These terms and conditions form part of an Agreement between UN:HURD Limited (company number: 12354719) of 16 Blackfriars Street, Manchester, England, M3 5BQ (“un:hurd”) and its chosen partners in relation to certain reviews and playlisting activities to be fulfilled by the Partner.
The PARTNER is the company or other legal entity identified on the sign up page or sign up process as set out and managed by un:hurd. The Partner agrees to the terms and conditions of this Agreement which comes into effect once accepted and confirmed by un:hurd.
(A) un:hurd supports musicians with data led marketing insights and promotion.
(B) Partner is the owner and/or curator of certain Playlists on Spotify or other music streaming platform.
(C) un:hurd and the Partner have agreed these terms in relation to the review by the Partner of certain musician’s tracks and add to the Partner’s Playlists as appropriate.
COMMERCIAL TERMS - Process, Activities and Fees.
A. un:hurd Track list submission
un:hurd will present Partner playlists to relevant Artists who will then have the option to submit their Tracks to the Partner playlist for review by the Partner, and subject to approval by the Partner, listing on a Partner Playlist.
Once submitted by the Artist, the submission will be shared with the playlist Partner via the un:hurd partner dashboard.
B. Partner Activities
On receipt of the Track list the Partner will review the Tracks and provide feedback to un:hurd.
Feedback will fulfil the following criteria:
Tracks must be reviewed and feedback must be provided in relation to submitted Tracks within 3 days of submission by un:hurd;
Feedback should be provided via the un:hurd feedback page using the feedback scorecard sliders;
Additional free text feedback may be available;
All feedback/reviews must be genuine, objective, honest.
Following positive review/feedback and approval by the Partner, the Tracks will be added to the relevant Playlist(s) and Tracks must remain on the relevant Playlist for at least 5 days.
The Tracks may be added to further or different Playlists by agreement, and the Partner will activate such listing within 24 hours of such agreement.
un:hurd may require the Partner to remove any Track from any Playlist, and such requirement will be actionerd by Partner within 24 hours of notification from un:hurd.
Conditions in relation to Playlists
Any Playlist that the Tracks are added to will be subject to the following conditions:
Playlists must not use botted accounts, stream farms or other falsified methods of generating stream;
Playlists must have genuine followers;
Playlists may be blocked by un:hurd if any 'fake' streams or followers are found.
Partners must not communicate with Artists about their Track submissions outside of the un:hurd platform.
C. Fees and Payment
un:hurd will pay Partner £3 for each Track in relation to which it provides feedback/review in compliance with the above process, conditions and restrictions.
Partner will invoice un:hurd for all relevant Fees at the end of each month, which once approved will be paid by un:hurd within 30 days of the date the invoice was received.
Payment will be made via PayPal which Partner will connect upon login.
1.1 In this Agreement, unless the contrary intention appears:
“Activities” means all activities and actions to be fulfilled by the Partner under this Agreement, including as specified in the Commercial Terms;
“Agreement” means these terms and conditions set out in the Commercial Terms and General Terms together with the Partner details set out in the sign up process, recitals, clauses, schedules, annexes and all other documents referred to herein;
“Artist(s)” means the musicians, recording artists and/or other rights holders with whom un:hurd works to promote certain of their Tracks;
“Claim(s)” means all third party claims, actions, suits, proceedings, actions, liabilities, penalties, demands, sanctions, fines, charges, losses, costs and expenses (including reasonable external legal fees);
“Confidential Information” means all information which is marked as confidential or has otherwise been indicated as being confidential or is of a confidential nature, and disclosed (whether in writing, orally or by any other means and whether directly or indirectly) by a party to the other party whether before or after the date of this Agreement including this Agreement and information relating to a party’s products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs and including, in the case of un:hurd, any such information relating to any un:hurd Personal Data;
“Effective Date” means the date the Agreement is confirmed by un:hurd;
“Fees” the fees for the proper fulfilment of the Activities as specified in the Commercial Terms or as otherwise agreed between the parties;
“Force Majeure Event” means any act of God, flood, fire, earthquake, acts of war or terrorism, riots and industrial disputes not involving the personnel of a party;
“Good Industry Practice” means standards, practices, methods and procedures, and the exercising of the degree of skill, care and diligence, prudence and foresight which would reasonably and ordinarily be expected from a highly skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances;
“Insolvency Event” means a person becomes unable to pay its debts, enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction), makes an arrangement with its creditors, becomes subject to an administration order, has a receiver or administrative receiver appointed over all or any of its assets, takes or suffers to be taken any similar action in consequence of a debt, ceases or threatens to cease trading or is dissolved, or undergoes a similar or equivalent process in any jurisdiction;
"Intellectual Property Rights" means all intellectual property rights, howsoever arising and in whatever media, whether or not registered or capable of registration, including copyright, database rights, Confidential Information, patents, trademarks, service marks, trade names, design rights, moral rights, business names, domain names and other similar rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
“Laws” means any applicable legislation, regulation, by law, ordinance, subordinate legislation, code of practice, published guidance and other requirement of any relevant government or governmental agency;
“Partner Content” means any feedback, reviews, statements or other content, including but not limited to all text, pictures, sound, graphics, video, data, information or other materials other assets which the Partner provides, creates, supplies, owns or controls in relation to the Activities and this Agreement.
