Music Distribution Agreement Singles and Albums
Dated as of August 4, 2016
You understand that by using the Services offered by Music Hoarder through the Site or with respect to your Music Hoarder account, you agree to be bound by this Agreement. If you do not accept this Agreement in its entirety, including the Terms of Service, you may not access or use the Services offered by Music Hoarder.
- During the Term, Music Hoarder seeks to sell certain master recordings and the underlying musical compositions embodied therein submitted by you to Music Hoarder (such master recordings and musical compositions shall be individually and collectively referred to herein as the “Masters”) via the Internet in a variety of formats on the website www.musichoarder.com (the “Site”). Your use of the Services shall be on a non-exclusive basis. For the avoidance of doubt, you may exploit and license the Masters for services and retailers not provided by Music Hoarder for such Master hereunder.
- You can choose from two different Services plans for each album (comprising three or more Masters) or single (one Master) that you distribute through Music Hoarder: the “Arena Plan” or the “Stadium Plan,” as set forth on the Site (collectively, the “Plans”). Fees paid by you as part of your selected Plan are non-refundable. Once you choose your Plan for a particular album and/or single, you cannot change Plans. If you choose the Stadium Plan and fail to make a future payment due, the applicable album and/or single will be automatically moved to the default Arena Plan and will not be removed from the Services until Music Hoarder receives notice from you, in accordance with the terms of this Agreement, terminating this Agreement with regard to such album and/or single.
- Term. The term of this Agreement shall be one (1) year from the Effective Date and will automatically renew for additional one (1) year periods (the “Term”), until terminated in writing by either party ninety (90) days prior to the end of the then current period.
- Territory. The territory of this Agreement will be agreed to by the parties on a per album, per single basis.
- Grant of Rights.
- During the Term, Owner grants Music Hoarder the non-exclusive, sub-licensable right:
- To digitally distribute, reproduce, sell, advertise, publicly perform, broadcast, and otherwise use the Masters throughout the Territory, in all forms of digital or electronically transmitted media now known or hereafter devised;
- To reproduce, transmit, distribute, license, and exploit the Masters via digital downloads and Internet transmission to consumers;
iii. To stream or broadcast the Masters, whole or in part, on a gratis basis for purposes of inducing users to download the Masters (“Preview Clips”). Owner agrees that to the extent that the Owner controls or administers rights in any underlying musical composition embodied in the Masters, no royalties or payments shall accrue or be payable with respect to any such gratis Preview Clip stream. For the avoidance of doubt, the Preview Clip may be made available on the Site or any Third Party Site in such a manner so as to allow consumers to listen to the Preview Clip but not download the Preview Clip;
- To use in the Territory the approved name, likeness, and biography of each artist whose performance is embodied in the Masters and the approved album artwork, lyrics and liner notes relating to the Masters in connection with the advertising, publicizing or sale of Masters in all configurations, provided that all materials provided by Owner to Music Hoarder shall be deemed approved for purposes hereof. Owner understands that credit may not be provided in connection with all uses of the Masters hereunder and, to the extent permitted by applicable law, unconditionally waives, on behalf of itself and all third parties having an ownership interest in the Masters, any and all moral rights Owner may have in respect of the Masters; and
- Music Hoarder shall not edit, remix, resequence or otherwise alter any Master delivered by Owner to Music Hoarder in any manner, except as otherwise set forth herein.
- All rights not specifically granted to Music Hoarder herein are expressly and irrevocably reserved for the Owner.
- Owner shall not grant and has not granted to any third party in the Territory any rights that are inconsistent with the rights granted to Music Hoarder hereunder.
- In consideration of the rights granted to Music Hoarder hereunder, and conditioned upon Owner’s full and faithful performance of all the terms and conditions hereof, Owner shall be paid:
- For albums or singles distributed via the Stadium Package:
- One Hundred (100%) percent of Net Receipts (as defined below) resulting from the sale
- For albums or singles distributed via the Arena Package:
- Eighty-Five (85%) percent of Net Receipts (as defined below) resulting from the sale
- Net Receipts shall be understood to mean all monies actually received by Music Hoarder directly attributable to the sale of the Masters hereunder (“Gross Receipts”), less any and all bona-fide costs and fees incurred in connection therewith, including but not limited to encoding fees, transaction processing fees, applicable sales taxes, public performance, and union scale fees (where applicable).
- Owner’s Share of Net Receipts shall be inclusive of, and Owner shall be solely responsible for the payment of, all publishing, mechanical royalties and other third party payments due to all other royalty participants associated with the Masters.
- Music Hoarder shall account to and pay Owner’s share of Net Receipts on an approximately monthly basis. Such accounting shall include the Net Receipts received by Music Hoarder from sale of Masters. Payments will be made to Owner via Paypal. Owner may withdraw royalty payments at any time using their Paypal account. Owner must have a Paypal account in order to withdraw royalty payments. Once Owner has initiated a withdrawal, it may take up to seven (7) business days for funds to appear in Owner’s Paypal account. All payments are made in original currencies where the sale occurred.
