Asynchronous Inc., Music Supplement to Terms of Use

Version 2.1

Last Revised: April 26, 2021

This Music Supplement to Terms of Use (“Music Terms”) is incorporated into and made a part of the Asynchronous Art, Inc. Terms of Use (“Terms of Use”) as Additional Terms and constitutes a legally binding agreement between you, the individual or entity uploading, publishing, or otherwise making available a Musical Work (as defined below) via the Site (the “Creator” as defined in the Terms of Use which can be found at http://www.async.art/terms) and Asynchronous Art, Inc. (“Async,” “Company,” “us,” “our,” and “we”). These Music Terms shall supplement all applicable terms in the Terms of Use and shall not be construed to supersede or limit such terms in any manner. Capitalized terms not defined here shall have the meanings ascribed in the Terms of Use. To the extent that there is a conflict between these Music Terms and the Terms of Use, these Music Terms shall control to the extent necessary to resolve such conflict.

  1. Definitions. For purposes of these Music Terms, (a) the “Master” is a stand-alone audio file of a complete sound recording and a musical work embodied in such sound recording; (b) “Stem Layers” are the individual audio files that incorporate discrete or grouped instrumental components comprising the Master; (c) “Variants” are alternative versions of each Stem Layer (e.g., a Stem Layer incorporating the Master’s drum tracks may correspond with a Variant incorporating a different rhythm or number of drum tracks compatible with the same Master); and (d) a “Variant Image” is the image that corresponds with an applicable Variant (the foregoing in (a) – (d) are, collectively the “Musical Work”).
  2. Application. By submitting your application to become a Creator you agree to be bound by and comply with all of the terms and conditions of the Terms of Use, Music Terms, and the Privacy Policy. You agree and acknowledge that Async has sole discretion regarding acceptance of your application to become a Creator.
  3. Connecting the Wallet. If your application to become a Creator is approved by Async, you must first upload a copy of photo identification (any form of government issued identification that contains a photo) to the Async website; and connect a Wallet to the Site using a public address. Please review the Privacy Policy for more information on how we deal your PII. Once you have completed these steps, Async will add your public address to a list of whitelisted addresses it maintains (“Whitelisting Services”). You acknowledge and agree that Async may remove a public address from the whitelist at anytime in its sole discretion. You must only connect a Wallet that you have exclusive control and ownership of. You may also choose to assign a username and avatar that will be linked to your Wallet. If a username is not provided, you will only be identified by your Wallet address.
  4. Musical Works.
  1. Uploading. Once you have connected a Wallet, you may upload your Musical Work to the Site. The Master, each Stem Layer comprising the Musical Work, and each Variant comprising each Stem Layer must each be uploaded as a separate mp3 or WAV file, and each Variant Image must be uploaded as a JPG or PNG file. The Stem Layers and Variants must be the same duration as their corresponding Master. You accept and acknowledge that the Musical Work will be uploaded and hosted on a cloud-based service provider of Async’s choosing. Async will subsequently upload the Musical Work onto an IPFS service provider of Async’s choosing as a means of backing up the Musical Work (“IPFS Hosting Services”). You acknowledge and agree that Async may change service providers at any time without notice to you.
  2. Self-Minting. Once the Musical Work has been uploaded on the Site, you will be able to mint Tokens using the Smart Contract in accordance with the Terms of Use and Music Terms. You agree and accept that for each Master, you can mint only one (1) Token, and for each Stem Layer, you can mint only one (1) Token. Our Site will autofill the relevant fields in your connected Wallet to assist with the minting process (“Autofilling Services”).
  3. Limited Editions. Where a Creator has launched a Limited Edition Sale on the Site, and a Collector has redeemed the corresponding Voucher, Async will mint the Limited Edition Tokens using the Smart Contract and transfer the Limited Edition Tokens to the Collector’s connected Wallet on behalf of the Creator within 72 hours of redemption.  
  4. Musical Work License. By uploading or otherwise making a Musical Work available to or on the Site, to the fullest extent permitted by applicable law, you hereby grant to Async, its affiliates, successors, licensees, and assigns a non-exclusive, perpetual, irrevocable, royalty free, fully paid-up, worldwide, fully sublicensable, transferrable, assignable right and license to use, make copies of, store, reproduce, modify, display, transmit, perform, synchronize, create physical or digital derivative works with (including without limitation, compilations, collective works, and anthologies), stream, broadcast, and otherwise distribute the Musical Work, including, without limitation, the Master, Stem Layers, Variants, and Variant Images in any and all media now known or hereafter discovered (collectively, the “Musical Work License”). It is acknowledged and agreed that the Musical Work License granted hereby to Async includes, without limitation, the rights to modify, display, perform, distribute, and/or create derivative works with your Musical Work and each of its corresponding components, either alone and/or in any combination with other components, in connection with (a) any Async Applications, including the provision of any tools, products, services, and/or features now or in the future offered in connection therewith; (b) third party platforms, publications, editorials, virtual galleries, museums, and virtual environments; (c) the advertising, marketing, promotion, and publicity of the Async Applications and any tools, products, services, and/or features related thereto; and (d) physical media (e.g., canvas, lithograph, poster, etc.) sold through the Async Applications (“Physical Displays”). To the extent applicable and permissible by law, you hereby waive any and all claims that you may now or hereafter have in any jurisdiction to so-called “moral rights” or right of “droit moral” with respect to your Musical Work.