“Playlist” means a playlist of music tracks on music streaming platforms as curated and managed by Partner;
“Term” means a period from the Effective Date until terminated in accordance with this Agreement;
“Track(s)” means the sound recordings owned or controlled by the Artists or other third parties as made available to Partner by or via un:hurd under this Agreement;
“un:hurd Content” means all music, recordings, text, pictures, sound, graphics, video, data, information or other materials or assets supplied or made available by un:hurd or the relevant Artist to the Partner in whatever form in connection with this Agreement;
“VAT” means value added tax as provided for in the Value Added Tax Act 1994;
“Working Day” means any day other than a Saturday, a Sunday or a day which is a public or bank holiday in England and Wales.
1.2 In this Agreement, unless the context otherwise requires:
a) words importing a gender include any other gender;
b) words in the singular include the plural and vice versa;
c) a reference to a person shall include a company, partnership, joint venture, association, corporation or other body corporate;
d) a reference to any Law or standard shall include a reference to that Law or standard as amended, extended, consolidated or re-enacted from time to time;
e) a reference to a document shall include all authorised amendments, supplements to and replacements to that document;
f) a reference to the parties shall include their permitted successors and assigns;
g) where a word or a phrase is given a particular meaning, other grammatical forms of that word or phrase shall have corresponding meanings; and
h) the words ‘include’, ‘including’, ‘for example’ or similar words shall be construed as illustrative and without limitation to the generality of the related words.
1.3 The headings are inserted for convenience only and shall not affect the construction of this Agreement.
1.4 Unless otherwise stated a reference to a clause or a schedule or a party is a reference to a clause in or a schedule to or a party to this Agreement.
1.5 This Agreement was drafted with the joint participation of the parties and no provisions of this Agreement will be construed adversely to a party solely on the ground that such party was responsible for the preparation of this Agreement.
2. APPOINTMENT OF PARTNER AND FULFILMENT OF THE ACTIVITIES
2.1 Subject to confirmation and acceptance of the Partner by un:hurd during the sign up process, un:hurd appoints the Partner to provide, and the Partner agrees to fulfil, the Activities in accordance with these terms and conditions, including the Commercial Terms, on a non-exclusive basis during the Term.
2.2 The parties acknowledge that this Agreement applies to all related Activities delivered by the Partner to un:hurd from the Effective date, including those delivered before acceptance of this Agreement.
3. ACTIVITIES AND RESTRICTIONS
3.1 Details of the respective processes, Activities and related commercial conditions and restrictions are set out in the Commercial Terms or as otherwise agreed in writing by the parties.
3.2 In the event of any inconsistency between the provisions of these terms and conditions and the Commercial Terms, the provisions of the Commercial Terms shall prevail to the extent of such inconsistency.
4. PARTNER OBLIGATIONS AND WARRANTIES
4.1 The Partner warrants, represents or undertakes that:
a) it has full right, power and authority to enter into this Agreement;
b) it has all the rights, licences, permits, approvals and clearance of third party rights as required by Laws and as are necessary to perform the Activities or other obligations under this Agreement;
c) it shall fulfil the Activities in accordance with the Commercial Terms and perform the Activities or other obligations under this Agreement using suitably skilled and competent personnel and in accordance with Good Industry Practice;
d) the Partner Content, save in relation to any elements of the un:hurd Content that are necessary to refer to, will contain nothing that is illegal, defamatory, obscene or indecent or which infringes the statutory, common law, or Intellectual Property Rights or any other right, title or interest of any third party;
e) it shall not during the Term or for 6 months thereafter not make any statements or otherwise post any content which is reasonably likely to be seen to be derogatory of un:hurd or of any Artist or their music;
f) all reviews, feedback, listings and other relevant elements of the Activities will be genuine, truthful, honest and transparent.
5. UN:HURD OBLIGATIONS AND WARRANTIES
5.1 un:hurd warrants, represents and undertakes that:
a) it has full right, power and authority to enter into this Agreement;
b) it has all the rights, licences, permits, approvals and clearance of third party rights as required by Law and as are necessary to perform its obligations under this Agreement, including in relation to supply of or provision of access to the Tracks.
6. INTELLECTUAL PROPERTY
6.1 The ownership of and Intellectual Property Rights in the un:hurd Content belongs to and remains vested in un:hurd or its Artists, licensors or other third parties as applicable.
