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Exhibit 10.29
XX0.XXX SUBMISSION AGREEMENT
VERSION 2.3 AS OF MAY 2, 2001
This Agreement describes the legal relationship between you (an individual,
representing yourself, or if applicable, acting as legal representative for a
group, company or corporation) and XX0.xxx, Inc., (collectively with our
licensees and assignees referred to in this Agreement as "we or "us") the owner
and operator of the web pages at or linked to the root URL "xxx.xx0.xxx," which
may expand or change from time to time (the "Website"). PLEASE READ THIS
DOCUMENT CAREFULLY. IF YOU DID NOT CONSENT TO THE XX0.XXX SUBMISSION AGREEMENT -
VERSION 2.2 ("VERSION 2.2"), BY CLICKING ON THE "I AGREE" BUTTON BELOW, YOU WILL
BECOME A PARTY TO, AND WILL BE BOUND BY THIS AGREEMENT WITH RESPECT TO BOTH YOUR
PREVIOUSLY AND NEWLY UPLOADED MATERIALS TO THE WEBSITE. IF YOU DO NOT AGREE WITH
ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "NO THANKS"
BUTTON BELOW. IF YOU DID CONSENT TO VERSION 2.2, UNLESS YOU TERMINATE VERSION
2.2 PRIOR TO MAY 2, 2001, AS PROVIDED THEREIN, THE TERMS AND CONDITIONS OF THIS
AGREEMENT SHALL REPLACE VERSION 2.2 AND CONSTITUTE A FURTHER UNDERSTANDING
BETWEEN YOU AND US. WE MAY MODIFY THIS AGREEMENT FROM TIME TO TIME AS FURTHER
DESCRIBED IN SECTION 4.11 BELOW.
This Agreement addresses three (3) different services available on the Website
(the "Programs", each a "Program"). Under our STANDARD PROGRAM you supply audio
and/or other content to us and allow us to include your material in our
database, which we can make freely available over the World Wide Web and through
various other means of transmission and distribution. If you are participating
in the Standard Program, you will have the option to participate in our DIGITAL
AUTOMATIC MUSIC ("D.A.M.") / NETCD PROGRAM by supplying us with one or more
audio files, which we can sell on your behalf in the form of audio files
residing in our database and in the form of compact discs containing MP3 and
Redbook audio files. The third Program in which you will also have the option to
participate is our DIGITAL PUBLISHING CHANNEL PROGRAM, by which you supply us
with songs or other audio content which we can make available through a paid
subscription channel that you create and administer.
The legal terms which apply to the STANDARD PROGRAM, D.A.M. / NETCD PROGRAM AND
DIGITAL PUBLISHING CHANNEL PROGRAM ARE DESCRIBED BELOW IN SECTIONS I, II AND
III, RESPECTIVELY. One or the other of these Sections may not apply to you.
Legal terms applicable to all Programs are described in SECTION IV: GENERAL
TERMS.
If you click "I Agree" below, we will give you a URL to access your "Artist
Admin Area" located within the Website. The Artist Admin Area contains several
useful functions. It provides access to create your free "Artist Page"
(described in Section 4.2 below) to which you will post your songs and other
materials; the Artist Admin Area gives you tools to upload your material and
also provides access to your "Web Stats Page," "Artist Earnings Page," "Channel
Admin Page" and "Song Properties Page". The Song Properties Page affords you the
ability to designate how your content can be used.
SECTION I
STANDARD PROGRAM
1.1 STANDARD CONTENT AND STANDARD MATERIAL. In order to participate in any
of the Programs, you must provide us with one or more sound recording(s)
of musical composition(s) or other audio and/or audio-visual content to
be used by us as described in this Section ("Standard Content"). You
will also provide us with other material related to your Standard
Content (such as pictures, videos, song lyrics, press reviews, etc.) for
our use in connection with the Standard Program (collectively "Standard
Material"). Subject to the conditions of this Agreement, unless
otherwise designated by you, Standard Content and Standard Material will
be listed on your Artist Page and will be enrolled in all of our current
and future promotions, including but not limited to "Business Music
Service," "Broadcast Radio," "Singles On Demand" and "Promotional CDs"
(the "Promotion(s)"). Subject to the terms of each Promotion, you may
enroll or withdraw any Standard Content and any Standard Material by
utilizing the tools provided in the Artist Admin Area.
