Terms of Service

Stem Disintermedia, Inc., together with its designated affiliates (collectively, “Stem”) provides its services and offerings (the “Stem Service,” as further described below) subject to these conditions, as well as Stem’s Copyright Policy,  Privacy Policy and any Cash Advance Addendum entered into by you and Stem or its designated affiliate from time to time (incorporated herein by this reference and collectively referred to as the “Terms of Service”).  By accessing or using the Stem Service, you (“you” or “your” as applicable) agree to be bound by these Terms of Service.  If you register on behalf of a business, you represent to Stem that you have the authority to bind that business and that your acceptance of these Terms of Service will be treated as acceptance by that business.  In that event, the terms “you” and “your” will refer to that business.  Stem reserves the right at any time to modify, discontinue or terminate the Stem Service, or modify these Terms of Service, without notice.  If you do not agree to these Terms and Conditions in their entirety, you may not use the Stem Service.

Please note that, as described further in Section 5 below, each Claiming Party for each sound recording constituting Licensed Content (as defined below) that you submit to the Stem Service hereunder must agree to these Terms of Service by subscribing to the Stem Service.  Stem will not process payments for any Licensed Work comprised of any sound recording unless and until such time as all Claiming Parties for such Licensed Work have subscribed to the Stem Service and have confirmed that the so-called “splits” (including without limitation the percentage interest of any Net Income to be paid to such Claiming Party) for such Licensed Work are correct and accepted.

1. The Stem Service

The Stem Service is comprised of (i) the Stem application, an application that will allow you to upload and view Licensed Content and related accounting, payment and other information; (ii) the Stem website, currently located at www.tone.is (and/or any successor or additional website(s) owned or operated by or for Stem); (iii) the Stem syndication network to the extent provided by Stem (for example, when Stem makes videos, sound recordings or other content available on Third Party Platforms, as defined below); (iv) the servers and networks operated by or on behalf of Stem; and/or (v) any other technology and/or services (including payment technology) that Stem provides or uses in connection with the Stem Service.  The Stem Service allows you to make video, audio and other content available through certain third-party services (“Third Party Platforms”), as determined by Stem from time to time.  All Content that you upload to the Stem Service or otherwise make available hereunder from time to time is referred to as “Licensed Content”.  “Content” means original works of any type which may include, but is not limited to, sound recordings, audiovisual works (i.e., videos), musical compositions embodied in sound recordings, related promotional materials, along with any other material that is ancillary to such works, including, without limitation, text, software, scripts, graphics, images, audio, and other information relating to the foregoing.

Elements of any Licensed Work may be owned or controlled by more than one person or entity.  The owner or controller of each such element is referred to herein as a “Claiming Party.”  As set forth in Section 4 below, you agree to identify the Claiming Party for each element of any Licensed Work.

2. Licensed Content

As between you and Stem, you retain all rights in the Licensed Content not expressly licensed hereunder.  You shall be solely responsible for the Licensed Content, whether created by or for you, and the consequences of posting or publishing Licensed Content by means of the Stem Service.  You may not submit Licensed Content that contains any pornographic, infringing, hate-related, violent or illegal elements. You may only upload and publish Licensed Content for which you have sufficient rights and licenses to permit Stem’s sublicensing and distribution as provided herein.  You acknowledge that you have no expectation of privacy or confidentiality with respect to the Licensed Content.

3. License and Right to Sublicense

The Stem Service offers you several methods of distribution and publishing for your Licensed Content.  You hereby grant: (i) to Stem, for each method that you select on the Stem Service and in the countries you designate to Stem (each such country, a “Permitted Territory”), a non-exclusive, sublicenseable and transferrable right and license, and (ii) to Stem Financing LLC (“Stem Finco”), with respect to any Licensed Content that is subject to a Purchase (if applicable), an exclusive, sublicenseable and transferrable right and license for the duration of the applicable Exclusivity Period and in the Expanded Territory (as defined in the applicable Cash Advance Addendum), in each case, to:

(i)  market, sell, distribute, use, display, publicly perform, transmit, distribute, copy, edit, modify, store, reproduce, make available for download or streaming and/or otherwise provide your Licensed Content, as applicable, through the Stem Service and on Permitted Third Party Platforms (defined below).

