General Terms and Conditions for Newzik "Publishers Web Platform"
PREAMBLE
SYNCSING offers to music publishers, orchestras, operas, schools and professional musicians a digital platform named NEWZIK PWP, which allows for the exchange of digital content in a secure way in accordance with any previously concluded agreement pursuant to professional standards. This platform allows publishers and their clients to adapt the distribution methods of music scores and other content according to the sales or rental contract in place.
Digital distribution is an asset which streamlines distribution for publishers and simplifies the use of music scores and other content by their customers.
Use of the NEWZIK PWP platform (hereinafter “NEWZIK PWP”) implies the unconditional acceptance by the Publisher of the General Terms and Conditions for Publishers herein (hereinafter referred to as the “GTCP”), as well as compliance with relevant legal provisions and regulations.
For any information or question relating to the GTCP herein, the Publisher should contact SYNCSING by mail at contact@newzik.com.
OBJECT
The GTCP herein define the terms and conditions of use of NEWZIK PWP and its features by the Publisher. They also define the rights and obligations of both the Publisher and SYNCSING (hereinafter collectively referred to as the “Parties” or individually as the “Party”).
DEFINITIONS
Each capitalized term used in the GTCP herein shall have the meanings set forth below.
PWP Contract(s): refers to the delivery order pertaining to the sale or rental of Scores or Content, concluded between the Publisher and the Customer, and whose terms and conditions the Publisher undertakes to set out on the NEWZIK PWP platform;
Annotations: refers to the notes and information affixed by the Customer in digital form to the music scores;
Content: generally refers to the digital information published by the Publisher on his Publisher Area (including music scores, audio and video files). The Publisher warrants that he owns all intellectual property rights necessary to the distribution of this Content;
Customer(s): refers to a customer with a NEWZIK account who has entered into a PWP Contract with the Publisher, and who wishes to receive digital Content via NEWZIK PWP. Clients may be an orchestra, an opera, a musician or a school;
Degraded version: refers to a version of the Content that cannot be used for rehearsal or performance. A watermark will completely hide the major part of the content, making it unreadable. The Annotations, however, will remain visible and editable;
Feature(s): refers to the services available on NEWZIK PWP and their technical specifications, for the use of Publishers and Customers, and which may be subject to change;
NEWZIK PWP: refers to the digital platform developed and published by SYNCSING, which – as a free tool as set out under Section 5 – allows for the distribution of Content from Publishers to their Customers;
Publisher(s): refers to a publisher of music scores and musical content, acting in a professional capacity, who uses NEWZIK PWP in order to distribute Content to Customers;
Publisher Area: refers to the space dedicated to and managed by Publishers on the NEWZIK PWP platform;
Restriction(s): refers to restrictions on the use of the Content imposed by the Publisher on the Customers, in accordance with the PWP Contract;
Score(s): refers to the digital music scores uploaded by the Publisher to the NEWZIK PWP platform for distribution to the Customer in accordance with the PWP Contract. The Publisher warrants that he owns and/or controls all intellectual property rights necessary to the distribution of this Content;
User(s): refers to individual persons within the Customer’s organization who have a NEWZIK account.
LEGAL NOTICE
NEWZIK is published and operated by SYNCSING, a simplified joint-stock company with a capital of 5 804,70€, registered under number 525 205 514, registered office located at 7 avenue Ingres, 75016, Paris, France, acting through its legal representative ("SYNCSING"). NEWZIK is available via the NEWZIK mobile application and the website https://web.newzik.com/ ("NEWZIK").
Contact email address: contact@newzik.com
Telephone: +33 1 82 88 28 78
Intra-community VAT number: FR61525205514
Executive director: Aurélia Azoulay
The website and application are hosted by Amazon Web Services. Telephone: (206) 266-4064.
SYNCSING’S ROLE
NEWZIK PWP is a tool available to Publishers which allows them to distribute Scores and Content to Customers in digital form.
As such, SYNCSING in no way owns, controls or is responsible for the Content uploaded to NEWZIK PWP by the Publisher, and will not intervene in the PWP Contract concluded between the Publisher and the Customer. The Publisher remains the sole owner of the rights over the Content.
All information concerning the qualification and the conditions of the PWP Contract, the rates of the Content and the delivery terms are established between the Publisher and his Customers without SYNCSING’s intervention.
SYNCSING acts as a simple technical intermediary.
In any event, any dispute, whatever the cause, occurring between the Publisher and the Customer, will be directly settled between them.
Anxious to protect NEWZIK’s image, SYNCSING invites the Publisher to use his best efforts to amicably resolve any dispute arising between himself and a Customer.
