General Terms and Conditions of the “API” User License
PREAMBLE
In order to create a homogenous digital universe and allow music publishers and distributors to offer music scores in a digital format, SYNCSING has developed an application programming interface ("API") called NEWZIK API. The NEWZIK API links the website of the publisher/distributor to the NEWZIK platform, thereby improving customer experience during the purchase of digital music scores.
Installing the NEWZIK application programming interface (hereinafter “NEWZIK API”) implies the unreserved acceptance by the Distributor of the General Terms and Conditions of the API User License herein (hereinafter the “GTC-API”), as well as compliance with relevant legal provisions and regulations.
For any information or question relating to the GTC-API herein, the Distributor should contact SYNCSING by mail at contact@newzik.com.
OBJECT
The GTC-API herein define the terms and conditions of the NEWZIK API user license granted by SYNCSING to the Distributor (hereinafter collectively referred to as the “Parties” or individually as the “Party”).
DEFINITIONS
Each capitalized term used in the GTC-API herein shall have the meanings set forth below.
Agreement: together refers to the Purchase Order(s) signed by the Parties and the GTC-API herein. In the event of contradiction or discrepancy between their provisions, the Purchase Order shall prevail.
Anomalie(s): refers to any malfunction that hinders the use of all or part of the NEWZIK API;
Content: generally refers to the products (including music scores, audio and video files) sold by the Distributor on his Website. The Distributor warrants that he owns all intellectual property rights necessary to the sale and distribution of this Content;
Contract(s): refers to the contract pertaining to the sale of Content, concluded between the Distributor and the Customer, which could include terms and conditions of sale;
Customer(s): refers to an individual who has signed a Contract with the Distributor, and who wishes to receive purchased Content in digital form via NEWZIK;
Distributor: refers to a distributor of music scores and musical content, acting in a professional capacity, who uses NEWZIK in order to distribute digital Content to Customers;
NEWZIK API: refers to the application programming interface developed by SYNCSING, which is integrated into the Website and allows the Distributor to offer digital Content to Customers;
Purchase Order: refers to the document entitled “Purchase Order”, duly signed by the Parties;
Territory: refers to the geographic area covered by the user license of the NEWZIK API, which in this case is worldwide.
Website: refers to the website through which the Distributor sells Content, and into which the NEWZIK API is integrated. The Distributor remains solely responsible for operating the Website.
DESCRIPTION OF THE NEWZIK API
Without surrendering sovereignty over his “e-commerce” ecosystem, the Distributor wishes to set up the NEWZIK API in order to connect his Website to the NEWZIK platform.
The NEWZIK API was developed by SYNCSING to allow Customers to receive digital Content in their NEWZIK account, in compliance with their NEWZIK account terms and conditions. As such, Content purchased and accessible on NEWZIK will be protected by restrictions such as an export or printing ban.
The relationship between the Distributor and the Customer remains strictly governed by the Contract between the two parties. SYNCSING is only a technical intermediary, third party to this Contract, and therefore shall not be held responsible for any disputes arising between the Customer and the Distributor.
SYNCSING’S ROLE
Integration of the NEWZIK API
The NEWZIK API is a technical tool. SYNCSING delivers the NEWZIK API by providing the necessary codes within the timeframe agreed upon in the Purchase Order. The integration of the NEWZIK API is carried out by the Distributor, with SYNCSING’s assistance, on the Website, provided that the Distributor provides SYNCSING with all necessary access and information.
Obligations
SYNCSING undertakes to deliver the NEWZIK API in compliance with the current state of the art. 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. As such, SYNCSING shall use its best efforts to:
Correct any Anomalies that may affect the NEWZIK API;
Allow the proper use of the Content by the Customer;
Collaborate with the Distributor to allow the NEWZIK API to integrate properly with the Website;
Develop the NEWZIK API as SYNCSING sees fit, and in alignment with the Distributor’s feedback.