(ii)  secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms based on the Licensed Content;

(iii)  distribute, transmit, and/or display the Licensed Content and encoded works via such technologies as are supported by Stem or the Permitted Third Party Platforms from time to time;

(iv)  display advertisements and promotional material in connection with the Licensed Content; and

(v)  perform such other acts with respect to the Licensed Content as are necessary from time to time to allow Stem and/or Stem Finco to provide the Stem Service;

provided, that, any license granted by you shall be on a non-exclusive basis with respect to Ancillary Materials during the Exclusivity Period and shall be solely in connection with the exploitation, marketing, and/or promotion of the Licensed Content.  “Ancillary Materials” means any materials (other than recordings, whether audio-only or audio-visual) made available to Stem by you in connection with Licensed Content or the promotion of the Licensed Content, you or the recording artist(s) whose performance(s) are embodied in the Licensed Content and include your and such recording artist’s(s’) respective professional name(s), logos, trademarks and service marks, trade names, likenesses, photographs, images, biographies, URLs and artwork.

The rights granted hereunder shall include the sale and making available of Licensed Content by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, so-called “cloud services” and interactive television.  In claiming rights in Licensed Content, you will identify any Permitted Territory for which you own or control the rights referred to above.  Stem’s and Stem Finco’s rights hereunder shall include, without limitation, the right to reproduce and store the entirety of the Licensed Content and the components thereof (i.e., recordings, data and artwork) and any related promotional materials in digital form on one or more computer facilities owned by, or under the control of, Stem and/or its subcontractors for the purpose of effectuating the marketing, sale and distribution of the Licensed Content as permitted hereunder.

4. Identification

You shall submit the following information for each separate work constituting Licensed Content you submit to the Stem Service hereunder (“Licensed Work”) for each Permitted Territory:

(i)  the name or title of such Licensed Work, and any other identifying or related information Stem may request from time to time;

(ii) each Permitted Territory for which a license is granted;

(iii)  the names of each Third Party Platform that may exploit such Licensed Work in each such Permitted Territory (any such Third Party Platform, a “Permitted Third Party Platform”); provided, that, for any Licensed Work that is subject to a Purchase, Permitted Third Party Platform shall be deemed to include any other Third Party Platform that Stem elects to utilize from time to time during the Exclusivity Period;

(iv)  a listing of each and every party claiming rights in any element of such Licensed Work (including any and all contributors to the musical composition embodied in such Licensed Work) (as defined above, each, a “Claiming Party” and collectively the “Claiming Parties”); and

(v)  contact and payment information (method, bank routing) for each Claiming Party, including without limitation the percentage interest of any Net Income to be paid to each such Claiming Party (the percentage interest of any Claiming Party, its “Identified Share”).

You may enter and update this information and your account information via the Stem Application.

5. Payment

For each Licensed Work, Stem will pay all Claiming Parties in the aggregate a sum equal to:

a)     in respect of any Licensed Work uploaded or delivered to Stem prior to July 1st, 2019, ninety-five percent (95%) of Net Income; or

b)     in respect of any Licensed Work uploaded or delivered to Stem on or after July, 1st 2019:

• ninety percent (90%) of Net Income if you subscribed to the Stem Service on or after July, 1st 2019; or
• ninety-two percent (92%) of Net Income if you subscribed to the Stem Service prior to July 1st, 2019.