ACCESS TO NEWZIK PWP
In order to benefit from NEWZIK PWP’s Features, the Publisher must create an account that will grant him access to a dedicated Publisher Area on NEWZIK PWP.
In order to create an account, the Publisher must make a request on NEWZIK PWP, after which he will receive his login credentials upon SYNCSING’s confirmation. SYNCSING undertakes to make its best efforts to confirm the creation of the Publisher Area within two days of the Publisher’s request.
Login credentials are strictly personal and must be kept secret by the Publisher. The Publisher undertakes to implement all reasonable efforts to prevent unauthorized access to, or use of, the Publisher Area.
In the event of unauthorized access or use, the Publisher undertakes to notify SYNCSING immediately after becoming aware that such an event has occurred, by email at contact@newzik.com or by phone +33 1 82 88 28 78
The Publisher is responsible for safeguarding his login credentials, and any action carried out on NEWZIK PWP using the Publisher’s credentials will be deemed to have been carried out by the Publisher. SYNCSING lacks the technical capacity to identify individuals having accessed the Publisher Area.
The Publisher undertakes to provide accurate information when creating an account and gaining access to the Publisher Area. Changes to that information should be immediately notified to SYNCSING in order for said information to be updated.
In the event that the registration information provided by the Publisher is not updated, complete and/or accurate, SYNCSING shall notify the Publisher by sending an email to the email address of the Publisher and request that the information be updated within (fifteen) 15 days upon receiving the notification. If the Publisher does not update the information within the set deadline accordingly, SYNCSING reserves the right to immediately suspend the Publisher's access to NEWZIK PWP.
NEWZIK PWP FEATURES
NEWZIK PWP is made available to Publishers “as is”, and may be subject to change, particularly its Features.
After creating an account, the Publisher will benefit from all Features of the NEWZIK PWP Publisher Area. SYNCSING will make its best efforts to successfully provide and maintain the Features set out below. The Publisher may use these Features according to his needs and under his sole responsibility.
Creating customer files
The Publisher Area allows the Publisher to create a file dedicated to each Customer with whom it has entered into a PWP Contract.
Once created, the customer file remains in the Publisher Area. The Publisher is responsible for the information he provides and can edit it at any time on NEWZIK PWP.
Indexing and managing PWP Contracts
NEWZIK PWP allows the Publisher to assign a PWP Contract to a customer file and to add the main provisions of said PWP Contract to the Publisher Area.
This information allows the Publisher to distribute Content to the Customer in question under the provisions specified in the PWP Contract: nature of the order, duration, number of licenses granted, any applicable restrictions...
The Publisher may, at any time, edit the information related to the PWP Contract and modify distribution arrangements related to the Content in order to extend Customers’ rights to said Content.
The Publisher acknowledges that he is the sole proprietor of the information provided, and that he is therefore responsible for ensuring that said information complies with the provisions of the PWP Contract.
Renewing or extending a PWP Contract
When the PWP Contract is extended or renewed, the Publisher may restore the full version of the Scores previously rented by the Customer. In this case, the Customer will benefit from his whole purchase history and enter into a new PWP Contract, at the end of which he will have access to all Scores containing Annotations and other adjustments (reframing, etc.) previously made by him.
Distributing content to customers
The Publisher can upload Content to NEWZIK PWP for distribution to Customers with whom he has created a PWP Contract. The Content is made available to Customers according to the terms and conditions set by the Publisher.
Managing restrictions
When the Publisher uploads Content to NEWZIK PWP, it becomes fully accessible to the Customer. The Publisher may then decide to apply certain technical Restrictions.
NEWZIK PWP allows the Publisher to manage Restrictions as they are set out in the PWP Contract and as set out herein:
Expiration Date: On the date of expiration of the Customer's rights to the Content, he will no longer have access to the Content as distributed by the Publisher. The Customer will have access to a Degraded version, which he can only use to find Annotations previously made by him;
Number of licenses: The number of licenses granted by the Publisher over the Content corresponds to the number of Users who will have access to it;
Printing: The Publisher can authorize or deny printing of the Content by Users. The Publisher acknowledges that by authorizing printing, the Content leaves NEWZIK and SYNCSING will no longer be able to uphold the Restrictions set by the Publisher;
The Publisher is responsible for the Restrictions implemented on the distribution of Content through NEWZIK PWP. The Publisher undertakes to set on NEWZIK PWP only those Restrictions set out in the PWP Contract.
Managing annotations
SYNCSING undertakes to ensure that all Annotations brought by the Customer on a Publisher Score in NEWZIK are always accessible to the Customer.
