The following constitutes a Digital Distribution Agreement with AudD, LLC -- a Delaware Limited Liability Company (the “AudD Music”), e-mail: [email protected], referred to hereinafter as AudD Music. When accepted by you (either as an individual or if applicable, acting as the authorized legal representative of a company) it shall constitute a binding agreement between you and us (AudD Music) and collectively with our licensees and assignees referred to in this Agreement as 'us' and 'we'.
Please read this Agreement carefully. By clicking on the 'I AGREE' button or by agreeing to the Agreement in personal correspondence, after submitting your works to us, you will become a party to and will be bound by this Agreement as LICENSOR.
Digital Distribution Agreement#
1. Authorization#
The Licensor hereby appoints AudD Music as Licensor's authorized representative for the sale and other distribution of Licensor's Authorized Content as provided herein. The rights that are granted by Licensor to AudD Music are non-exclusive. Accordingly, the Licensor hereby grants to AudD Music and AudD Music's licensees (herein each a 'Licensee') the non-exclusive rights, during the Term and throughout the Territory, to:
1.1. Reproduce and store (on servers, carriers or devices, now in existence or to be developed in the future; including in the form of digital fingerprints) and convert (for the purposes of utilized audio/video compression and/or any other technological optimization suitable for the exploitation of the rights granted hereunder) Licensor's Authorized Content into Digital Masters;
1.2. Perform in public, broadcast, transmit and retransmit (by wire or wireless means now in existence or to be developed in the future) and make available to the public (via Internet or any other medium providing users with access at a time and place individually chosen by them, including by streaming services) for promotional purposes only, Licensor's Authorized Content or portions (including products of synchronization) thereof ('Preview Clips') to promote the license, sale, and distribution of Digital Masters;
1.3. Promote, sell, distribute, and deliver Digital Masters (physically or digitally), as individual tracks or entire albums, and associated metadata thereof to purchasers who may use such Digital Masters in accordance with usage rules agreed by AudD Music;
1.4. Use and authorize others to license the use of and sale of Licensor's Authorized Content in connection with all manner of phone services, such as, but not limited to, sales or licenses of Digital Masters as downloads (including, without limitation, downloads to cell phones) and for use as ringtones, realtones, ringback tones, etc.;
1.5. Use so-called 'kiosks' to reproduce, distribute, market and promote Digital Masters, including, without limitation, by allowing the burning of optical disc copies of any Digital Master or by allowing a copy of a Digital Master to be transferred to personal devices;
1.6. Use and authorize others to allow copies of a Digital Master to be digitally distributed as so-called 'conditional' downloads, whether tethered to a device, time-limited, play limited or otherwise;
1.7. 'Stream' and authorize others to 'stream' Licensor's Authorized Content, either on-demand or as part of an internet radio service or any other digital service now in existence or to be developed in the future;
1.8. Use and distribute Digital Rights Management Information (DRM) as embodied in a Digital Master;
1.9. Display and electronically fulfill and deliver Authorized Artwork used in connection with the Licensor's Authorized Content for personal use solely in conjunction with the applicable Digital Master as provided herein;
1.10. Use Licensor's Authorized Content, and Authorized Artwork and metadata thereof as may be reasonably necessary or desirable for AudD Music to exercise its rights under and in furtherance of this Agreement; and
1.11. Authorize AudD Music's Licensees to exploit any one or more of the rights specified above.
1.12 Licensor can use the AudD Music’s website or personal correspondence with AudD Music's representatives to grant authorization, icnluding but not limited to exclusive authorization, for services such as but not limited to, YouTube Content ID, Facebook Monetization, Licensing, Digital Radios. By doing that Licensor agrees with all the terms and conditions listed in AudD Music’s website regarding those services. The description of such authorization shall be available at music.audd.io or dashboard.audd.io. The Licensor can withdraw the above authorization under 6.1, 6.2, and 6.3 with the removal period of one week.
2. Non-exploitation#
2.1. AudD Music reserves the right without liability to Licensor to refuse distribution of Licensor's Authorized Content or parts thereof which is not of a good sound quality or does not meet other requirements set out in this agreement.
