Authorization: You hereby
appoint SongCast, Inc.
as your authorized representative for the sale and other distribution of
your Digital Media that you submit through the SongCast Website. The rights that are granted by
you to us are non-exclusive, but we encourage you not to submit the same content
through another digital distributor. This can cause delays in getting your
music up for sale. Accordingly, you hereby grant to us the non-exclusive right, during the
Term and throughout the Territory, to:
Reproduce and convert Your Authorized Content into
Digital Masters;
Perform and make available for promotional
purposes, portions of Your Authorized Content (“Clips”) by “streaming” to
promote the license, sale and distribution of Digital Masters;
Promote, sell, distribute, and deliver Digital
Masters, as individual tracks or entire albums, and associated metadata to
purchasers who may use such Digital Masters in accordance with usage rules
agreed by us;
Use and authorize others to license the use of and
sale of Your Authorized Content in connection with all manner of phone
services, such as, but not limited to, sales or licenses of Digital
Masters as downloads (including, without limitation, downloads to cell
phones) and for use as ringtones and ringback tones;
Use so-called “kiosks” to distribute, market and
promote Digital Masters, including, without limitation, by allowing the
burning of compact disc copies of any Digital Master or by allowing a copy
of a Digital Master to be transferred to personal devices;
Use and authorize others to allow copies of a
Digital Master to be distributed as so-called “conditional” downloads,
whether tethered to a device, time limited, play limited or otherwise;
“Stream” and authorize others to “stream” Your
Authorized Content, either on-demand or as part of an internet radio
service;
Use and distribute Copyright Management Information
as embodied in a Digital Master;
Display and electronically fulfill and deliver
Authorized Artwork used in connection with the Your Authorized Content for
personal use solely in conjunction with the applicable Digital Master as
provided herein;
Use Your Authorized Content, and Authorized Artwork
and metadata as may be reasonably necessary or desirable for us to
exercise our rights under and in furtherance of this Agreement; and
Authorize our Licensees to perform any one or more
of the activities specified above.
Term: The Term of our
Agreement shall commence on the date you make payment for your album and shall continue unless and until
terminated by either party upon no less than thirty (30) days notice to the
other party.
Payments to You: We shall
pay you an amount equal to 100% of the net wholesale prices that we receive
from Licensees for the sale or other licensed uses of your Digital Masters.
We shall make payments to you once each month at such times your account has
a minimum balance of $25.00 from royalties earned. If your account does not
have a minimum balance of $25 from royalties earned, your account balance will be carried forward indefinitely
until your account has reached the minimum required in order for us to pay you. Such payment obligation shall constitute full consideration
for all rights granted and all obligations undertaken by you hereunder. You
will have the right to affiliate with a performance rights society and Sound
Exchange or other entity to collect monies that may be payable to you for
the public performance of Your Authorized Content.
Your Obligations: You shall obtain
and pay for any and all clearances and licenses as may be required in the
Territory or any portion thereof for uses of Your Authorized Content, and
Authorized Artwork and metadata. Specifically, and without limiting the
generality of the foregoing, you shall be responsible for and shall pay (i)
any royalties and other sums due to artists, authors, co-authors, copyright
owners and co-owners, producers and any other record royalty participants
from sales or other uses of Digital Masters, (ii) all mechanical royalties
or other sums payable to publishers and/or authors or co-authors of musical
compositions embodied in Digital Masters from sales or other uses of Digital
Masters with regard to publishing issues here), (iii) all
payments that may be required under any collective bargaining agreements
applicable to you or any third party, and (iv) any other royalties, fees
and/or sums payable with respect to Your Authorized Content, and Authorized
Artwork, metadata and other materials provided by you to us. You agree that
the amount payable to you is inclusive of any so-called “artist royalties”
that might otherwise be required to be paid for sales or exploitations
pursuant to the applicable laws of any jurisdiction.
