Thematic Creator Agreement
This agreement (“Agreement”) represents a legal contract governing the terms by which Thematic, Inc. (“Thematic”, “us”, “our” and “we”), a Delaware corporation, makes musical works (“Works”) as further defined below available to you, the registered user of our service, (you being referred to “you”, and “your” hereunder) from Thematic’s music catalog (“Catalog”) via the Thematic website (“Website”) and the terms of your use of such Works. By clicking on “I Accept” or otherwise signifying your acceptance to the terms of this agreement, including by your downloading of any Works from Thematic’s Catalog, and in consideration of the promises hereunder, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, you and Thematic agree to the following terms:
a. “Works” mean sound recordings and the underlying musical compositions of such sound recordings (including vocals, arrangement, and lyrics), as coupled together, and actually featured in the Thematic music Catalog. Each individual sound recording and underlying musical composition as coupled in the Catalog to be referred to as a “Work”.
c. “Website” means our website www.hellothematic.com and any other sites owned and/or controlled by Thematic and its affiliates, licensees and assigns.
e. Term means that one (1) year period commencing from a Website user’s Account registration and Thematic approved account commencement and ending one (1) year thereafter, or upon notice of termination by Thematic, whichever comes first, unless otherwise extended by Thematic in its sole discretion.
f. “Territory” means the World.
g. “Videos” (individually, “Video”) means audiovisual properties, namely customary videos, created for and exclusively uploaded to and broadcast on a registered user’s YouTube and/or Instagram Channel, but specifically excluding lyric Videos, as identified in a user’s registration profile.
h. “Service” means Thematic’s licensing and music/talent collaboration service as provided by our Website.
j. “Channel” means your specific YouTube and/or Instagram channel, individually and collectively, as registered to you with YouTube and Instagram respectively and as registered with us in your Website registration profile.
k. “Artist” means the author and/or owner (or authorized administrator) of the Works, including but not limited to the performer(s) of, musician(s) appearing on, and/or composer(s) of, the Works.
l. “Account” means the user account of those registered users of the Website.
m. “Creator” means the creator of the Videos who owns and/or controls the Channel such Videos are made available on.
n. “Credits”/”Credit” means those items of Artist attribution and meta data required, or otherwise provided, by each contributing Artist of the Works as delineated via the Website.
2. Grant of Rights.
b. With respect to each use of the Works, you shall have the non-exclusive right to access the Catalog and utilize the Works in synchronization with your Videos as noted above, and publish and publicly transmit and broadcast such Videos on the internet solely on your Channel. Thematic shall have the non-exclusive worldwide right to utilize your name, image and likeness, information provided by you to Thematic in your Account, and any artwork or other marketing and promotional materials provided to Thematic by you (“Creator Materials”) for all purposes in connection with the Website, Service, Works, and Videos during the Term and extending beyond such Term, with respect to Creator Videos and the Service as long as one or more Videos are uploaded or otherwise are made available on YouTube and/or Instagram by you, with such right to cease within a reasonable time upon your notice to us of your removal of all said Videos from the YouTube and/or Instagram platform.
d. All rights granted under this Agreement are non-exclusive, non-assignable, and non-transferable and shall not be sub-licensed by you unless otherwise expressly provided for under this Agreement (e.g. YouTube/Instagram Video license grant).
3. License Restrictions.
a. You shall not utilize the Works on, or in connection with, any content properties or other intellectual properties other than the Videos on your Channel and such Videos shall be solely distributed on your Channel on the respective YouTube and Instagram platform. Notwithstanding any term of this Agreement, you shall not make use of any Work where it has been removed or is no longer available from the Catalog, including where you have coupled such Works with Videos when such Work was available. Once a Work has been removed or is otherwise unavailable on the Catalog, no new use (e.g. no coupling of such Work with a Video not currently on your Channel upon the date of such removal and/or unavailability of the Work) shall be made of such Work, including where such Work has been used in prior Videos available on your Channel prior to such removal or unavailability regardless of when said Video was created. Notwithstanding the foregoing, where you have downloaded a Work from our Catalog, and such work has been removed from the Catalog by us prior to your use of the Work, you shall have thirty (30) days from the notice of such removal, within which to use the Work in a Video pursuant to the terms herein. Further, where a Video is removed from your Channel for any reason, it shall be your responsibility to review the Catalog offerings to assure said Works are still available for licensing and use, should you wish to repost such Video incorporating the same Work after said Video has already been posted on your Channel, as the Work may have been removed from the Catalog, thereby terminating any future right to post, broadcast or otherwise make the Work available in a Video on your Channel.