  5. Creator Attributes. By uploading or otherwise making a Musical Work available to or on the Site, to the fullest extent permitted by applicable law, you hereby grant to Async, its affiliates, successors, licensees, and assigns a non-exclusive, royalty free, fully paid-up, worldwide right and license to use, make copies of, store, display, transmit, perform, synchronize, stream, broadcast, and distribute your name, nickname, image, logo, trademark, voice, likeness, profile information, biographical material (as applicable), and other Creator-identifying attributes solely to (i) identify such you as the source of the Musical Work and (ii) in connection with the advertising, marketing, and promotion of such Musical Work.  
  6. Master License. The Musical Work License granted hereunder includes the rights for Async to grant a limited, worldwide, non-assignable, non-sublicensable, royalty free sublicense to each Collector of a Master Token minted pursuant to Section 4.2 to reproduce, transmit, display, perform, and distribute such corresponding Master for Collector’s personal, non-commercial use on personal electronic devices (such as TVs, computer monitors, display panels, mobile devices, laptops or desktop computers) solely through the Async Applications on such devices (for example, any of Async’s or its sublicensees’ applications on Apple TV) (collectively, the “Master Rights”). Neither Async nor any of Async’s affiliates or sublicensees shall grant the Master Rights contemplated by this Section 4.6 to any person who, to their knowledge, is not a Collector of the applicable Master Token.
  7. Stem Layer License. The Musical Work License granted hereunder includes the right for Async to grant a limited, worldwide, non-assignable, non-sublicensable, royalty free sublicense to each Collector of a Stem Layer Token to use the Rendering Services to modify how the corresponding Master is displayed and/or performed via the Async Applications by selecting the individual StemLayers and Variants that are displayed and/or performed within such Master on the applicable Async Application(s) at a given time thereby creating a derivative work of such Master comprising the Collector’s selection and arrangement of the corresponding Stem Layers, and Variants (“Collector Derivative Work”). The Collector who created the Collector Derivative Work may have the ability to purchase one of a limited supply of blank record Tokens exclusively compatible with the applicable Master (“Blank Record Token”), and record the Collector Derivative Work within such Blank Record Token via the Site, thereby minting a new Token representing such Collector Derivative Work derived from the applicable Master (“Recorded Mix Token”) (the foregoing rights in this Section 4.7, collectively, the “Stem Layer Rights”). The Stem Layer Rights shall be fully sublicensable by Async (and its sublicensees) to the Collector of the corresponding Stem Layer Token, for so long as such Collector continues to legally hold such Stem Layer Token. Neither Async nor any of Async’s sublicensees may sublicense the Stem Layer Rights contemplated by this Section 4.7 to any person who, to their knowledge, is not a Collector of the applicable Stem Layer Token or Recorded Mix Token.  
  8. Recorded Mix Tokens. Creator acknowledges and agrees that the rights sublicensed by Async to Collectors of Stem Layer Tokens corresponding to Creator’s Musical Work include the rights for such Collectors to (i) use the Rendering Services to create Collector Derivative Works; (ii) mint Recorded Mix Tokens corresponding to such Collector Derivative Work via the Async Applications in accordance with the Terms of Use and Music Terms; and (iii) and to reproduce, transmit, distribute, and perform the Collector Derivative Work (and make mechanical reproductions of the musical works embodied in the Collector Derivative Work) via the Async Applications. In addition to the foregoing rights, Collectors have the right to sell, trade, or transfer their interest in their Recorded Mix Token, but Collectors may not make “commercial use” of the underlying Musical Work or Collector Derivative Work including, for example, by selling copies of the Musical Work or Collector Derivative Work, selling derivative works derived from the Musical Work or Collector Derivative Work, selling access to the Musical Work or Collector Derivative Work, or otherwise commercially exploiting the Musical Work or Collector Derivative Work.
  9. Commercial License. If, in uploading the Musical Work to an Async Application, Creator elected to enable commercialization of the Musical Work, Creator acknowledges and agrees that Async or its sublicensees may charge users of the Async Applications for viewing and/or publicly performing the Musical Work, for the preparation and sale of Physical Displays and for sales of Tokens representing the sublicenses referred to in Sections 4.6 and 4.7. Async acknowledges and agrees that the Creator or its sublicensees may charge Users for viewing and/or publicly performing the Musical Work via the Site.
