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 5/10/00)
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 0000X Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0 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 time 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 time 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 in 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 five 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 on Angel Audio's secure data carriers 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 computer hardware, server software
bandwidth and electronic commerce web page templates and functionality are
necessary to upload the encoded music onto the Internet. Customer will be
responsible for all hostserver content management relating to the encoded music
including the uploads. Customer shall also be responsible for establishing and
maintaining the prices for each song and/or album as specified in 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 at 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 sates processed directly by
Angel Audio, Angel Audio shall deduct from such proceeds any applicable amounts
related to credit processing fees. 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).
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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 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
limitation: (i) performance and mechanical royalties, and (ii) digital audio
transmission royalties, whether for subscription or nonsubscription
transmissions or otherwise; (c) that it will 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 content, including any geographical restrictions. Customer shall
also ensure that copyright information and other metadata included in Customer's
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
(iii) 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 illegally or is in violation of any agreement
with Angel Audio
8. Customer's Representations. Customer has represented to Angel Audio that its
site www.___________________.com received approximately 50,000 hits a day, and
that it has averaged approximately 10,000 copies sold for each of its 15 albums.
Customer represents that it has a library of over 200 songs which will form part
of this agreement.
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 sound recordings, music and audio content
publicly by means of digital audio transmission; (b) distribute and reproduce
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, transmit and deliver such music and other content through web sites,
in-store kiosks, portable music players, mobile phones, and other platforms.
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
CDs 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 all mechanical rights, synchronization rights and other rights
necessary for Angel Audio to make available for sale, produce and distribute CDs
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
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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$1.99
per song title or music download track. For digital distribution, Angel Audio
shall deduct a US$0.35 server/e-commerce charge from each single download and
the remainder of the purchase price shall be split 50/50 between Angel Audio and
Customer. For distribution of hard copy CDs, Angel Audio shall deduct a US$0.50
production charge per song and the remainder of the purchase price shall be slit
50/50 between Angel Audio and Customer.
12. Distribution Guarantee. As payment towards distribution fees Angel Audio
shall pay to Customer a guarantee of US$1600 and shall pay Customer's delivery
expenses of US$170 immediately upon execution of this agreement.
13. Promotional Events. From time to time, Angel Audio participates in
promotional events to help raise money and awareness for non-profit
organizations. Customer agrees to provide the songs listed in Exhibit "B" for
free digital music download or for inclusion in customized compilation CDs at no
charge as part of any promotional events for non-profit organizations that Angel
Audio takes part in. If Angel Audio chooses to include the songs set out in
Exhibit "B" for any such promotion, it shall notify Customer in writing and
shall provide Customer with detailed information regarding the number of hits to
the promotional site and the number of songs distributed as part of the
promotion. Customer agrees to provide a minimum of two songs for these
promotional purposes.
14. Links. Customer agrees to provide Angel Audio with a link to customer
content @ xxxxxxxxxx.xxx on the "download store" portion of Customer's site. The
link shall be placed on the top 2 links on that page 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 and customer
authorizes only the following digital download formats to be sold under the
terms and conditions of this license agreement, (1) Liquid Audio, (2) M.S., (3)
a2b, (4) Q-design systems, and any proprietary formats. The term of this
Agreement is 7 years from the date this Agreement is signed. Either party may
terminate this Agreement due to breach if 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, suits, 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 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 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
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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 either 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
nonperforming party.
Customer Acceptance. Customer has read and agrees to the terms and conditions of
this Agreement and Exhibit(s).
CUSTOMER:
x /s/ Xxxx Xxxxxxxx
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Signature/Authorized Signer
Xxxx Xxxxxxxx 5/10/00
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Printed Name Date
Label Manager
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Title
Xxx Xxxxxxx Records
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Company Name
Xxxxxxxxxx.xxx Inc.:
x /s/ Xxx Xxxxxx
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Signature/Authorized Signer
Xxx Xxxxxx 5/11/00
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Printed Name Date
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Title