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1.2 LICENSE FOR STANDARD CONTENT AND STANDARD MATERIAL. By the act of
delivering Standard Content and/or Standard Material to us, you grant to
us a non-exclusive, royalty-free, worldwide license to: (a) publicly
perform, publicly display, broadcast, encode, edit, alter, modify,
reproduce, transmit, manufacture, distribute and synchronize with visual
images the Standard Content or Standard Material, in whole or in part,
alone or in compilation with content provided by third parties, through
any medium now known or hereafter devised for the purpose of
demonstrating, promoting or distributing your or our products or
services; (b) make your Standard Content accessible as audio streams
through password-protected accounts such as Xx.XX0.xxx (collectively
"Secure Accounts"); and (c) use any trademarks, service marks or trade
names incorporated in the Standard Content or Standard Material and use
the likeness of any individual whose performance or image is contained
in the Standard Content or Standard Material in connection with the
foregoing. Audio content and corresponding materials enrolled in one or
more Promotion(s) (whether or not listed on your Artist Page) shall be
considered Standard Content and Standard Material, only to the extent
that the operation of such Promotion reasonably shall require us to
exercise the rights licensed in this Section.
1.3 TERMINATION OF STANDARD PROGRAM LICENSE. Subject to the provisions
contained in Section IV, "Term and Termination" below, you may terminate
your license to us with respect to some or all of your Standard Content
and Standard Material, at any time by utilizing tools provided in the
Artist Admin Area.
SECTION II
D.A.M. / NETCD PROGRAM
YOUR PARTICIPATION IN THE D.A.M. / NETCD PROGRAM IS OPTIONAL. If you are
participating in the Standard Program, you may participate in the D.A.M. / netCD
Program by using the Artist Admin Area tools to designate one or more sound
recordings of musical compositions or other audio content ("CD Content") for
sale by us in the form of audio files that we add to a purchaser's Secure
Account ("netCDs") and, at the purchaser's option, in the form of compact discs
that we manufacture and distribute to that purchaser ("D.A.M. CDs"). You will
also provide us with other material related to your CD Content (such as CD
artwork, liner notes, credits, illustrations, etc.) for our use in connection
with the D.A.M. / netCD Program ("CD Material").
2.1 LICENSE FOR CD CONTENT AND CD MATERIAL. By the act of designating
Standard Content as CD Content and, if applicable delivering CD Material
to us, you grant to us a non-exclusive, worldwide license to: (a)
publicly perform, publicly display, broadcast, encode, edit, alter,
modify, reproduce, transmit, manufacture and distribute the CD Content
and CD Material in connection with the sale and promotion of your D.A.M.
CDs and netCDs; (b) convert CD Content from MP3 to Redbook format in
order to distribute either or both formats on D.A.M. CDs; (c) make
copies of CD Content employing any compression technologies selected by
us in order to create a database of your CD Content; (d) make your CD
Content accessible from the Website to holders of Secure Accounts who
have purchased your D.A.M. CDs, netCDs or have otherwise added your CD
Content to their Secure Accounts with your permission; and (e) use any
trademarks, service marks or trade names incorporated in the CD Content
and, if applicable the CD Material and use the name and likeness of any
individual whose performance is contained in the CD Content or whose
image is portrayed on the CD Material in connection with the promotion,
distribution, reproduction and performance of CD Content, D.A.M. CDs and
netCDs. We will not include your CD Content on D.A.M. CDs, netCDs,
Promotional D.A.M. CDs or on Promotional netCDs in compilation with
content provided by others provided such CD Content is not designated
for Promotional CD use on the Song Properties Page in your Artist Admin.
Area. If you do not specifically designate a work as CD Content only, it
shall be considered Standard Content for the purpose of this Agreement.
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2.2 D.A.M. / NETCD ROYALTIES. You will set the selling price for each of
your netCDs according to our pricing guidelines; the selling price for
the D.A.M. CD version will bear an additional production fee of three
dollars and ninety-nine cents ($3.99). We will pay you fifty percent
(50%) of the "Net Revenue" (as defined below) we receive from sales of
your D.A.M. CDs and netCDs. For the purpose of this Agreement, "Net
Revenue" shall mean the gross revenues we actually receive from such
sales, less only sales, use, value-added, or similar taxes, the
production fee (described above), customs duties, import or export taxes
or levies, shipping or freight, and returns.
2.3 TERMINATION OF D.A.M. / NETCD PROGRAM LICENSE. Subject to the provisions
contained in Section IV, "Term and Termination" below, you may terminate
your license to us with respect to some or all of your CD Content and CD
Material, at any time by utilizing tools provided in the Artist Admin
Area.
SECTION III
DIGITAL PUBLISHING CHANNEL PROGRAM
Standard Program participants also can elect to create a collection of their
audio files for streaming and/or digital downloading access by persons
("Subscribers") in exchange for a monthly fee ("Channel").