6.2 un:hurd grants to the Partner a limited, non-exclusive licence to use the un:hurd Content, solely for the performance of the Partner's Activities under this Agreement.
6.3 The ownership of and Intellectual Property Rights in the Partner Content belongs to and remains vested in the Partner, its licensors or other third parties as applicable.
6. 4 Partner grants to un:hurd and the relevant Artist a non-exclusive, royalty-free, worldwide, perpetual right to use such Partner Content in any and all media, for the purposes of referring to and/or promoting the Tracks and the Artist.
7. DATA PROTECTION
7.1 In connection with its fulfilment of the Activities, Partner may have access to certain personal data of the Artists. IN such circumstances each party will comply with all relevant data protection Laws and regulations.
8. FEE AND PAYMENT
8.1 Subject to the fulfilment by the Partner of the Activities, un:hurd shall pay to the Partner the applicable Fees as calculated in accordance with the Commercial Terms, within thirty (30) days after the date of receipt of a valid invoice.
8.2 All sums due under this Agreement are exclusive of VAT, sales and other applicable taxes which shall be paid by un:hurd at the rate and in the manner prescribed by Law.
8.3 If un:hurd fails to pay any amount payable by it under this Agreement, the Partner shall be entitled to charge un:hurd interest on the overdue amount. Such interest shall be payable by un:hurd on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 2% per annum above the base rate for the time being of HSBC bank. Such interest shall accrue on a daily basis and be compounded quarterly.
8.4 Payment by un:hurd is without prejudice to any claim or rights which un:hurd may have against the Partner and shall not constitute any admission by un:hurd as to the performance by the Partner of its obligations hereunder.
9.1 Each party shall, in relation to the Confidential Information of the other party:
a) not use the Confidential Information for any purpose other than the performance of its obligations under this Agreement; an
b) not disclose and prevent the disclosure of Confidential Information except with the prior written consent of the other party or in accordance with clauses 9.2 and 9.3.
9.2 A party receiving Confidential Information may disclose that Confidential Information to any of its personnel or professional advisers to the extent that disclosure is necessary for the purposes of this Agreement and provided that the recipient is made aware of and complies with the obligations of confidentiality under this Agreement as if the recipient was a party to this Agreement.
9.3 The provisions of this clause 9 do not apply to Confidential Information which:
a) is in or enters the public domain other than by a breach of this Agreement;
b) is obtained from a third party who is lawfully authorised to disclose that information;
c) is independently developed without reference to anything protected by this clause 9;
d) is authorised for release by written consent of a party or by an authorised representative of the disclosing party; or
e) is required to be disclosed by Law in connection with any Claim, provided that, where possible, the receiving party notifies the disclosing party as soon as possible upon becoming aware of any such requirement and consults with the disclosing party as to the advisability of taking any legally available steps to resist or narrow such requirement.
9.4 Each Party undertakes within 5 Working Days of receipt of a written request of the other Party or on termination of this Agreement, whichever is earlier, and at the option of the other Party:
a) to return the Confidential Information in its possession, custody or control or in the possession custody or control of any of its directors, officers, employees, ex-employees, agents, subcontractors or professional advisors, together with all copies thereof; or
b) to destroy all documents and other material in its possession, custody or control which bear or incorporate any part of the other Party’s Confidential Information and to certify to the other Party that this has been done and no copies have been retained.
10.1 Either party shall have the right to immediately terminate this Agreement upon prior written notice:
a) in the event the other party commits a material breach of its obligations under this Agreement, and, if the breach is capable of remedy, fails to remedy it during the period of five (5) Working Days starting on the date of receipt of notice requiring it to be remedied;
b) in the event the other party experiences an Insolvency Event;
c) as provided under clause 13 (Force Majeure);
10.2 un:hurd shall have the right to terminate this Agreement in any event on 5 Working Days written notice.
10.3 In the event of termination or expiry of the Agreement:
a) the Partner shall return (in a secure manner) or destroy (at un:hurd’s option) any un:hurd Content in its possession, custody or control or in the possession, custody or control of its personnel and certify that it has done so and no copies have been retained;
b) the Partner shall repay un:hurd immediately all applicable Fees paid up to and including the date of termination in respect of any Activities which have not been properly performed or supplied.
11.1 Subject to clause 11.5, neither party shall be liable to the other under, or in connection with, this Agreement in contract, tort, including negligence, breach of statutory duty, or otherwise for any indirect or consequential loss whatsoever, nor any loss of profits, business, revenue, anticipated revenue, goodwill, opportunity or savings (whether or not such losses or damage were direct, foreseen, foreseeable, known or otherwise).