Rights to Withdraw Material: You
shall have the right at any time during the Term hereof upon written notice
to us to withdraw further authorization for the sale or other uses of Your
Authorized Content and Authorized Artwork. If Your album has not been 'live'
for at least a period of 8 months, there will be a $25 per album takedown charge. Your album
will not be removed until this early withdrawal fee is paid. Promptly following our receipt of
your notice to us hereunder of your requested withdrawal and any applicable
withdrawal fees, we shall advise
our Licensees that they are no longer authorized to offer the sale or other
use of such of Your Authorized Content or Authorized Artwork as you shall
provide us with a withdrawal notice concerning. The foregoing shall not
limit your responsibility for sales and other uses of Your Authorized
Content and/or Authorized Artwork occurring prior to the implementation of
such withdrawal and shall not limit in any way the rights of end users who
have acquired Your Authorized Content or Authorized Artwork.
Names and Likenesses; Promotional Use and
Opportunities:
We may use and authorize our Licensees to use the
names and approved likenesses of, and biographical material concerning,
any artists, bands, producers and/or songwriters, as well as track and/or
album name, and Authorized Artwork, in any marketing materials for the
sale, promotion and advertising of the applicable Digital Master which is
offered for sale or other use under the terms of this Agreement (e.g., an
artist or band name and likeness may be used in an informational fashion,
such as by textual displays or other informational passages, to identify
and represent authorship, production credits, and performances of the
applicable artist or band in connection with the exploitation of
applicable Digital Masters).
We and any of our Licensees shall have the right to
market, promote and advertise the Digital Masters as available for
purchase or license as we and they determine in our and their discretion
and that we make no guarantees whatsoever about there being any minimum
sales or uses of any Digital Master.
Ownership: Subject to our rights
hereunder or under any prior agreement between you and us, insofar as we are
concerned, all right, title and interest in and to (i) Your Authorized
Content and Authorized Artwork, (ii) the Digital Masters, (iii) the Clips,
(iv) all copyrights and equivalent rights embodied therein, and (v) all
materials furnished by you, shall be and remain your property.
Modification, Termination and Effect of
Termination:
We reserve the right to change, modify, add to or
remove all or part of this Agreement. Notice of any such changes shall be
sent to you by email at least seven (7) days prior to their effective
date. In the event that you do not consent to any such proposed changes
your sole recourse shall be to terminate the Term of this Agreement by
notice to us as provided above, and your failure to do so within ten (10)
days of the date of any such email from us to you shall constitute your
acceptance of such changes.
The expiration of the Term of this Agreement shall
not relieve either party from their respective obligations incurred prior
to or during the Term. Accordingly, provisions of this Agreement will
continue to apply even after the expiration of the Term.
Indemnification: If we receive a
claim that the use of Your Authorized Content or Authorized Artwork or any
other materials provided or authorized by you is in violation of any third
party rights, you agree to fully indemnify and hold us harmless, and upon
our request, defend us and our Licensees and affiliates (and their
respective directors, officers and employees) from and against any and all
losses, liabilities, damages, costs or expenses (including reasonable
attorneys' fees and costs) concerning any such claim. Accordingly, you agree
to reimburse us and our Licensees and our affiliates on demand for any
payments made in resolution of any liability or claim that is subject to
indemnification under this Section 9, provided that we obtain your written
consent prior to making any such payments. You agree that your consent will
not to be unreasonably withheld, delayed or conditioned. We shall promptly
notify you of any such claim, and by obtaining and posting and maintaining
an appropriate bond for our benefit you may assume control of the defense of
such claim, provided that we shall have the right in all events to
participate in the defense thereof.
Additional Representations and Warranties of
the Parties:
You represent and warrant that you have the full
authority to act on behalf of any and all owners of any right, title or
interest in and to Your Authorized Content or Authorized Artwork.
You represent and warrant that you own or control
the necessary rights in order to make the grant of rights, licenses and
permissions herein, and that the exercise of such rights, licenses and
permissions by us and our Licensees shall not violate or infringe the
rights of any third party.
