Please carefully read the following Terms of Service ("TOS") to understand your use of Catapult's distribution service (the "Service") located at www.catapultdistribution.com ("Site"). This is a legal agreement between you and Catapult Reservatory, LLC (the "Company"). Company reserves the right to revise the TOS in its sole discretion and at any time without prior notice to you other than by posting the revised TOS on the Site. Any revisions to the TOS are effective upon posting. It is your responsibility to review these TOS periodically for any modifications or changes. By use or continued use or access to the Site or Service after Company modifies and changes the TOS in any way, you agree to be legally bound by the revised TOS. You may not alter the TOS in any way without Company's express written consent.
You understand that by using the Company's Service through the Site in respect to your account at Catapult, you agree to be bound by the TOS. If you do not accept the TOS in their entirety, you may not access or use the Site or Service offered by Company.
(a) Age Requirement. You must be over the age of 18 to use the Service. Only those parties that can lawfully enter into and form contracts under applicable local or federal law may utilize Company's Service.
(b) Compliance. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable local or federal laws, regulations and rules when you use Company's Service and Site.
(a) Prohibited Actions. Except as may be expressly permitted by Company, you may not:
(c) Modification of Site or Service. Company may modify the Company's Site and/or Service at any time with or without notice to you, and will incur no liability for doing so.
Certain features or services offered on or through the Site may require you to open an account with a username and password associated with an e-mail address. You are solely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You agree to notify Company immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by Company or any other user of or visitor to the Site due to someone else using your password or account as a result of your failing to keep your account information secure and confidential. You may not use anyone else’s username, password or account at any time without the express permission and consent of the holder of that username, password or account. Company is not liable for any loss or damage arising from your failure to comply with these obligations.
(a) Modification of materials, information or metadata. You agree that Company can modify any material, information or metadata you submit as it relates to Recordings (as defined in Section 5) in order to conform to the requirements of each Digital Store's style and formatting guidelines.
(b) Marketing and Promotional Use. When you submit metadata, questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant Company permission to use such submissions for marketing and other promotional purposes. You agree that Company will have no obligation to keep any Submissions confidential and you will not bring a claim against Company based on "moral rights" or the like arising from Company's use of a Submission.
(a) Exploitation of Recordings. The rights granted hereunder shall include the sale of Recordings (as defined in Section 5 below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming and cloud services. You and Company agree that the Digital Stores or Platforms (“Digital Stores”) licensed to exploit your Recordings hereunder must be approved by you. It is understood that some Digital Stores service other sub Digital Stores or platforms, and therefore some sub Digital Stores and platforms cannot be approved without approving the Digital Store that services that specific sub Digital Store or platform (ie: MediaNet services xBox).
(b) Agreement. By clicking the "I Agree" button during the submission process on the Site, you irrevocably grant to Company, throughout the world (the “Territory”) until such time that you terminate the Service, the non-exclusive right:
(c) Disabling Account Access. You agree that you will not use the Site or Service to deliver, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. You acknowledge and agree that Company may disable access to and/or terminate your account and/or remove or disable access to any Recordings or any associated materials you provide to Company in the event that Company receives any claim that, if true, would constitute a violation of your representations and warranties hereunder.
(d) Freezing and Forfeiture. You agree that Company may freeze any and all revenues held by Company in regards to your account that are received in connection with Recordings or other materials submitted by you which Company believes, in its good faith and sole discretion, violate the TOS, and that such revenues will be forfeited by you if Company determines, in its good faith and sole discretion, they are the result of fraud and/or infringement. You agree that you will not be entitled to reimbursement for any fees paid by you to Company in the event Company disables access to your account, your Recordings and/or any other materials you provide to Company, or to any revenues forfeited by you as set forth in the preceding sentence.
(e) Account Termination. You agree that Company may terminate your account if you violate the TOS or, in Company’s good faith and sole discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent or abusive activity.
The term "Recordings" shall be defined as the sound recordings and their underlying metadata that you submit to Company at any time. Company, in its sole discretion, reserves the right to reject any materials (including, without limitation, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images, artwork and metadata at your sole expense, in the format(s) required by Company or the Digital Stores.
(a) Payment Method. You are required to have an account at PayPal (as defined in Section6(b) below) located at www.paypal.com in order to receive any and all payments from Company in regards to your Net Income (as defined in Section 6(c) below) and to provide Company with the e-mail address associated with your PayPal Account. If you cannot obtain a PayPal Account or access to your PayPal account is lost, terminated, or otherwise revoked by PayPal, Company will hold any and all Net Income that has accrued for up to one year from the date that each payment was to be rendered or attempted to be rendered in accordance with Company's reporting and payment schedule. If after one year that a payment was to be rendered you have not acquired a PayPal Account or provided Catapult with a PayPal Account e-mail address, you agree that it is Company's sole discretion to forfeit any related Net Income or to render payment. If you believe that access to your PayPal Account has been terminated, revoked, or otherwise hindered that would prevent Company from rendering payment to your PayPal Account, you agree that your sole recourse is to terminate Company's distribution of your Recordings and further you understand that no payments will be rendered for any Net Income owed into perpetuity. You understand that a PayPal Account is the only method by which Company will render a payment for any and all Net Income and that no other form or method of Payment will be rendered by Company for any monies.
(b) PayPal Account. The term "PayPal Account" shall be defined as your account which is provided to you and maintained by PayPal located at www.paypal.com. Any objection relating to a payment rendered to your PayPal Account or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than 6 months after the date the payment is rendered, and you hereby waive any longer statute of limitations that may be permitted by local or federal law. You agree that Company is not responsible for any incorrectly routed payments to your PayPal account (Whether by accident or by you providing invalid PayPal credentials), loss of monies from your PayPal Account due to unauthorized access, fraud, or termination of your PayPal Account by PayPal.
(c) Payment Amount. Company will pay you ninety one percent (91%) of Net Income. Net Income will be paid to your PayPal Account in a timely fashion after Company's receipt thereof in accordance with Company's reporting and payment schedule and sole discretion.
(d) Net Income. "Net Income" shall be defined as Company's actual receipts from Digital Stores less any fee(s), tax or other bank charge(s) related to the sale of your Recordings. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one 6 months after the date the payment is rendered, and you hereby waive any longer statute of limitations that may be permitted by local or federal law.
(e) Deductions. To the extent that you owe any amounts to Company as a consequence of the TOS or otherwise, Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise payable to you.
(f) Payment Pooling.The Net Income paid to your PayPal Account may be pooled in an interest bearing bank account with the Net Income of other Catapult customers until such time that the payments are rendered. You agree that you will not receive interest or other earnings on the Net Income that Company handles as your agent and places in such pooled account. In consideration for your use of the Services, you irrevocably transfer and assign to Company any ownership right that you may have in any interest that may accrue on Net Income held in such pooled account. In addition to or instead of earning interest on such pooled account, Company may receive a reduction in fees or expenses charged for banking services by the banks that hold your Net Income.
(g) Free Downloads.To the extent that you elect to use certain Recordings from your Catapult catalog to distribute free to any parties (via Catapult's Service or directly through your own website or otherwise), you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries. Without limiting any of the foregoing, you expressly agree to either waive music publishing royalties (if you own or control such rights) or pay any necessary royalties due to third party music publishers as a result of any such free distribution.
(h) Fraud or Abuse. In the event that Company has, in its good faith and sole discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities as determined solely by Company or its partners, Company reserves the right to discontinue the payment of Net Income to your account until resolution of the suspect activities to the satisfaction of Company is obtained. Furthermore, you agree that such revenues will be forfeited by you if Company determines, in its good faith and sole discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by Company (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by Company from any monies otherwise payable to you hereunder. Certain Digital Stores may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies, if any, and such policies shall be binding upon you hereunder.
(i) Infringement. In the event that Company is presented with a claim of infringement of copyright, trademark, right of publicity or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, you agree that Company may freeze any and all revenues in your account that are received in connection with the disputed Recordings or other materials submitted by you, and that such revenues will be forfeited by you if Company determines, in its good faith and sole discretion, they are the result of fraud and/or infringement. Furthermore, if in Company’s reasonable business judgment it elects to engage an attorney to review and/or respond to such claim, Company shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to Company (such as a PayPal account, credit card or debit card) (each a “Payment Method”) a minimum of Five Hundred Dollars ($500) to offset the costs of associated legal fees and expenses.
(j) Invalid, Revoked or Inoperable PayPal Accounts. In the event that your PayPal Account is unable to receive payments from Company, your sole recourse is to terminate the Company's Service for your Recordings and you understand that any payments of any Net Income owed will be forfeited into perpetuity.
(k) Finalized Sales Reports. Users will be able to view online or download finalized sales reports relating to their content for a period encompassing the last three (3) years from the time they were posted. Finalized sales reports that were posted at a time that exceeds three (3) years in the past will be archived and unable to be viewed or downloaded from our site. If historical finalized sales reports are required by you, a cost of one hundred U.S. dollars ($100) will be invoiced to you for costs involved retrieving these archived reports. Once the invoice is paid, these archived finalized sales reports will be retrieved and e-mailed to you.
Refunds for any and all setup fee(s) will only be made within 30 days of a payment for the submission of a Recording if you wish to cancel a submission prior to the Recording being delivered to the Digital Stores. The Company has sole discretion in determining whether to refund any setup fee(s) after 30 days from the time the payment was rendered. No refunds will be made once its related Recording has been submitted into the Company's Service and delivered to the Digital Stores. For any optional services, we do not provide refunds once that service has been rendered.
(a) Valid Payment Account. You shall be solely responsible for obtaining a valid and confirmed PayPal Account that is able to receive payments from Company as determined by PayPal for your given country of residence.