  10. Ownership. Async does not claim ownership of Creator’s Musical Work, Collector Derivative Works, or the intellectual property underlying the same. Async understands and agrees that the Creator retains all right, title, and interest in and to Creator’s Musical Work, including, without limitation, the Masters, Stem Layers, Variants, Variant Images, any and all Collector Derivative Works, whether modified or unmodified, and the underlying intellectual property with respect to all of the foregoing. To effectuate the Creator’s ownership, to the extent allowed by applicable law, Async hereby assigns, transfers, and conveys to Creator all right, title, and interest it may or will hold in and to the Musical Work and any components thereof, both as modified and as unmodified, and hereby waives any moral rights and other retained rights. To the extent any rights in and to the Musical Work or any components thereof can be neither waived nor assigned, Async hereby grants to the Creator an exclusive and unlimited, royalty-free, perpetual, transferable, sublicensable, worldwide, fully paid-up license, to use such rights and the Master and Stem Layer (whether modified or unmodified) in any and all ways.
  11. Royalty Free Licensing. You acknowledge and agree that all of the rights you are granting under these Music Terms, including all rights, licenses, and rights to sublicense granted by you pursuant to these Music Terms, are all granted on a royalty-free basis, which means that you are granting Async and Collectors of your Musical Work the right to use the Master, Stem Layers, Variants, and Variant Images comprising the applicable Musical Work without the obligation to pay royalties to any third-party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher, co-writer, or co-composer), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of such Musical Work. If you are a composer or author of the sound recording and/or musical work embodied in the Musical Work and are affiliated with a PRO, then you may need to notify the PRO of the royalty-free license you grant through these Music Terms to Async and the applicable Collectors. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. By way of example, if you have assigned your rights to a music publisher, then you may need to obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Music Terms or have such music publisher enter into the Terms of Use and these Music Terms with Async. You should not presume that since you authored a musical work (e.g., wrote a song) embodied in a Musical Work, that you have all the rights necessary to grant Async and the applicable Collectors the rights and licenses pursuant to these Music Terms.  
  1. Limited Edition Tokens. You may apply for, and Async may grant you, the ability to sell limited-edition versions of your Musical Works (“Limited Edition Tokens”) through the Site (“Limited Edition Sale”). Async will decide, in its sole discretion, whether to facilitate the Limited Edition Sale. If Async agrees to facilitate the Limited Edition Sale, Async shall fix the total supply of Limited Edition Tokens available in each tier, and you shall designate the price of the Limited Edition Tokens by tier. Subject to change in Async’s sole discretion, there shall be three (3) tiers of Limited Edition Tokens as follows:
  1. Fan Edition: 2,000 count;
  2. Gold Edition: 10 count; and
  3. Platinum Edition: 3 count.
  1. Sales.
  1. Primary Sales. You agree that your first sale of new Tokens, Blank Record Tokens, Recorded Mix Tokens, and/or Limited Edition Tokens (as defined below) (each, a “Primary Sale”) minted will be executed exclusively via our Site. If you conduct your Primary Sale of the Master, Stem Layer, or Limited Edition Tokens on any third-party platform or directly with any Collector off-Site without Async’s knowledge and permission, this will be considered a breach of both the Music Terms and the Terms of Use, and shall entitle Async to delist your Musical Work from the Site or request the IPFS service provider to cease hosting your Musical Work on the IPFS server.
  2. Primary Sales of Tokens. For Primary Sales of your minted Tokens, (including, for clarity, Blank Record Tokens) other than Limited Edition Sales, you agree that Async shall retain 20% of the total proceeds actually received by Async (“Gross Proceeds”) as a commission fee (“Commission”), in acknowledgment of Async’s provision of the Marketplace Services, Rendering Services, Browsing Services, Whitelisting Services, IPFS Hosting Services, and Autofilling Services. You shall receive the remainder of the Gross Proceeds from the Primary Sale.
  3. Limited Edition Token Sales. You agree that:
  1. Async shall retain a 30% Commission from your Primary Sale of a Platinum or Gold Limited Edition Token and you shall receive the remainder of the Gross Proceeds from such sales.
  2. Async shall retain the greater of (a) $50 USD and (b) a 30% Commission from your Primary Sale of a Silver/Fan Limited Edition Token, and you shall receive the remainder of the Gross Proceeds from such sales.
  1. Token Minting Fees.     . Async may increase the Commissions at any time in its sole discretion.
  2. Secondary Sales on Site. You shall receive 10% of the Gross Proceeds from any secondary sales of your minted Tokens executed on our Site (“Secondary Sales”, collectively with Primary Sales, “Sales”). You agree that Async shall retain a 5% Commission from such Secondary Sales. The Collector who purchased the applicable Token or Limited Edition Token shall receive the remainder of the Gross Proceeds from such Secondary Sales. Unless authorized by Async, Collectors may not execute secondary sales of Limited Edition Tokens on site.
