MUSIC GLUE RIGHTS OWNER AGREEMENT
This Agreement sets out the terms and conditions upon which you agree to make available Content for us to exploit and the terms and conditions upon which we can exploit such Content. In this Agreement “you” and “your” are you, the exclusive owner or controller of the Content and “we”, “us” and “our” are Music Glue Limited.
GENERAL CONDITIONS
1. You are deemed to be legally bound by the provisions of this Agreement with effect from the date of Registration. We are deemed to be legally bound by the provisions of this Agreement with effect from the date we notify you of activation of your Account.
2. You must follow the registration process on the Website to Register with us. This process includes (without limitation) the submission of your:
2.1 Email Address and password which, if verified by us, will be the username and password respectively you will be required to submit each time for Access for any reason including (without limitation) to upload Content, see notices and Royalty statements; and
2.2 paypal account details;
After Registration we shall effect Completion which we shall use reasonable commercial endeavours to effect within 2 (two) working days after the date on which you are Registered. We shall notify you when Completion has occurred.
3. You grant and licence to us on a non-exclusive basis all Digital Rights during the Exploitation Period throughout the Territory and the right to collect one hundred percent (100%) of income arising from the exploitation of the Digital Rights. Notwithstanding the foregoing we shall not be obliged to exploit any Content unless and until commencement of the Exploitation Period.
4. You shall be responsible for and bear the cost and expense of all marketing, advertising and promotion of the Content. We shall sell Downloads at the Retail Price throughout the Territory during the Exploitation Period.
5. We will not set up your Account unless and until you have Registered. You shall not have Access and will not be able to upload Content onto the Server until Completion. Notwithstanding the foregoing we reserve the right to refuse to set up an Account for any person, firm, corporation or other entity and/or proceed to Completion for the same for any reason in our absolute discretion.
6. We may store, use and distribute data relating to you and the Content or any part of it for the purposes set out in our privacy policy (from time to time).
7. You shall notify us at the time of (and as part of the procedure for) uploading any Content after Completion (on a Content by Content basis) whether the terms set out in the Schedule apply to that Content. If you do not want those terms to apply in relation to such Content then you shall notify us of the terms you wish to apply to it. We shall notify you if we can agree to any or all of the amended terms proposed by you in that notice. We shall also notify you within five (5) working days of service of your notice if we cannot agree to any or all of the amended terms proposed by you in it whereupon you shall amend such proposed terms and notify us of them as amended so that we can check whether or not we are now able to agree to them. This procedure shall continue to apply until we have notified you we can agree to any amendments to the amended terms proposed by you. In the event we do not notify you as set out above we shall be deemed to have agreed any amended (or, if applicable reamended) terms proposed by you seven (7) working days after service of the same. If agreement cannot be reached in relation to the proposed amended terms then your sole remedy shall be to remove the Content in respect of which such proposed amended terms were intended to apply from the Server.
8. We shall use all reasonable commercial endeavours to ensure that Users can download Downloads throughout the Territory (as applicable) during the Exploitation Period (as applicable). You acknowledge and agree that the Server and the Website and links to the Server and the Website are susceptible to crashes and downtime. We shall maintain a consistent link with the internet but we cannot and do not warrant that we shall maintain a continuous and uninterrupted link. We shall use reasonable commercial endeavours to ensure that the Website and the Server are available at all times. Notwithstanding the foregoing we may, in our sole discretion, temporarily suspend operation of the Website and/or Server for the purpose of repair, maintenance and improvement of any of our systems and the operators of the Server shall be entitled, in their sole discretion, to temporarily suspend operation of the Server for any purpose. We will, if we are able and it is reasonably practicable in the circumstances, notify you in advance of any such suspension and we shall restore or procure the restoration of operations as soon as we are able to so in our discretion. You shall not be entitled to any compensation in the event the Website and/or Server is not operating for any reason and, provided General Condition 20 does not apply, you shall be entitled to terminate the Exploitation Period for the Content or any part of it by notice and the Exploitation Period for the Content set out in such notice shall end on the removal by you or us of the same. This shall be your sole remedy in the event the circumstances set out in this General Condition occur. We shall make back-ups of all Content hosted on the Server as at the relevant time and shall procure that all such Content lost during any period in which the Server does not operate is restored to the Server within a reasonable time of the same becoming operational again.