3.1 CHANNEL AND CHANNEL CONTENT. You can create a Channel through the
Channel Admin Page that allows you to title, describe, price and
designate audio content for your Channel; such terms are respectively
referred to as "Channel Title," "Channel Description," "Subscription
Fee" and "Channel Content." You will designate a minimum amount of
Channel Content to be accessed through your Channel. From time to time,
you may add and/or remove Channel Content to and from your Channel;
however, any Channel Content that is removed must be replaced by other
audio content that is of similar quality, entirely original and not
currently available in your Channel. In other words, until your Channel
is canceled (as described below), you shall not reduce the quality or
quantity of Channel Content available to a Subscriber at any given time.
3.2 LICENSE GRANT FOR CHANNEL CONTENT. By the act of delivering Channel
Content to us, you grant to us the worldwide, non-exclusive right and
license to make Channel Content available to Subscribers as audio
streams, and if you so elect, as digital downloads and to do all things
reasonably required to facilitate the Digital Publishing Channel Program
in connection therewith including, without limitation the right to: (a)
publicly perform, display, mechanically reproduce, transmit and
distribute Channel Content, in whole or in part to Subscribers; (b) make
copies of Channel Content employing any compression technologies we
select in order to create a database of your Channel Content; (c) make
Channel Content accessible as audio streams from the Website to holders
of Secure Accounts who have added your Channel Content to their Secure
Accounts with your permission; and (d) use your name, trade name and
trademarks, the titles of Channel Content, the Channel Title, Channel
Description, the name and likeness of any individuals whose performances
are contained within the Channel Content in connection with the
marketing, sale and promotion of your Channel or the Digital Publishing
Channel Program in general.
3.3 SUBSCRIPTION FEE AND ROYALTY. You will set a monthly Subscription Fee
according to our pricing guidelines for Subscriber access to your
Channel, however, once set, you shall not be permitted to change the
Subscription Fee without our prior written consent. Solely with respect
to your Channel, we will pay you fifty percent (50%) of the "Net
Subscription Fee" (as defined below) we receive during or subsequent to
the term of this Agreement. "Net Subscription Fee" shall mean the
Subscription Fee actually received by us with respect to a given Channel
less any and all sums payable to third parties for the sales or
collection of such Subscription Fee.
3.4 CANCELLATION OF CHANNEL. You may notify us of your desire to cancel your
Channel at any time following ninety (90) days from the date you created
your Channel by removing all Channel
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Content from your Channel Admin Page. Your Channel and Channel Content
will remain accessible to Subscribers for a period of thirty (30) days
following cancellation. Subject to the provisions contained in Section
IV, "Term and Termination" below, upon cancellation of your Channel, all
of our licensed rights to your Channel Content shall terminate, except
that we retain those rights necessary for us to maintain your Channel
for the period of time described in this Section.
SECTION IV
GENERAL TERMS
The following terms apply to the Standard Program, the DAM / netCD Program and
the Digital Publishing Channel Program:
4.1 PAYBACK FOR PLAYBACK. With respect to your Standard Content and CD
Content, you will be eligible to participate in our Payback for Playback
promotion for so long as we continue to make it available to content
providers in general. Performances of Channel Content from your Channel
shall not qualify for Payback for Playback promotion payment; however,
performances of Channel Content from play-lists created within Secure
Accounts do qualify. For further information concerning Payback for
Playback see: xxxx://xxx.xx0.xxx/xxxxxxx/xxxxx.xxxx.
4.2 CO-BRANDED WEBSITE ON XX0.XXX. During the term of this Agreement, we
will host on the Website an HTML-formatted page (the "Artist Page")
featuring such graphics, photographs and other information as you may
upload. For further information concerning Artist Pages, including terms
and conditions governing their use, see:
xxxx://xxx.xx0.xxx/xxxxx/xxxxxx_xxxxx.xxxx.
4.3 OWNERSHIP OF COPYRIGHTS. As between you and us, you retain ownership of
the copyrights and all other rights in the intellectual property
furnished by you for our use hereunder, subject only to the
non-exclusive rights granted to us under this Agreement. You are free to
grant similar rights to others during and after the term of this
Agreement.
4.4 ACCOUNTING. Within sixty (60) days of the close of each quarter during
which you qualify to receive payment of Payback for Playback
compensation or during which we have received any Subscription Fees with
respect to your Channel, or any Net Revenues with respect to your D.A.M.
