This agreement ("Agreement") is a legal document describing the relationship between you, an individual recording artist and/or an individual acting on behalf of a musical group ("you") and us, BARMUSIC.Com. ("we" or "us"). This Agreement governs the relationship between you and us in the event you provide us with any Licensed Material (defined below).
As used in this Agreement, the following terms shall have the meanings as indicated below:
1.1. "Controlled Composition": Any and all musical works embodied on the Licensed Masters (defined below) that are written or composed, in whole or in part, or owned or controlled, directly or indirectly, by you and/or any third party rendering services in connection with the creation of such musical works.
1.2. "Digital Distribution" and "Digitally Distribute": All rights pertaining to, or incident or ancillary to, the exploitation of audio and/or audio-visual recordings of any type now or hereafter known by or through any means of digital distribution, delivery, reproduction, transmission, broadcast, or other exploitation (whether or not presently existing or hereafter created or developed) including, without limitation, "on-line" delivery, downloading, streaming, synchronizing, encoding, decoding, transcribing, duplicating, distributing, transmitting, playing, performing, broadcasting, displaying or other exploitation of the Licensed Materials through digital, electronic, fiber optic, telephone lines, the Internet (including, without limitation web sites and web site links), bulletin board services, e-mail, satellite, cable, broadband cable, or any other form of electronic distribution, or other systems, devices, media and channels system, now or hereafter known, available now or in the future, interactive or not interactive, subscription or non-subscription.
1.3. "Licensed Masters": All sound recordings and/or audible works licensed hereunder, including without limitation, all music, lyrics, spoken word, noise or other sounds and all other data or works fixed or capable of being fixed in an audible format featuring your performances.
1.4. "Licensed Materials": All Licensed Masters and all Licensed Works and shall include any Licensed Material submitted to us.
1.5. "Licensed Works": Any and all visual works, audio-visual works, artwork, record graphics, liner notes, written lyrics, sheet music, credits, sensory data or signals or other items related to the Licensed Masters, the name, likeness, photographs, trade names, trademarks, service marks, voice, biographical materials, the "right of publicity" of, relating to, or associated with you and your musical group (and each person comprising your musical group) who composed, performed on or who have performed services in respect of the Licensed Works and/or the Licensed Masters ("Names and Likeness"), press releases, advertisements, marketing and promotional materials, reviews, interviews, photographs, posters, memorabilia or other items, whether tangible or intangible, licensed or provided to us hereunder.
1.6. "Territory": The Universe
2.1. You grant to us, our affiliates, licensees, sublicensees, designees, successors and assigns, throughout the Territory on a non-exclusive, royalty free basis the right to: (a) Digitally Distribute the Licensed Materials whether alone or coupled with other Licensed Materials or non-Licensed Materials; (b) reproduce, publicly perform, publicly display, digitally perform, broadcast and otherwise use and distribute the Names and Likenesses, the credits, liner notes, lyrics, artwork, graphics and other information in connection with the marketing, promotion, Digital Distribution and exploitation of the Licensed Materials; (c) to synchronize any of the Licensed Materials to visual material or other media; (d) to create and use samples of Licensed Materials for the purpose of demonstrating and/or promoting your products and our business; and (e) market, promote and distribute by any means all Licensed Materials.
2.2. In respect of all Controlled Compositions and non-Controlled Compositions performed in Licensed Materials, you grant us a worldwide license to record, synchronize and reproduce such Controlled Compositions and non-Controlled Compositions in such Licensed Materials, and to Digitally Distribute and perform such Licensed Materials alone or in synchronization with visual material or other media and to authorize others to do so. We will not be required to make any payment in connection with the uses referred to in the immediately preceding sentence. You shall furnish us with a written acknowledgment from the person(s) or entity(ies) controlling the copyright in each non?Controlled Composition to be confirming the terms upon which said person(s) or entity(ies) shall issue licenses in respect thereof and in respect of Digital Distributions. Upon our request therefor, you shall cause said person(s) or entity(ies) to forthwith issue to us (and our designees) licenses containing said terms and such other terms and conditions as we (or our designees) may require.