9. In consideration of the rights granted by you in this Agreement we shall pay to you as totally inclusive remuneration for the rights granted by you in this Agreement the Royalty in the Currency. Expenses incurred by us in relation to any Content shall be fully cross collateralised with Gross Income whenever and wherever such Gross Income is received by us and in respect of whichever Content such Gross Income relates so that you shall not be entitled to receive any Royalties until such time as any and all Expenses incurred by us have been recovered by us from Gross Income.
10. We shall compute monies your Royalty on a quarterly basis and will render a statement to your Account within thirty (30) days of each calendar quarter. We shall pay to your verified paypal account such Royalty less any taxes, unrecovered Expenses, withholdings, offsets and/or other deductions within fourteen (14) days of receipt of your invoice for the same (created by clicking on the appropriate link in your Account) save and except that we shall not be obliged to render any such statement where accrued Royalties for the relevant quarterly period total less than twenty pounds (£20). We shall not be obliged to make any payments to you to any account other than your verified paypal account.
11. Within one (1) year only after any statement is due to you under this Agreement but not more than once in respect of any statement rendered by us and not more than once per calendar year you may at your expense appoint a chartered or certified accountant to examine our books and records in relation to Commercial Exploitation provided always that such accountant is not then engaged in an outstanding examination of our books and records on behalf a person other than you and that you and they undertake (in a form acceptable to us) not to disclose the results of any such examination. Such examination shall commence on the giving of reasonable prior written notice and within two (2) months of the date of such notice at the place we maintain our books and records during normal business hours and shall be completed expeditiously. In the event your accountant considers a claim may be made then they shall review their tentative findings with us before they render a report to you to remedy any factual errors and clarify any issues that may have resulted from misunderstandings. You shall procure that the accountant delivers a copy of their final report to us at the same time as a copy is made available to you. In the event any examination reveals an agreed underpayment of Royalties then the amount of the agreed underpayment shall be credited to your Royalty account. No objections can be made by you regarding any statement unless specific objection is given to such statement in writing to us within one (1) year of its date (which statement shall be deemed final and binding at the end of such one (1) year period) and you shall be precluded from maintaining any claim, action or proceedings against us in any forum or tribunal in relation to any statement rendered to you unless the same is commenced within one (1) year after the date of the relevant accounting.
12. We shall be entitled to deduct from any payment due to you any sum which we are obliged to deduct by reason of any law or statute or other decree in any part of the world (including without limitation withholding taxes). All payments in this Agreement are exclusive of VAT. VAT (if any) shall be paid by us only after receipt from you of a valid VAT invoice.