b. You shall not make or in any manner distribute audio only copies of the Works, including lyric Videos, nor edit, modify, arrange, remix, create derivative works of, or otherwise change or alter the Works in any way other than linear edits to adjust and edit the length of the Works to comport with Video length (e.g. setting start and stop points, establishing fade-in/fade-out points, etc.).
c. You shall not sell, distribute, license (other than to YouTube and Instagram for the right to broadcast your Videos and the Works coupled therein on your Channel), sublicense, assign or otherwise transfer, or permit access to the Works by any means to any third party or uncouple the Works from the Videos for any audio only or non-Video uses, and said use of such Works shall be expressly limited to Videos distributed on your Channel. Further, you shall not place any Work on, or in, any platform, application or product other than on your Channel and agree that the Works shall at no time be utilized in any commercial or public manner uncoupled from your Videos.
f. As a user of our Website you shall neither make, nor monetize or otherwise collect revenue from YouTube, Instagram or any other third party for, any audio only uses of the Works in Videos, including lyric Videos, or otherwise.
4. Works/Intellectual Properties/Performing Rights.
b. The performance of any Work featured in Videos for those Works affiliated with performing rights organization (e.g. ASCAP, BMI, SESAC, etc.) as listed in our Catalog shall be permitted only where each YouTube and Instagram respectively maintains the required licensing from such performing rights organizations. In any event where YouTube or Instagram is not a party to performing rights licenses and such are required, the Works shall be subject to your clearance of the performing rights from the respective performing rights societies (or directly from the Artist) pursuant to their customary practices and the payment of customary fees. This Agreement shall not supercede any clearances with respect to any Works licensed for use to you hereunder as required by performance right societies in such portion of the territory as is outside of the United States and its possessions, which shall be in accordance with their customary practices and the payment of their customary fees to the extent required.
b. Any unauthorized uses of the Works outside of their placement in coupled form with your Videos on your Channel, including the use of Works in lyric videos and/or audio only videos, will be actionable as acts of copyright infringement of the Artist’s (or its licensees and/or assigns) copyright(s), and the Artist, its licensees and/or assigns, shall have all legal remedies at law and in equity to redress such infringement against you directly. Upon notice of termination you shall immediately cease utilizing any Works in connection with new Videos after the date of said notice.
c. Thematic shall have all rights in law and in equity, and any remedies provided for hereunder shall not be exclusive to our availability and use of all, or any other, remedies available to us in a court of competent jurisdiction. All obligations of the parties of a continuing nature, including without limitation those concerning the authenticity of your Account information, copyright, warranties and indemnities, remedies, and venue/law, shall survive the termination or expiration of this Agreement.
d. Upon the natural expiration of the Term, or our termination noted above, you shall cease using the Works in connection with any Videos uploaded after the expiration (or termination) date of said Term. Provided you are not in breach of the terms of this Agreement, a said breach requiring your automatic removal of Videos featuring any Works upon notice, you may keep those Videos posted to your Channel coupled with Works during the Term on your Channel on an ongoing basis after the expiration date of the Term until such time as you remove the Video(s) from your Channel. Once you remove a Video that uses the Works from your Channel after the expiration of the Term, you must re-license said Works, at your own expense, from the original owners of the Works directly should you wish to repost the Video incorporating one or more of the Works. Thematic makes no guarantee that any Works will be available for licensing outside of the license granted under this Agreement.
