|
EXHIBIT
A
ARTIST1STOP. -- DIGITAL DISTRIBUTION RIDER
1. Grant of License
A. The Products
You hereby grant to the Company the non-exclusive
right and license during the Term throughout the Territory
to publicly
perform, reproduce, and deliver digitally Tracks or Albums
or Special Products created, owned or controlled by you
to purchasers/end-users. “Track(s)” shall mean an
individual sound recording encoded for digital delivery as
a single music file, or in the plural, an aggregation of
sound recordings encoded for digital delivery as separate
music files. “Album” shall mean a combination
of sound recordings identical in content, sequence and all
other respects to a current commercially available physical “record” or “CD” (as
commonly understood in the industry). “Special Products” shall
mean a combination of sound recordings different from an
Album that may also contain Artwork or other materials, as
mutually agreed between the Company and You. Track(s), Album(s)
and Special Product(s) shall be referred to, individually
and collectively, in this Agreement as “Music Products.” The
rights granted shall include, without limitation, the
right to make transmissions, permanent reproductions,
server
and database copies in various bit rates and formats,
backup copies and any incidental, buffer and iDPD copies
of the
sound recordings that may be required to effectuate digital
distribution of the Music Products as contemplated herein.
B.
Use of Names, Likeness and Artwork
Solely for the purpose of promoting the sale and
distribution of the Music Products hereunder, you hereby
grant to
The Company, its licensees and assigns the non-exclusive
right
and license during the Digital Term, throughout the
Digital Distribution Territory on a royalty-free, gratis
basis,
to use, reproduce, display, distribute, transmit, perform
publicly
and privately, by any and all means and in any and
all media now known or hereafter devised: (1) the names,
approved likenesses
and biographical information (including, professional,
group, and other assumed or fictitious names), of any
and all persons
performing on or rendering services in connection with
the creation of the Music Product (collectively, “Name
and Likeness”); (2) any artwork, drawings, photographs,
video, animation, liner notes, or other graphical materials
(collectively, “Artwork”) you control and provide
in connection with the creation and distribution of the Music
Product(s) under this Agreement; and (3) any trademarks,
service marks or trade names embodied in the Music Product(s).
The Company acknowledges and agrees that no so-called “merchandising
rights” in and to the Artwork or Name and Likeness
are granted hereunder.
C.
Streaming
You hereby grant to the Company, its licensees and
assigns the non-exclusive right and license during
the Term,
throughout the Territory, on a royalty-free, gratis
basis, to Stream
the Music Products covered by this Agreement for
purposes of promotion and publicity associated with
the distribution
and sale of Music Products. As used in this Agreement, “Stream,” “Streaming” or “Streamed” shall
mean the digital audio transmission of a Track by
means of the Internet such that
(i) it is substantially contemporaneous with a public
performance and (ii) does not produce a fixed file
embodying such performances
that can be rendered as music without a simultaneous,
active connection to the Internet other than a temporary
file
created solely to render such contemporaneous performance
as in the
form of a data buffer or cache copy. In the event
that Streaming occurs as part of a subscription music
service
by one of
the Company’s licensees, you shall receive
a royalty pursuant to paragraph 5 below.
D.
Distribution and Delivery
The Company shall use commercially reasonable efforts
to distribute Music Products via the Internet by
means of
one or more websites controlled by the Company
or its affiliates and/or licensees, at all times while
this
Agreement is
in
effect. As part of the Company’s rights under this
Agreement, you hereby grant the Company the right to digitally
deliver Music Products to the Company’s network of
kiosks for the purpose of Streaming, Downloading to a music
player device or Burning to a recordable compact disc. As
used in this Agreement, “Burn,” “Burning” or “Burned” shall
mean the digital reproduction of a Track or Music Product
from the Company’s servers onto a recordable compact
disc (e.g. CD-R or CD-RW) according to the appropriate standard,
in the Company’s sole discretion, which can then be
rendered as music without a simultaneous active connection
to the Internet and which can be reproduced or duplicated
by a purchaser or other end user without a simultaneous connection
to the Internet. “Download,” “Downloading” or “Downloaded” shall
mean the digital reproduction of a Track or Music Product
from the Company’s servers onto a music player
device (e.g. mp3 player, iPod, etc.) or portable
drives (e.g.
flash USB drive, portable hard drive, etc.), which
can then be
rendered as music without a simultaneous active
connection to the Internet and which can be reproduced
or duplicated
by a purchaser or other end user without a simultaneous
connection to the Internet.
E.