2.2. Save item 2.1. above, AudD Music is entitled without liability to Licensor to refuse distribution and other use of Licensor's Authorized Content and Authorized Artwork which it has reasonable cause to believe:
(a) May be in violation of any applicable statute or legal regulation, or
(b) May subject AudD Music to liability for infringement.
2.3. If AudD Music has reasonable grounds to believe that the exploitation of the rights granted under this Agreement with regard to Licensor's Authorized Content and Authorized Artwork might constitute a breach by Licensor of any of the warranties contained in this Agreement then without prejudice to any other rights hereunder, AudD Music may at any time and on written notification to Licensor withhold or withdraw such Licensor's Authorized Content and Authorized Artwork from distribution and other use as well as to restrict, suspend or terminate Licensor's access to its account or AudD Music's services.
3. Term#
The Term of our Agreement shall commence on the Effective Date and shall continue for a period of one year.
4. Payments to Licensor#
4.1. AudD Music shall pay the Licensor royalties equal to 90 % (ninety percent) of the net wholesale prices that AudD Music receives from its Licensees for the sale or other licensed uses of Licensor's Digital Masters. Licensor is responsible for withholding the due sum for tax purposes, pursuant to the legislation in force.
4.2. All accounting details shall be available at audd.io in Licensor's personal account. Details on sales of other use of Licensor's Authorized Content shall be entered in Licensor's account upon AudD Music's receipt of the respective amounts.
4.3. AudD Music shall make payments to Licensor at such times that amounts credited to Licensor exceed the threshold amount specified by Licensor upon registration at audd.io or as subsequently modified by Licensor. The threshold amount shall not be lower than € 0.50.
4.4. Payments due under this article shall be effected within 10 working days from reaching the threshold under the preceding paragraph.
4.5. Mode of payment shall be chosen by the Licensor upon latter's registration at audd.io from options available therein.
4.6. Payment costs shall be at Licensor's expense.
4.7. Payments under this article shall constitute full consideration for all rights granted and all obligations undertaken by Licensor hereunder.
4.8. Licensor will have the right to affiliate with an organization for the protection of artists' rights as well as with a collecting society or other entity engaged in collecting monies that may be payable to Licensor for the use of Licensor Authorized Content.
5. Other Rights and Obligations of the Licensor#
5.1. Licensor shall obtain and pay for any and all clearances and licenses as may be required in the Territory or any portion thereof for uses of Licensor's Authorized Content, and Authorized Artwork and metadata. Specifically, and without limiting the generality of the foregoing, Licensor shall be solely responsible for and shall pay (i) any royalties and other sums due to artists, authors, co-authors, copyright owners and co-owners, producers, co-producers and any other record royalty participants from sales or other uses of Digital Masters, (ii) all mechanical royalties or other sums payable to publishers and/or authors or co-authors of musical compositions embodied in Digital Masters from sales or other uses of Digital Masters, (iii) all payments that may be required under any collective bargaining agreements applicable to Licensor or any third party, and (iv) any other royalties, fees and/or sums payable with respect to Licensor's Authorized Content, and Authorized Artwork, metadata and other materials provided by Licensor to AudD Music.
5.2. Licensor agrees that the amount payable to Licensor is inclusive of any so-called 'artist royalties' that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction.
5.3. Licensor shall make every necessary effort to ensure that neither Licensor or any third parties related to the Digital Masters subject to this Agreement shall ask AudD Music to license the same digital stores that other distributor(s) is (are) licensing for Licensor or those third parties. AudD Music shall not be obliged to distribute Licensor's Authorized Content in digital stores already licensed to distribute Licensor's Authorized Content by other persons and shall not pay royalties to the Licensor for sale or use of such Authorized Content.
5.4. Licensor may opt to use only a part of AudD Music's distribution network. Such opting shall have to be made at audd.io.