- Owner shall have the right to engage a certified public accountant to audit Music Hoarder’s books and records solely as they pertain to the calculation and payment of monies to Owner hereunder to verify the accuracy of such statements, no more than once with respect to any statement, no more than once in each calendar year, at Owner’s sole expense, at the place where Music Hoarder maintains such records, during Music Hoarder’s normal business hours, and on at least thirty (30) days’ prior written notice. Neither Owner nor any person or entity acting for or on behalf of Owner shall disclose or communicate to any person or entity other than Owner’s attorneys or accountants any information acquired from Music Hoarder’s books and records during such examination, except pursuant to legal process issued in connection with a court proceeding or where otherwise required by any governmental or administrative action. Owner shall deliver to Music Hoarder a copy of any audit report prepared as a result of any such examination of Music Hoarder’s books and records promptly following Owner’s receipt of same. Any objection relating to any accounting statement, or any lawsuit arising therefrom, must be made (and any lawsuit commenced), no later than one (1) year after the date the statement is rendered, and Owner hereby waives any longer statute of limitations that may be permitted by law.
- Representations and Warranties; Indemnification.
- Music Hoarder represents and warrants only that it has the right to enter into this Agreement and to perform all of its obligations hereunder.
- Each party agrees to indemnify, defend, and hold the other, including each party’s directors, officers, shareholders, agents, and employees and, in the case of Music Hoarder, its licensees, Third Party Retailers, sub-distributors, and assigns, harmless from and against all third party claims and resulting damages, liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, arising out of or connected with any breach or alleged breach by such party of any warranty, representation or agreement made herein or pertaining to any act, error, or omission committed by such party or any person or entity acting on such party’s behalf or under such party’s direction or control. Music Hoarder shall have the right to withhold payment of any and all moneys due to Owner hereunder in reasonable amounts related to such claim or action pending the disposition thereof.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MUSIC HOARDER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF MONEY PAID BY MUSIC HOARDER TO OWNER IN THE ONE (1) YEAR PERIOD PRIOR TO THE BREACH OR ALLEGED BREACH BY MUSIC HOARDER OF THIS AGREEMENT GIVING RISE TO SUCH LIABILITY.
- 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.
- Music Hoarder will have the right to assign this Agreement to any entity in which Music Hoarder has a controlling interest, or which has a controlling interest in Music Hoarder, acquires a substantial interest in Music Hoarder, has substantial ownership interests in common with Music Hoarder, or is an affiliate of Music Hoarder. Owner acknowledges and agrees that neither this Agreement nor any right or interest hereunder may be assigned or transferred by Owner without the express, prior, written consent of Music Hoarder.
- All notices hereunder shall be sent in writing via certified, registered or express mail (e.g Federal Express) to the addresses first provided above or to such other address as may be provided by a party in writing. A copy of all notices to Music Hoarder shall also be sent to 300 Sophia Ave. Pittsburgh, PA 15237.
- This Agreement shall be deemed to have been made in the State of Pennsylvania, without regard to its conflict of laws provisions, and its validity, construction, performance and breach shall be governed by the laws of the State of the Pennsylvania.
- If any provision of this Agreement or the application thereof shall for any reason be declared by a court of competent or arbitration proceeding under this Agreement to be invalid or unenforceable, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting therefore another provision that is valid, legal, and enforceable so as to materially effectuate the parties’ intent.
- All actions or proceedings seeking the interpretation or enforcement of this Agreement shall be submitted for final binding arbitration under the commercial rules then pertaining of the American Arbitration Association in Pittsburgh. Any such action or proceeding shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim, controversy, action or proceeding of any other party. In the event of a claim or dispute, Owner’s sole remedy shall be limited to their remedy at law for damages, if any, and Owner’s shall not have the right to in any way enjoin or restrain Music Hoarder’s Site, Services or other activities.
Owner acknowledges that it has been advised to seek independent legal and business counsel with respect to this Agreement and that Owner has either sought and obtained such counsel or deliberately refrained from doing so.
BY CLICKING “I AGREE,” YOU AGREE TO ENTER INTO THIS DIGITAL DISTRIBUTION AGREEMENT WITH IMOVEILIVE ONLINE MUSIC MAGAZINE. D/B/A “MUSIC HOARDER” UNDER THE TERMS AND CONDITIONS SPECIFIED ABOVE. IF YOU DON’T AGREE WITH THE TERMS AND CONDITIONS OR DON’T WANT TO ENGAGE MUSIC HOARDER TO DISTRIBUTE YOUR CONTENT, DO NOT CLICK “I AGREE.”