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Terms of Service for Music Production

Procedure, Definitions, Performance, Conduct, & Confidentiality

Last updated October 8th, 2024.

1. INTRODUCTION

These Terms of Service for Music Production (“Terms”) govern the music production services of Philomath Studios, LLC doing business as Aural Alchemists (“Producer”). These services create master recordings (“Masters”) of performances for inclusion in Audio Products. These services include but are not limited to, writing (i.e. songwriting, composition, and arranging), audio engineering (i.e. recording, editing, mixing, and mastering), and project management. These Terms will be incorporated in any contract for the services above (“Service Agreement”). Thus, Artist (party contracting Producer) acknowledges and agrees to be bound by the provisions set forth in these Terms. Producer will provide Artist a current copy of these Terms at the time of execution. In the event of any conflict between the provisions of the Service Agreement and these Terms, the provisions of the Service Agreement shall prevail to the extent of the inconsistency. If reading online, please note that these Terms reference provisions of the Service Agreement occasionally. These Terms are not written to be a standalone contract.

2. DEFINITIONS

The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or plural.

“Audio Product” shall mean all forms of sound reproductions, whether now known or unknown, on or by which sound may be recorded for later transmission to listeners, embodying sound, including, without limitation, discs of any speed or size, vinyl, compact discs, reel-to-reel tapes, cartridges, cassettes, audiovisual recordings, Digital Formats, Digital Transmission, direct transmissions, or any other configurations now known or created in the future.

“Collaborator” shall mean any individual whom Artist involves in the creation of the Masters under the Service Agreement, including but not limited to musicians, vocalists, and co-writers.

“Deliverable” shall mean any physical or digital output/result (e.g., master recordings, miscellaneous audio files, sheet music, PDFs) of Producer’s services that are delivered to Artist according to the main body of the Service Agreement.

“Extra” shall mean any individual that is a Collaborator, Guest, Team Member, Reviewer, or any other third-party engaged solely by Artist but present when Producer renders any service.

“Guest” shall mean any of Artist’s agents, business partners, subcontractors, or any other individuals whom Artist invites to a session or meeting (e.g., promoters, significant others, family members) who do not need to be present or active for Producer to render its services.

“Master (“Master Recording”)” shall mean any Sound Recording that is produced by Producer for Artist under the Service Agreement, which in turn is used or useful in the recording production and/or manufacture of Audio Products.

“Musical Composition (“Song”)” shall mean a musical work, including any accompanying words, and is normally registered as a work of performing arts under United States copyright laws.

“Musical Track” shall mean a Master embodying the entirety or a portion of a Musical Composition through instrumentation of music and/or melodies. Also referred to as a “Beat.”

“Net Receipts” shall mean the amount received by Artist from sales or licenses of Audio Products after deducting any and all Expenses, costs, taxes, and/or third-party payments in connection with the creation, production, manufacture, and exploitation of Audio Products or Videos embodying the Masters recorded or produced under the Service Agreement.

“On-Demand Usages” shall mean licensed usages of the Licensed Masters, other than as Audio Products, as part of a service containing a functionality that permits a consumer to access a particular licensed Master on a so-called “on-demand” basis, including but not limited to so-called music subscription services (e.g., Spotify).

“PPD (Price Per Dealer)” shall mean the price to dealers for the sale of an Audio Product, utilized by Artist or its distributors as applicable throughout each country within the Territory. If no PPD can be established for a country within the Territory, or if Artist chooses, PPD shall mean the actual amount paid to and received by Artist for the sale of an Audio Product.

“Producer Guarantor” shall refer to the specific individual whose services that Producer loans out to fulfill its obligations under a Service Agreement. 

“Project” shall mean the agreed-upon services and Deliverables that Producer provides for compensation according to any Service Agreement. The Project also includes agreed-upon schedules and Producer’s and Staff Members availability.

“Publisher” shall mean any person or entity whose main business is acquiring, publishing, and administering rights in Musical Compositions.

“Record Label” shall mean any person or entity whose main business is acquiring, administering, licensing for distribution, and otherwise exploiting Sound Recordings.