5.5. The Licensor shall fully indemnify AudD Music on an indemnity basis for any loss or damage or cost or expense (including without limitation legal expenses on an indemnity basis) suffered by AudD Music resulting directly or indirectly from a breach of the grant of rights and warranties provided herein by the Licensor. Without limitation to the foregoing AudD Music shall have the right to withhold the payment of any and all monies to the Licensor hereunder in the event of any breach by the Licensor and/or in the event of any claim arising as a result such breach by a third party in an amount commensurate with such event and (without prejudice to its other rights of recovery hereunder) to use and apply any and all such monies pursuant to the terms of this indemnity provision.
5.6. The Recordings and any provided artwork are unencumbered and original copyright works and are neither defamatory nor obscene and will not infringe the rights or copyright of any third party.
5.7. The Licensor will not do anything during the Term of prejudice hamper or derogate from the rights granted to the Licensee hereunder.
6. Rights to Withdraw Material:#
6.1. Licensor shall have the right, after the expiry of the first 12 months from the date of release of each album under this Agreement (the date when an album is approved by AudD Music and settled for delivery to digital outlets), to withdraw further authorization for the sale or other uses of the respective Licensor's Authorized Content and Authorized Artwork. Withdrawal shall be made by notifying AudD Music, using the options, available at audd.io. Promptly following AudD Music's receipt of Licensor's notice requesting withdrawal (but no later than 7 business days from the date of receipt of the notice), AudD Music shall advise its Licensees that they are no longer authorized to offer the sale or other use of such of Licensor's Authorized Content or Authorized Artwork as Licensor has specified in latter's withdrawal notice and that they have to remove such material from their distribution stores and websites within a period of one month from the respective date of receipt by AudD Music of Licensor's notice to that effect. The foregoing shall not limit Licensor's responsibility for sales and other uses of Licensor's Authorized Content and/or Authorized Artwork occurring prior to the implementation of such withdrawal and shall not limit in any way the rights of end users who have acquired Licensor's Authorized Content or Authorized Artwork.
6.2. In the event of alleged infringements of any third parties' rights supported by evidence (such as for example correspondence or reference to web sites containing relevant information or data), constituting reasonable grounds for concluding that alleged infringements exist, Licensor shall have the right to withdraw further authorization for the sale or other uses of specified parts of Licensor's Authorized Content and related Authorized Artwork subject to this Agreement (irrespective of the above 12-month term of non-withdrawal). Withdrawal shall be made by notifying AudD Music, using the options, available at audd.io by checking the explicit notification that the withdrawal is made on the grounds of an alleged infringement. Promptly following AudD Music's receipt of Licensor's notice requesting withdrawal and the supporting evidence (but no later than 3 business days from the date of receipt of the notice and the supporting evidence), AudD Music shall advise its Licensees that they are no longer authorized to offer the sale or other use of such of Licensor's Authorized Content or Authorized Artwork as Licensor has specified in latter's withdrawal notice and that they have to remove such material from their distribution stores and websites within a period of 1 month from the respective date of receipt by AudD Music of Licensor's notice to that effect and the supporting evidence. The foregoing shall not limit Licensor's responsibility for sales and other uses of Licensor's Authorized Content and/or Authorized Artwork occurring prior to the implementation of such withdrawal and shall not limit in any way the rights of end users who have acquired Licensor's Authorized Content or Authorized Artwork.
6.3. The cancellation period for an album under 6.1 and 6. 2 above shall last 6 months including the one month period for removal of Licensor's Authorized Content or Authorized Artwork from AudD's Licensees' stores. Payments to Licensor during the cancellation period will be made as usual, as long as the amounts credited to Licensor from the sale or use of all of Licensor's Authorized Content or Authorized Artwork under all agreements with AudD exceed the threshold amount specified in 4.3 above. Where such amounts do not exceed the threshold amount specified in 4.3 above, they will be paid when the cancellation of Licensor's account is finalised.
7. Names and Likenesses; Promotional Use and Opportunities:#
7.1.AudD Music may use and authorize its Licensees to use the names and approved likenesses of, and biographical material concerning, any artists, bands, producers and/or authors, as well as track and/or album name, and Authorized Artwork, in any materials related 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 by 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 exploitation of applicable Digital Masters).