13. You hereby warrant, represent and undertake:
13.1 you are free to enter into and perform this Agreement and you have the full right and authority to grant the rights set out in this Agreement free from all liens, claims and encumbrances and grant to us all waivers of moral rights consents and consents which are necessary pursuant to the Act and under any other code or statute and any future legislation passed to protect performers whose performances are embodied on, and originators of, content to enable us to exploit the Content throughout the world without reference or payment to you and any third party save and except as set out in this Agreement;
13.2 you have not and will not grant to any other person, firm, corporation or entity during the Exploitation Period for the relevant Content any right which conflicts with the rights granted to us in this Agreement;
13.3 to notify at the time of uploading any Content onto the Server of any restrictions and/or limitations to the rights granted to us in this Agreement in respect of such Content not set out in the Schedule. The exploitation of Content in respect of which we have not received such a notice shall not be subject to any restrictions and/or limitations to the grant of rights in this Agreement and the General Conditions and the Schedule shall apply to the same with effect from the date such uploading occurs and we shall have no liability to you or to any third party whatsoever in relation to the subsequent distribution or dissemination of such Content by Users. Each User shall be entitled to use, reproduce and distribute or disseminate in each Download in any manner whatsoever now known or hereafter invented or discovered and without, save and except as set out in the Schedule or as otherwise agreed by us as set out in this Agreement, limitation and, save and except for (if applicable) the Retail Price, free of charge;
13.4 we shall be entitled to use the names, likenesses, photographs and biographies provided by you, any other Content (or part of it) and your trade and service names and marks and the like in all media in connection with the exploitation of the Content and institutional advertising;
13.5 you shall upload the Contents free and clear of all recording, synchronisation, mechanical and/or distribution payments, royalties, guild or union, residual, repeat or other fees, levies and payments whatever including (without limitation) mechanical royalties as are applicable and all of such payments, royalties, fees, levies and other payments shall be paid by you and in accordance with the rules and regulations of the relevant mechanical copyright collection society and shall always be your sole responsibility and you shall ensure that we do not incur any liability of whatever nature for the exploitation of the Content pursuant to this Agreement;
13.6 none of the Content is or will be defamatory and/or obscene and/or blasphemous and/or unlawful and the exercise by us of the rights granted in this Agreement shall not violate or infringe upon any common law, statute or other right whatsoever (including, without limitation, any right of privacy, personality, copyright, trade mark or other proprietary right);
13.7 all information provided by you or on your behalf with respect to the Content (on a Content by Content basis) shall be true, accurate and complete and you shall provide all such information to us not later than the uploading of the Content to which such information relates onto the Server;
13.8 no Content shall contain any viruses, worms, trojan horses, bugs or any other computer code designed to:
13.8.1 disrupt, disable, harm, or otherwise impede in any manner the operation of a computer program or computer system; or
13.8.2 damage or destroy any data files residing on a computer system without the owner of such system’s consent;
13.9 we are not liable for any damage to, or viruses that may infect, your computer equipment or any other of your property when using the Website and/or Server. Such use is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system or any loss of data that results from such use;
13.10 we do not grant to you any right to use any and all intellectual property rights (including any patent, copyright, database rights, registered design, trademark, trade name, logos, service marks, know-how or industrial or intellectual property right subsisting anywhere in the world and any applications to protect any of the above) owned or controlled by and goodwill in and relating to us and our business, the Website and the content, material or information provided through the Website other than Content uploaded by you) and nothing in this Agreement shall be construed so as to transfer or license any such rights to you;
13.11 you shall keep your password secret. Any person logging onto the Website using your password shall be deemed to be you or a person using the same with your permission. You shall be responsible and liable for all actions of any person on to the Website using your password;
13.12 you (or any of you) are not a minor;
13.13 where there is more than one (1) of you your obligations, agreements, warranties, representations and undertakings in this Agreement are joint and several;
13.14 you will at our request give such further assurance and execute such further or other deeds or documents as are required by us to give effect to the terms of this Agreement;
13.15 you shall not provide to Users or any other third party links to the Website in respect of:
13.15.1 content not uploaded by you onto the Server; and
13.15.2 Content removed from the Server;
13.16 you hereby warrant, represent and undertake to fully indemnify us and keep us indemnified in respect of all claims, losses, damages and expenses (including legal fees on an indemnity basis and VAT payable thereon) that may arise out of or be connected with any breach or alleged breach by you of any of your warranties, undertakings, representations, confirmations, obligations and/or agreements set out in this Agreement and/or against any claim brought against us by any third party in connection with the Content. Pending the determination of such breach we may withhold payment of monies payable to you We shall be entitled to settle any such claims with your notified approval (not to be unreasonably withheld or delayed).