6. Representations and Warranties.
a. Thematic warrants and represents that: i) all Artists and other third parties (e.g. Artist’s labels, licensees and/or assigns) providing the Works directly to us have warranted and represented that they own and/or control the copyrights in the Works (including the with respect to both master sound recording and composition copyrights) such that they have granted to Thematic the right to sublicense the rights granted to you under this Agreement (“Artist Warranty”) and ii) we have relied on such Artist Warranty and the further representations by each Artist that any such uses by you solely with respect to use of the Works in your Videos as uploaded and broadcast on your Channel, does not infringe upon the rights of any third parties and that all the respective rights required for the performance of such Videos on your Channel have been cleared by the Artist, and granted to Thematic, as a condition of uploading the Works to our Catalog and making them available for use by you on the YouTube and Instagram platforms respectively.
b. You warrant and represent that: i) you have the full right and authority to enter into this Agreement and perform all obligations required therein; ii) all Account information provided to us by you when registered on the Website for the use of our Service is true, accurate and legally verifiable, including but not limited to all information relating to your legal identity, contact information, payment information, Channel information and other data requested by us, and you agree to timely update such information and your Account, and inform us of such updates, so we may always maintain accurate and complete Account user information; iii) you are of legal age to enter into binding and enforceable agreements; and iv) neither content you have created for the Videos, nor Creator Materials, infringe upon the rights of any third parties.
c. You warrant and represent that, as a registered user of the Website, you are the individual who is accessing our Catalog and uploading and utilizing the Works in connection with your Videos on your Channel. You further consent to the receipt of all communications and notices to you by us hereunder via electronic communications (e.g. email) and you agree that all notices, agreements, disclosures, agreement amendments, and other communications provided to you by us satisfy any legal requirement that such communication be in writing.
d. You warrant and represent that all Works used by you in your Videos, and your Videos and Channel, will be in complete compliance with YouTube’s and Instagram’s express terms and conditions for video, content channel and platform use, as amended and/or updated by YouTube and Instagram from time to time. You further agree that Thematic has no control over your right to upload or otherwise exploit Videos or content on the respective YouTube and Instagram platform, such rights wholly subject to YouTube’s and Instagram’s terms and conditions and user guidelines and restrictions.
a. Our Website, Service, Catalog and the included Works, are provided “as is” without any warranty of any kind, either express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement or title, all of which are expressly disclaimed. Thematic disclaims any representation or warranty that the Works, Website or Service will meet your requirements or that their use will be uninterrupted or error free or that performing rights or similar fees will not be payable by you. Through use of the Works, Website and Service, you assume the entire risk as to the quality and use of the Works, Website and Service. Should any of the Works prove defective or payment of performing rights or other similar fees or licenses be required, you and not Thematic, shall assume the entire risk and cost of all necessary payments. Your rights under this provision may vary from state to state as certain jurisdictions do not allow the exclusion of implied warranties.
b. Where a Work, due to no fault of Thematic, including but not limited to an Artist’s fraud, misrepresentation, or breach of contract in connection with providing Works to our Catalog, becomes subject to a rights ownership dispute and your continued use of the Work in connection with your Video is deemed an infringement of copyright (in Thematic’s reasonable discretion) or subject to legal action or any other claims, and thus unavailable for future legal broadcast or posting without risk of legal action, or becomes subject to additional rights clearances or required licenses we were not informed about by the Artist, we shall notify you and you agree to remove said Video from your Channel within a reasonable time from our notice to you, not to exceed ten (10) days from such notice, and we will work together with you to replace the respective Work in question with an alternative Work or other selection of music suitable to you, in good faith, prior to re-uploading the Video. You acknowledge and agree that Thematic shall have no duty to investigate or otherwise substantiate Artist claims with respect to their ownership interest in Works upon provision to Thematic and that Thematic wholly relies on the representations of such Artists in Thematic’s grant of rights to you hereunder and shall have no liability for any such Artist’s fraud, misrepresentation, mistake or negligence with respect to such representations.
c. In the event that YouTube and/or Instagram and/or their subsidiaries or affiliates (if any) as a platform no longer allow for the uploading of Videos utilizing the Works as customary as of the date of your acceptance of this Agreement, or Thematic ceases to do active business or suspends its business or Service, Thematic may terminate this Agreement upon notice to you, and the survival of all sections of this Agreement regarding termination, representations, warranties, indemnification, remedies, and miscellaneous provisions found in Sections 6-10, and all future rights with respect to your use of the Works may be subject to the Artist’s (or its licensees and/or assigns) rights and separate negotiation by you with such parties. For the avoidance of doubt, you shall continue to have the ongoing right as provided for herein, beyond any termination and/or suspension of Thematic’s business noted above, to utilize the Works as coupled with Videos uploaded to your Channel prior to the date of any such termination and/or suspension subject to terms of this Agreement including but not limited to the requirements of proper Credit attribution and our (or our assigns) right to put claims on Videos for use of the Works and/or request immediate removal of Videos containing the Works, where your use of the Works is in breach of the terms of this Agreement.