7.2. AudD Music and any of AudD Music's Licensees shall have the right to market, promote and advertise the Digital Masters as available for purchase or license as AudD Music and its Licensees determine in their discretion. Licensor accepts that AudD Music and AudD Music's Licensees make no guarantees whatsoever about there being any minimum sales or uses of any Digital Master.
8. Ownership:#
Subject to AudD Music's rights hereunder or under any prior agreement between AudD Music and Licensor, insofar as AudD Music is concerned, all right, title and interest in and to (i) Licensor's Authorized Content and Authorized Artwork, (ii) the Digital Masters, (iii) the Preview Clips, (iv) all copyrights and/or equivalent rights embodied therein, and (v) all materials furnished by Licensor, shall be and remain Licensor's property.
9. Extension of Term, Modification, Termination and Effect of Termination. Consequences of Termination#
9.1. This contract shall continue for another period of one year if neither party opposes to such extension by e-mail sent 30 days prior to the expiration of the term of this agreement set out in art. 3.
9.2. AudD Music reserves the right to change, modify, add to or remove all or part of this Agreement. Notice of any such changes shall be sent to Licensor through Licensor's account on audd.io at least seven (7) days prior to their effective date. In the event that Licensor does not consent to any such proposed changes Licensor shall be entitled to terminate this Agreement by a written notice to AudD Music, sent by e-mail or through the Internal Mailbox Service on audd.io, and Licensor's failure to do so within seven (7) days of the date of any such notice from AudD Music shall constitute Licensor's acceptance of such changes.
9.3. Upon termination of this agreement, irrespective of the grounds for termination, AudD Music shall take all necessary action as provided for in art 6, for preventing further use or distribution of Licensor's Authorized Content and Authorized Artwork by AudD Music's Licensees.
9.4. The expiration of the Term of this Agreement shall not relieve either party from their respective obligations incurred prior to or during the Term. Accordingly, provisions of this Agreement will continue to apply even after the expiration of the Term.
9.5. Where the Licensor has cancelled all his albums, Licensor will be able to cancel his personal account. Cancellation of each album lasts 6 months. After all albums have been cancelled and cancellation of the account is finalised, Licensor's data and Licensor's account will be deleted and sums due to Licensor (if any) shall be transferred to Licensor according to Licensor's preferred method of payment.
10. Indemnification:#
If AudD Music or its Licensee receives a claim that the use of Licensor's Authorized Content or Authorized Artwork or any other materials provided or authorized by Licensor under this Agreement is in violation of any third party rights, Licensor agrees to fully indemnify and hold AudD Music and AudD Music's Licensees harmless, and upon our request, defend AudD Music and AudD Music's Licensees and affiliates (and their respective directors, officers and employees) from and against any and all claims, losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees and costs) concerning any such claim. Accordingly, Licensor agrees to reimburse AudD Music and AudD Music's Licensees and our affiliates on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this Section 10, provided that AudD Music or AudD Music's Licensees obtain Licensor's written consent prior to making any such payments. Licensor agrees that Licensor's consent will not to be unreasonably withheld, delayed or conditioned. AudD Music shall promptly notify Licensor of any such claims, and by obtaining and posting and maintaining an appropriate bond for AudD Music's or AudD Music's Licensees benefit Licensor may assume control of the defense of such claim, provided that AudD Music or AudD Music's Licensees shall have the right in all events to participate in the defense thereof. Neither party may settle any claim according to which settlement the other party may be held liable without the written consent of both parties.
11. Additional Representations and Warranties of the Parties#
11.1. Licensor represents and warrants that Licensor has the full authority to act on behalf of any and all owners of any right, title or interest in and to Licensor's Authorized Content or Authorized Artwork.
11.2. Licensor represents and warrants that Licensor owns or controls the necessary rights in order to make the grant of rights, licenses and permissions herein, and that the exercise of any such rights, licenses and permissions by AudD Music and AudD Music's Licensees shall not violate or infringe the rights of any third party.
11.3. Licensor represents and warrants that Licensor's AUTHORIZED CONTENT and AUTHORIZED ARTWORK, authorized for distribution under this agreement, do not propagate violence, racial or ethnic intolerance. If AudD Music or AudD Music's Licensee receive a claim on such grounds, Licensor agrees to fully indemnify and hold AudD Music or AudD Music's Licensee harmless as provided for in art. 10.