CDs or net CDs, we will send you a check, or if applicable directly
deposit such sums, payable in U.S. dollars in the appropriate amount
pursuant to the provisions of the "XX0.xxx Payment Options Terms and
Conditions," all provisions of which are incorporated by this reference,
see: xxxx://xxx.xx0.xxx/xxxxx/xxxx_xxxxx.xxxx, except if the amount we
owe you is less than fifty dollars ($50.00), in which case we will hold
the money until either (a) the total cumulative amount we owe you at the
end of any particular quarter is greater than fifty dollars ($50.00), or
(b) we settle such accounts from time to time. We may deduct from any
amount payable hereunder such portion thereof as may be required to be
deducted under any applicable statute, regulation, treaty or other law
in connection with taxation or otherwise, and you shall promptly execute
and deliver to us such forms or other documents as may be required in
connection therewith. If at the time we make quarterly payments, you
have not provided us with all information reasonably requested,
including but not limited to legal name, tax identification information
and complete mailing address, then we shall hold any sums due to you
until the end of first quarterly period during which you have provided
us with all such missing information. We agree to keep accurate books
and records covering all transactions related to this Agreement. During
the one-year (1-year) period following your receipt of payment, you may,
at your expense and upon reasonable notice, inspect our records related
to that payment at our offices or at a location specified by us,
provided that your inspection must not unreasonably interfere with our
business. If your inspection reveals that we have underpaid you, we will
promptly correct the deficiency. It is understood that we include
certain advertising on multiple pages and sections of the Website
(including Artist Pages, pages within the Artist Admin Area, pages used
by Subscribers, pages within Secure Accounts and pages featuring
Channels); no portion of the sums received by us from the sale of such
advertising shall be included in the calculation of any sums payable to
you hereunder.
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4.5 REPRESENTATIONS AND WARRANTIES. The term "Material" means anything that
you submit to us or post on the Website including, but not limited to,
Standard Content, Standard Material, CD Content, CD Material, Channel
Content, Channel Title and Channel Description, as applicable. You
represent and warrant that: (a) except as provided in Sections titled
"D.A.M. / netCD Royalties," "Subscription Fee and Royalty," "Payback for
Playback" and "Accounting" above, we, our customers and licensees shall
not be required to make any payments in respect of the authorized use of
your Material, including, without limitation, payments to you, third
parties claiming through you or otherwise, music publishers, mechanical
rights agents, performance rights societies, persons who contributed to
or appear in your Material, your licensors, unions or guilds; (b) you
have the full right and power to enter into and perform this Agreement,
and have secured all third-party consents, licenses and permissions
necessary to enter into and perform this Agreement; (c) the Material
does not contain "samples" of any third party's sound recording or
musical composition and will not infringe on any third party's
copyright, patent, trademark, trade secret or other proprietary rights,
rights of publicity or privacy, or moral rights; (d) the Material does
not and will not violate any law, statute, ordinance or regulation; (e)
the Material is not and will not be defamatory, trade libelous,
pornographic or obscene; (f) the Material does not and will not contain
any viruses or other programming routines that detrimentally interfere
with computer systems or data; (g) all factual assertions that you have
made and will make to us are true and complete; and (h) you are of legal
age of consent in all applicable jurisdictions and, in any event, are at
least eighteen (18) years of age. You agree to indemnify and hold us,
our licensees and customers harmless from any and all damages and costs,
including reasonable attorney's fees, arising out of or related to your
breach or alleged breach of the representations and warranties described
in this Section. Pending the resolution of a claim arising out of or
related to such a breach, we shall have the right to withhold sums due
you in an amount consistent with our reasonably anticipated damages and
costs. You agree to execute and deliver documents to us, upon our
reasonable request, that evidence or effectuate our rights under this
Agreement.
4.6 TERM AND TERMINATION. Upon termination of this Agreement, all of our
license rights terminate, except that we retain those rights necessary
for us to: (a) sell any compact discs or other authorized products which
we have produced prior to the date of termination which incorporates
your Material; (b) provide perpetual access to Standard Content and
Channel Content added to Secure Accounts pursuant to the terms of this
Agreement; (c) provide perpetual access to CD Content to holders of
Secure Accounts who purchased that CD Content, or with your permission,
otherwise added that CD Content to their Secure Accounts; and (d)
fulfill the terms and conditions of any Promotion in which you are
participating. Subject to the foregoing, we shall use reasonable efforts
to discontinue public access to your Material promptly upon termination;
however, due to your participation in certain Promotions, your Material
may remain accessible to the public for up to ninety (90) days following
termination. We may terminate this Agreement with respect to any or all
Programs and Promotions, at any time by so notifying you; the Agreement
will terminate upon your actual receipt of such notice or three (3) days
after we have sent a notice of termination to the email address you
supply to us or post such notice in your Artist Admin Area, whichever is
sooner. Our obligation to pay sums due you hereunder described in the
Section titled "Accounting" shall survive termination. Also, Sections
titled "Term and Termination," "Representations and Warranties,"
"Disclaimer," "Waiver of Certain Damages" and "Miscellaneous" shall
survive termination.