PromoTracks and Promotions.
The Company will offer You the ability to avail
itself of the following promotional endeavors:
(i) Allow You to designate in writing certain
of Your Recordings and/or Other Digital Assets
in
the Catalog
to be used as
promotional items (the “PromoTracks”),
which You may change from time-to-time throughout
the Term.
Company shall have the right to offer full-length
downloads and/or
streams of PromoTracks from the password-protected
portion of its Licensees websites for evaluation
by prospective
business affiliates for possible Promotions (as
defined below).
(ii) Company and its Licensees shall use commercially
reasonable efforts to negotiate promotional agreements
to allow particular
websites to offer free downloads, streams or
other digital distributions of the designated
PromoTracks
(the “Promotions”).
Such Promotions may occur with, without limitation,
commercial download stores, free download websites,
webcasters,
podcasters, community websites, and the like.
(iii) All of the foregoing of subsections (i)
and (ii) above notwithstanding, You acknowledge
that
Company
is not guaranteeing
that any Promotions will actually occur, nor
does Your act of designating an item as a PromoTrack
guarantee
utilization
as such; all decisions whether to use any particular
PromoTrack(s) lie solely with the particular
website
hosting the Promotion.
(v) You hereby waive any right to collect any
proceeds or other remuneration whatsoever for
the distribution
of PromoTrack(s)
vis-à-vis a particular Promotion. Further,
to the extent applicable, You shall be responsible
for
all clearances
and payments of any kind whatsoever, including
without limitation, record royalty participants,
mechanical
and public performance
royalties payable to publishers for songs embodied
in the PromoTrack(s), payments to photographers,
payments to music
video directors or other participants, or any
other royalties,
fees and/or sums payable with respect to the
use of a PromoTrack(s) in any authorized Promotion
and/or
as used
under the terms
of this Agreement.
F.
Reserved Rights
All rights and license not expressly granted
to the Company under the Agreement are reserved
by
Content
Owner. Ownership
of the Music Products and Licensed Artwork
shall remain with Content Owner or its licensors.
The
Company shall
have no
right hereunder to modify the Music Products,
except that it may employ audio-compression
technology (including but
not limited to MP3 at 128, 160, 192 and 256
Kbps, SHN, and FLAC) to encode the Music Products
into
digital
audio files
for the purpose of facilitating the exercise
of
the rights and licenses granted hereunder.
Except as
expressly provided
elsewhere in the Agreement, the Company agrees
and acknowledges that nothing contained herein
shall
be construed as to
permit the Company’s manufacture and/or
distribution of the Music Products in the form
of physical media,
such as pre-recorded
compact discs, cassette tapes or digital audio
tapes.
2.
Digital Term and Digital Distribution Territory
A.
The Term
The Digital Term shall commence upon the date
of execution of this Rider and shall expire
twelve (12) months from
that date. Notwithstanding the forgoing,
the Digital
Term automatically
shall renew for successive twelve (12)
month periods provided, however, that either party
may terminate
this Rider upon
not less than thirty (30) days prior written
notice, effective either as of the end
of the initial twelve
month period,
or if applicable, at the end of any three-month
period (e.g. calendar quarter) thereafter.
B.
Digital Distribution Territory
For purposes of this Rider, the territory
shall mean the Universe (the “Digital Distribution Territory”).
Content Owner promptly shall notify the Company in writing
if, and to the extent Content Owner does not now have or
shall at anytime during the Digital Term no longer have the
right to distribute a particular Music Product (in whole
or in part) within any or all countries of the Territory.
Promptly following the receipt of Content Owner’s
notice, the Company shall promptly discontinue
distributing such
Music Products, or if applicable, use
reasonable efforts to restrict end user
access to
such Music Products.
3.
Delivery
If
not already in the Company’s
possession pursuant to the Agreement,
you shall deliver
to the Company:
• A compact disc (CD) of the master versions
of each Music Product subject to this Rider,
or master version(s) of each Music Product delivered by electronic means as
may
be specified
by the Company (e.g. FTP transfer,
etc.);
• A proposed digital release date;
• Artwork required for use by the Company in connection with
the assembly, encoding, marketing
and promotion of the Music Product, including a complete list of URLs fully
controlled by you which may need to be included
in
any Music Product;
• A written schedule of the names and contact information of
the author(s), composer(s), and
music publisher(s) of the songs embodied in the Music Products, together with
any
additional copyright information known to Content Owner
relating to such songs and the Music Products; and
• A list of credits that Content Owner is contractually required
or otherwise reasonably desires
to provide in connection with the distribution, exploitation of the Music
Products.
