers and without limitation any and all of your Material from the Site by way of downloads and streams;
• permit the sale on your behalf, of your Material from the Site to a purchaser's computer by downloads or by any other means whether now known or to be discovered in the future;
• include your Material for the purposes of advertising the Site;
• include your Material in our charts and submit our chart information for inclusion in other third party publications such as any nation’s Official Chart Company charts;
• include your Material in our search engines and those of third parties' engines;
• make copies and or back up your Material to storage and delivery areas within the Site or a caching site or third party servers. For the avoidance of doubt this non exclusive right in no way diminishes your responsibility to ensure that your material is backed up (Clause 3.11);
• By opting your tracks into the Arkade Streaming Service and into Arkade Widgets and/or Arkade Apps you also grant to Arkade a worldwide, non-exclusive, fully paid-up, royalty-free license to host, transfer, display, perform, reproduce, distribute, compress or convert for streaming and to stream, in whole or in part, the Opted-In Track(s) (Opted –In Track(s)) in any media formats and through any media channels, solely in order to publish and promote the opted-in track(s) in connection with the Arkade Opt-In Service. When opting tracks into Arkade Opt-In schemes you will be asked to agree separate Terms and Conditions for each Opt-In scheme.
You understand that this is a Royalty Free stream for promotional purposes and that the Opted –In Track(s) can be streamed to Arkade users without payment.
Arkade confirms that:
You are not assigning the rights to your tracks to Arkade;
Streams cannot be saved as permanent downloads but may be cached as temporary files;
This license, granted by you, terminates as to a specific Opted-In Track(s) once you remove or delete said Opted-In Tracks(s) from the individual Arkade Opt-In Service or Arkade.com
You agree to indemnify and hold harmless us and Our Providers from and against any and all claims, losses, demands, causes of action and judgments (including solicitors' or attorneys' fees and court costs) arising from or concerning any breach by you of this Agreement and/or these terms and conditions for your use of the Site and you agree to reimburse us and/or them on demand for any losses, costs or expenses we or they incur as a result thereof.
7.1 You may not assign this Agreement.
7.2 We may assign our rights under this Agreement in whole or in part.
You agree and acknowledge that:
8.1 we may require you to change your password or any other information which permits you access to The Microsite for the purposes of uploading your Material;
8.2 we have the right to withdraw your Material or any part of it from The Microsite and also The Microsite itself for any reason without notice to you and you agree that we will not be responsible for any loss, damage or cost as a result of such unavailability. Although we have no obligation to notify you of the same, we will endeavour to notify you by email of any withdrawal, blocking or suspension of any of your Material on The Microsite. If a download has been ordered containing Material which is subsequently blocked by us, the download will be honoured, but any revenue received will be frozen until the matter which has led to the blocking has been resolved and thereafter the said revenue will be dealt with by us as we will deem appropriate in our absolute discretion;
8.3 we have the right to withdraw your Material from The Microsite at any time after your subscription period has expired;
8.4 our administrators and financial personnel are permitted to have access to the management area of The Microsite;
8.5 we will not be liable for errors or omissions on the Site nor for loss or damage suffered by you as a result of any unavailability of the Site or by any use by you or reliance placed on the Site or its contents including any damage caused to your computer or otherwise howsoever, or any direct, indirect or consequential loss, loss of data and/or any loss of income or profits;
8.6 we shall not be liable to you for the failure of any equipment, data processing system or transmission link and will not be liable to you as a result of any down-time which may occur upon the Site;
8.7 The Site is provided "as is" and you acknowledge that despite our reasonable endeavours the Site may contain bugs, errors and other problems (including, but not by way of limitation) infection by viruses (despite anti-virus protections which may be incorporated) or anything else which may cause contamination or destruction of any sort that may cause system failures. Notwithstanding, we will use all reasonable endeavours to correct any errors and omissions as quickly as practicable after being notified by e-mail to email@example.com;
8.8 we shall not be responsible to you for damages or otherwise in respect of any error made to any listing of or reference to your Material or for any unauthorised use by third parties of your Material;