“Recording Costs” shall mean all costs incurred with respect to Producer’s production of Masters with Songs embodying Artist’s performances, including, without limitation, union scale, the costs of all instruments, musicians, and vocalists, all studio costs, tape, editing, mixing, mastering, engineering, travel, per diems, production fees, rehearsal halls, costs of non-studio facilities and equipment, dubbing, transportation of instruments, and other costs and expenses incurred in producing the Masters hereunder, from time to time, and which are customarily recognized as Recording Costs in the recording industry.

“Reviewer” shall mean any individual whom Artist requests feedback from regarding the subjective quality of any Master, Song, performance embodied in a Master, etc.

“Sound Recording” shall have the same meaning as the term “sound recording” as set forth in Section 101 of the United States Copyright Act.

“Staff Member” shall refer to the Producer Guarantor according to the Service Agreement, Producer’s employees, or contract workers specific to any Project.

“Team Member” shall mean any individual or entity that Artist employs, partners with, or contracts/subcontracts, or acts as Artist’s agent (e.g., personal manager, label representative, musicians, assistants).

3. PROCEDURE & REVISIONS

(a) ARTISTIC RELEASE: Producer shall be granted full artistic license in relation to its obligations under the Service Agreement. Artist acknowledges that they have been shown a representative sample of Producer’s services and work. Producer will use reasonable efforts to ensure the Masters are produced in a style and manner consistent with Producer’s current portfolio.

(b) GENERAL PROCEDURE: The production of all Masters will be planned and conducted by Producer (including Producer’s employees/contractors) at Artist’s sole cost and expense. Producer’s services will be rendered through a series of sessions for pre-production, recording/production, and post-production. Producer is responsible for booking studios, engineers, session musicians, and equipment rentals. Artist shall pay all Fees and Recording Costs of the Masters, including costs beyond the scope of the Service Agreement, as and when due. Once Artist has approved all Masters and fulfilled all payments, then Producer shall gather and provide the Deliverables to Artist according to the Service Agreement. The general process for the production of Masters is as follows.

(i) Preproduction: Sessions will be conducted within rehearsals, remote or in-person sessions, asynchronous writing/production by Producer, and other non-studio meetings.

(ii) Recording & Production: Sessions will be conducted at a Producer’s studio of choice and leftover studio time on any day may be used for editing before Parties leave at the end of a session. Asynchronous sessions will be performed as needed and at Producer’s discretion.

(iii) Post-Production & Revisions: Sessions for editing, mixing, & mastering shall take place remotely. Producer has sole discretion if post-production sessions are synchronous or asynchronous. Artist will provide feedback at Producer’s direction over the course of these sessions. Producer will generally incorporate said feedback until Artist approves of the Masters.

(c) REVISION PROCESS: Producer will send Deliverables to Artist for approval or feedback in batches. Artist agrees to follow Producer’s instructions on how to review any Deliverables and provide any feedback during the revision process. Producer may halt the revision process if Artist does not follow instructions. It is Artist’s responsibility to provide all feedback or change requests for each batch within one response communication to Producer within fourteen (14) days of Producer delivering files. After which, Producer will turn in a revised version subject to Producer’s availability within seven (7) days of Artist submitting a revision request. This cycle will complete one round of revisions. This process will repeat until one of the following occurs first: either the allotted revisions according to the Service Agreement will be used or the Artist will approve of the Deliverables. Further revisions will be governed by the Service Agreement. The entire revision process will be closed once all mixing has been approved and mastering is set to begin. Further revisions after mixing has been approved will be charged at an hourly rate.

(d) REVIEWERS: Producer may accommodate Reviewers by allowing them to submit feedback, provided that they follow Producer’s instructions. Artist expressly understands that Producer only answers to Artist and is not obliged to respond to or incorporate feedback from any individual or entity other than Artist. Artist agrees to follow Producer’s instructions for incorporating Reviewer feedback. Artist will make best efforts to ensure their Reviewers follow Producer’s instructions. Producer will ignore feedback not directly from Artist if Producer’s instructions are not followed.