As used herein, “Net Income” is defined as Stem’s actual receipts from Third Party Platforms with respect to Licensed Content, less any tax, fee or other third-party charge related to the exploitation of the Licensed Content.  To the extent that you owe any amounts to Stem as a consequence of these Terms of Service or otherwise, Stem shall have the right to deduct all or a portion of such amounts from any Net Income otherwise payable to Claiming Parties.  Such amounts shall be paid to the Claiming Parties according to the Identified Shares you provide pursuant to Section 4(v) above.

Stem will provide any payments due to each Claiming Party within forty-five (45) business days following the end of the calendar month in which Stem receives any amount from a Third Party Platform in respect of an item of Licensed Content.   Stem will not make payment to any Claiming Party unless and until the earned balance for that Claiming Party is at least US $50 (or its equivalent in local currency) at the time payment is due.  Each Claiming Party shall have a valid method of payment (bank information) on file with Stem.  Stem may suspend payments to any Claiming Party not having a valid method of payment (bank information) on file with Stem.  Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.  You will be responsible for any bank fees or other charges related to such payments.

By listing the Claiming Parties as set forth in Section 4(v) above, you represent and warrant that for each Licensed Work you have identified every possible Claiming Party.  You also acknowledge that each Claiming Party will receive any payments due separately and that Stem will only pay you your Identified Share. You also acknowledge that each Claiming Party will receive information about the Licensed Work, that could include its streaming and financial performance. All payments due hereunder shall be processed according to the information you give to Stem and only to the extent that information includes a valid payment method.  Please note that for any Licensed Work comprised of sound recordings, each Claiming Party related to such Licensed Work must agree to these Terms of Service by subscribing to the Stem Service.  Stem will not process payments for any Licensed Work comprised of sound recordings unless and until such time as all Claiming Parties are subscribers to the Stem Service and have confirmed that the so-called “splits” (including without limitation the percentage interest of any Net Income to be paid to such Claiming Party) for such Licensed Work are correct and accepted.

In the event that Stem in the exercise of its sole discretion has reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, Stem reserves the right to discontinue the payment of Net Income to any or all Claiming Parties with respect to the applicable Licensed Work(s) until resolution of the suspicion.  Furthermore, you agree that such payments will be forfeited by you if Stem determines, in its good faith 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 Stem incurs (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by from any monies otherwise payable to you hereunder.  Such deduction shall not act as a limitation on any amounts that may otherwise be due to Stem.  Certain Third Party Platforms 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.

You shall obtain all necessary consents (including with respect to name and likeness), secured all licenses and paid all associated fees required to be paid to third parties (including for the use of any music performed in, contained in or synchronized with any of the Licensed Content) (“Third Party Fees”) and you covenant to timely pay any and all Third Party Fees required to be paid in the future.  Third Party Fees shall include without limitation fees for (i) synchronization, digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from copyright owners or their agents, (ii) amounts due under collective bargaining agreements or pursuant to statutes or regulations and (iii) and any and all payments that may be due to parties other than Claiming Parties.

Stem or its designated affiliate may (but shall not be obliged to), from time to time, offer  to purchase an exclusive license to certain Licensed Content from one or more Claiming Parties on any Licensed Work pursuant to a Cash Advance Addendum (any such offer, a “Purchase Offer”).  In the event that you or any other Claiming Party on any Licensed Work elects to accept any Purchase Offer (any such transaction, a “Purchase” and such accepting party, a “Selling Party”), Stem or its designated affiliate will make available to the Selling Party a lump sum payment as the purchase price for such license and the corresponding Net Income.

If Stem or such affiliate, in its sole discretion, delivers a Purchase Offer to you, Stem or its designated affiliate will communicate to you the terms on which Stem is prepared to consummate the related Purchase.  No Purchase shall be effected unless and until you unconditionally agree to such terms.