The Parties recognize that SYNCSING may exceptionally block or suspend access to the NEWZIK API for maintenance reasons or for the purpose of updating the NEWZIK API, provided the Distributor was notified in advance, and under the following conditions:
Any updates related to NEWZIK API or the maintenance of NEWZIK API must be carried out taking into account the Distributor’s business activity and business hours, and in such a way that will limit any effect on said activity;
As such, SYNCSING undertakes to inform the Distributor by email fifteen (15) days in advance of any planned interruption of service. Such notification shall include the following information: (i) the expected duration of maintenance activities, (ii) the start date of the maintenance activities (date and time) and (iii) the point of contact for further information;
During the maintenance period, the former clients of the Distributor will be able to access their previously purchased content inside their NEWZIK accounts.
The Distributor is entitled to oppose the planned maintenance activities and/or update by sending an email to SYNCSING requesting an alternative date. SYNCSING shall use its best efforts to postpone the planned maintenance activities to the date requested.
Liability
In no event shall SYNCSING be held liable for the quality of the Content, the proper functioning of the Website or payment, which shall remain the sole responsibility of the Distributor.
SYNCSING shall not be held liable in case of damage caused by the following cases: (1) if the NEWZIK API cannot be accessed, either totally or partially, due to technical maintenance operations or updates which had been notified in advance; (2) in the event of virus attacks; (3) if the Distributor or a third party use the NEWZIK API in an unlawful or abnormal way; (4) if the Website does not support the NEWZIK API ; or (5) in the case of a foreign event for which SYNCSING cannot be held responsible.
SYNCSING is responsible for the proper working of the API protocols under normal circumstances
SYNCSING draws the Distributor’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.
USER LICENSE FOR THE NEWZIK API
Term of agreement
Except as otherwise provided in the Purchase Order, SYNCSING grants the License to the Distributor in accordance with the GTC-API herein, starting from the date of signature of the GTC-API herein and for an initial term of 24 months.
Upon expiration of the initial term, the GTC-API shall be automatically renewed for successive twelve (12) months terms unless either Party gives the other Party written notice of his intention not to renew, at least one (1) month prior to the end of the current term, by registered mail with acknowledgment of receipt.
The License is a non-exclusive, non-assignable and non-transferrable license to use the NEWZIK API, granted for the period identified above, barring termination of the GTC-API, within the Territory and for the sole use of the Distributor, upon full payment by the Distributor of all License fees.
Any unauthorized use hereunder by the Distributor is illegal. Should the Distributor wish to amend the terms of use, he shall obtain prior express consent from SYNCSING and pay additional fees, if applicable. Any amendment to the user license will be reflected in an amendment to the GTC-API.
Limitations: The granting of the license to use the NEWZIK API does not entail a transfer of property rights from SYNCSING to the Distributor. SYNCSING retains exclusive ownership of the NEWZIK API, even in the event that specific developments are requested by the Distributor. The Distributor undertakes not to infringe, directly or indirectly, the intellectual property rights in the NEWZIK API, and in particular:
Not to use the API in any way unauthorized by SYNCSING;
Not to reproduce, translate, adapt, arrange or otherwise modify the NEWZIK API on any platform or support system, or undertake any action not expressly authorized by the GTC-API;
Not to reproduce, publish or market the NEWZIK API;
Not to intervene in any way with any component of the NEWZIK API, including for the purpose of correcting errors that may affect the NEWZIK API, to the extent that the right to correct such errors exclusively belongs to SYNCSING;
Not to decompile the NEWZIK API, except as provided in Article L.122-6-1 IV of the French Intellectual Property Code, in particular to obtain information relating to the NEWZIK API’s interoperability with other independently created computer applications. In accordance with the legal provisions, information relating to interoperability shall be made available to the Distributor upon request, within a reasonable time and under conditions as shall be mutually agreed upon by the parties;
Not to transfer the NEWZIK API, directly or indirectly, to a third party, in exchange for consideration or free of charge, including but not limited to, renting, assigning, loaning, or outsourcing to a service provider.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY
Intellectual property relating to the Distributor
The Distributor warrants that he owns the intellectual property rights to the Content, and in particular to the Scores and any text, information, media files, photograph, image, drawing or annotation uploaded to NEWZIK (non-exhaustive list). The Distributor warrants that he holds all authorizations for their commercialization, particularly from public authorities or third parties acting as distributors
The Distributor owns all intellectual property rights to the Content uploaded to the NEWZIK API and does not grant any of those rights to the Content to NEWZIK.