Once the PWP Contract expires, the Customer file will not be deleted and may be re-used by the Publisher for any subsequent PWP Contract.
Intellectual property rights in these Annotations are not part of this GTCP and may be governed by the agreement concluded between the Publisher and the Customer.
CONTENT OF THE PUBLISHER AREA
When using NEWZIK PWP, the Publisher undertakes to comply with relevant laws and regulations, as well as third-party rights and the provisions of the GTCP herein. The Publisher undertakes to act in a way that is loyal to SYNCSING and its Customers.
The Publisher has sole control, and consequently sole responsibility, over the Content that is uploaded to the Publisher Area.
With regard to the uploading of Content to the Publisher Area, the Publisher acknowledges that:
The Publisher shall create and design his own Publisher Area, under the conditions and modalities offered to him;
The Publisher shall be responsible for updating and maintaining his Publisher Area;
The Publisher undertakes to make Content available to Customers once an agreement has been signed. The Publisher is solely responsible for restricting the distribution of his Content;
The Publisher is liable for the Content distributed to its Customers using NEWZIK PWP and shall ensure that said Customers receive all the information required for the proper use of the Content;
The Publisher undertakes to provide its Customers with Content in a format compatible with NEWZIK. The Publisher shall be solely responsible for any damage, claims or complaints resulting from the rental or sale of a Score or Content that is not compatible with NEWZIK;
The Publisher shall be solely responsible for Content uploaded to his Publisher Area. As such, he undertakes responsibility for all litigation and legal proceedings relating to his Content and Scores.
In any event, the Publisher undertakes:
To regularly backup his data;
Not to distribute any Content contrary to public order and morals;
Not to distort the original purpose of NEWZIK PWP and the Publisher Area, in particular to commit any act punishable by law;
To respect the privacy of third parties and the confidentiality of any information exchanged with SYNCSING;
Not to violate or attempt to violate the security or integrity of NEWZIK PWP, to communicate any misleading information and/or to use information for illicit purposes.
In order to enable SYNCSING to offer NEWZIK PWP under the best possible conditions, the Publisher undertakes to co-operate with SYNCSING by meeting any reasonable request regarding feedback, communication, interviews of beta-testing.
SYNCSING’S OBLIGATIONS
SYNCSING undertakes to make NEWZIK PWP available in compliance with applicable rules, such as rules resulting from the current state of the art, standards, laws, regulatory or administrative texts of the European Union, of a national, local or professional nature.
The Parties expressly agree that SYNCSING is subject to a general obligation to use its best efforts in carrying out the provisions herein, and not to any obligation of performance-guaranteed execution.
SYNCSING undertakes to use its best efforts to make NEWZIK PWP and associated SERVICES available twenty-four (24) hours a day, seven (7) days a week, except in the case of force majeure or any event occurring beyond SYNCSING’s control, and subject to possible breakdowns or interventions necessary to the proper functioning of NEWZIK PWP and associated SERVICES. However, SYNCSING shall not be held responsible for disruptions, cuts and anomalies that are not incurred by him and that might affect Internet communication and, more generally, the communication network, regardless of their importance and duration.
It is also stated that SYNCSING reserves the right to temporarily block access to NEWZIK PWP or to suspend all or parts of its Features to the Publisher by giving prior notice, particularly for maintenance reasons, and/or for the purpose of updating and installing new Features under the following conditions:
Updates with respect to or maintenance of NEWZIK shall be conducted at a time not affecting the business of the Publisher and the Customer. Especially, SYNCSING will take account of events, rehearsals, concerts or other performances of the Customer and its Users for which the use of NEWZIK is unavoidable.
For this reason, notice shall be given at least at least one (1) month prior to the envisaged interruption by sending an email to the email address of the Publisher. The notice shall include the following details: (i) expected duration of the maintenance, (ii) beginning of the maintenance (date and time) and (iii) contact details for further questions.
In the case the Publisher object to the envisaged maintenance and/or updates by sending an email to SYNCSING, SYNCSING will make its best efforts to postpone the envisaged maintenance.
SYNCSING shall respect the legal retention periods of all data relating to the Publisher. Pursuant to Article L. 123-22 of the French Commercial Code, data will be retained for ten (10) years for the purpose of establishing legal evidence and five (5) years for the purpose of establishing the contractual relationship existing between the Parties, in application of Article 2224 of the Civil Code.
Finally, SYNCSING is not bound to retain any Content over which the Publisher holds exclusive proprietary rights, the Publisher being solely responsible for carrying out regular backups.
SYNCSING undertakes to take all measures to ensure that all the markings, bowings and additional media files brought by the Customer on a Score in NEWZIK are always accessible to the Customer.