You acknowledge and agree that, unless otherwise expressly agreed to the contrary in writing, following any such Purchase and effective until Stem or such designated affiliate (or their assignee) has received the full amount due under such Purchase (such period, an “Exclusivity Period”): (a) Stem or its designated affiliate shall be entitled to receive an agreed percentage of the Identified Share of Net Income otherwise due to the Selling Party for any Licensed Work); (b) Stem shall be under no obligation to pay to the Selling Party your (or their, as applicable) Identified Share of Net Income otherwise due; (c) notwithstanding any other provision of these Terms of Service, no Claiming Party (including you) may delete, withdraw, remove or take down any Licensed Content subject to a Purchase (or part of it) from the Stem Service or materially reduce the number of Permitted Territories or Permitted Third Party Platforms in respect of such Licensed Content; (d) none of you nor any other Claiming Party will be entitled to adjust Identified Shares for such Licensed Work; and (e) if you are in breach of any part of these Terms of Service, without limiting any other right or remedy, Stem may exercise certain rights under the Purchase documentation including increasing the agreed percentage to 100%.

You acknowledge and agree that Stem may earn and retain interest on any amounts that are or may become due to you but are not yet payable. To the fullest extent permitted by law, Stem may retain such interest amounts for its own account and such interest amounts shall not be considered Net Income hereunder.

6. Trademarks

Stem’s content, including without limitation the text, software, scripts, graphics, photographs, sounds, music, videos, interactive features and the like accessible through the Stem Service (collectively, the “Stem Content”) and the trademarks, service marks and logos contained therein (the “Stem Marks”), are owned by or licensed to Stem, and subject to copyright and other intellectual property rights under United States and foreign laws and international conventions.  The Stem Content, and Stem Marks are provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever.  Stem reserves all rights not expressly granted in and to the Stem Service. If you download or print a copy of any Stem Content, you must retain all copyright and other proprietary notices contained in or on such content and material. You agree not to circumvent, disable or otherwise interfere with security related features of the Stem Service or features that prevent or restrict use or copying of any Stem Content or Licensed Content.

You hereby grant Stem and the Permitted Third Party Platforms a non-exclusive, royalty-free right to reproduce and display the logos, trademarks, trade names and other similar identifying material owned or controlled by you that is associated with the Licensed Content, solely for the purposes of promoting, marketing and/or displaying the Licensed Content and, to grant sublicenses thereto on the same terms and conditions to Stem’s affiliates and partners (including without limitation the Third Party Platforms) to the extent necessary in connection with the provision of the Stem Service. This trademark license will terminate automatically upon the termination of this Agreement.

7. Representations and Warranties

You represent and warrant at all times that: (i) you are either more than 18 years of age, an emancipated minor or possess legal parental or guardian consent and are fully authorized to enter into this Agreement on your own behalf and on behalf of any other individuals or companies you are representing; (ii) you are fully able and competent to accept, make and/or perform the terms, conditions, obligations, representations and warranties set forth in this Agreement, and to abide by and comply with the terms herein; (iii) if you are a company, you are duly organized, validly existing and in good standing under the laws of the state of your organization, you have full corporate power and authority to enter into this Agreement, and you are duly authorized to perform the obligations and to carry out the provisions of this Agreement; (iv) you understand that this Agreement contains legal and valid obligations, binding and enforceable in accordance with its terms; and (v) neither the execution, delivery nor performance of this Agreement conflicts with any agreement, instrument, or understanding, oral or written, to which you are a party or by which you may be bound, or violates any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over you.

You specifically represent and warrant that (i) you either own fully and outright the Licensed Content or have obtained all rights, approvals, licenses, consents and permissions as are necessary, and are authorized to grant the licenses granted by you under this Agreement in each and every Permitted Territory, to make the representations and warranties made herein, and to perform your obligations hereunder; (ii) the Licensed Content and the distribution and/or publication of the Licensed Content through the Stem Service, directly or indirectly, does not, and shall not, infringe or misappropriate any copyright, trademark, privacy right, name and likeness right or any other rights of any third party; (iii) you have obtained all necessary consents (including with respect to name and likeness), secured all licenses and paid all Third Party Fees (defined in Section 5 above).  You further expressly agree that, as between you, on the one hand, and Stem and its affiliates, subsidiaries and distribution partners on the other hand, any obligation to secure any third party rights and to pay Third Party Fees as a result of distribution of the Licensed Content pursuant to this Agreement shall be your obligation and not the obligation of Stem or any of its affiliates, subsidiaries or partners. You warrant that all moral rights to the Licensed Content have been waived.