4. DELIVERABLES & FILE HANDLING

(a) NO SESSION FILES: Session files are defined for the purposes of these Terms as project files for digital audio workstations or DAWs (e.g Pro Tools, Logic Pro, Reaper) that are created and used for the Producer to render services to Artist. To maintain artistic integrity, preserve trade secrets, and avoid misrepresentation of their work, Producer will not deliver session files to Artist as any part of the Deliverables. If Artist provides session files as a material input for a Project, Producer will create new session files (based on Artist’s files) but will not include them with the Deliverables.

(b) ARCHIVE: Producer maintains the right to archive any and all files created from Producer’s services. Producer will keep the files readily available for Artist to request copies of for up to one (1) year after the completion of the Project. After this, file retention and access are not guaranteed and should not be expected.

(c)  DRAFTED, UNUSED, & REJECTED WORK: Final payment ensures that ONLY the agreed-upon or approved Deliverables are to become Artist’s property. Producer retains full ownership of ALL DRAFTED, UNUSED, AND REJECTED materials and intellectual property that Producer creates (including but not limited to songs, arrangements, lyrics, beats, ideas, etc.). Producer retains the right to use any such materials for future projects and exploitations. None of these may be reproduced or transmitted in any form, or by any means, electronic or mechanical, for any purpose without the express written permission of Producer.

5. BOOKING

(a)  OPERATING HOURS: Producer’s operating/office hours are 10 AM to 6 PM Central Time (CT) from Monday through Friday. Producer’s office is closed for all U.S. Holidays and Holiday weekends.

(b) AVAILABILITY: The specific services outlined in the Service Agreement shall take place at mutually agreed-upon dates and times, subject to Producer’s availability. Communications, sessions, meetings, and services that Producer provides will typically be performed during normal operating hours with exceptions made only at Producer’s sole discretion and availability. All scheduled sessions, meetings, and calls will end at their appointed time unless the Parties mutually decide on an extension. 

(c) RESCHEDULING & CANCELLATIONS: Artist must provide at least seventy-two (72) hours’ notice to cancel or reschedule any individual meeting or session, except for events outside Artist’s control (e.g. illness, injury, bereavement, family crisis, or act of God). If Artist fails to give sufficient notice for the first time, Producer may choose to waive any expenses incurred to cancel or reschedule, depending on the circumstances. For any instance after that, Artist will be responsible for any such expenses incurred.

6. TIMELINE

(a) VARIABLES: The Project’s schedule and milestones are tentative and subject to change due to variables and dependencies in the production process. Changes to the Project’s schedule may be made at Producer’s discretion with Artist’s acknowledgment and consent. Adjustments to the Project’s schedule due to uncontrollable factors (such as illness, bereavement, injury, financial hardship, or family crisis) will be made with sufficient communication and notice from the affected Party. Cooperation from the other Party shall not be unreasonably withheld, conditioned, or delayed.

(b) COMMUNICATION: Producer will instruct Artist on using Producer’s preferred methods of communication (primarily email supplemented by phone and Microsoft Teams). Producer does not guarantee any receipt, acknowledgment, or response if Artist uses other methods of communication outside of the aforementioned. Outside of operating hours, any communication from Artist, such as calls, emails, or texts, may not receive a response until the next day that Producer’s office is open. In cases where communication requires a more immediate response, Producer will email Artist and then follow the email with a courtesy text message informing Artist that the email requires a prompt response. 

(c) DELAYS: Artist understands that prompt communication is necessary and that Producer may require input and materials from Artist on a routine basis in order for Producer to meet its obligations under the Agreement. As such, Artist agrees to make best efforts to respond to all communications from Producer with any requested or necessary information or materials within two (2) days. Producer is not liable for any delays in the Project caused by delayed communications from Artist.

7. PERFORMANCE

(a) NO GUARANTEES: Producer cannot guarantee the outcome of music production services and Producer’s comments about the outcome are expressions of opinion only. Artist acknowledges that Producer cannot guarantee any results for music production services as such outcomes are based on external factors and subjective opinions which cannot be controlled by Producer.