8. Indemnification. Each party to this Agreement shall indemnify, hold harmless and defend the other party, its parent, subsidiaries, affiliates and the other party’s officers, directors, employees, agents and contractors, respectively, from any and all liabilities, actual loss, damages, costs and expenses, including reasonable attorney’s fees and court costs, incurred by the indemnified party that arises out of any claim, demand, suit or action brought by a third party with respect to a breach by the indemnifying party of any of the provisions of this Agreement or the negligence or willful misconduct of the indemnifying party. No legal action with respect to this Agreement and your use of the Works shall be brought by you more than one (1) year after the cause of action has accrued, which in the case of an indemnity obligation is deemed to be the date such original claim is made or litigation is commenced by you, whichever comes first.
(a) The parties intend this Agreement as a final expression of their understanding and agreement with respect to the subject matter hereof and as a complete and exclusive statement of the terms thereof. Unless otherwise provided for herein, this Agreement may not be modified or amended except by a written instrument signed by each of parties hereto. Nothing in this Agreement shall be construed to require the commission of any act contrary to law, and wherever there is a conflict between any provisions of this Agreement and any statute, law, ordinance, order or regulation contrary to which the parties hereto have no legal right to contract, such statute, law, ordinance, order or regulation shall prevail; provided that, in such event, (i) the provision of this Agreement so affected shall be limited only to the extent necessary to permit the compliance with the minimum legal requirements, (ii) no other provisions of this Agreement shall be affected thereby, and (iii) all such other provisions shall remain in full force and effect. The parties hereto shall negotiate in good faith to replace any invalid, illegal or unenforceable provision (the “Invalid Provision”) with a valid provision, the effect of which comes as close as possible to that of the Invalid Provision. Paragraph headings in this Agreement are included solely for the convenience of the parties and shall not be deemed to describe, limit, modify or in any way affect the scope or interpretation of the paragraph themselves.
(b) No failure by Thematic to perform any of Thematic’s obligations hereunder shall be deemed a breach of this Agreement, unless you have given Thematic notice of such breach in reasonable detail, and such breach has not been cured within 30 days after the giving of such notice; provided that if such breach cannot reasonably be cured within such period (e.g., due to reasons beyond Thematic’s reasonable control), Thematic shall not be in breach of this Agreement if Thematic cures such breach within a reasonable period of time. Thematic shall have no responsibility for any act or omission, or responsibility to cure any breach of contract, by YouTube and/or Instagram, or their licenses and/or assigns, including but not limited to where YouTube or Instagram removes, blocks, flags, strikes or otherwise takes action against your Channel, you or your Video and/or account.
(c) Notices to Thematic under this agreement shall be given in writing and deemed to have been made and received when i) personally delivered, ii) delivered by a commercially established courier service (e.g. Federal Express, UPS, etc.) and signed for by Thematic at its corporate office, iii) certified or registered mail return receipt requested, or iv) sent via email and a responsive email from Thematic evidences such receipt. Notices to you shall be sent to the email and/or the contact address listed in your registered user Account profile and deemed given when sent. You expressly agree to keep a current email contract address noted on your Account and we may terminate this Agreement and all rights hereunder where such email address is not kept current or “kicks back” for any reason.
(e) We shall have the right to assign this Agreement to any person or entity. You shall have no right to assign this agreement and the rights granted hereunder.
(f) This Agreement has been entered into in the state of California and the validity, interpretation and legal affect of this Agreement shall be governed by the laws of the state of California applicable to contracts entered into and performed entirely within the state of California. The courts located in the Country of Los Angeles (state and federal), only, will have jurisdiction of any controversy regarding this Agreement; any action or other proceeding which involves such a controversy will be brought in those courts, and not elsewhere.
Last Updated 6-5-2019