8.9 we shall not be responsible for any offensive e-mails you may receive as a result of the contact facilities being abused;
8.10 we reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently the Site (or any part thereof) without notice to you and without any liability to you or to any third party;
8.11 you agree and acknowledge that we have the right to compile, publish and use chart, sales or preview data and to allow advertising and sponsorship on the Site or The Microsite or any part of it and/or in any media outside the same;
8.12 on the Site you may be offered automatic links to other websites. Whilst we hope you will be interested in those websites, you acknowledge that their owners may be independent from us and we do not endorse or accept any responsibility for their content;
8.13 we welcome 'hot links' to the Site, but not 'deep linking' by which we mean that you may not include a link to our Site (other than the links we supply you with), or display the contents of our Site, surrounded or framed or otherwise surrounded by content not originating from us without our consent. If you would like to licence our content, or the content of any of our subscribers, please contact us at firstname.lastname@example.org. Any unauthorized framing of or linking to the Site will be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress and may result in the termination of this agreement or other remedies as set out in this agreement.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All intellectual property content on the Site including, without limitation trademarks, button icons, logos, graphics, images and digital downloads is owned by us or Our Providers and is protected by International Copyright laws and your use of them is governed by this Agreement, certain end-user licence agreements, and applicable law.
9.2 You will infringe our rights and/or the rights of Our Providers if you copy or reproduce any part of the Site save for:
9.2.1 a temporary copy of any part of the Site is automatically made or retained by your browser as you browse the Site; or
9.2.2 you print out any pages from the Site as a record of any goods or services you have purchased or sold from it;
9.2.3 you print out a copy of these Terms and Conditions which we would request you to do; or
9.2.4 your own personal use.
Other than for the above four exceptions you must not copy the intellectual property in question for any purpose.
9.3 For the purposes of this Clause 9, "copy" and "copying" shall include non-literal copying as well as the copying of the structure and form of the Site and any elements within it.
10. OPT-IN & OPT-OUT SCHEMES
10.1 Opt-In Schemes
There are a number of services & features which you can Opt-In to. Should you decide to Opt-In to any of these additional features or services, you will be asked to agree specific Terms & Conditions for each of these Opt-In schemes when you Opt-In to them.
10.2 Opt-Out Schemes
There are a number of services & features which are set by default to Opted-In. You can Opt-Out of each and any of these additional features or services at any time.
10.2.1 “STREAMING” OPT-OUT SCHEME
Terms & Conditions for the “Streaming” Opt-Out Scheme:
10.2.1.1 Tracks are Opted-In by default but can be Opted-Out at any time from your Site Control Panel/Other Features/Opt-In Schemes/Arkade Streaming
10.2.1.2 By opting-in your track(s) to the Arkade Streaming Service, you hereby grant to Arkade a worldwide, non-exclusive, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce and distribute for streaming and to stream through any media channels, in whole or in part, the Opted-In Track(s) or Bundles” (Opted –In Track(s)) as uploaded to Arkade by you and solely in order to publish and promote the said “Opted-In Track(s)” in connection with the Arkade “Streaming” service.
10.2.1.3 The above license, granted by you, terminates as to a specific Opted-In Track(s) once you remove (opt-out) or delete said “Opted-In Tracks(s)” from the Arkade “Streaming” service or your site on Arkade.
You understand and agree that your use of the Site is at your own sole risk. The Site is provided "as is" and without warranty by us or Our Providers, as applicable, and, to the maximum extent allowed by applicable law, we and Our Providers expressly disclaim all warranties, express or implied including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and any warranty of non-infringement. We and Our Providers do not warrant, guarantee, or make any representations regarding the use or the results of the use of the Site with respect to performance, accuracy, reliability, security capability or otherwise. You will not hold us or Our Providers responsible for any damages that result from you accessing (including any software or systems you use to access) the service or using the Site including, but not limited to, infection by virus, damage to any computer, software or systems or portable devices you use to access the same. No oral or written information or advice given by any person shall create a warranty or a representation from us or any of Our Providers.
