Download: Digital Distributor Agreement
This Agreement describes the legal relationship between you (an individual, representing yourself, or if applicable, acting as legal representative for a band, group, company or corporation) and _____________________ an LLC/ Corporation incorporated under the laws of the State Of ________________, USA and having offices at _____________________________(“DIGITAL DISTRIBUTOR”) the Owner and Operator of the web pages at www.__________________.com.
You, the artist, will be referred to as “OWNER”, we will be referred to as DIGITAL DISTRIBUTOR.
By signing this Agreement, you signify: You are the artist, have or posses the right to the music and art or you are in full power of attorney of all right to the music and art.
We may modify this Agreement from time to time as further described in Section 7 below.
Definitions. – The following terms shall have the following meanings for purposes of this Agreement.
“Artwork” means album cover artwork and any other artwork relating to OWNER CONTENT that OWNER has designated to be distributed by DIGITAL DISTRIBUTOR under this Agreement.
“Digital Master” or “Digital Masters” means copies of OWNER CONTENT in digital form, which DIGITAL DISTRIBUTOR may sell via permanent digital download, streams or burns, as individual tracks or as whole albums, pursuant to the terms and conditions of this Agreement.
“OWNER CONTENT” means sound recordings (master recordings) and underlying musical works (songs) that OWNER has made available to DIGITAL DISTRIBUTOR during the Term for sale on the DIGITAL DISTRIBUTOR Site that Artist has designated for digital distribution in accordance with this Agreement
“DIGITAL DISTRIBUTOR Website” means the retail website owned by DIGITAL DISTRIBUTOR at www.________________.com where OWNER has registered to sell Digital Masters of the OWNER CONTENT through the DIGITAL DISTRIBUTOR. By agreeing to this Agreement, any OWNER CONTENT made available on the DIGITAL DISTRIBUTOR Website that Artist designates will be made available for digital distribution by DIGITAL DISTRIBUTOR according to the terms of this Agreement. DIGITAL DISTRIBUTOR is effectively providing a tool or set to tools to the OWNER.
“Term” Means A Period Of One Year Commencing On The Date That You Acknowledged And Agreed To The Terms Of This Agreement, After Which Such Term Shall Automatically Renew For Successive One-Year Periods. OWNER May Terminate This Agreement At Any Time By Providing DIGITAL DISTRIBUTOR With Thirty (30) Days’ Written Notice Of OWNER’s Intention To Terminate.
Termination Shall Be Administered By Email to l________________________, or by deleting their account at www._____________________.com
“Territory” means the World.
Authorization.
Subject to the terms of this Agreement, OWNER hereby appoints DIGITAL DISTRIBUTOR as a non-exclusive representative for the sale and other distribution of Digital Masters of the OWNER’S CONTENT.
Accordingly, OWNER hereby grants a non-exclusive right to DIGITAL DISTRIBUTOR, during the Term, to:
reproduce and convert OWNER CONTENT delivered by OWNER into Digital Masters;
To promote the sale and distribution of applicable Digital Masters;
promote, sell, distribute, and electronically fulfill and deliver Digital Masters, as individual tracks or entire albums, and associated metadata to purchasers who may use such Digital Masters for their own personal use.
display and electronically fulfill and deliver Artwork for personal use by purchasers solely in conjunction with the applicable purchased Digital Masters;
use OWNER CONTENT, Artwork and metadata as may be reasonably necessary or desirable for DIGITAL DISTRIBUTOR to exercise DIGITAL DISTRIBUTOR’s rights under the terms of this Agreement.
OWNER Obligations.
OWNER shall obtain and pay for any necessary clearances and licenses in the Territory for all OWNER CONTENT and Artwork.
OWNER shall be responsible for and pay in a timely manner
any royalties and other income due to artists, authors, co-authors, copyright owners, co-copyright owners, producers and other record royalty participants from sales or other uses of Digital Masters,
all mechanical royalties payable to publishers and/or authors or co-authors of copyrighted musical compositions embodied in Digital Masters from sales or other uses of Digital Masters,
all payments that may be required under collective bargaining agreements applicable to OWNER or third parties other than DIGITAL DISTRIBUTOR , and
any other royalties, fees or sums payable with respect to the OWNER CONTENT, Artwork, metadata and other materials provided by OWNER to DIGITAL DISTRIBUTOR .