3.1. You will submit to us for our review (a) each Licensed Master in the form of compact disc, DAT or such other device or transmission method (e.g., mp3 file) designated by us; (b) complete copy for each Licensed Master, including without limitation, the names (and professional names) of all individual members of your musical group, producer(s), writers, publishers, and copyright proprietors thereof, the applicable performance rights society, the applicable copyright notice form, and comparable information for any non-musical work; (c) copies of all applicable licenses and consents (if any) regarding the compositions or other material embodied on each Licensed Master and we shall have the benefit of any license rates contained therein; (d) copies of the Licensed Works in such quantity so that we may, if we choose to do so, market and promote the Licensed Masters; (e) color copies of record artwork and graphic art and other photographs, publicity and advertising materials in connection with each Licensed Master; and (f) any other information necessary to allow us to distribute and exploit the Licensed Materials in a manner consistent with the terms of this Agreement.
4.1. You warrant and represents that (a) you have all rights, power and authority
necessary to enter into and to fully perform this Agreement and in the event you are entering into this Agreement as a representative of a musical group, you have the necessary authorization from each individual band member to enter into this Agreement; (b) the Licensed Materials embodies only your original work and contains no sampled materials; (c) the Licensed Masters have been or will be recorded in accordance with the rules and regulations of all unions, guilds and similar associations having jurisdiction; (d) you have full and sufficient right to grant the rights and licenses as provided herein; (e) you have obtained all necessary consents, permissions, clearances, licenses and agreements for the recording, exploitation and licensing to us of all Licensed Materials and there is presently no litigation nor is there threatened litigation or dispute in respect of the Licensed Materials; (f) the Licensed Materials and any trade name, trademark or servicemark used by you does not, and our exercise of the rights granted hereunder shall not, infringe any trade name, trademark or servicemark, copyright 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 rule, order or regulation; (g) we will not be required to make any payments or incur any liability by reason of the exercise or non-exercise of any rights hereunder, except the payments as specified herein; (h) you have secured all necessary rights to publish the Licensed Material via Digital Distribution and will comply with any obligations you may have under mechanical rights agreements, performance rights agreements, synchronization agreements and distribution agreements; and (i) the Licensed Materials do not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data processing.
5.1. We will make all decisions pertaining to the marketing, promotion, broadcast, display and Digital Distribution of the Licensed Materials. Nothing in this Agreement shall be construed as an obligation, guarantee or commitment on our part of any kind whatsoever or that any marketing effort will result in any revenue or other payment to you. You recognize and acknowledge that the license and exploitation of sound recordings and musical works is speculative and agree that our judgment and the judgment of our subsidiaries, dealers, distributors, affiliates, agents, licensees and other third parties, regarding any matter affecting the license, broadcast, Digital Distribution, use or other exploitation of the Licensed Materials shall be binding and conclusive upon you. You warrant, represent and agree that you will not make any claim, nor shall any liability attach to us, our subsidiaries, designees, affiliates, dealers, distributors, agents, licensees or sublicensees, based upon a claim that more licenses or more exploitation could have been made or better business could have been accomplished than that which was achieved.
6.1. You agree to and do hereby indemnify, save and hold us, our officers, directors, affiliates, licensees, sublicensees, designees, successors and assigns harmless from any and all loss, damage, liability and other expense (including anticipated and actual court costs, expenses and reasonable attorneys' fees) arising out of, connected with or as a result of any inconsistency with, failure of, or breach or threatened breach by you of any warranty, representation, agreement, undertaking or covenant contained in this Agreement including, without limitation, any claim by any third party in connection with the foregoing.