14. You acknowledge that we do not actively monitor the Content but if we consider that the exploitation of the Content breaches any of your warranties, representations, undertakings, agreements and/or obligations in this Agreement, violates any statute or regulation, may subject us to civil or criminal liability, may infringe the rights of any third party (including, without limitation, copyright, trade mark (whether registered or unregistered), moral right, performer's right), may be obscene, blasphemous, otherwise offensive and/or defamatory or may cause any unrest or disruption then without prejudice to any other rights which we may have under this Agreement we may at any time and without prior notice to you:
14.1 remove the relevant Content from the Server; and/or
14.2 suspend the Exploitation Period for such Content; and/or
14.3 suspend and/or terminate your Account; and/or
14.4 take any other steps in our discretion to limit or reduce any potential claim against us or any third party and you shall reimburse us for all costs and expenses incurred by us in relation to the same.
15. We shall be entitled to amend the General Conditions at any time provided that such amendment shall not take effect until five (5) working days after we notify you of such amendment. If you do not agree to such amendment in relation to the Content or any part of it then your sole remedy shall be to remove the Content to which you do not want such amendment to apply from the Server. You shall be deemed to have agreed to the amendment in relation to any Content remaining on the Server after the expiry of the five (5) working day period set out above.
16. If you wish to amend the Territory and/or the Exploitation Period and/or the Retail Price and/or the Release Date and/or the Currency and/or the Limitations you shall notify us by completing the relevant section in the Account. We shall notify you if we agree to such amendment (agreement not to be unreasonably withheld) and such amendment shall take effect not more than thirty (30) working days after service of our notice of approval.
17. In the event:
17.1 either you or we are in default of any of the material provisions of this Agreement and the defaulter fails to cure such default within forty five (45) days of service of a notice by the other specifying the nature of such default; or
17.2 either you or we enter into compulsory or voluntary liquidation (other than for the purpose of reconstruction or amalgamation); or
17.3 any insolvency proceedings are instituted against either you or us and are not dismissed within sixty (60) days after institution; or
17.4 a receiver or trustee in bankruptcy is appointed over all or a substantial part of either your or our assets and/or shares and is not removed with sixty (60) days of such appointment; or
17.5 either you or we are dissolved or struck off the Register of Companies or the equivalent the other party shall be entitled to terminate the Exploitation Period with immediate effect for all Content by notice in writing and remove the same from the Server without prejudice to any other rights or claims which the non-defaulting party may have hereunder or otherwise.
18. Nothing contained in this Agreement shall constitute a partnership or joint venture between you (or any of you) and us.
19. Any failure or delay by us to enforce any of our rights under this Agreement is not to be taken as or deemed to be a waiver of that or any other right in the relevant or any other instance.
20. This Agreement is not intended to be for the benefit of and shall not be exercisable by any person under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
21. If any clause or part of a clause of this Agreement is, or becomes, invalid, illegal or unenforceable, then that clause or part of a clause shall be deemed to be deleted from this Agreement. Any such deemed deletion shall not affect the validity, legality or enforceability of the remainder of this Agreement.
22. We shall serve all notices and other documentation on you by posting such notices on your Account and emailing them to your Email Address which notices shall be deemed sufficiently served by doing so. The date of service shall be the date on which such notice was sent to your Email Address. You shall serve notices on us by completing the relevant section(s) of the Account. The date of service of such notices shall be deemed to be the date on which we notify you of receipt of your notice (which notice we shall use best commercial endeavours to serve within 2 (two) working days of you completing the relevant section(s) of the Account.
23. If our material performance hereunder is substantially delayed or becomes impossible or impracticable because or by reason of any act of God fire earthquake strike civil commotion acts of Government or any order ruling or action of any labour union or association of performers then we may suspend our obligations under this Agreement for the duration of such delay impossibility or impracticability. A number of days equal to the number of days of suspension shall be added to the relevant Exploitation Period.
24. This Agreement constitutes the entire agreement between you and us and excludes any prior representations made by either you or us to the other except as expressly stated in this Agreement.
25. This Agreement shall be governed by the laws of England and Wales and the High Court in London shall have exclusive jurisdiction in relation all disputes connected to it.