We make no warranty that any particular CD burner or portable device or software, will be compatible with this Site or any Material uploaded to this Site. It is your sole responsibility to ensure that your system(s) will function correctly with this Site.
Under no circumstances shall we or Our Providers be liable for any unauthorised use of the Site or the Materials.
Under no circumstances shall we or any of Our Providers be liable to you for any consequential, incidental or special damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use of or inability to use the Site, even if we or Our Providers have been advised of the possibility of such damages. To the extent that in a particular circumstance any disclaimer or limitation on damages or liability set forth in this Agreement is prohibited by any law which is applicable, then, instead of the provisions hereof in such particular circumstance, we and Our Providers shall be entitled to the maximum disclaimers and/or limitations on damages and liability available at law or in equity by such applicable law and in no event shall such damages or liability exceed ten pounds (£10).
12. THIRD PARTY RIGHTS
This Agreement is only for the benefit of you and us and no other person can claim a benefit from this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999 which Act shall not apply to this Agreement.
13. LAW AND LEGAL NOTICES
This Agreement and any other terms or documents referred to herein represent your entire agreement with us with respect to your use of this Site. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with the 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. English Law governs this Agreement and your use of the Site, and you expressly agree that the English courts shall have exclusive jurisdiction over any claim or dispute between us or relating in any way to your account or your use of this Site.
14. PHYSICAL SALES TERMS AND CONDITIONS
14.1 Physical sales transactions are between the Subscriber and the Consumer.
43.2 The Arkade acts purely as a facilitator in the transaction.
14.3 Orders received by the Arkade and paid for by the consumer will be automatically forwarded by email to the Subscriber.
14.4 The Subscriber agrees to dispatch orders within 72hrs.
14.5 The Subscriber is solely responsible for delivery of orders to the consumer.
14.6 The Subscriber will keep their Inventory Records on the Arkade up to date at all times.
14.7 If Consumer has not received delivery of his/her order within 31 days of receipt by the Subscriber of notice of non - delivery from the Consumer then the Arkade will make a full refund to the Consumer for the goods not delivered which will be charged to the subscriber and the Subscriber's Account with the Arkade will additionally be debited by a £5 (five pounds) Refund Charge.
14.8 If goods are returned to the Subscriber as damaged then the Subscriber agrees to dispatch a new product to the Consumer within 72 hrs. If Subscriber has not updated his/her 'order status' page on the Arkade within 72 hours to show that this has been done then the Arkade will effect a full refund to the Consumer which will be debited from the subscribers account and Subscriber's Account with the Arkade will be debited by a £5 (Five pounds) Refund Charge.
14.9 Subscribers who have been reported to the Arkade by Consumers for non-delivery of product 3 separate occasions will be blocked from further use of this service and our No-Refund Policy will apply unless the Subscriber can, to the sole satisfaction of the Arkade, demonstrate why delivery was not possible.
14.10 The Arkade will account to the Subscriber in the same way as for Downloads.
14.11 The Subscriber indemnifies the Arkade against all or any claims relating to the merchantability of the goods, for non delivery of product, for goods damaged in transit and any consequential losses.
Your attention is also drawn to section3 above which also fully applies to physical products
You acknowledge that we may change the terms of this Agreement by posting a new Agreement on the Site. You acknowledge that it is your responsibility to check the Site regularly to ascertain if changes have been made and we will use our reasonable endeavours to advise you of any changes. However, your continued use of the Site after such a change will constitute your acceptance of the change.
Arkade Limited is incorporated in UK. Registered Number 5233165
Registered office: 38 Hertford St. London W1J 7SG