  3. Secondary Sales Off-Site. You acknowledge that Async has no control over Secondary Sales that occur outside of our Site, and that Secondary Sales may occur directly between Collectors or on third party exchange platforms (“Exchanges”). While Async may specify in the Smart Contract that 10% of the proceeds from your Secondary Sale should be distributed to you, and 5% of the proceeds from such Secondary Sale should be distributed to Async, Async makes no representations or guarantees with respect to enforcement of such Smart Contracts and the resulting rights or proceeds that may arise from transactions that occur outside of our Site. Async may enter into agreements with Exchanges that list Master Tokens, Stem Layer Tokens, Limited Edition Tokens, and/or Recorded Mix Tokens (“Affiliated Exchanges”) in its sole discretion. You acknowledge that Async has no obligation to maintain any arrangements with Affiliated Exchanges.
  4. Bank Account Information. You accept and acknowledge that you must provide your bank account information to Async in order to conduct a Sale. You further accept and acknowledge that the proceeds from Sales may be paid directly to Async via Async’s payment processor, and that Async’s payment processor will subsequently transfer the proceeds of the Limited Edition Sale, minus any fees and/or Commissions owed to Async, to the bank account specified in your profile at the end of every month, provided that you have accrued at least $250 USD in sales. All monthly proceeds owed to you below $250 USD will rollover to the next month for the purposes of determining whether the monthly payout will occur.
  5. ETH Sales. Where the Gross Proceeds of a Sale has been paid in ETH to Async, Async shall retain any fees or Commissions owed to Async, and will transfer the remainder of the Gross Proceeds from the Sale to the Creator’s connected Wallet at the end of every month, provided that the Creator has accrued at least $250 USD worth of ETH in sales as measured by the spot rate published on Coinbase Pro, or if Coinbase Pro is unavailable, then the spot rate published on Kraken at 11.59pm on the date of the payout.
  1. Delisting Musical Works.
  1. Even if your profile has been deleted from the Site, you will continue to be subject to the Terms of Use and these Music Terms, and your Musical Work will continue to be listed on the Site. You may request that Async delist your Musical Work from the Site at any time by emailing Async your request at privacy@async.art. However, Async shall not be required to honor or respond to delisting requests, except as otherwise required under applicable law. In the event that Musical Work is delisted from the Site, such Musical Work may nevertheless continue to be hosted on the IPFS server and Collectors may continue to own and trade the Master Tokens. Stem Layer Tokens, and Recorded Mix Tokens associated with the Musical Work.
  2. You agree and acknowledge that Async may delist your Musical Work from the Site or request the IPFS service provider to cease hosting your Musical Work on the IPFS server at any time, for any reason, at our sole discretion, including for any use of the Site in violation of these Music Terms or Terms of Use.
  1. YOU AGREE AND ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING YOUR OWN BACKUP COPIES OF YOUR MUSICAL WORK (INCLUDING, FOR AVOIDANCE OF DOUBT, ALL COMPONENTS COMPRISING THE MUSICAL WORK AS SET FORTH IN SECTION 1), INCLUDING ANY MODIFIED AND UNMODIFIED MUSICAL WORKS. YOU UNDERSTAND AND AGREE THAT ASYNC MAY DISCONTINUE PROVIDING THE WEBSITE AND/OR THE SERVICES AT ANY TIME, AND ASYNC IS NOT AND WILL NOT BE RESPONSIBLE OR LIABLE FOR (I) PRESERVING OR FAILING TO PRESERVE THE MUSICAL WORK, INCLUDING ANY MODIFIED AND UNMODIFIED MUSICAL WORKS OR THE SECURITY OR INTEGRITY THEREOF.
  2. Representations and Warranties. You hereby represent, warrant, and covenant to Async that (i) all Musical Works and components thereof that you upload or otherwise make available on or through the Site are your original work of authorship for which you are the sole and exclusive owner, or that you have obtained and shall maintain all rights, licenses, consents, releases, and other permissions from the applicable third-party owner(s) thereof that are necessary to grant Async the rights in and to your Musical Work as contemplated by these Music Terms; and (ii) the use, sale, display, transmittal, or performance of your Musical Work, including, for avoidance of doubt, the Master, Stem Layers, Variants, and Variant Images associated therewith, by you, Async and/ or any other User, Collector, or affiliate or sublicensee of Async does not, and will not, violate any agreement, applicable laws or the rights of any third-party, including, without limitation, any right of publicity, right of privacy, copyright, patent, trademark, or any other intellectual property right or proprietary right.
  3. Termination. Subject to Section 15 of the Terms of Use, the Music Terms will remain in full force and effect while your Musical Work is listed on the Site.