26. Capitalised words and phrases have the meanings set out below:
| Access | The access of the Account. |
| Account | Your account with us accessible from the Website. |
| Act | The Copyright Designs and Patents Act 1988 (as amended, modified, re-enacted, consolidated or replaced and any subordinate legislation thereunder before or after the date of this Agreement) |
| Agreement | The General Conditions and the Schedule together with any amendments to the Schedule agreed by us in accordance with General Condition 7 (if any) |
| Commercial Exploitation | The sale (and not, for the avoidance of doubt, the making available, transmission, delivery, dissemination or other distribution for promotional purposes) of Downloads by us directly to a User in the Territory. |
| Completion | Registration and the completion by us of all other procedures required in order to grant Access. |
| Content | All Recordings, photographs, biographies, names, likenesses, artwork, lyrics, sleeve notes, other pictures (whether still or animated) and any other graphics, text, data and/or files uploaded by you onto the Server. |
| Currency | The Currency set out in the Schedule. |
| Device | Any local storage device or platform capable of reproducing content downloaded to it now known or hereafter invented or discovered including (without limitation) the hard drive of a computer and any portable device. |
| Digital Rights | The right to use and exploit Content or any part of it by way of downloads and all other rights required by us to exercise such right including (without limitation) the right to:
1. make, encode, encrypt, transcode, store and manage digital copies of Content in any form now known or hereafter invented or discovered (including without limitation MP3 files, AAC files and WMA files) and to make all modifications and edits to the Content as we require or may otherwise result from us doing so; and
2. host, reproduce, promote, advertise, make available, transmit, disseminate, deliver or otherwise distribute and/or sell Downloads to Users;
3. and the right to permit Users to reproduce, make available, transmit, disseminate, deliver or otherwise distribute Downloads or any part of the same to third parties. |
| Downloads | The making available, transmission, delivery, dissemination or other distribution of Content (or any part of it) over a communication medium by any wire or wireless means now known or hereafter invented or discovered to third parties from the Server and/or Website for playback on any Device in such a way that such Content may be accessed from such Device from a time and place individually chosen by the third party and without regard as to whether such Content is performed audibly during such distribution and on the relevant third party’s Device. |
| Email Address | The URL provided by you as your username in order to Register or such other URL as you shall notify to us thereafter. |
| Expenses | Any and all costs, fees, expenses, monies and other liabilities incurred by us in connection with this Agreement and the exploitation of the Content including (without limitation):
(1) all costs, fees and expenses incurred by us in connection with the encoding, encryption, transcoding, storing and management of the Content;
(2) all fulfilment and handling and other micro payment costs, fees and charges, payments to agents, billing and operator costs;
(3) all currency exchange costs;
(4) all VAT and other taxes;
(5) all collection and enforcement costs. |
| Exploitation Period | The exploitation period set out in the Schedule |
| General Conditions | The General Conditions set out in this Agreement (as amended from time to time) and accessible from the Website. |
| Gross Income | The monies calculated upon the basis of Retail Price and actually received by us in the United Kingdom arising in the Territory and solely, directly and identifiably attributable to Commercial Exploitation. |
| Limitations | The limitations set out in the Schedule. |
| Net Receipts | The balance of Gross Income after first deducting all Expenses. |
| Recordings | The audio and audio visual recordings uploaded by you to the Server. |
| Register/ Registering/ Registration | The provision by you of the information required by us to create your Account. Registration shall be completed on notification by us of the link to your Account. |
| Release Date | The Release Date set out in the Schedule for the relevant Content. |
| Retail Price | The price at which Downloads are sold by us directly to a User as set out in the Schedule. |
| Royalty | The royalty set out in the Schedule |
| Schedule | The schedule attached [check] to this Agreement |
| Server | The server(s) used by us from time to time. We shall be entitled to change such server(s) at any time in our discretion without notice. |
| Territory | The territory set out in the Schedule. |
| User | A third party who receives a Download(s). |
| VAT | Value added tax or any similar sales tax in any part of the world. |
| Website | www.musicglue.com or such other website notified to you. |