• ISRC Codes. Some digital distribution platforms (e.g. iTunes)
require an ISRC code on any track
offered for sale/download. If ISRC codes have already been assigned to your
products you must notify Company upon signature of this Agreement
and include them in delivery.
If no ISRC codes exist, Company will assign them free of charge for all products
it currently
distributes.
The Company shall not have the right
to modify the Music Products, except
that
the Company
may encode
or otherwise
digitally process the Music Products
in any and all formats now known
or hereafter
devised
for
purpose
of facilitating
the exercise of the rights and licenses
granted hereunder.
Content Owner agrees that it shall
pay the amount of five hundred dollars
($500)
to
Company for
each Deleted
Work notification
sent to Company within one hundred
eighty (180) days of the Catalog
Approval Date
in the event
Licensor
cannot substantiate
a good faith claim to rights in such
Deleted Work. Such fee is contemplated
to cover
the approximate costs theretofore
incurred by Company and its affiliates
in distributing and
administering such Deleted Work.
4.
Licenses for Musical Compositions
A.
Free Composition
For the purposes of this Rider, “Free Composition” shall
mean any song or musical
composition in the public domain, or otherwise
unencumbered so
that the
Company may legally
distribute the Music Products
embodying such musical
composition without
obtaining a license
from, or
paying a royalty to
any music publisher or
copyright holder thereof.
B.
Controlled Composition
For the purposes of this Rider, “Controlled Composition” shall
mean any musical composition owned or controlled, in whole
or in part, by Content Owner or Content Owner’s
music publishing designee,
which requires either
a first use
or compulsory mechanical
license for proper use
and is embodied
in a Product.
C.
Non-Controlled Composition
For the purposes of
this Rider, “Non-Controlled Composition” shall
mean any musical composition that is not owned or controlled
by Content Owner or Content Owner’s
music publishing designee,
which requires either
a first use or compulsory
mechanical license
for proper use and
is embodied
in a
Product.
D.
Mechanical Licenses
Content Owner shall
be solely responsible
for
the payment
of all mechanical
license royalties
and/or
other licensing
fees legally or contractually
required for the use
of all Controlled Compositions
and
Non-Controlled
Compositions
embodied
in any Product distributed
pursuant to this Rider.
Upon
request from the Company,
Content
Owner shall provide
the Company with written
information
detailing the composers,
publishers, splits
and other
pertinent information
relating to
the licenses issued
in
connection
with the Music Products.
The Company shall provide
Content Owner with
timely
reports or statements
of sales of Music Products
for Content Owner to
use in the calculation
of
amounts due
for such
mechanical
license
fees,
however, providing
such information shall
not
result
in the creation
of any duty
or liability
to any
third parties for
the payment of mechanical
or other license fees
resulting from sales
of Music Products
under
this Rider.
5. Royalties; Expenses;
Recoupment
A.
Licensed Distribution. For all digital
distribution done
by third
party licensees
of the Company,
the Company agrees
to pay Content
Owner a royalty of Eighty
Five percent (85%)
of Total
Revenue
received by
the Company
for each Music
Product sold under
this Rider. As
used in this
paragraph, “Total
Revenue” shall
mean all monies
received by the
Company for digital
distribution of
a Music Product
by the Company’s
licensees, regardless
of the type of
digital distribution
(e.g.,
sales, subscription,
streaming, downloads,
etc.) The Company
shall provide to
Content
Owner a quarterly
statement
of Total Revenue,
starting from January
of each
year, showing the
amount(s)
received and
the
source of
such revenue.
Payments will be
made within forty-five
(45)
days after
the end of
each statement
period
for which
those sales
appear.
B.
Distribution by The Company.
For
all distribution
done
directly by
Company through
websites it owns
or controls
and via it’s
network of kiosks,
the Company
agrees to pay
Content Owner
a royalty
of Sixty
five per cent
(65%) of the
selling price
to purchasers/end
users.
6.
