0000X Xxxxx Xx.
Xxxxx Xxxxx Xxxxxxx, XX X0X 0X0
250.862.2524
Fax. 000.000.0000
xxx.xxxxxxxxxx.xxx
Digital Music Distribution Services Agreement (Rev 6/27/00)
1. Nature of Agreement. This Digital Music Distribution Services Agreement
("Agreement") and the attached Exhibit(s) is entered between the entity or
individual indicated below under "Customer' and Xxxxxxxxxx.xxx Inc. ("Angel
Audio), a corporation with offices at 0000 X Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 243 and describes the terms and conditions to which Angel Audio
shall perform digital music distribution services for Customer.
2. Encoding Services. To the extent Angel Audio performs any encoding services
on behalf of Customer, Customer shall be responsible for shipping compact discs
("CDs") and any videos to Angel Audio and any associated shipping and insurance
costs for any CDs and videos that Angel Audio encodes on behalf of Customer.
Customer shall send to Angel Audio one copy of each CD, video and any related
metadata to be included with the encoded music track. With the exception of
artist's name, composer, album title, song title and copyright information, any
additional metadata (such as lyrics, notes, artwork, etc.) chosen to be included
with audio and video files must be submitted in electronic format and accompany
the CD or video at tine of submission. Customer must also designate the initial
prices for each song and/or album to be made available for sale, as required in
Exhibit A at the tine the CDs are submitted to Angel Audio. Videos provided to
Angel Audio shall be exhibited on Angel Audio's site to viewers free of charge.
Angel Audio shall encode Customer's music as prescribed ii the services order
form and upload the music to Angel Audio's website, and to the Liquid Music
Distribution center. Customer agrees to test all music encoded by Angel Audio
for quality and accuracy and shall communicate any exceptions or corrections to
Angel Audio in writing within live days of the date the encoded music is
uploaded and Customer is notified by Angel Audio. Angel Audio shall retain CDs
for purposes of maintenance and backup.
3. Hosting Services. Angel Audio shall host Customer's encoded music and video
files Angelaudio's or Angelaudio's agent's a secure data centers and provide
necessary computer equipment, software and Internet connectivity. Angel Audio
shall provide all of the necessary technical support and maintenance for the
data center operations and shall ensure that, with the exception of possible
minor downtime due to maintenance, Customer's encoded music and video shall be
accessible to the Internet. 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 provided.
4. Encoding by Customer. To the extent Customer licenses Angel Audio's software
to encode and upload music directly to Angel Audio's website, Angel Audio shall
provide Customer with remote access to compiler hardware, server software
bandwidth and electronic commerce web page templates and functionally as
necessary to upload the encoded music onto the Internet. Customer wit be
responsible for all host sewer content management relating to the encoded music
including file uploads. Customer shall also be responsible for establishing and
maintaining the prices for each song and/or album as specified ii Exhibit "A".
5. Credit Card Processing. Angel Audio shall also provide electronic commerce
credit card processing services relating to sales of Customer's encoded music.
6. Reporting and Payments. Within thirty days of the end of each calendar
quarter, Angel Audio shall provide Customer with a written statement detailing
the songs distributed and remit Customer's portion of the proceeds collected
from the sales of Customer's music, net of Angel Audio's distribution fees and
customer refunds or returns. For digital download sales processed directly by
Angel Audio, Angel Audio shall deduct from such proceeds third party payment
processing fees such as VISA, Mastercard, Diners Card, other credit card or
calling card payment mechanism. Angel Audio has the right to retain any net
sales proceeds of Customer as partial offset for any amounts owed to Angel Audio
under this Agreement (other amounts could include promotional marketing
services, encoding services, etc. and will be agreed up front).