7.1. We agree to provide you, upon your request, a link to your homepage and e?mail link to a reasonable number of existing and accessible e?mail accounts. We may, in our sole discretion, cooperate with you in marketing and promoting your career as a recording artist. You are aware of and understand that we currently have retail affiliates in our network. We shall have the right, in our sole discretion, to determine and control all aspects of our business and the Digital Distribution of the Licensed Materials, including without limitation, security, digitization, encoding, decoding, transmission, distribution, customer service, transactions, commerce, sublicensing, interfaces, software, hardware, artwork, graphics, logos, layout, aesthetics, design, programming, content, storage, back?up, bandwidth, data collection, marketing, advertising, promotion and management. We reserves the right to eliminate from our catalog, network or system any portion, or all, of the Licensed Materials if we in our sole discretion, deem such material unsuitable for inclusion on our site network or system.
8.1. We shall not be responsible for any sales, fulfillment, order administration, reporting, support, or licensing fees of any nature whatsoever, including without limitation, mechanical royalties relating to your physical based product sales. If you elect to make available for sale physical based products ("PBP"), You shall provide us with the proper Internet link (URL) of the retailer or vendor that will be responsible for processing and fulfilling your designated PBP sales orders. We retain the right to designate a PBP retailer or vendor that may differ from your designated retailer or vendor. In any event, you shall be responsible for ensuring that PBP retailers and vendors have adequate supplies of your PBP. Nothing contained herein shall require any retail affiliate to carry any Licensed Material or to purchase, stock or otherwise carry your PBP.
9.1. You may terminate this Agreement at any time by so notifying us; the termination will become effective thirty (30) days after our actual receipt of such notice. We may terminate this Agreement at any time by so notifying you; the Agreement will terminate three days after we have sent a notice of termination to you. Upon termination all of our rights hereunder shall terminate; however, paragraphs 4, 6 and 10 survive termination.
10.1. This Agreement does not transfer any title, rights or licenses to any software, hardware, documentation, or any intellectual property embodied or used in connection with the services we provided. This Agreement shall not be modified, amended, canceled or in any way altered, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by duly authorized officers of both of the parties hereto. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. The relationship between us as established by this Agreement is of licensor and licensee, and nothing in this Agreement shall be construed: (1) to give either party the power to direct or control the daily activities of the other party, or (2) to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co?owners, or otherwise as participants in a joint undertaking. We and you understand and agree that we do not grant you the power or authority to make or give any agreement, statement, representation, warranty or other commitment on our behalf or to enter into any contract or otherwise incur any liability or obligation, express or implied, on our behalf, or to transfer, release or waive any of our right, title or interest. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective legal successors and assigns, provided that any successor or assignee shall be bound by all the terms and conditions of this Agreement. We may assign this Agreement in whole or in part in our sole discretion without restriction.
10.2. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida applicable to agreements between residents of Florida wholly executed and wholly performed therein. Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be subject to the jurisdiction of the county of Pinellas and the parties hereby consent to the in personam jurisdiction and venue of said courts.
10.3. All notices required or permitted by this Agreement shall be in writing and may be delivered personally, sent by facsimile or certified mail, return receipt requested, to the address set forth above. If notice is sent by facsimile, a confirming copy of the same shall be sent by mail to the same address.
10.4. Neither party shall be in breach of this Agreement unless the other shall provide a notice to such party in writing specifying identifying the alleged breach and the other party shall fail to cure such breach within sixty (60) days thereafter.
10.5. Each of the parties hereto represents that this Agreement has been carefully read and that each such party knows and understands the contents hereof. Each of the parties has received independent legal advice from attorneys of its own choosing with respect to the preparation, review and advisability of executing this Agreement.
10.6. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written agreements, representations, understandings, communications, and agreements between the parties. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein. This is a merged and integrated agreement.
10.7. IN NO EVENT SHALL BARMUSIC.COM, ITS AGENTS, EMPLOYEES AND OFFICERS BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL, COSTS OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. BARMUSIC.COM, DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
I have read, understand and agree to BARMUSIC.COM's legal agreement which
gives me certain rights and responsibilities.
SIGNED BY:
GROUP NAME IF APPLICABLE:
DATE: