Terms of service

Sample Pack Terms of Use

1. In exchange for your payment of (i) the license fee ("License Fee") associated with the applicable sample pack provided via this website and any of the sound recording(s) and/or sample(s) embodied therein (each, a "Sample"); and (ii) your according us a credit in the form of “Produced by Phøn” and/or “Written by Phøn” (as applicable), or as otherwise instructed by us in our sole discretion, in the liner notes of any record containing the Recording(s) (as defined hereinbelow), including the back cover of any LP or EP packaging (if any) and any “single” embodying the Recording(s), on metadata in connection with electronic transmissions and in all print ads placed or controlled by you featuring any of the Recording(s), we grant you a non-exclusive, non-transferable, limited right to publicly perform, distribute, or transmit the Sample in combination with other sounds in music productions to create new recordings ("Recording(s)"), each of which shall be considered a "derivative work,” as such term is used in the United States Copyright Act of 1976, as amended.

This limited license permits you to modify, reproduce, and/or use the Sample as incorporated in your Recording solely pursuant to the following terms and conditions:

(a) You may use any Sample solely for Recordings on your own personal projects which are distributed solely by you independently (i.e., beat tapes or mixtapes) without any additional obligation to us or the Sample owner other than the License Fee and the applicable credit, as provided above, provided that in the event that you (i) sublicense, sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer and/or intend to sublicense, sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer any Recording to any third party (i.e. a third party artist and/or record label) for exploitation; and/or (ii) a Recording achieves over One Million (1,000,000) streams on any DSP (including without limitation on Spotify, Apple Music, TIDAL, YouTube Music), you shall be required to immediately obtain formal clearance of the Sample for use in the Recording pursuant to procedure outlined in subparagraphs 1(d), 1(e), and 1(f) below. For the avoidance of doubt, and notwithstanding anything to the contrary contained herein, solely in connection with Sample(s) which are clearly and explicitly labeled as “Drum Loops”, “Percussion Loops”, and/or “One-Shots”, you shall have no obligation to pay us the Gross Receipts Share, PPD Royalty, or grant us a Publishing Share, in perpetuity. For the further avoidance of doubt, if solely as a result of us being credited as a writer, we are entitled to receive mechanicals royalties in connection with a Recording containing a Sample, we hereby waive such right until the date you become required to obtain formal clearance of such Sample.

(b) You may not use or sublicense any Sample in isolation as sound effects, loops, or as source material for any other form of sample, regardless of whether or not the Sample is modified by you pursuant to the terms herein;

(c) You may not: (i) use or sublicense any Sample in a manner which is competitive to us or the Sample owner; (ii) redistribute any Sample in new sample packs; (iii) sublicense, sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer any Sample to a third-party except as incorporated into a Recording to be used solely as agreed herein; or (iv) use the name, image, likeness or other indicia of identity of the artist, producer and/or writer associated with a Sample in any way without such artist, producer, and/or writer’s express written consent.

(d) With respect to any and all exploitations of Recording(s) containing any Sample, you shall not sell, license, or otherwise commercially exploit any Recording(s) containing any Sample including, without limitation, via a third-party “Major Record Label” (as defined below) or “Qualifying Independent Label” (as defined below) or otherwise, without contacting us in writing to obtain formal clearance of the Sample for use in the Recording(s). Following your written request to obtain formal clearance of the Sample for use in the Recording(s), we shall provide you with our proposed formal clearance terms (“Formal Clearance Terms”) which such Formal Clearance Terms shall be determined by us in our sole discretion and may include, without limitation, an additional advance, perpetual royalty, ownership share of the composition, and an appropriate credit to be paid and/or accorded to us. In order to help us make such determination, you shall provide us with any and all documentation and/or information requested by us which is deemed by us as necessary to determine the facts and/or details in connection with such third party use.  In the event any of the foregoing Formal Clearance Terms are to be paid, accorded and/or fulfilled by a third party i.e. a Major Record Label or Qualifying Indie Label, you shall instruct and cause such third party to comply with the Formal Clearance Terms via a letter of direction. Notwithstanding anything to the contrary, nothing herein shall obligate us to approve any such request for formal clearance or provide you with our Formal Clearance Terms. 