7. Customer's Obligations. Customer represents and warrants on a continuing
basis (a) that it owns or has secured all necessary rights to publish,
reproduce, distribute, transmit, sell, or otherwise exploit the sound
recordings, music and other audio and video content and materials
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provided by Customer hereunder; (b) that it owns or has secured all rights
necessary to allow Angel Audio to perform the services and exercise its other
rights and obligations hereunder without Angel Audio paying or having an
obligation to pay any royalties, compulsory licenses, or other amounts,
including, without imitation: (i) performance and mechanical royalties, and (ii)
digital audio transmission royalties, whether for subscription or
nonsubscription transmissions or otherwise; (c) that it wit comply with any
obligations it may have under third party mechanical rights, performance rights
(for audio streamed from Customer's own website, for example) and distribution
agreements, and that the sound recordings, music and other audio content and
materials provided by Customer hereunder do not violate or infringe any right of
privacy or publicity, or contain any libelous, defamatory, obscene or unlawful
material, or otherwise violate or infringe any other right of any person or
entity Customer must notify Angel Audio in writing of any restrictions that may
apply to the distribution, sales or promotions of Customer's encoded music,
sound recordings, and other audio contest, including any geographical
restrictions. Customer shall also ensure that copyright information and other
metadata included in Customers encoded music, sound recordings, and other audio
content and materials is accurate. Angel Audio reserves the right to report
mechanical and performance rights information to agencies that the Customer is
under contract with, or to any person, firm, corporation or other entity with
which Angel Audio has a contract relating to such reports. Such right however,
does not relieve any existing contractual reporting or financial obligations the
Customer may directly have with such rights agencies or other third parties. If
and to the extent that Angel Audio pays or is obligated to pay any mechanical,
performance, digital audio transmission, or similar royalties with respect to
any musical composition embodied in master recordings, sound recording, or any
other music, audio content, or materials that are the subject of this Agreement,
then, at Angel Audio's option: (i) Customer shall reimburse Angel Audio for any
such amounts paid by Angel Audio; (ii) Customer shall pay such amounts directly
or (i) Angel Audio may deduct any such payments from proceeds otherwise payable
to Customer hereunder. Angel Audio reserves the right to suspend or terminate
services immediately if Angel Audio has reasonable grounds to believe that
Customer is utilizing services legally or is in violation of any agreement with
Angel Audio.
8. Liquid Music Network. Angel Audio has a distribution agreement with the
Liquid Music Network (the "LMN") which distributes music programming and other
content in Liquid Audio Format (the "LMN Programming") for promotion and sale to
Web sites that are licensed as LMN affiliates. Customer hereby grants Angel
Audio a nonexclusive right to make available for sale music selected by customer
to be encoded and delivered to end users via the LMN licensed Web sites, and to
use the encoded music for the purpose of marketing, advertising and promoting
the LMN. Customer has the right to terminate Angel Audio's non-exclusive license
with respect to particular recordings at any time on 90 days notice. Angel Audio
and/or its LMN affiliates are responsible for the design of the LMN and the
selection, ordering and arrangement of the encoded music as part of the LMN
Programming, which remain subject to change from tine to tine in Angel Audio's
sole discretion. Angel Audio and the LMN have the right to market, advertise,
promote and establish prices and any discounts for Customers encoded music.
9. Digital Distribution. In connection with Angel Audio's exercise of its rights
and obligations hereunder, Customer grants Angel Audio the non-exclusive,
royalty-free rights to: (a) perform the publicly by means of digital audio
transmission: (b) distribute the sound recordings, music, audio content, and
other materials provided by Customer: and (c) otherwise make such items
available as specified herein. The foregoing license shall include, but shall
not be limited to, the right to provide and transmit such music and other
content through web sites, in-store kiosks, portable music players, mobile
phones, personal digital assistants, wireless applications and other Internet
enabled devices. Customer shall retain the selection and termination rights set
forth above. Any retailer to whom Angel Audio makes Customer's content available
shall have the right to include or exclude such content from such retailer's
inventory, and retailers shall have the right to market, advertise, promote and
establish retail prices and any discounts for Customer's encoded music and audio
content.
10. Compilation CD sales. Angel Audio shall also have the right to distribute
COs composed of the sound recordings, music, and other audio content in a CD
containing a selection of songs predetermined by Customer or as a customized
compilation, or as a compilation of songs chosen by Angel Audio. Customer grants
Angel Audio an mechanical rights, synchronization rights and other
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rights necessary for Angel Audio to make available for sale, produce and
distribute COs with a selection of songs predetermined by Customer, customized
compilation CDs, and other compilation CDs containing the sound recordings,
music and other audio content. Customer grants Angel Audio the rights to
synchronize the sound recordings, music and other audio content with videos, art
work, lyrics and other materials provided by Customer in any combination in
order to promote the sale of the sound recordings, music and other audio
content.
11. Distribution Fees. Customer shall choose the price to download the sound
recordings, music and other audio content at between US$0.99 cents and US$2.99
per song title or music download track and between US$1.99 and $4.99 for videos.