11.2 The Partner agrees to fully indemnify un:hurd, against all Claims brought against, suffered or incurred as a result of: the Partner’s breach of clause 4; or the Partner’s breach of clause 7 (Data Protection).
11.3 un:hurd agrees to fully indemnify the Partner, against all Claims brought against, suffered or incurred as a result of: un:hurd’s breach of clause 5; or un:hurd’s breach of clause 7 (Data Protection).
11.4 Subject to clauses 11.2 and 11.5, or a breach of clause 9 (Confidentiality), each party’s total liability to the other party in contract, tort (including negligence) or otherwise, shall be limited to the greater of £10,000, or an amount equal to the total sums paid by un:hurd under the Agreement in the 12 months prior to the breach giving rise to the claim.
11.5 Nothing in this Agreement shall exclude or limit either party's liability to the other for: personal injury or death resulting from negligence; fraud or fraudulent misrepresentations; and for any other reason which may not be excluded by Law.
12.1 Any notice or other communication given under this Agreement must be in writing and served on a party by first class mail; or recorded delivery post, to the contact details at the start of this Agreement or as otherwise notified in writing.
12.2 Notices or communications sent by first class or recorded delivery post will be deemed to be served three (3) Working Days following the day of posting. Notices or communications sent by fax will be deemed to be served on the day of transmission if transmitted before 4.00 pm on a Working Day, but otherwise on the following Working Day.
13. FORCE MAJEURE
13.1 Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or any failure to perform any obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or failure is due to a Force Majeure Event provided the party whose performance is affected has taken all steps (if any) which it could reasonably be expected to have taken to avoid the effects of and mitigate the effects of the Force Majeure Event.
13.2 A party suffering a Force Majeure Event and seeking to rely on clause 13.1 shall promptly notify the other in writing of the nature and extent of the circumstances giving rise to a Force Majeure Event. Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform its obligations for the duration of any Force Majeure Event.
13.3 If the relevant Force Majeure Event prevails for a continuous or aggregate period in excess of ten (10) Working Days, un:hurd may elect to immediately terminate this Agreement upon written notice and the Partner shall provide a pro-rata refund of applicable Fees paid in advance for Activities not supplied.
14. ASSIGNMENT AND SUBCONTRACTING
The Partner may not assign, transfer or, subcontract or sub-license any of its rights or obligations under this Agreement without prior written consent (such consent not to be unreasonably withheld or delayed).
No failure to exercise and no delay in exercising, on the part of either of the parties, any right or remedy in respect of any provision of this Agreement shall operate as a waiver of that right or remedy and any single or partial exercise of any right or remedy shall not preclude any other or further exercise of that right or remedy.
In the event that any of the terms, conditions or provisions of this Agreement are held to be illegal, invalid or unenforceable under the law of any jurisdiction this shall not affect or impair the validity, legality or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.
17. NO PARTNERSHIP
Nothing in this Agreement shall constitute, or be deemed to constitute a relationship of partnership or profit sharing in the nature of a partnership between the parties nor, except as expressly provided, shall either party be deemed to be the agent of the other.
18. THIRD PARTY RIGHTS
Other than as described below, this Agreement does not create any rights under the Contracts (Rights of Third Parties) Act 1999 which are enforceable by any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
19.1 Termination or expiry of this Agreement shall be without prejudice to any rights, remedies or obligations which shall have accrued to either party pursuant to this Agreement or prior to such termination or expiry.
19.2 The provisions of clauses 1 (Interpretation), 4 (Partner Obligations and Warranties), 5 (un:hurd Obligations and Warranties), 6 (Intellectual Property), 9 (Confidentiality), 10 (Termination), 11 (Liability), 12(Notices), 15 (Waiver), 16 (Severance), 18 (Third Party Rights), 19 (Survival), 24 (Entire Agreement) and 25 (Governing Law) shall survive termination or expiry of this Agreement.
Neither of the parties shall make or permit any person to make any public or press announcement, press release, communication or statement concerning the existence of this Agreement without the other's prior written consent, such consent not to be unreasonably withheld or delayed, save as required by law or by any governmental or regulatory authority (including any securities exchange).
This Agreement may be executed in any number of counterparts, each of which when taken together shall constitute one and the same agreement.
22. FURTHER ASSURANCE
Each party shall from time to time execute such documents and perform such acts and things as any party may reasonably require to give full effect to the provisions of this Agreement and the transactions contemplated by it.
This Agreement may not be modified or amended except in writing by a duly authorised representative of each party.
24. ENTIRE AGREEMENT
This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters except in relation to fraudulent misrepresentations. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. In the event of any conflict of provisions, the Commercial Terms will take precedence.
25. GOVERNING LAW
25.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
25.2 The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
25.3 Nothing in this Agreement shall prevent either party from applying to and obtaining from any court having jurisdiction injunctive or other equitable relief.