If there is a change of circumstance during the Term as a result of which OWNER reasonably believes that it does not have, or no longer has, the rights necessary to authorize DIGITAL DISTRIBUTOR to use any OWNER CONTENT or Artwork as provided for herein, or violates the terms of any of OWNER’s agreements, with any applicable copyright owner, artist, producer or distributor, then OWNER will withdraw from this agreement immediately and will notify DIGITAL DISTRIBUTOR by overnight certified mail. DIGITAL DISTRIBUTOR shall cease to offer such OWNER CONTENT or Artwork for sale or other use or cause such cessation as soon as is commercially feasible after DIGITAL DISTRIBUTOR’s receipt of such notice of withdrawal, and OWNER shall use commercially reasonable efforts to clear such withdrawn OWNER CONTENT or Artwork and shall promptly notify DIGITAL DISTRIBUTOR if and when such OWNER CONTENT has been cleared and is again authorized for use or sale by DIGITAL DISTRIBUTOR.
Parental Advisory. OWNER agrees that all Digital Masters must not violate any laws regarding defamation, libel, obscenity, hate laws, pornography or any other illegal or be civilly actionable. If OWNER provides a parental advisory warning about a particular sound recording in the OWNER CONTENT, DIGITAL DISTRIBUTOR shall flag such parental advisory information next to the DIGITAL MASTER being sold. OWNER shall be responsible for determining parental advisory warning status. OWNER shall indemnify and save harmless DIGITAL DISTRIBUTOR, in the event that failure to provide a Parental Advisory results in any demand, claim or action against DIGITAL DISTRIBUTOR.
Revenue and Accounting
DIGITAL DISTRIBUTOR shall pay the OWNER the following
DIGITAL SALES. Unless otherwise agreed, DIGITAL DISTRIBUTOR shall pay the OWNER _____ percent (__%) of the retail sale price for the Digital Masters as set by DIGITAL DISTRIBUTOR from time to time. Unless otherwise agreed, the initial retail sale price for the Digital Masters shall be $_____ US for audio sound recordings.
Accounting. Accounting shall be continual, with statements being generated and available to the OWNER (check one or both. Cross out any
_____in the reports section in the OWNER’S account. Dollar amounts that have cleared the thirty (30) day verification process will be available for immediate withdraw. Please allow up to three (3) business days for the transaction to process. All payments shall be made electronically according to the accounting preference selected by the OWNER at the time of the commencement of this Agreement.
_____By e-mail. Dollar amounts that have cleared the thirty (30) day verification process will be available for immediate withdraw. Please allow up to three (3) business days for the transaction to process. All payments shall be made electronically according to the accounting preference selected by the OWNER at the time of the commencement of this Agreement.
Names and Likenesses; Promotional Use and Opportunities.
DIGITAL DISTRIBUTOR may use the approved names and likenesses of, and biographical material concerning, any Digital Master, artists, bands, producers and/or songwriters, as well as track and/or album name, and 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 and for the promotion of DIGITAL DISTRIBUTOR (commercial tie-ins excepted).
DIGITAL DISTRIBUTOR shall have the unrestricted right to market, promote and advertise the Digital Masters available for purchase as it determines in its discretion. Without limiting the foregoing, DIGITAL DISTRIBUTOR shall have the right to determine which sound recordings, irrespective of any particular artist, record company or label affiliation, would best further their commercial purposes, and to promote such sound recordings more than others.
Copyright and Ownership
As between the Parties, all right, title and interest in and to
OWNER CONTENT, Digital Masters, (iii) Clips, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by OWNER, except as to any rights of DIGITAL DISTRIBUTOR (whether pre-existing or under this Agreement), are subject to the rights granted hereunder shall remain the property of OWNER.
OWNER represents and warrants that OWNER is the owner or is authorized to deal with the copyrights in the OWNER CONTENT provided to DIGITAL DISTRIBUTOR under this Agreement.
