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DIGITAL DOWNLOAD SALES AGREEMENT (DIGITAL
DOWNLOAD TERMS OF USE FOR COPYRIGHT HOLDERS SUCH AS ARTISTS, SONGWRITERS,
MUSIC PUBLISHERS, LABELS)
The following when signed by Plugola Inc. ("Company")
and you (whether acting as an individual, or on behalf of an artist, band
group, songwriter, company or other business entity as their authorized
legal representative ("you") shall constitute a legally binding agreement
between you and Company. You and Company agree as follows:
1. Definitions:
"Artwork" means album cover artwork and any other artwork that you provide
to Company. All such artwork shall be deemed approved and cleared by you
for all purposes unless you provide Company with written notice to the
contrary. "Metadata" 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 it shall
be subject to the protection of Title 17, Section 1202 of the United States
Copyright Law. “Content” means sound recordings and audiovisual recordings
(and the underlying musical compositions embodied therein) that you have
designated for distribution by Company via Electronic Transmission. All
Content 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.
“Electronic Transmission” means any transmission of Content to the consumer,
whether sound alone, sound coupled with an image, or sound coupled with
data, in any form, analog or digital, now known or later developed (including,
but not limited to, limited downloads, permanent downloads, streams, audio-only
recordings or audiovisual recordings made available through portable subscription
services, mobile tones, via Company’s retail platform widget, “podcasts”,
“cybercasts”, “webcasts”, “streaming audio”, “streaming audio/video”,
“digital downloads”, direct broadcast satellite, point-to-multipoint satellite,
multipoint distribution service, point-to-point distribution service,
cable system, telephone system, broadcast station, and any other forms
of transmission now known or hereafter devised) whether or not such transmission
is made on-demand or near on-demand, whether or not a direct or indirect
charge is made to receive the transmission and whether or not such transmission
results in a specifically identifiable reproduction by or for any transmission
recipient. All references in this Agreement to the “distribution” of Content,
unless expressly provided otherwise, shall be understood to include the
distribution of master recordings by way of Electronic Transmission.
2. You hereby appoint Company as your authorized representative for the
sale and other distribution of your Content as provided herein. You hereby
grant Company and its licensees the non-exclusive right, during the Term
and throughout the universe, to: (a) digitally reproduce and convert your
Content; (b) perform and make available for promotional purposes, portions
of your Content by “streaming” to promote its license, sale and distribution;
(c) promote, sell, distribute, deliver and/or otherwise exploit Content
and associated metadata via Electronic Transmission to purchasers who
may use such Content in accordance with usage rules agreed by Company;
(d) use and authorize others to license the use of and sale of your Content
via “Electronic Transmission;” (e) use your Content, Artwork and related
metadata as may be reasonably necessary or desirable for Company to exercise
its rights under and in furtherance of this Agreement; and (f) authorize
Company’s licensees to perform any one or more of the activities specified
above.
3. The Term of this Agreement shall commence on the date hereof and
shall continue for the period while your content is uploaded to the site. To end your agreement with PLUGOLA at any time, simply delete all your content and contact us. Promptly following
Company’s receipt of your notice to Company hereunder of your requested
termination, Company shall advise its licensees that they are no longer
authorized to offer the sale or other use of such of your Content or Artwork.
The foregoing shall not limit in any way the rights of end users who have
acquired your Content or Artwork. Company will use its reasonable efforts
to have any such Content removed from a licensee site as soon as possible
thereafter.
4. Company shall pay you an amount equal to eighty percent (82%) of the
net amount Company receives from its licensees for the sale or other licensed
uses of your Content. The company’s distributed retail widget platform
provides for members of the general public to create accounts for the
purpose of collecting audio and video media for sale as a method of increasing
the exposure and sale of media that becomes part of the Plugola catalog
and system. Such account owners are entitled under the Terms of Service
to receive a 5% (or amount set by you) commission of sales that they host
on websites that they control, enable, promote or personalize. This 5%
(or amount set by you) is paid from the above mentioned 82% net amount,
which designates such payments to you as seventy-seven percent (77%) of
the net amount Company receives from its digital sales. Company shall
make payments to you on a calendar monthly basis. Payments are to be made
within 30 days of the conclusion of the month to accounts who have accumulated
a minimum of $25.00 in earnings. If an account earns less than $25.00
in a given month that sum will be carried over to subsequent months until
such time as the amount earned exceeds the $25.00 payment threshold. At
no point will payments of less than $25.00 be made unless as a final payment
on a cancelled account. 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 Content.
5. You shall obtain and pay for any and all clearances and licenses as
may be required in each territory or any portion thereof for uses of your
Content, Artwork and metadata. You shall be responsible for and shall
pay: (a) 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 the Content; (b) all mechanical
royalties or other sums payable to publishers and/or authors or co-authors
of musical compositions embodied in Content from sales or other uses of
such Content; (c) all payments that may be required under any collective
bargaining agreements applicable to you or any third party; and (d) any
other royalties, fees and/or sums payable with respect to your Content,
Artwork, metadata and other materials provided by you to Company. You
agree that the amount payable to you is inclusive of any so-called “artist
royalties” and “mechanical royalties” that might otherwise be required
to be paid for sales or exploitations pursuant to the applicable laws
of any jurisdiction.
6. Company may use and authorize its 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
Artwork, in any marketing materials for the sale, promotion and advertising
of the applicable Content which is offered for sale or other use under
the terms of this Agreement. Company and any of its licensees shall have
the right to market, promote and advertise the Content as available for
purchase or license as Company and its licensees determine in its reasonable
business discretion and that Company make no guarantees whatsoever about
there being any minimum sales or uses of any Content.
7. As between you and Company, all right, title and interest in and to
your Content and Artwork, and all copyrights and equivalent rights embodied
therein, and all materials furnished by you, shall be and remain your
property.
8. Company reserves the right to change, modify, add to or remove all
or part of this Agreement, upon notice to you sent via email at least
ten (10) 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 Company as provided
above, and your failure to do so within ten (10) days of the date of any
such email from Company 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.
9. 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 Content or 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 Company and its licensees 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 their obligations hereunder in compliance
with any applicable laws, rules and regulations of any governmental authority
having jurisdiction over such performance.
10. You agree to fully indemnify and hold Company harmless, and upon Company’s
request, defend Company and its 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
Company and its licensees on demand for any payments made in resolution
of any liability or claim that is subject to indemnification under this
paragraph 9. Company shall promptly notify you of any such claim, and
by obtaining and posting and maintaining an appropriate bond for Company’s
benefit you may assume control of the defense of such claim, provided
that Company shall have the right in all events to participate in the
defense thereof.
11. 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. 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 Company website, or as properly
updated. This Agreement shall be governed and interpreted in accordance
with the internal laws of the State of Illinois applicable to agreements
entered into and to be wholly performed therein, without regard to principles
of conflict of laws. 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. |