Stem represents and warrants that (i) it has the right and authority to enter into this Agreement and (ii) the Stem Service will operate in accordance with its specifications, as such may be revised by Stem from time to time.

STEM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE.

8. Indemnification

You agree to defend, indemnify and hold harmless Stem and its affiliates, subsidiaries and distribution partners, technology and service providers and their respective officers, directors, employees and/or agents (collectively, “Stem Indemnitees”) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Stem Service; (ii) your violation of any term of these Terms of Service, including any breach of any representation, warranty, covenant or agreement made by you herein; (iii) your violation, alleged or actual, of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that any Licensed Content you uploaded or published by means of the Stem Service caused damage to a third party; or (v) your gross negligence or willful malfeasance (collectively, “Claims”).  You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Stem Indemnitees.  Stem shall have the right, in its sole discretion, to select its own legal counsel to defend the Stem Indemnitees from any Claims (but by doing so shall not waive your indemnity obligations), and you shall be solely responsible for the payment of all reasonable attorneys’ fees incurred by the Stem Indemnitees in connection therewith.  You shall notify Stem immediately if you become aware of any actual or potential Claims, suits, actions, allegations or charges that could affect your or Stem’s ability to fully perform its respective duties or to exercise its respective rights under these Terms of Service.  You shall not, without the prior express written approval of Stem, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any Stem Indemnitee.  This defense and indemnification obligation will survive your use of the Stem Service.

Stem agrees to defend, indemnify and hold you harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from any failure of the Stem Service to operate in accordance with its specifications, as revised by Stem from time to time (“Stem-Related Claims”).  Stem shall be solely responsible for the defense and settlement of any Stem-Related Claim, including payment of losses, costs, damages or expenses resulting from the foregoing.  You shall notify Stem immediately if you become aware of any actual or potential Stem-Related Claims.

9. Limitation

IN NO EVENT WILL STEM, STEM FINCO, OR THEIR RESPECTIVE 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 THESE TERMS OF SERVICE OR YOUR USE OF THE STEM SERVICE, NO MATTER WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT STEM 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.  IN NO EVENT WILL STEM’S AGGREGATE LIABILITY TO YOU EXCEED ONE THOUSAND DOLLARS ($1,000) FOR ANY AND ALL CAUSES.  YOU AGREE THAT THE FOREGOING LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF STEM’S BARGAIN HEREUNDER, AND THAT STEM WOULD NOT PROVIDE THE STEM SERVICE WITHOUT SUCH LIMITATION.

10. Suspension

Stem reserves the right to suspend its performance at any time, without giving prior notice, for any act which Stem, in its sole discretion, determines to be harmful to Stem, to any Third Party Platform, any end user of the Stem Service, the Stem Service itself or which Stem determines in good faith violates or fails to comply with any applicable law or regulation. Stem may, without notice to you, remove or block any Licensed Content from the Stem Service or any Third Party Platform.

