"Metadata"
means the following categories of information in respect
to each Digital Master: track title; album title; artist
name; genre; copyright information; label name; ISRC
and UPC identifiers; “Explicit Lyrics,”
identification; biographical information; sales information-
including pricing, date of first release; territories
available for release; Songwriter and Publisher information.
"Electronic
Transmission" - means any transmission,
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, 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.
Rights
Subject
to the terms of this Agreement, Artist or Label hereby
appoints RocMP3.com as a non-exclusive representative
for the sale and electronic transmission of its Digital
Masters. Accordingly, Artist or Label hereby grants
a non-exclusive right to RocMP3.com, during the Term,
to: (i) Reproduce and convert Artist or Label's
content delivered or uploaded by Label into Digital
Masters; (ii) Perform and make thirty (30) second
clips of the Label's content available by streaming
Clips) to promote the sale and distribution of applicable
Digital Masters; (iii) Promote, sell, distribute,
and electronically transmit and deliver Digital Masters,
as individual tracks or entire MP3 albums, and associated
Metadata to purchasers who may use such Digital Masters
in accordance with usage rules similar to those set
forth by the music services;
(iv)
Display and electronically transmit and deliver Artwork
for use solely in conjunction with the applicable purchased
Digital Master(s); (v) Use Labels Content, Artwork
and Metadata as may be reasonably necessary or desirable
for RocMP3 to exercise RocMP3 rights under the terms
of this Agreement; and (vi) authorize or appoint
any Online Store(s) to perform the activities in (i)-(v)
above.
RocMP3.com
may use and authorize its Online Store(s) to use the
names and likenesses of, and biographical material concerning
and of the Artist or Labels 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 (e.g., an artist or band
name and likeness may be used in an informational fashion,
such as 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 authorized exploitation of applicable
Digital Masters). RocMP3.com and any of its Online Store(s)
shall have the unrestricted right to market, promote
and advertise the Digital Masters available for purchase
as it determines in its discretion.
Nothing
herein shall obligate RocMP3.com or any Online Store(s)
to actually exercise any rights granted under this Agreement
Artist
or LABEL's Obligations.
Artist/Label
shall obtain and pay for any necessary clearances
and licenses in the Territory for all Artist/Label
Content and Artwork. Specifically, Artist or Label
shall be responsible for and timely pay (i) 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, (ii) 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, (iii) all payments that may be required under
collective bargaining agreements applicable to Artist
or Label or third parties other than RocMP3, and (iv) any
other royalties, fees and/or sums payable with respect
to the Artist/Label Content, Artwork, Metadata and
other materials provided by Artist or Label to RocMP3.
Payments
RocMP3.com shall pay Artist/Label total revenues that
RocMP3.com receives from Online Store(s) for the sale
of Artist/Label’s Digital Masters and Membership
sign-ups. RocMP3.com will compute amounts payable
to the Artist/Label within 5 days of the end of each
month during the Term, and will provide an online
statement to Artist/Label in accordance with RocMP3.coms
standard business practices. Such payment shall constitute
full consideration for all rights granted and obligations
undertaken by Artist/Label hereunder.
Ownerships
As between the Parties, all right, title and interest
in and to (i) Artist/Label’s Sound Recordings
and Artwork, (ii) the Digital Masters, (iii) the Clips,
(iv) all copyrights and equivalent rights embodied
therein, and (v) all materials furnished or uploaded
by Artist/Label, except as to any rights of RocMP3.com
(whether pre-existing or under this Agreement), shall
remain the property of Artist/Label, it being understood
that under no circumstances shall RocMP3.com have
any lesser rights than it would have as a member of
the public.
Label
represents and warrants that it has the full authority
to act on behalf of any and all owners of any right,
title and interest in and to the Label Sound Recordings
and artwork; that it has full authority 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; 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;
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.
OWNER
Content in RocMP3 control or possession shall reside
solely on a network server, workstation or equivalent
device owned or controlled by RocMP3 or its contractors,
located in the U.S.A. (for that portion of the Territory
within the U.S. and Canada), and shall be secured
with restricted access.
The warranties and indemnifications herein shall survive
the termination of this agreement.
Taxes
Each party agrees to report and pay its own taxes
imposed on its income by any jurisdiction, such as
state and federal income taxes. Should RocMP3.com
be required to pay any such taxes on the income of
Artist or Label, the amount of such taxes and all
related interest, fines, or penalties shall become
immediately due and payable to RocMP3.com, LLC.
Further,
the parties agree that if additional taxes in the
nature of an excise, sales or use tax are imposed
in connection with RocMP3.com, LLC.'s services on
behalf of Artist or Label, the burden of such taxes
shall be the Client's responsibility. RocMP3.com,
LLC. shall have the right to collect and pay over
taxes in the nature of an excise, sales, or use tax
on behalf of Client or on account of its own sales
of products if reasonably required to do so by a taxing
authority of competent jurisdiction and shall further
have the right to recover from Client under Section
10 of this Agreement the amount of any such taxes
and related penalties and interest which are paid
by RocMP3.com, LLC. with its own funds.
Limitations
of Liability for the RocMP3.com, LLC.
RocMP3.com, LLC.. assumes no liability for disruptions
or improper operation of its equipment or software
for any reason, including, but not limited to, vandalism,
theft, phone service outages, Internet disruptions,
human error, extreme or severe weather conditions
or any other causes in the nature of "Acts of
God" or force majeure. RocMP3.com, LLC. shall
not be responsible for consequential damages or punitive
or exemplary damages under any circumstances. In no
case shall Client be entitled to recover damages from
RocMP3.com, LLC. which exceed the sum of the amounts
of sales commissions and service fees retained by
RocMP3.com, LLC. under this Agreement during the six
months prior to event giving rise to the claim for
damages.
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.
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.
In
the event Client defaults in any provision or fails
to perform pursuant to this Agreement, RocMP3.com,
LLC. shall be entitled to damages, costs and attorney's
fees from the Client.
This
Service is available for individuals aged 13 years
or older. If the Client is 13 or older but under the
age of 18, the Client should review these terms and
conditions with its parent or guardian to make sure
that the Client and its parent or guardian understand
these terms and conditions.
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 Artsit/Label upon registration
with the RocMP3.com, or as property updated.
This writing contains the entire understanding between
the parties. During the term of this Agreement, it
is understood and agreed that there shall be no change
or modification of this Agreement unless reduced to
writing and signed by all parties hereto. This agreement
shall be governed by the laws of the State of New
York, and subject to the exclusive jurisdiction of
the courts located in the State of New York.