(b) Miscellaneous Expenses. You shall be solely responsible for securing and paying for digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from musical composition copyright owners or their agents in connection with Company's exploitation of rights hereunder, as well as royalties due to artists, producers and other persons who performed in the making of the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.
(c) Free Downloads. To the extent that Company permits you to select certain Recordings to distribute free to fans through Company's Site, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries.
(d) Fraud or Abuse. You agree that you will not engage in fraudulent or abusive actions (as defined in Section 9) and you understand that in doing so will result in termination of your account at the Site and with the Company and the forfeiture of any and all Net Income.
(e) Documentation Requests. If requested by Company, you agree to provide us with a copy of one or more of the following for review:
Engaging in fraudulent or abusive actions as it relates to Recordings in the Digital Stores and Platforms is strictly forbidden. Fraud or abuse includes, but is not limited to, the use of bots, scripts, viruses, manual human interaction or automated processes to generate clicks, plays, downloads, streams or any other form as determined solely by Company and the Digital Stores and Platforms. It is in the sole discretion of Company or the Digital Stores and Platforms in determining whether fraudulent or abusive actions have taken place whether by you, your affiliates, or an unknown party to either you or Company. If the determination is made that fraudulent or abusive actions have occurred related to your Recordings in the Digital Stores and Platforms, the Company will remove your Recordings from the Digital Stores and Platforms and may report this abuse to local or federal law enforcement. Further, any Net Income derived from this fraud or abuse will be forfeited into perpetuity and/or returned to the Digital Stores and Platforms.
(a) Mutual Representations and Warranties. You represent and warrant to Company and Company represents and warrants to you:
(b) Indemnification. You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach or a claim which, if true, would constitute a breach of the foregoing representations and warranties or any of the agreements contained in these TOS, including reasonable attorneys' fees and expenses.
(a) Disclaimer of Warranties. Company Provides the Site and Company's Service on an "as is" and "as available" basis. Company does not represent or warrant that the Site, Company's Service or its use:
(b) Exclusion of Damages. In no event will Company, its officers, directors, employees or agents be liable to you for any damages whatsoever for any consequential, incidental, indirect, punitive or special damages (Including damages relating to lost profits, lost data or loss of goodwill) arising out of, relating to or connected with the use of the Company's Service or Site, based on any cause of action, even if advised of the possibility of such damages.
(c) Limitation of Liability. In no event will Company, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, Services, Company products or any Company content, no matter whether the damages are foreseeable and whether or not Company has been advised of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and in no event will Company’s aggregate liability to you exceed One Hundred Dollars ($100).
(a) Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND COMPANY AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a "Notice"), or, in the absence of a mailing address provided by you to Company, to you via any other method available to Company, including via e-mail. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the "Demand"). If you and Company do not reach an agreement to resolve the claim within 90 days after the Notice is received, you or Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE "Rules"), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. You are solely responsible for the payment of any filing fee(s).
(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Company agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND COMPANY AGREE THAT YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of Texas in conducting the arbitration. You acknowledge that this Agreement and your use of the Service and the Site evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Applicable Law. This Agreement and your use of the Service and the Site shall be governed by the substantive laws of the State of Texas without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Company under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Collin County, Texas, and you and Company hereby submit to the personal jurisdiction and venue of these courts.
(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Company seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by Company or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Company, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(h) Claims. You and Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the Services or the use of the Site, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
(i) Improperly Filed Claims. All claims you bring against Company must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Company may recover attorneys' fees and costs up to $5,000, provided that Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(a) Company respects the intellectual property of others and intends to protect their copyrights and all other intellectual property. Infringing activity will not be tolerated on or through the Site or the Company's Service.
(b) Company's intellectual property policy is to (1) remove material that Company believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by "repeat offenders." Company considers a "repeat offender" to be any user that has uploaded Products or Submissions to the Service and for whom Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such Products or Submissions. Company has sole discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Company own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Recordings or Submissions made available on or through the Site or the Company's Service have been used used or exploited in a manner that infringes an intellectual property right you own or control, then promptly send a "Notification of Claimed Infringement" containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(d) Designated Agent Contact Information. Company's Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail : firstname.lastname@example.org
(e) False Notifications of Claimed Infringement. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f). Company reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
(a) Company does not guarantee sales of the Recordings, which depends solely on the end consumer, nor on the inclusion or participation of any given Digital Store. Company reserves the right in its sole discretion to decline to engage in business with any given Digital Store. Except as specifically set forth in these TOS, Company shall have no obligations to you.
(b) Company may permit you to modify the standard wholesale price you will receive from sales of certain Recordings by a Digital Store ("Price Modification"), such circumstances to be determined by Company in its sole discretion. Further to and consistent with the provisions of Section 11(b) above, in no event will Company, its officers, directors, employees or agents be liable to you for any claims you may have in connection with any errors occurring in the implementation of such Price Modifications.