(b) NON-PERFORMANCE BY ARTIST:

(i) Unresponsiveness: Artist agrees that should Artist fail to respond to Producer’s communications for twenty-one (21) or more days, Producer may cease work under the Service Agreement and will require a “Restart Fee” from Artist before beginning work again under the Service Agreement. The Restart Fee will be equal to ten percent (10%) of any remaining balance of the Total Fee.

(ii) Continual Delays: If Artist is continually late in responding to Producer, Producer may choose to cancel the Service Agreement in accordance with Paragraph 5(d) of the Service Agreement, “Cancellation.” This will also apply if Artist slows or impedes Producer’s services or operations through inaction or negligence for the same length of time.

(iii) Unpreparedness: Artist understands that Producer’s ability to render services depends on Artist’s full preparation. If Artist is unprepared for any session, the session cost will be forfeited, and rebooking fees will apply. Unpreparedness includes failing to bring necessary materials, lack of rehearsal, or inability to perform tasks. The Service Agreement will be postponed under Paragraph 5(e) of the Service Agreement, “Postponement,” if Artist fails to adequately prepare for the entire Project, prevents Producer’s work continually, or causes significant delays. The Project may be rescheduled once Artist is adequately prepared.

(c) NON-PERFORMANCE BY PRODUCER:

(i) Failure To Render Services: Artist may cancel the Service Agreement in accordance with Paragraph 5(d) of the Service Agreement, “Cancellation,” should Producer fail to render the agreed-upon services to the Project due to incompetence or neglect on their obligations for twenty-one (21) or more days.

(ii) External Interference: If Producer experiences any issues that interfere with fulfill their obligations, then Producer will make best efforts to resolve such issues or communicate with Artist if cooperation is needed. Such cooperation shall not be unreasonably withheld, conditioned, or delayed. Parties will make reasonable efforts to resolve any issues before Artist may cancel the Service Agreement.

8. PROMOTION & CONFIDENTIALITY

(a) CONFIDENTIALITY: Producer recognizes and acknowledges that the services rendered to Artist may reveal confidential information that is proprietary to Artist. “Confidential Information” means all material, non-public, business-related information, written or oral, whether or not it is marked that is disclosed or made available to Producer, directly or indirectly, through any means of communication or observation. Producer agrees not to share and agrees to take reasonable measures to protect Artist’s Confidential Information. Regardless, Producer maintains the right to document and share any results or any process of rendering services, provided that Artist’s confidentiality is not compromised. Likewise, Artist recognizes and acknowledges that the services rendered to Artist by Producer may also reveal confidential information that is proprietary to Producer. Producer has developed a step-by-step process to work with artists. This process along with any materials drafted by Producer and provided to Artist are confidential. Artist agrees not to share these materials with others. Artist agrees to take reasonable measures to protect Producer’s confidential information. Artist agrees to bind its employees and subcontractors to the Service Agreement’s provisions and these Terms.

(b) SELF-PROMOTION & RIGHT TO SHARE:

(i) Promotional Rights: Artist grants Producer and Producer’s successors, assigns, licensees, and designees, the right to use the following materials for marketing, sales, promotion, and/or public relations purposes without any claims against Producer or Producer’s successors, assigns, licensees, and designees concerning the use (or non-use) of the below-described materials:

  • Masters produced under the Service Agreement, reproductions of the Deliverables, and any related audio files;
  • Photographic or artistic representations of the Project in any medium of expression;
  • Artist’s professional name, (whether presently or hereafter used by Artist), approved likeness, approved biographical material concerning Artist.

(ii) Documentation & Sharing: Producer explicitly maintains the right to:

  • Document the Project and share the results and information on websites controlled by Producer, on social media, and with publications;
  • Include a reproduction of the Deliverables in demo CDs and portfolios;
  • Include a reproduction of the Deliverables in any trade periodicals, exhibits, competitions, and awards;
  • Include a reproduction of the Deliverables for inclusion in self-promotion material for recognition of creative excellence or professional advancement;
  • Receive proper credit in connection with any such use as described herein.