Each party represents and warrants that it has full
authority to enter into and fully perform its obligations under this
Agreement and has obtained all necessary third-party consents, licenses
and permissions necessary to do so.
Each party represents and warrants that it shall
not act in any manner which conflicts or interferes with any existing
commitment or obligation of such party, and that no agreement previously
entered into by such party will interfere with such party's performance of
its obligations under this Agreement.
Each party represents and warrants that it shall
perform their obligations hereunder in compliance with any applicable
laws, rules and regulations of any governmental authority having
jurisdiction over such performance.
General Provisions:
The parties agree and acknowledge that the
relationship between the parties is that of independent contractors. This
Agreement shall not be deemed to create a partnership or joint venture,
and neither party is the other's agent, partner, or employee.
This Agreement contains the entire understanding of
the parties relating to the subject matter hereof, and supersedes all
previous agreements or arrangements between the parties relating to the
subject matter hereof, provided that if you previously entered into a
digital distribution agreement with us in the past, and elected any
options, those options shall remain in place under this Agreement. This
Agreement cannot be changed or modified except as provided herein. A
waiver by either party of any term or condition of this Agreement in any
instance shall not be deemed or construed as a waiver of such term or
condition for the future, or of any subsequent breach thereof. If any
provision of this Agreement is determined by a court of competent
jurisdiction to be unenforceable, such determination shall not affect any
other provision hereof, and the unenforceable provision shall be replaced
by an enforceable provision that most closely meets the commercial intent
of the parties.
This Agreement shall be binding on the assigns,
heirs, executors, personal representatives, administrators, and successors
(whether through merger, operation of law, or otherwise) of each of the
parties.
Any notice, approval, request, authorization,
direction or other communication under this Agreement shall be given in
writing and shall be deemed to have been delivered and given for all
purposes on the delivery date if sent by electronic mail to the addresses
provided to and by you upon registration with the SongCast Site, or as
properly updated.
This Agreement shall be governed and
interpreted in accordance with the internal laws of the State of Ohio applicable to
agreements entered into and to be wholly performed therein, without regard
to principles of conflict of laws.
To the extent permitted by applicable law, the
rights and remedies of the parties provided under this Agreement are
cumulative and are in addition to any other rights and remedies of the
parties at law or equity.
The titles used in this Agreement are for
convenience only and are not to be considered in construing or
interpreting this Agreement.
This Agreement is for the sole benefit of the
parties hereto and their authorized successors and permitted assigns.
Nothing herein, express or implied, is intended to or shall confer upon
any person or entity, other than the parties hereto and their authorized
successors and permitted assigns, any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Certain Definitions: The following
capitalized terms shall have the following meanings for purposes of this
Agreement:
“Authorized Artwork” means album cover artwork and
any other artwork relating to Your Authorized Content that you provide to
us. All such artwork shall be deemed to have been cleared by you for all
purposes unless you shall have provided us with written notice to the
contrary.
“Authorized Territory” means the Universe or such
other more limited territories as you shall elect as provided in the
registration process.
“Copyright Management Information” means the
digital information conveying information regarding a Digital Master, such
as your name, the title of the applicable album, the name of the song and
the record company name, and same shall be subject to the protection of
Title 17, Section 1202 of the United States Copyright Law.
“Digital Master” or “Digital Masters” means a copy
or copies of Your Authorized Content in digital form.
“Licensee” means any third party licensee, such as
but not limited to, Apple iTunes, MusicNet, Real, Rhapsody, Napster and
others that we may authorize to carry out the marketing, distribution and
sale or other use of Your Authorized Content and Authorized Artwork
pursuant to the terms of this Agreement.
“Your Authorized Content” means sound
recordings and underlying musical compositions that you have designated
for digital distribution by us. Any such sound recordings and the
underlying musical compositions must be owned or controlled by you and/or
have been cleared by you for all purposes and rights granted and
authorized hereunder by you.