Any rights to the Content made available to Customers by the Distributor or the Publisher are defined in this Agreement, which was concluded prior to the Content being made available on NEWZIK.
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 Distributor undertakes to protect SYNCSING against any infringement of third-party rights, and, in particular, warrants that the Content uploaded to NEWZIK is not counterfeit and does not constitute an act of unfair competition.
Intellectual property relating to SYNCSING
The NEWZIK API, or any adaptation thereof, is and shall remain, in all circumstances, the exclusive property of SYNCSING. The Distributor undertakes to protect, by any means necessary, each component of the NEWZIK API, or any adaptation thereof, which remain confidential and shall not be communicated, by any means, to a third party, without SYNCSING’s express prior written consent. The Distributor guarantees that his employees shall comply with this confidentiality obligation.
In any event, the Distributor shall keep and maintain all copyright and ownership notices included on the main components of NEWZIK API or any adaptation thereof and will include these notices on any total or partial reproductions authorized under the terms of the GTC-API herein. The Distributor undertakes to inform SYNCSING should he become aware of any infringement to SYNCSING's intellectual property rights.
FINANCIAL TERMS
Unless otherwise provided in the Purchase Order, the Distributor undertakes to pay the following amounts for every realized Newzik Contract:
For every Sales Contract: seven percent (7%) of the net retail price of the digital Content, excluding taxes, as displayed on the Website at the time of the sale to the Customer, and with a minimum retainer of 0,5€ if the commission of 7% is lower than 0,5€.
For every Rental Contract: seven percent (7%) of the net rental price of the digital Content, excluding taxes, as invoice at the time of the rental to the Customer, and with a minimum retainer of 1€ if the commission of 7% is lower than 1€.
SYNCSING shall issue an invoice on a quarterly basis, detailing the API activity of the Distributor for the relevant quarter, i.e. all the realized Rental and Sales Contracts.
SYNCSING reserves the right to audit the Distributor, or to have an audit carried out, to ensure compliance with the Agreement, and the financial terms in particular.
Payments are due within thirty (30) calendar days from the date of receipt of the invoice by the Distributor, failing which legal penalties shall apply at the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 points. The Parties agree that any down payments made by the Distributor under the Agreement shall remain the property of SYNCSING.
TERMINATION
The Distributor may terminate the Agreement at any time by uninstalling the NEWZIK API, subject to informing SYNCSING at least one (1) month prior to the intended uninstall.
SYNCSING may terminate the Agreement at any time in the event of a breach of the GTC-API herein, and the “Financial term” in particular, provided that SYNCSING notify the Distributor without undue delay.
In any event, none of the sums paid by the Distributor under the implementation of the Agreement and the license shall be reimbursed, and any remaining amount due shall be paid in full.
Regardless of the nature of, or the reason for, the termination, all necessary provisions including “Intellectual property and confidentiality”, “Liability” and “Protection of personal data” shall remain in force. Following termination, the Distributor shall no longer enjoy a license to use the NEWZIK API.
If requested by the Distributor, termination of this agreement can lead to SYNCSING removing the Distributor from NEWZIK, deleting the Publisher Web Platform (NEWZIK PWP) related and its Contents at the earliest opportunity and in any event once all Agreements in progress are terminated.
The Distributor is responsible for backing up Content prior to his request to delete his Publisher Web Platform or prior to the scheduled date of deletion of his Publisher Area.