11. Removal, Termination

Each license granted herein to Stem, Stem Finco, and/or all Permitted Third Party Platforms as to any Licensed Content (as well as any obligation of Stem to continue exploiting such Licensed Content) will terminate solely with respect to such Licensed Content within a commercially reasonable time after the latest of (x) the termination of each Exclusivity Period (if any) in effect for such Licensed Content pursuant to the terms and conditions hereof and any Cash Advance Addendum, and (z) the earliest of (i) the date that is twelve (12) months after the full execution of this Agreement, (ii) your removal or deletion of such Licensed Content from the Stem Service and (iii) Stem’s notification to you of termination of such license in accordance with the terms hereof; provided, that Stem or Stem Finco may terminate at any time any such license with respect to such Licensed Content and shall have no further obligation to continue distributing such Licensed Content hereunder if (A) such Licensed Content does not generate at least US $100 of revenue during the one hundred (180) days from the designated so-called “live date” for such Licensed Content (B) there has been no more than one hundred dollars (US $100) in economic activity with respect to such Licensed Content for a period of at least one (1) year, or (C) you indicate or Stem determines in its good faith discretion that you do not control one or more rights necessary for Stem, Stem Finco, or the Permitted Third Party Platforms to exploit such Licensed Content in such Permitted Territory.  You may: (i) remove, (ii) change the Permitted Territories for, or (iii) change the Permitted Third Party Platforms for, any Licensed Content at any time by submitting such removal or change to Stem or Stem Finco through the Stem Service, and in the event such action is taken in accordance with the terms and conditions hereof, the license granted hereunder as to such Licensed Content shall be deemed modified to reflect such removal or change solely with respect to such Licensed Content for which such change has been made; provided, that taking any such action for any Licensed Content during an Exclusivity Period will require the prior written consent of Stem and that Stem and Stem Finco shall have the right to refuse to add any Permitted Territory for any Licensed Content if you indicate or Stem determines in its good faith discretion that you do not control one or more rights necessary for Stem, Stem Finco, or the Permitted Third Party Platforms to exploit such Licensed Content in such Permitted Territory.  All the actions described in the preceding two sentences may be taken by sending email to [email protected]. You understand and agree that (i) any foregoing termination or modification of such license is subject to a reasonable wind-down period, not to exceed thirty (30) days, during which your Licensed Content may remain available through the Stem Service (and/or the former Permitted Territories or former Permitted Third Party Platforms, as applicable) and (ii) after such wind-down period and without limiting Stem’s or Stem Finco’s rights hereunder, Stem and Stem Finco may retain, but not display, distribute, or perform, metadata relating your Licensed Content that you removed or deleted from the Stem Service.  Within three (3) days of its receipt of any notice or request for removal of any Licensed Work (or Permitted Territory or Permitted Third Party Platform therefor, as applicable) given in accordance with this paragraph (which request shall include the consent of Stem to the extent that such consent is required hereunder), Stem will submit a request for the removal of such Licensed Work to the applicable Permitted Third Party Platform(s) for the applicable Permitted Territor(ies).   Stem shall have no liability for the failure of a Third Party Platform to remove such Licensed Work. Notwithstanding anything to the contrary herein, you may not terminate any license granted herein to Stem or any affiliate thereof with respect to any Licensed Work that is subject to a Purchase during the Exclusivity Period related to such Purchase.

Stem may terminate your access to all or any part of the Stem Service at any time if you breach these Terms of Service (including any Cash Advance Addendum) and, where curable, fail to cure such breach within fourteen (14) days of receiving written notice of such breach from Stem. Except as otherwise set forth above, you may terminate your use of the Stem Service at any time, provided that all provisions of these Terms of Service which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

You acknowledge and agree that Stem has limited practical ability to control or monitor possible infringement of your intellectual property rights by other parties and that Stem assumes no responsibility for controlling or monitoring such alleged infringement.  Stem is not responsible for enforcing your intellectual property rights, including by issuing cease and desist letters, filing suit or taking other legal action against alleged infringers.

12. User Behavior

Stem grants you permission to use the Stem Service subject to all of the terms and conditions set forth in these Terms of Service, Stem’s Privacy Policy and Stem’s Copyright Policy.  As a condition of use, you agree not to use the Stem Service for any purpose that is unlawful.  You agree to abide by all applicable local, state, national and international laws and regulations, including, without limitation, all intellectual property laws (such as U.S. copyright laws).  Any unauthorized use of the Stem Service is expressly prohibited.