CUSTOMER REFERENCE
The Publisher authorizes SYNCSING to:
Use its name, company name, logo and sample message as a "Customer Reference" for communication or marketing purposes, without receiving compensation from SYNCSING;
Publish testimonials, in which case SYNCSING shall consult with the Publisher to jointly define their content and format. The joint publishing of testimonials is subject to the Publisher's consent.
INTELLECTUAL PROPERTY
Intellectual property relating to the publisher
The Publisher warrants that he owns or holds due licence in respect of the intellectual property rights to the Content, and in particular to the Scores and any text, information, photograph, image, drawing or annotation uploaded to NEWZIK PWP (non-exhaustive list). The Publisher warrants that he holds all authorizations for their commercialization, particularly from public authorities or third parties acting as distributors.
The Publisher does not grant any intellectual property rights to the Content to SYNCSING or NEWZIK.
Any rights to the Content made available to Customers by the Publisher are defined in the agreement, which was concluded prior to the Content being made available on NEWZIK PWP.
SYNCSING undertakes not to use the Content in an unauthorized manner, totally or partially reproduce, copy, exploit, download, display, modify, translate, publish, adapt, broadcast, or distribute the Content, in whole or in part, in any form whatsoever, by any means and in or through any medium, with or without charge. Furthermore, SYNCSING is not responsible for the Content.
In particular, SYNCSING undertakes not to:
Permanently or temporarily reproduce the Content, in whole or in part, by any means and in any form whatsoever;
Intervene with the Content, or to involve a third party for that purpose.
In return, the Publisher undertakes to protect SYNCSING against any infringement of third-party rights, and, in particular, warrants that Content uploaded to NEWZIK PWP is not counterfeit and does not constitute an act of unfair competition.
Intellectual property relating to SYNCSING
SYNCSING is the sole exclusive proprietor of NEWZIK PWP and its components, and in particular (non-exhaustive list): the general architecture, design, graphic design, animations, programs, texts, data, images, sounds, videos, databases, etc.
SYNCSING grants the Publisher a simple right to use NEWZIK PWP. This right is personal, non-transferable, non-exclusive, and strictly limited to purposes compatible with NEWZIK PWP’s scope.
Any unauthorized use, total or partial reproduction, copying, exploitation, downloading, display, modification, translation, publication, adaptation, broadcasting, or distribution of the Website, in whole or in part, in any form whatsoever, by any means, in or through any medium, with or without charge, is prohibited.
In particular, the Publisher formally undertakes not to:
Permanently or temporarily reproduce NEWZIK PWP, in whole or in part, by any means and in any form whatsoever. There is no right in place to the transfer or publication of the NEWZIK PWP source code;
Use NEWZIK PWP for any purpose other than those set out in the GTCP herein, and in particular for the purpose of creating, developing and/or distributing concurring products, or of creating a derivative work;
Intervene on NEWZIK PWP, or to involve a third party for that purpose.
Any unauthorized use under these terms shall be considered unlawful and the Publisher shall be held liable.
FINANCIAL TERMS
Use of NEWZIK PWP is free of charge.
PUBLISHER AREA DELETION
Causes of deletion
The Publisher Area shall be deleted in the following cases:
The Publisher requests the deletion of his Publisher Area as he no longer wishes to use NEWZIK PWP;
The Publisher violates the provisions of the GTCP herein or relevant laws and regulations, and/or the Publisher does not cooperate with SYNCSING and/or acts disloyally. In this case the account in question may be suspended with immediate effect and a formal notice shall be served. The account may be deleted if said notice remains unanswered for fifteen (15) working days;
Following a unilateral decision by SYNCSING, which reserves the right to amend or interrupt, temporarily or permanently, access to all or part of NEWZIK PWP. In this case, SYNCSING undertakes to notify the Publisher at least one (1) month prior to the interruption, in order for the latter to make relevant provisions, particularly in terms of data backup.
Effect of deletion
Deletion of the Publisher Area shall lead to SYNCSING removing the Publisher from NEWZIK PWP, deleting the Publisher Area and its Contents at the earliest opportunity and in any event once all PWP Contracts in progress are terminated.
The Publisher is responsible for backing up Content prior to his request to delete his Publisher Area or prior to the scheduled date of deletion of his Publisher Area.
Following deletion of the Publisher Area, Customers will no longer have access to Content previously uploaded to NEWZIK PWP by the Publisher.