(iii) Material Sourcing: Artist shall provide materials specifying the approved name, image, likeness, and biographical material within 7 days of the completion of the Service Agreement. If Artist fails to do so, then Producer may freely gather and use such materials from publicly available sources.

9. CONDUCT

(a)  CONDUCT OF EXTRAS: Artist’s Extras and their conduct are Artist’s responsibility. Producer reserves the right to limit the number of Extras or exclude them from meetings/sessions for the sake of preserving Producer’s ability to work. If Artist’s Extras interfere with Producer’s processes or ability to operate in any way during any gathering of Artist and Producer, Artist will have them leave. 

(b)  HARASSMENT & INTERFERENCE: Producer and Producer’s staff maintain the right to a safe, harassment-free working environment and operate without any form of interference. Actions that cause interference with Producer’s processes, responsibilities, or ability to operate shall include, but not be limited to:

  • General lack of cooperation;
  • Lying or omitting information relevant to Producer’s obligations;
  • Excessive micromanagement;
  • Failure to adhere processes and instructions;
  • Executing decisions while lacking good reason to or the ability to do so.

Moreover, harassment shall explicitly include, but not be limited to the following behaviors:

  • Overuse of foul or graphic language;
  • Sexual advancement or insinuation;
  • Non-consensual physical touch, physical force or violence;
  • Yelling;
  • Repeated phone calls, texts or emails that supersede reasonable levels of communication;
  • Bullying;
  • Name calling;
  • Belittling of the duties Producer has been hired to perform.

Producer will notify Artist if any such violations occur. Artist then agrees to immediately cease such offenses if Artist is the offender. If any Extra is the offender, Artist agrees to provide a warning to the offender and, if the offenses do not immediately cease upon notification to the offender, remove them from any workspace occupied by Producer. Under such occurrences, Producer reserves the right to cancel the Service Agreement immediately in accordance with Paragraph 5(d) of the Service Agreement, “Cancellation.” Artist agrees to relieve and hold Producer harmless for a lapse in the quality of Producer’s work, and Artist shall be responsible for payment in full. 

(c)  NO INTOXICATION: Artist understands and agrees that its intoxication may interfere with Producer’s ability to fulfill its obligations. Therefore, in consideration of Artist’s commitment under the Service Agreement, Artist agrees to arrive at any session or meeting sober and limit the use of recreational substances to prevent intoxication while working with Producer. Artist must ensure that any substance use will not lead to impairment that affects productivity or professionalism. Producer understands and agrees that Artist may imbibe alcoholic beverages or use legal substances within the limits of reasonable sobriety.

(d)  MISCONDUCT: Both parties are responsible for appropriate conduct during the Project. Either Party may reschedule or cancel a session or meeting due to misconduct by the other Party as defined hereunder. Parties also reserve the right to cancel the Service Agreement in accordance with Paragraph 5(d) of the Service Agreement, “Cancellation,” due to excessive (i.e. consistent or repeated) or severe (where damage occurs to a wronged Party) misconduct from the offending Party. Any of the following behaviors qualifies as misconduct:

  • Repeated/excessive absence or tardiness to scheduled meetings and sessions;
  • Impairment, intoxication, or any inability to be productive due to any recreational drug use;
  • Sexual advancement or insinuation;
  • Harassment or abusive behavior directed towards anyone;
  • Violent/grossly-negligent behavior toward anyone’s property;
  • Any property damage caused regardless of intent;
  • Any illegal activity as governed by Illinois or United States Law.

(e) PROPERTY DAMAGE: If Artist causes property damage to Producer or a third-party involved, Artist will be liable for all costs associated with repairing or replacing the damaged property. Artist agrees to pay for the reasonable repair or replacement costs within seven (7) days of any damage. Normal wear and tear and factors outside of any party’s control are excluded. Artist and Extras are prohibited from operating, touching, or otherwise interacting with any equipment that Artist does not own or control without Producer’s specific instructions to do so.

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