(e) Such Formal Clearance Terms shall be subject to (i) a minimum perpetual record royalty in the amount of the greater of (A) a ten percent (10%) share of Gross Receipts (as defined herein) (the “Gross Receipts Share”) and (B) Four Percent (4%) PPD paid from the first exploitation of the applicable Recording without regard to any costs (the “PPD Royalty”); and (ii) a minimum publishing share in the amount of ten percent (10%) of the Composition(s) (as defined herein) (the “Publishing Share”). For the avoidance of doubt, with respect to the Publishing Share, we shall own an undivided interest of the Composition(s), including all right, title and interest in and to our share of the Composition(s), for the full term of copyright of the Composition(s) throughout the universe, together with all renewals, reversions and extensions thereof. We and our publishing designee shall separately and exclusively administer our own ownership share of the Composition(s) during the full worldwide term of copyright and any and all extensions and renewals thereof.

(f) You shall send us statements with respect to any and all amounts payable to us within thirty (30) days of your receipt thereof together with any payments due to us hereunder, provided that you shall pay and account to us no less frequently than on a quarterly basis. We shall have the right to examine your books and records with respect to the sale of records embodying the Recordings including without limitation by appointing a certified public accountant and/or any other qualified representative. You shall pay us our share of any monies recovered by you with respect to the Recordings(s) pursuant to any audit you may elect to conduct of any third party or claim against any third party in connection with the Recording(s), or any recoveries or settlements with any third party, after deduction “off-the-top” of a pro rata share of any actual, documented, good faith, out-of-pocket, third party, reasonable costs actually incurred directly as a result of such audit, claim or settlement (excluding any commissions).

(g) As used herein:

(i) “Major Record Label” shall mean a record label or company: (i) which is a parent or subsidiary of, and/or is affiliated with (i.e., shares common ownership with), one of the “major” distributors in the United States (which distributors are presently Sony, Universal and the Warner Music Group/WEA), (ii) which is a parent or subsidiary of, and/or is affiliated with, one of the so-called “indie” distributors which provide national distribution (which “indie” distributors presently include, without limitation, Ryko, Caroline, InGrooves, The Orchard, Rounder, Kobalt/AWAL, BMG, ADA and E1), and/or (iii) whose records are distributed by any such “major” or “indie” record label, company or distributor including without limitation, your own record label.

(ii) “Qualifying Independent Label” shall mean any record label or company not included in the definition of Major Record Label as provided in paragraph 1(e)(i) above which has distributed any album and/or master which has exceeded an aggregate of One Hundred Thousand (100,000) streams on Apple Music, Spotify and YouTube in any given calendar month, or greater than an aggregate of One Million (1,000,000) streams on Apple Music, Spotify and YouTube in total.

(iii) “Gross Receipts” as used herein shall mean any and all gross amounts earned, received and/or credited to you and/or on your behalf in connection with the Recording(s).

(iv) “Composition(s)” as used herein shall mean the applicable underlying musical composition embodied on the Recording in question.

(h) By using our website, you confirm that you accept these terms of use and that you agree to comply with them. Any rights not expressly granted herein are hereby reserved.

____________

SHOPIFY TERMS OF SERVICE

 

OVERVIEW
This website is operated by Samples by Phøn. Throughout the site, the terms “we”, “us” and “our” refer to Samples by Phøn. Samples by Phøn offers this website, including all information, tools and Services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and Services to you.

SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse Service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the Service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or Services may be available exclusively online through the website. These products or Services may have limited quantities and are subject to return or exchange only according to our Refund Policy: [LINK TO REFUND POLICY]
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or Services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or Service made on this site is void where prohibited.
We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more details, please review our Refund Policy: https://samplesbyphon.com/policies/refund-policy

SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new Services and/or features through the website (including the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.

SECTION 8 - THIRD-PARTY LINKS
Certain content, products and Services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or Services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us, you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 10 - PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy, which can be viewed here: [LINK TO PRIVACY POLICY]

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our Service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
You agree that from time to time we may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the Service is at your sole risk. The Service and all products and Services delivered to you through the Service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Samples by Phøn, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, Service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 14 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Samples by Phøn and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, Service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 15 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 16 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 17 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and governs your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 18 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of United States.

SECTION 19 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 20 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@samplesbyphon.com.