By way of example and not limitation, you agree not to (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Licensed Content, using any communications service or other service available on or through the Stem Service, that:

• infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
• is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortuous, offensive, profane, pornographic or obscene, or promotes hate or incites violence;
• misrepresents the source, identity or content of information transmitted via the Stem Service;
• constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”) or a chain letter, a pyramid scheme, petitions for signatures, charity requests or any other similar solicitation;
• contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of Stem or any third party;
• impersonates, or falsely indicates an affiliation with, any person or entity, including, without limitation, any employee or representative of Stem or access the Stem accounts of others without permission;
• constitutes an offer, for sale or otherwise, of any firearms, explosives, weapons, tobacco products, controlled substances, pharmaceuticals, counterfeit or stolen articles, registered or unregistered securities, or any items that would cause Stem to violate any applicable law or regulation;
• collects, or attempts to collect, personal information about users without their consent or constitutes a solicitation of any users of the Stem Service; or
• otherwise violates these Terms of Service or any policy posted on the Stem website.

Additionally, you agree that you will not: (i) take any action that imposes, or may impose, in Stem’s sole discretion, an unreasonable or disproportionately large load on Stem’s infrastructure; (ii) interfere or attempt to interfere with the proper working of the Stem Service or any activities conducted on the Stem Service; (iii) alter or modify any part of the website or access Licensed Content through any technology or means other than those explicitly designated by Stem; (iv) bypass any measures Stem may use to prevent or restrict access to the Stem Service, other accounts, or computer systems or networks connected to the Stem Service; or (v) interfere with any other user’s enjoyment of the Stem Service, including, without limitation, accessing an account of a Stem user that is not yours.

You may not (and may not permit others to), directly or indirectly, modify, translate, decompile, disassemble, or reverse engineer any part of the Stem Service or any content available through the Stem Service (except to the limited extent applicable laws specifically prohibit such restriction), or copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. In addition, you may not remove any proprietary notices, marks or labels.

You shall not launch or otherwise use any robot, spider, scraper or other automated means to access the Stem Service in a manner which sends more request messages to the Stem server in any given period of time than a typical human would normally produce in the same period by using a conventional on-line web browser to read, view and submit materials. Notwithstanding the foregoing, Stem may grant the operators of search engines permission to use robots to copy materials from the Stem website for the sole purpose of creating publicly-available searchable indexes of the materials, but not caches or archives of the materials, provided that we reserve the right to revoke these exceptions either generally or in specific cases.

You shall not harvest or collect information from the Stem Service, including, without limitation, information about other users of the Stem Service. The use of any information learned through the Stem Service or while on the Stem website is limited to the express purposes set forth in these Terms of Service; all other uses are strictly prohibited.

Unless expressly authorized, you shall not frame or otherwise display any portion of the Stem website or any of its contents.  No hyperlinks to any password-protected web pages on the Stem website are allowed.  Hyperlinks to non-restricted pages are subject to review and termination by Stem in its sole discretion.

13. Musical Compositions — Publishing Rights

As you are setting up the profile relating to each Licensed Work on the Stem System, you are asked whether you also wish to grant Stem the right to collect amounts due to you for “publishing” rights in the musical composition associated with such Licensed Work, for the Stem Service and on Permitted Third Party Platforms.  Those rights may include (i) public performance rights, (ii) mechanical reproduction rights, (iii) sync rights and other similar rights required or desirable for use on the Stem Service and on Permitted Third Party Platforms, all of which rights are only applicable for the uses of the Licensed Content granted to Stem herein, and only as such composition is embodied in such Licensed Works.  If you agree by checking that box, then this section will set forth the terms under which you grant those rights to Stem.