Except:
If the Customer has purchased the Content, in which case said Content shall remain in the Customer’s possession;
If the Customer has rented the Content, in which case the Customer shall have access to said Content until the end of the rental period, as defined in the PWP Contract;
In any event Customers will have access to a Degraded version of the Content, including Annotations.
Articles 11, 13 and 15 herein covering Intellectual Property, Liability and Protection of personal data shall remain in force following termination of the GTCP herein for a complementary period of five (5) years, except as may be expressly stated otherwise, and notwithstanding any contrary law or regulation.
LIABILITY
Limitation of liability
SYNCSING shall not be held liable in case of damage caused in the following cases: (1) if NEWZIK PWP cannot be accessed partially, due to technical maintenance operations or software updates; (2) in the event of virus attacks; (3) if the Publisher or a third party use NEWZIK PWP in an unlawful or abnormal way; (4) if the Publisher or a NEWZIK User provide incomplete or erroneous information; or (5) in the case of a foreign event for which SYNCSING cannot be held responsible provided that due notice is given of the same in accordance with the terms of this contract.
SYNCSING draws the Publisher’s attention to the fact that current Internet communication protocols make it impossible to continuously and securely ensure the transmission of electronic signals. SYNCSING shall not be held responsible in the event of data loss, intrusions, viruses, breakdown of service or other problems not imputable to SYNCSING provided that SYNCSING takes all reasonable measures to protect NEWZIK PWP against the same.
In no event shall SYNCSING be held liable, irrespective of the claim, for indirect damage of any kind such as (non-exhaustive list) any financial or commercial damage, loss of profit, loss of earnings, damage to third parties, or claims brought by a third party against the Publisher and their consequences, related to the GTCP herein or their implementation. The Publisher is solely responsible for any material or immaterial damage caused to SYNCSING or to third parties due to his use of NEWZIK PWP.
Web hosting provider status
The Publisher acknowledges SYNCSING’s status as a web hosting provider, as defined under Article 6 I 2° of Law No. 2004-575 of June 21, 2004, regarding Confidence in the Digital Economy.
SYNCSING shall not moderate, control nor proceed to any advance validation of Content uploaded to NEWZIK PWP.
WARRANTIES
The Publisher understands that NEWZIK PWP, the Publisher Area and associated Features have not been developed to meet his unique requirements. The Publisher, as a skilled professional familiar with the Internet environment, is responsible for ensuring that the services provided by NEWZIK PWP comply with his needs, requirements and constraints.
PROTECTION OF PERSONAL DATA
Each Party may be required to process personal data relating to the other Party’s employees. Each Party undertakes to respect the confidentiality of these data and relevant regulation in compliance with the General Data Protection Regulation 2016/679 (hereinafter “GDPR”) of April 27, 2016, and the applicable local data protection laws. As such, each Party undertakes to inform its own employees of the processing of their personal data by the other Party, in accordance with Articles 13 and 14 of the GDPR.
With respect to the Customer and User data, each party is a data controller and each party is responsible to comply with its obligations according to the GDPR and applicable local law data protection laws.
SYNCSING may store data in relation to usage of NEWZIK PWP, some of which may relate to natural persons. SYNCSING has drafted a Privacy Policy, which is accessible here.
GENERAL PROVISIONS
Given the nature of their commercial trade, and in particular the dematerialization of their business relations, the Parties agree that the computer records stored within SYNCSING’s information system are valid.
Force majeure
SYNCSING shall not be liable, or be considered to have failed its obligations set out in the GTCP herein, for any failure or delay in the performance of its obligations due to force majeure, in accordance with Article 1218 of the French Civil Code.
It is also stated that, in such a case, the Publisher shall not be entitled to payment or compensation or to initiate legal action against SYNCSING.
If such an event takes place, SYNCSING will endeavor to inform the Publisher as promptly as possible.
Amendments
Any amendment of the GTCP shall be communicated to the Publisher by sending an email to the email address of the Publisher fifteen (15) days before taking effect.
It is specified that the GTCP herein can be accessed by the Publisher directly from his Publisher Area and can therefore be consulted at any time. The applicable version is the one in force on the effective date of this Agreement. If the Publisher rejects any updated version of the GTCP herein he is entitled to request the deletion of his Publisher Area, which will be deleted under the provisions set out in the article "Publisher Area Deletion".
Governing law and jurisdiction
Unless otherwise provided, the GTCP herein are governed by the laws of France.
The Parties shall use their best efforts to settle on an amicable basis any disputes arising out of or in connection with the implementation or interpretation of the GTCP herein. Failing an amicable settlement within one (1) month of either party receiving a registered letter with acknowledgment of receipt to that effect, any dispute shall be submitted to the jurisdiction of paris courts.