4.7 DETERMINING TYPE OF CONTENT. We will implement and maintain reasonable
business practices, which enable us to accurately categorize content
that you deliver to us. If we make an error in good faith, however (for
example, if we erroneously categorize a song that you send to us as
Standard Content when in fact you intended it only to be CD Content) and
consequently exceed our license rights, your sole and exclusive remedy
will be to notify us and we promptly will take all reasonable steps to
correct the error.
4.8 NOTIFICATIONS OF INFRINGEMENT. Upon receipt of notice, we will act
expeditiously to remove or disable access to any Material claimed to be
infringing or claimed to be the subject of infringing
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activity, and we will act expeditiously to remove or disable access to
any reference or link to Material or activity that is claimed to be
infringing. Notwithstanding anything contained in this Agreement or in
our "Privacy Policy", you expressly consent to our disclosure of your
personally identifiable and all other personal information in the event
that you or your Material is the subject matter of any such infringement
claim.
4.9 DISCLAIMER. THE STANDARD PROGRAM, D.A.M. / NETCD PROGRAM AND DIGITAL
PUBLISHING CHANNEL PROGRAM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE"
BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHERWISE. WITHOUT
LIMITATION, WE DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY,
RELIABILITY, TIMELINESS AND PERFORMANCE OF THE STANDARD PROGRAM, D.A.M.
/ NETCD PROGRAM AND DIGITAL PUBLISHING CHANNEL PROGRAM. WE MAKE NO
WARRANTY, EXPRESS OR IMPLIED, THAT THE STANDARD PROGRAM, D.A.M. / NETCD
PROGRAM AND DIGITAL PUBLISHING CHANNEL PROGRAM WILL BE UNINTERRUPTED,
TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF
CERTAIN WARRANTIES, SO SOME OF THE ABOVE DISCLAIMER MAY NOT APPLY TO
YOU.
4.10 WAIVER OF CERTAIN DAMAGES. EXCEPT FOR DAMAGES RELATED TO A BREACH OF THE
SECTION TITLED "REPRESENTATIONS AND WARRANTIES," NEITHER YOU NOR US WILL
BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, STATUTORY
OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT.
4.11 MODIFICATION OR AMENDMENT OF AGREEMENT. We reserve the right, in our
sole discretion, to change, modify, add or remove all or part of this
Agreement. Notice of any amendments and/or modifications shall be sent
to you or posted in your Artist Admin Area at least three (3) days prior
to their effective date. In the event that you do not consent to any
such amendments and/or modifications, your sole recourse shall be to
terminate this Agreement with respect to any or all Programs, as
provided above. A copy of the most current version of this Agreement may
be found at: xxxx://xxx.xx0.xxx/xxxxxxxxx/xxxxx.xxxx.
4.12 MISCELLANEOUS. This Agreement sets forth the entire understanding and
agreement of the parties as to this Agreement's subject matter and
supersedes all prior proposals, discussions or agreements with respect
to such subject matter. You agree not to resell, assign, otherwise
transfer, or delegate your rights or obligations under the Agreement
without our prior express written authorization. Notices or
communications under this Agreement shall be sent by electronic mail or
in writing and shall be deemed delivered upon receipt to the party to
whom such communication is directed, at the following addresses: (a) if
to us, such notices shall be addressed to xxxxx@xx0.xxx, or 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000-0000 attention: Vice President, Legal
Affairs and (b) if to you, such notices shall be addressed to the
electronic or mailing address specified when you register for the
Program. The Agreement shall be governed by and construed in accordance
with, and all legal issues arising from or related to your use of, or
participation in the Programs shall be determined by the laws of the
State of California without regard to that State's conflict-of-law
provisions. The State and Federal courts of California shall be the
exclusive forum and venue to resolve any and all disputes arising out of
or relating to the Agreement or to your use of, or participation in, the
Programs. You consent to personal jurisdiction and venue in the
appropriate state court in San Diego County, State of California or the
United States District Court of Southern California. Our failure to
exercise or enforce any right or provision of this Agreement shall not
constitute a waiver of such right or provision. All headings in the
Agreement are for convenience only and shall have no legal or
contractual effect. You agree that we and you are independent
contractors under this Agreement, and nothing herein shall be construed
to create a partnership, joint venture or agency relationship. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, successors and assigns. Each
provision of this Agreement shall be severable from every other
provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
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