You agree that each musical composition embodied in a Licensed Work (defined in Section 4 above), and only as embodied in such Licensed Work and not on any independent or stand-alone basis, shall be part of the Licensed Content hereunder, and you hereby grant to Stem a revocable, non-exclusive, sub-licensable and transferable right and license, in the Permitted Territory (also defined in Section 4) to:

(i) use, display, publicly perform, transmit, distribute, copy, edit, modify, store, reproduce, make available for download or streaming and/or otherwise provide such musical composition as embodied in such Licensed Work through the Stem Service and on Permitted Third Party Platforms (defined above);

(ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms based on musical compositions comprising Licensed Content;

(iii) distribute, transmit, and/or display such musical compositions embodied in such Licensed Work via such technologies as are supported by Stem or the Permitted Third Party Platforms from time to time;

(iv) display advertisements and promotional material in connection with the musical compositions embodied in such Licensed Work; and

(v) perform such other acts with respect to the musical compositions as embodied in Licensed Works as are necessary from time to time to allow Stem to provide the Stem Service.

The rights granted hereunder shall include without limitation the sale and making available of musical compositions as embodied in Licensed Works by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, so-called “cloud services” and interactive television.  In claiming rights in musical compositions comprising an element of Licensed Content, you will identify any Permitted Territory for which you own or control the rights referred to above.

You represent and warrant that you control the rights granted to Stem in this section.

14. Musical Compositions — Payment

Amounts Stem receives from the exploitation of the rights granted under Section 13 shall be accounted for as set forth in Section 5 above for the applicable musical composition.  You acknowledge and agree that Stem treats sound recordings and musical compositions as separate works, and that accordingly the Claiming Parties and related percentage interests for each such work may differ, depending on the instructions you provide to Stem.

15. Force Majeure

Stem shall be excused from performance under these Terms of Service to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of Stem.  In the event that Stem is temporarily unable to ship a purchased item to you because of such an event, Stem will give you the option of deferring shipment or receiving a refund of your charges.

16. Electronic Communication

When you use the Stem Service or send emails to Stem, you are communicating with Stem electronically.  You consent to receive communications electronically from Stem and its Site Affiliates (as defined in the Privacy Policy).  Stem will communicate with you by email or by posting notices on the Site.  You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.

17. Modification

Stem reserves the right to make changes to the Stem Service, related policies and agreements, these Terms of Service and the Privacy Policy at any time.  If Stem makes a material modification to these Terms of Service, it will notify you by: (i) sending an email to the address associated with your account; or (ii) to the extent that you are not then subject to a Purchase, displaying a prominent announcement above the text of these Terms of Service or the Privacy Policy, as appropriate, for thirty (30) days.  Stem is not responsible for your failure to receive an email due to the actions of your ISP or any email filtering service.

After notice of a modification to the Terms of Service or the Privacy Policy has been posted for 30 days, the notice may be removed.  If you choose to continue using the Site or Service, you agree that by doing so you will be deemed to accept the new Terms of Service or Privacy Policy, as relevant.

18. Survival

Notwithstanding any other of this Terms of Service, or any general legal principles to the contrary, any provision of this Terms of Service that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms of Service.

19. General

If any of these conditions are deemed invalid, void, or for any unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the unenforceable condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.  Headings are for reference purposes only and do not limit the scope or extent of such section.  These Terms of Service and the relationship between you and Stem will be governed by the laws of the State of California without regard to its conflict of law provisions.  You and Stem agree to submit to the personal jurisdiction of the federal and state courts located in the County of Los Angeles in the State of California with respect to any legal proceedings that may arise in connection with these Terms of Service.  The failure of Stem to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.  Stem does not guarantee it will take action against all breaches of these Terms of Service.  Except as otherwise expressly provided in these Terms of Service, there shall be no third-party beneficiaries to these Terms of Service.  These Terms of Service constitute the entire agreement between you and Stem and governs your use of the Site and Service, superseding any prior agreements between you and Stem with respect to the Site or Service.

20. How to Contact Us

If you have any questions or comments about these Terms of Service or this Site, please contact us by email at [email protected].

Updated  01/20/2021