Following termination of this agreement, Customers will no longer have the opportunity to purchase digital Content on the Distributor’s Website with the NEWZIK API option.
However, all previously purchased Content shall remain in the Customer’s possession in their NEWZIK account. In any event Customers will have access to a Degraded version of the Content, including Annotations.
Articles 7 and 11 herein covering Intellectual Property, Liability and Protection of personal data shall remain in force following termination of the GTC-API.
WARRANTIES
The Distributor understands that the NEWZIK API was not developed to meet his unique requirements. The Distributor, as a skilled professional familiar with the Internet environment, is responsible for ensuring that the NEWZIK API complies with his needs, requirements and constraints. The NEWZIK API is made available “as is” and SYNCSING is subject to a best-effort obligation. SYNCSING does not warrant, in particular, that the NEWZIK API is free from Anomalies or that its operation is uninterrupted. SYNCSING’s technical service remains at the disposal of the Distributor, on the basis of an estimate if applicable.
PROTECTION OF PERSONAL DATA
Each Party undertakes to respect the confidentiality of processed data and relevant regulation in accordance with the General Data Protection Regulation 2016/679 of April 27, 2016, and Act No. 78-17 of January 6, 1978, on Information Technology, Data Files and Civil Liberties, and any associated application decrees (the “Applicable regulation”). 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 General Data Protection Regulation.
In addition, in order to distribute Content to Customers, SYNCSING collects and processes Customers’ personal data for the purpose of allowing SYNCSING to manage NEWZIK accounts (through which Customers receive Content), identify Customers and inform Customers of news related to their NEWZIK accounts. This personal data includes the NEWZIK User Name, the NEWZIK Client ID (or email address if account created with email), encrypted NEWZIK Password, date and time of account creation. In this context, SYNCSING is responsible for processing Customer data and undertakes to inform Customers of such in accordance with Applicable regulations.
For other processing operations, the Distributor is responsible for processing Customer data according to the means and purpose determined by himself alone.
CLIENT REFERENCE
The Distributor authorizes SYNCSING to use its name, corporate name, logo and any sample message as “Client references” for corporate or marketing purposes, without compensation when requested by NEWZIK in advance and subject to the Distributor’s consent. SYNCSING may also publish reviews or testimonials on social media, all this being subject to the Distributor’s consent.
GENERAL PROVISIONS
evidence, independence, non-renunciation
Given the nature of their exchanges, and in particular the digital nature of their relationship, the Parties agree that the records held in SYNCSING’s database may be used as evidence.
The fact that SYNCSING does not avail itself, at any time, of any of the provisions of the GTC-API herein, shall not be construed as a waiver of any subsequent use of any of these provisions. If any of the provisions of the GTC-API herein were determined to have become invalid pursuant to any applicable law or regulatory and/or court ruling with the effect of res judicata, it shall be deemed nugatory but shall not in any way affect the validity of the other provisions that shall remain fully applicable.
Force majeure
SYNCSING shall not be liable, or be considered to have failed its obligations set out in the GTC-API 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 Distributor 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 Distributor as promptly as possible.
Amendments
SYNCSING is entitled to unilaterally amend the GTC-API herein at any time. Any amendment shall be communicated to the Distributor, by any means, and will take effect from the day of publication. If the Distributor rejects any updated version of the GTC-API herein, he is entitled to uninstall and stop using the NEWZIK API.
governing law and jurisdiction
Unless otherwise provided, the GTC-API 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 GTC-API 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, except as otherwise provided by national legal provisions, or an interim order, notwithstanding recourse for breach of warranty or multiple defenders.
LEGAL NOTICE
SYNCSING
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
Contact email address: contact@newzik.com
Telephone: +33 1 82 88 28 78
CEO : Aurélia Azoulay
The institutional website newzik.com is hosted by:
OVH
2 Rue Kellermann
59100 Roubaix
Tel: 09 72 10 10 07
The application & server are hosted in the European Union by:
Amazon Web Services
Telephone: (206) 266-4064