For digital distribution, Angel Audio shall deduct affiliate fees (affiliate
fees are fees paid to arms-length affiliates for customer referrals and in no
case shall be more than 12% of the retail price), third party credit card
processing charges, such as NASA, Mastercard, American Express, Diners Card,
other credit cards, and calling card payment mechanisms, coupons (never more
than 10% of the purchase price) and a US$0.35 server/e-commerce charge from each
single download, and an additional US$0.15 fee for each song where a hard copy
CD is ordered and the remainder of the purchase price shall be split 50150
between Angel Audio and Customer.
12. Videos. Customer grants Angel Audio distribution rights to exhibit the music
videos listed in Exhibit "A" on its website. Customer shall indicate whether the
music videos shall be distributed at no charge,or if a fee will be required, as
set out above.
13. Merchandise. Customer gratis Angel Audio the rights to sell merchandise as
set out in Exhibit "C".
14. Promotional & Test Trials. In no event shall Angel Audio be liable to
Customer for music which is distributed through Angel Audio as part of a
promotion or test trial where no payment is received. Links. Customer agrees to
provide Angel Audio with a link to xxxxxxxxxx.xxx from the front page of
Customer's site and in any page containing music download links. The link shall
be placed on the top 2 links on any such pages and shall contain the Angel Audio
logo and the size shall be no smaller than the largest logo appearing on that
page.
15. Term of Agreement. This Agreement is a non-exclusive agreement. The initial
term of this Agreement is one year and shall automatically renew each year for
one additional year unless terminated in writing by either party no later than
60 days prior to the end of each one-year term. Either party may terminate this
Agreement due to breach it such breach is not cured within thirty days of
receipt of written notification. Upon termination of this Agreement, Angel Audio
shall return physical CD's and other materials used for encoding Customer's
encoded music to Customer and disable all public links to Customer's encoded
music.
16. Limitation of liability and Disclaimer. IN NO EVENT SHALL ANGEL AUDIO BE
LIABLE FOR ANY LOSS OF DATA LOSS OF PROFITS, COST 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
THEORY OF LIABILITY. ANGEL AUDIO SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED
OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE
SYSTEM OR SERVICES PROVIDED BY ANGEL AUDIO HEREUNDER. Customer shall indemnify,
defend, and hold Angel Audio harmless from and against any and all claims,
demands, sits, objections, actions and causes of action arising out of any
breach by Customer of this Agreement, or any of the representations, warranties,
indemnities covenants or undertakings made by Customer hereunder.
17. Miscellaneous. This Agreement and any Encoding, Hosting, or other agreements
executed by the parties constitute the entire agreement between the parties on
the subject matter hereof. No amendment or modification hereof will be valid or
binding upon the parties unless made in writing and signed by the duly
authorized representatives of both parties. The relationship of the parties
hereunder is that of independent contractors, and this Agreement will not be
construed to imply that either party is the agent, employee, or joint venturer
of the other. In the event that any provision of this Agreement is held to be
unenforceable, this Agreement will continue in full force and effect
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without said provision and will be interpreted to reflect the original intent of
the parties. This agreement shall be interpreted under the laws of the State of
Nevada. This Agreement will be binding upon and will inure to the benefit of the
parties permitted successors and/or assignees. Waiver by either party of a
breach of any provision of this Agreement or the failure by either party to
exercise any right hereunder will not operate or be construed as a waiver of any
subsequent breach of that right or as a waiver of any other right. Except for
the payment of fees hereunder, nonperformance of ether party will be excused to
the extent that performance is rendered impossible by strike, fire, flood,
earthquake, power outages, network failure, governmental acts or orders or
restrictions, or any other reason when failure to perform is beyond the
reasonable control of the nonperformaning party.
Customer Acceptance. Customer has read and agrees to the
terms and conditions of this Agreement and Exhibit(s).
CUSTOMER: MAP MUSIC INC.
x /s/ Xxxxxx Xxxx
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Signature
Xxxxxx Xxxx June 29, 2000
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Printed Name Date
President
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Title
Map Music Inc.
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Company
Xxxxxxxxxx.xxx Inc.:
x /s/ Xxxxx Xxxxx
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Signature / Authorized Signer
Xxxxx Xxxxx
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Printed Name Date
VP, Business Development
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Title
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