11.4. Each party represents and warrants that it has full authority to enter into and fully perform its obligations under this Agreement and has obtained all necessary third-party consents, licenses and permissions necessary to do so.
11.5. Each party represents and warrants 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.
11.6. Each party represents and warrants that it shall perform their obligations hereunder in compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.
12. General Provisions#
12.1. 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, or employee.
12.2. Neither party shall be deemed in breach of this Agreement unless the other provides a written notice to such party specifying details of the alleged breach of the Agreement and the latter fails to cure such breach within thirty (30) days from the date of delivery of the written notice, or if not able to be cured, then resolved to the other party's satisfaction (such satisfaction being not unreasonably withheld).
12.3. This Agreement contains the entire understanding of the parties relating to the subject matter hereof, and supersedes all previous agreements or arrangements between the parties relating to the subject matter hereof, provided that if Licensor has previously entered into a digital distribution agreement with AudD Music in the past, and elected any options, those options shall remain in place under the mutual arrangements in this Agreement. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of a breach of any provision of this Agreement by the other party in any instance shall not be deemed or construed as a waiver of any subsequent breach of the same provision. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect any other provisions hereof which will remain valid and enforceable. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that most closely meets the commercial intent of the parties.
12.4. This Agreement shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
12.5. 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 on the delivery date if sent by e-mail to the addresses indicated above, or, to the Licencor: in Licensor's personal account on audd.io and to AudD Music - by the Internal Mailbox Service on the same website or by personal correspondence with AudD Music's representatives.
12.6. This Agreement shall be governed and interpreted in accordance with the laws of the State of Delaware, and the international conventions to which the United States of America is a party, without regard to principles of conflict of laws. All disputes, arising from this agreement or related to it, including those arising from or concerning its interpretation, invalidity, performance or termination, as well as the disputes for filling gaps in this agreement or its adaptation to newly established facts, shall be referred for resolution to the federal and state courts in Delaware. In the event of any litigation between the parties concerning or arising out of this Agreement, the parties hereby consent to the exclusive jurisdiction of the federal and state courts in Delaware.
12.7. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
12.8. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
12.9. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
13. Certain Definitions#
The following capitalized terms shall have the following meanings for purposes of this Agreement:
13.1. 'AUTHORIZED ARTWORK' means album cover artwork and any other artwork relating to Licensor's Authorized Content (as well as any other subjects of intellectual property rights such as trade marks) that Licensor provides to AudD Music for the purposes of use under this Agreement. All such artwork shall be deemed to have been cleared by Licensor for all purposes under this Agreement unless Licensor has provided AudD Music with explicit written notice to the contrary.
13.2. 'AUTHORIZED TERRITORY' means the Universe or a limited territory, specified by Licensor at latter's registration with AudD Music at audd.io.
13.3. 'DIGITAL RIGHTS MANAGEMENT INFORMATION (DRM)' means the digital information conveying information regarding a Digital Master, such as Licensor's name, the title of the applicable album, the name of the song, the name of the artist(s)/band, the names of the authors, the name of the publisher and the record company name.
13.4. 'DIGITAL MASTER' or 'DIGITAL MASTERS' means a copy or copies of Licensor's Authorized Content in digital form.
13.5. 'LICENSEE' means any third party licensee that AudD Music may authorize to carry out the marketing, distribution and sale or other use of Licensor's Authorized Content and Authorized Artwork pursuant to the terms of this Agreement.
13.6. 'LICENSOR'S AUTHORIZED CONTENT' means sound recordings and the underlying musical compositions that Licensor has designated for digital distribution and other uses by AudD Music or AudD Music's Licensees under this Agreement. Any such sound recordings and the underlying musical compositions are owned or controlled by Licensor and/or have been cleared by Licensor for all purposes and rights granted and authorized hereunder by Licensor.
13.7. 'EFFECTIVE DATE' in this case means the date on which the Licensor has agreed with text of this agreement at reply to AudD Music's letter.