Modification, Termination and Effect of Termination.
DIGITAL DISTRIBUTOR reserves the right, in its sole discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be sent to you by email and/or posted on the DIGITAL DISTRIBUTOR’S website prior to their effective date. In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate this Agreement.
Either party shall have the right to terminate this Agreement prior to the expiration of the Term in the event that the other party breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of written notice of such breach, or if not able to be so cured, then resolved to the other party’s satisfaction, not to be unreasonably withheld.
The expiration or earlier termination of this Agreement shall not relieve OWNER or DIGITAL DISTRIBUTOR of their respective obligations to make any outstanding payments with respect to the sale or other use of Digital Masters in the periods prior to such expiration or termination (and the associated accounting) in accordance with this Agreement.
Indemnification and Limitation of Liability.
OWNER will indemnify and hold harmless, and upon DIGITAL DISTRIBUTOR’s request, defend, DIGITAL DISTRIBUTOR and affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable legal fees and costs) arising out of a claim by a third party by reason of:
a breach of any warranty, representation, covenant or obligation of OWNER under this Agreement; or (ii) any claim that any Digital Master, sound recording or OWNER CONTENT, Artwork, metadata or any other materials provided or authorized by or on behalf of OWNER hereunder or DIGITAL DISTRIBUTOR’s use thereof violates or infringes the rights of another party. OWNER will reimburse DIGITAL DISTRIBUTOR and affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification, provided that DIGITAL DISTRIBUTOR obtains OWNER’s written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned.
DIGITAL DISTRIBUTOR shall promptly notify OWNER of any such claim, and OWNER may assume control of the defense of such claim. DIGITAL DISTRIBUTOR shall have the right, at its expense, to participate in the defense thereof under OWNER’s direction.
Additional Representations and Warranties of the Parties.
OWNER represents and warrants that:
a. it has the full authority to act on behalf of any and all owners of any right, title and interest in and to the OWNER CONTENT.
Each party represents and warrants that it has full authority (age of legal competency being 18 years of age under this Agreement) to enter into this Agreement and to fully perform its obligations hereunder and has obtained all necessary third-party consents, licenses and permissions necessary to enter into and fully perform its obligations herein.
Each party represents and warrants that it owns or controls 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 the other party hereto shall not violate or infringe the rights of any third party.
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 in compliance with any applicable laws, rules and regulations of any governmental authority.
OWNER represents and warrants that all OWNER CONTENT delivered under this Agreement shall be free of any so-called “viruses” or any other destructive or damaging programming code.
General Provisions.
No Agency or Joint Venture. 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, employee, or representative.
Entire Agreement, Modification, Waiver.
This Agreement, including any annexes, schedules and exhibits hereto, 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. This Agreement cannot be changed or modified except by a writing signed by the parties.
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.
Binding on Successors. This Agreement shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of the parties.
Notices. 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: (i) on the delivery date if sent by electronic mail to the addresses provided to and by OWNER upon registration with the DIGITAL DISTRIBUTOR Site, or as properly updated.
Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of ___________ in ___________county in The United States of America applicable to agreements entered into and wholly to be performed therein, without regard to principles of conflict of laws.
Remedies. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the parties at law or equity.
Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.
Force Majeure. For the purposes of this Agreement, “Force Majeure” shall mean any event which a party hereto could not foresee, such as fire, flood, acts of God or public enemy, Internet failures, earthquakes, governmental or court order, national emergency, strikes or labor disputes, the effect of which it could not reasonably prevent or predict and which renders impossible or impractical the performance of contractual obligations either totally or in part. The party invoking a Force Majeure shall notify the other party within three (3) business days of its occurrence by accurately describing all the circumstances of the situation involved and its effect upon the performance of its contractual obligations. The taking place of a Force Majeure shall have the effect of suspending the obligations of the party which has invoked the provisions of this Section to the extent such obligations are affected by the Force Majeure. Contractual dates shall be extended for a period equal to the duration of a Force Majeure. The cessation of a Force Majeure shall be communicated by notice within three (3) business days of its occurrence by the party that invoked it.
AGREED TO AND ACCEPTED
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