THIS TERMS OF SERVICE AGREEMENT(the “Agreement”) is between you (“Rightsholder”), a former client of Dart Music, Inc. (“Dart”) and Made in Memphis Entertainment, LLC, a Tennessee limited liability company (“MIME”).
- Background Information Regarding Administration of this Website. On February 27, 2017, Dart filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code (the “Bankruptcy Case”) in the United States District Court for the Middle District of Tennessee (the “Bankruptcy Court”). On March 3, 2017, after the filing of the Bankruptcy Case, Dart opened a debtor-in-possession artist royalty account with Wells Fargo Bank, N.A. (the “DIP Royalty Account”)—account number ******9345 related to royalties to be paid to Dart’s clients. Since March 1, 2018 MIME has held the rights, title, and interest in the digital download sales agreement originally by and between Dart and Apple, Inc, (the “Apple Contract”). MIME understands that no royalties were paid from the DIP Royalty Account from October 2016 through February 2018 (the “Disbursement Period”).
With the desire to ensure that all former Dart clients are paid the royalties they were owed out of the DIP Royalty Account during the Disbursement Period and in an effort to effectively administer the rights under the Apple Contract to the best of its ability, MIME has agreed to the assignment of all of Dart’s right, title, interest, and obligations to and under the DIP Royalty Account. In furtherance of these goals, MIME has obtained certain information from FUGA regarding Dart’s retail relationships and certain rightsholders’ historical streaming information for the Disbursement Period regarding the following digital service providers (“DSPs”): 7Digital, Amazon (and its services), Deezer, Electric Jukebox, Juke, Pandora, Spotify (and its services including Soundtrack your Brand), TDC Musik, Tidal, and YouTube (and its services).
You have been granted access to this website because you have provided sufficient documentation (the “Rightsholder Verification”) to establish that you are a former client of Dart who may be entitled to a distribution of certain royalties from the DIP Royalty Account for the Disbursement Period.
- Administration Fees and Expenses. Rightsholder acknowledges that MIME will charge certain expenses and fees associated with the administration of the DIP Royalty Account for a 25% fee from the DIP Royalty Account balance.
Password and Responsibility. If you obtain a login and password for this website as part of the registration process, you will select your own password. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF ANY PASSWORD YOU USE TO ACCESS THE WEBSITE AND AGREE THAT MIME WILL HAVE NO OBLIGATIONS WITH REGARD THERETO.
You agree not to assign, transfer or sublicense your rights as a user to the website.
- Election of Ongoing Rights After Initial Disbursement. Upon receipt of its disbursement for any amounts of money owed from the DIP Royalty Account, Rightsholder must choose from the following options with regard to how to move forward with regard to any works and related rights currently being hosted pursuant to its agreement with Dart:
- Enter into an ongoing relationship with MIME to represent Rightsholder’s works at all MIME DSPs with MIME obtaining a twenty percent (20%) return on any and all royalties collected. MIME would issue a takedown notice to FUGA with regard to the FUGA-related DSPs in order to centralize all Rightsholder’s works under MIME DSPs; or
- Issue a takedown notice to MIME regarding Rightsholder’s works. Upon receipt of the takedown notice, MIME would remove Rightsholder’s content from Apple iTunes/Apple Music and notify any third party of which MIME is aware that is currently distributing their work—specifically the FUGA-related DSPs—to remove the works.
Rightsholder expressly agrees to make this election by written notice to MIME within fifteen (15) days of receipt of the disbursement from the DIP Operating Agreement. This written notice may be by physical written notice or by email to MIME. To assist Rightsholder with this process, MIME may provide Rightsholder with a form detailing the options for this election at the time that it provides Rightsholder access to this website.
- No Liability for Time Period Prior to MIME Obtaining Rights. Rightsholder expressly acknowledges that MIME has only been administering Dart’s former rights under the Apple Contract since March 1, 2018. Rightsholder expressly acknowledges that MIME is not responsible for any actions taken by any prior company operating under or otherwise utilizing the Apple Contract prior to that date. Rightsholder further expressly acknowledges that it will not hold MIME liable or otherwise accountable for any actions taken by any former entity operating under the Apple Contract for any action or inaction, known or unknown, taken prior to March 1, 2018, regarding the Apple Contract and any rights thereunder.
- Scope of Disbursements Limited to Information Available to MIME. Rightsholder acknowledges that MIME has limited access to information regarding the Disbursement Period and Dart’s various contracts and agreements with third parties. Specifically, MIME only has access to payment information from Apple, Inc. and monies and accounting information provided by third-party FUGA. Accordingly, MIME cannot provide any detail about any other retail outlet other than those listed in section 1 above and MIME further cannot provide any detail about the likelihood of payment regarding royalties from any retailer other than those listed in the recitals above.