Representations and Warranties
Content
Owner
You hereby
represent
and warrant that:
(1) you
have the right
and authority
to enter
into this
Agreement
and
Rider; (2)
you have
secured all third-party
consents,
licenses and
permissions
necessary
to grant
all licenses and
otherwise
fully perform
all obligations
under this
Rider; (3)
the Music
Products,
Artwork, and Likeness,
and any trademark
or service
mark contained
therein,
and any other
materials
provided
by you (collectively “Materials”) to the Company pursuant
to this Agreement, does not, and the Company’s authorized
intended use(s) of such Materials shall not infringe any
patent, copyright, trademark or other intellectual property
rights, including rights of publicity, privacy or similar
rights of any third party, or in any way contravene any applicable
statute, law, order, rule or regulation; (4) you have no
knowledge of any claim (whether or not contained in any actual
or threatened legal action or other proceeding, past or present)
adverse to the Company’s exploitation of all rights
and licenses granted in this Rider; (5) you shall not make
any claim, nor shall any liability be imposed upon the Company,
its parent company, subsidiaries, affiliates, officers, directors,
employees, shareholders, agents, or licensees, based upon
a claim or allegation that earnings or revenue could have
been greater or better business could have been done than
was actually done by the Company, or its subsidiaries, affiliates,
dealers, the Company’s,
agents, or
licensees
hereunder;
(6) royalties
payable
to Content
Owner pursuant
to this Rider
include
all sums
due to you
and all producers,
directors,
arrangers,
performers,
engineers,
and any other
persons
engaged
in connection
with the
creation
of the
Music Products
and Artwork;
(7) you
shall be
solely responsible
for the payment
of any mechanical
license fees,
royalties
or
other payments
of any kind
due
to such persons
or other
third parties
arising from
payments
made
to Content
Owner pursuant
to this
Rider;
and (8) all
information
provided
by you and
or to be
provided
by you with
respect
to the
Music
Products
is true,
accurate
and complete.
The Company
The Company
hereby
represents and
warrants
that: (1)
the Company
has all
necessary authorization,
corporate
and
otherwise,
to enter
into this
Agreement
and
Rider
and to
fully perform
its obligations
and
duties
according
to the
terms; (2) The Company
shall
not license,
sell, or
distribute
the
Music Products,
except
pursuant to the terms
of
this
Agreement
and Rider.
Miscellany
A. Counterparts;
Facsimile
Signatures.
This
Agreement may be
signed
in multiple
counterparts.
Each
counterpart
will
be considered
an
original,
but all
of
them
in
the aggregate
shall
constitute
one agreement.
This
Agreement
and any
amendments
hereto,
to the
extent
signed
and delivered
by means
of
a facsimile
machine,
shall
be treated
in all
manner
and respects
as an
original
agreement
or instrument
and
shall
be considered
to have
the
same
binding effect
as if
it were the
original
signed
version
thereof
delivered
in person.
B.
Successors and Assigns.
This
Agreement
may
be
assigned to any
affiliate
of
the assigning
party
or
to any
person
who
purchases all of
substantially
all
of
the stock
or
assets of
the
assigning party,
provided
that
the
assigning party
shall
remain
primarily
liable
under
this
Agreement
for
its obligations
hereunder.
In
all other
respects,
this
Agreement
shall
not
be assigned,
in
whole or
in
part,
whether
voluntarily
or
by operation
of
law, without
the
consent of the
other
party
hereto,
and
any such
purported
assignment
shall
be
deemed null
and
void and without
force
or
effect.
C.
Entire Agreement.
This
Agreement
is
intended by the
parties
as
a
final expression
of
their agreement
and
is intended
to
be a complete
and
exclusive statement
of
the
agreement and understanding
of
the
parties hereto
in
respect of
the
subject matter
hereof,
unless
and
until an amended
agreement
is
prepared as provided
below.
This
Agreement
supersedes
all
prior letters
of
intent, agreements
and
understandings
between
the
parties
with
respect
to
the
subject
matter
hereof.
D.
Amendments. This
Agreement may
be amended,
modified or
supplemented only
in a
writing executed
by each
of the
parties hereto.
E.
Relationship of
the Parties.
The parties
are separate
entities. Nothing
herein shall
be deemed
to constitute
the parties
as a
partnership or
joint venture.
F.
Severability. If
any term
or other
provision hereof
is determined
by any
court of
competent jurisdiction
to be
invalid, illegal,
or unenforceable,
in whole
or in
part, by
reason of
any applicable
law or
public policy
now or
hereafter existing,
and such
determination becomes
final and
non-appealable, such
term or
other provision
shall remain
in full
force and
effect to
the fullest
extent permitted
by law,
and all
other terms
and provisions
hereof shall
remain in
full force
and effect
in their
entirety.
G.
No Conflict;
Integration. There
shall be
no conflict
between the
terms and
conditions of
this Rider
and the
Synergy Distribution
Agreement. The
documents shall
be read
together as
a whole.
|