Based on the limited historical information available to MIME, MIME will make disbursements to any Rightsholder that provides MIME with a Rightsholder Verification based on that Rightsholders’ market share derived from the historical disbursement information available to MIME. MIME cannot guarantee that any disbursement made pursuant to this process will compensate any Rightsholder for the full amount of royalties they may have otherwise collected had Dart been the distributor of such funds and not filed for bankruptcy protection.
Rightsholder acknowledges that any disbursements made hereunder are based on a market share calculation and are reasonable based upon the limited information available to MIME.
- No Guarantee of Accurate Sales Data for Time Period Prior to MIME Obtaining Any of Dart’s Rights. Rightsholder acknowledges that MIME cannot guarantee the accuracy of any sales data provided by any aggregator previously used in connection with Dart or FUGA. Rightsholder further acknowledges that MIME can only account for the time period prior to which MIME began operating under the Apple Contract, and specifically the Disbursement Period, to the extent that it has obtained historical data with respect to such time period from third parties. All such information was not generated by MIME and MIME cannot guarantee its accuracy.
- Limited Audit Period. Upon receipt of the Rightsholder Verification, MIME will audit the records of the DSPs for which it has information with respect to any disbursement from the DIP Royalty Agreement for the Disbursement Period. Rightsholder acknowledges that MIME’s audit period shall extend no longer than one year from the date that Dart assigned the rights under the DIP Royalty Account to MIME.
- Limitation of Operation of DIP Royalty Account. Rightsholder acknowledges that MIME’s obligations to operate and provide disbursements from the DIP Royalty Account are not to extend in perpetuity and that MIME may terminate this Agreement and the obligations hereunder after it has exercised reasonable efforts to make all disbursements to those rights holders and content creators who are owed royalties from the DIP Royalty Account and who have provided a Rightsholder Verification to MIME. The term “reasonable efforts,” as used in the preceding sentence, shall mean utilizing all contact information currently available to MIME for previous Dart clients to make all disbursements, to be paid out by MIME over twelve (12) months from the date that MIME was assigned the DIP Royalty Account.
- Copyright and Trademarks. All materials on the website, including, without limitation, text, images, software, audio, and video clips, and databases (collectively, the “Content”) are owned or controlled by MIME and/or its licensors, which retain all right, title, and interest in and to the Content. The website and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws. You may not download, display, reproduce, create derivative works from, transmit, sell, distribute, or in any way exploit the website or any portion thereof for any public or commercial use without MIME’s express written permission.
You agree not to use any trademarks, service marks, names, logos, or other identifiers of MIME or its employees, licensors, independent contractors, providers and affiliates (collectively, “Affiliates”) without MIME’s prior written permission or the permission of the relevant Affiliate. In addition, you may not use our trademarks:
(a) in, as, or as part of, your own trademarks or those of any third parties;
(b) to identify products or services that are not those of MIME;
(c) in a manner likely to cause confusion; or
(d) in a manner that implies inaccurately that MIME sponsors or endorses or are otherwise connected with your own activities, products, and services or those of third parties.
MIME, Beatroot, and other related marks used on this website are service marks of Made In Memphis Entertainment, LLC.
- Jurisdiction. The terms of this agreement will be governed and construed in accordance with the laws of the State of Tennessee and the United States applicable to contracts to be wholly performed in Tennessee. ANY ACTION BASED ON OR ALLEGING A BREACH OF THIS AGREEMENT OR OTHERWISE RELATING TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A STATE OR FEDERAL COURT LOCATED IN SHELBY COUNTY, TENNESSEE. IN ANY SUCH ACTION IF MIME PREVAILS, MIME SHALL BE ENTITLED TO ALSO RECOVER ITS REASONABLE LEGAL FEES AND COSTS.
- Modifications. MIME reserves the right to modify these Terms of Service and any policies affecting the website. Any modification is effective as of the beginning of the calendar month following the posting of the change to this website or distribution via electronic mail or conventional mail, whichever occurs first. Your continued use of the website more than 30 days following notice of any modification to these Terms of Service shall be conclusively deemed an acceptance of all such modification(s). If any change is unacceptable to you, you may so notify us before the expiration of the 30 day period and require us to make the decision that the change will not apply to you.
- General.These terms of service constitute the entire agreement between Rightsholder and MIME with respect to the DIP Royalty Account and any disbursements therefrom and supersede any and all prior agreements between Rightsholder and MIME with respect to the facts underlying this Agreement. Failure by MIME to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provision shall remain in full force and effect.