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Artist / Record Label Digital Delivery Agreement
This Agreement describes the legal relationship between you (an individual,
representing yourself, or if applicable, acting as legal representative
for a band, group, company or corporation) and AirPlay Direct, LLC. AirPlay
Direct (collectively with our licensees and assignees referred to in this
Agreement as "AIRPLAY DIRECT") the owner and operator of the
web pages at 72.32.210.44 (the "AIRPLAY DIRECT Site").
AirPlay Direct, LLC, is a Georgia Limited Liability Corporation with offices
at 2721 Vinings Oak Dr., Smyrna, GA 30080. You will be referred to as
"RIGHTS HOLDER." Please read this document carefully. By clicking
on the "I AGREE" button, you will become a party to, and will
be bound by this Agreement. If you do not agree with any of the terms
and conditions of this Agreement, click on the "NO THANKS" button.
We may modify this Agreement from time to time as further described in
Section 8 below. The "Effective Date" of this Agreement is the
date on which RIGHTS HOLDER clicks the "I AGREE" button.
1. Definitions.
The following terms shall have the following meanings for purposes of
this Agreement:
a. "Digital Master" or "Digital Masters"
means copies of RIGHTS HOLDER Content in digital form, which AIRPLAY
DIRECT may deliver digital download, streams or burns, as individual
tracks or as a whole album, pursuant to the terms and conditions of
this Agreement.
b. "Term" means the period beginning on
the Effective Date of this Agreement and ending one year from the Effective
Date. RIGHTS HOLDER may terminate this Agreement at any time by providing
AIRPLAY DIRECT with thirty (30) days' written notice of RIGHTS HOLDER's
intention to terminate.
c. "Territory" means the Universe.
1. "RIGHTS HOLDER Content" means sound
recordings and underlying musical compositions that RIGHTS HOLDER has
made available to AirPlay Direct either before or during the Term for
digital delivery on the AirPlay Direct Site that Artist has designated
for digital delivery in accordance with this Agreement. Any sound recordings
and the underlying musical compositions that are provided by or on behalf
of RIGHTS HOLDER to AIRPLAY DIRECT must be owned or controlled by RIGHTS
HOLDER and/or have been cleared by RIGHTS HOLDER.
2. "AirPlay Direct Site" means the retail
website owned by AIRPLAY DIRECT at 72.32.210.44 where RIGHTS
HOLDER has registered to digitally deliver music through AIRPLAY DIRECT
according to the terms thereon. By agreeing to this Agreement, any sound
recordings made available on the AirPlay Direct Site that Artist designates
will be made available for digital delivery by AIRPLAY DIRECT according
to the terms of this Agreement.
3. "Artwork" means album cover artwork
and any other artwork relating to RIGHTS HOLDER Content that RIGHTS
HOLDER provides to AIRPLAY DIRECT. Any artwork that is provided by or
on behalf of RIGHTS HOLDER to AIRPLAY DIRECT before or during the Term
will be deemed to have been cleared by RIGHTS HOLDER unless RIGHTS HOLDER
promptly notifies AIRPLAY DIRECT in writing to the contrary.
2. Authorization.
Subject to the terms of this Agreement, RIGHTS HOLDER hereby appoints
AIRPLAY DIRECT as an authorized representative for the digital delivery
of Digital Masters. Accordingly, RIGHTS HOLDER hereby grants the right
to AIRPLAY DIRECT, during the Term, to:
1. convert RIGHTS HOLDER Content delivered by RIGHTS
HOLDER into broadcast quality Digital Masters;
2. perform and make thirty (30) second clips of the
RIGHTS HOLDER Content available by streaming ("Clips") to
promote the delivery of applicable Digital Masters;
3. promote, electronically fulfill and deliver Digital
Masters, as individual tracks or entire albums, and associated metadata
to Broadcasters who may use such Digital Masters in accordance with
usage rules similar to those set forth by the music services.
4. display and electronically fulfill and deliver
Artwork to Broadcasters for use solely in conjunction with the applicable
delivered Digital Master;
5. use RIGHTS HOLDER Content, Artwork and metadata
as may be reasonably necessary or desirable for AIRPLAY DIRECT to exercise
AIRPLAY DIRECT's rights under the terms of this Agreement; and
3. RIGHTS HOLDER Obligations.
RIGHTS HOLDER shall obtain and pay for any necessary clearances and licenses
in the Territory for all RIGHTS HOLDER Content and Artwork. Specifically,
RIGHTS HOLDER shall be responsible for and timely pay (i) any royalties
and other income due to artists, authors, co-authors, copyright owners,
co-copyright owners, producers and other record royalty participants from
sales or other uses of Digital Masters, (ii) all mechanical royalties
payable to publishers and/or authors or co-authors of copyrighted musical
compositions embodied in Digital Masters from sales or other uses of Digital
Masters, (iii) all payments that may be required under collective bargaining
agreements applicable to RIGHTS HOLDER or third parties other than AIRPLAY
DIRECT, and (iv) any other royalties, fees and/or sums payable with respect
to the RIGHTS HOLDER Content, Artwork, metadata and other materials provided
by RIGHTS HOLDER to AIRPLAY DIRECT.
If there is a change of circumstance during the Term as a result of which
RIGHTS HOLDER reasonably believes that it does not have, or no longer
has, the rights necessary to authorize AIRPLAY DIRECT and any Broadcasters
to use any RIGHTS HOLDER Content or Artwork as provided for herein, or
RIGHTS HOLDER reasonably believes that AIRPLAY DIRECT's or its Broadcasters
continued use of any RIGHTS HOLDER Content or Artwork will substantially
harm RIGHTS HOLDER's relations, or violates the terms of any of RIGHTS
HOLDER's agreements, with any applicable copyright owner, artist, producer
or distributor, then RIGHTS HOLDER shall have the right to withdraw, upon
written notice to AIRPLAY DIRECT, authorization for the broadcast or other
use of such RIGHTS HOLDER Content or Artwork. Following such withdrawal,
AIRPLAY DIRECT shall cease to offer such RIGHTS HOLDER Content or Artwork
for broadcast or other use or cause such cessation as soon as is commercially
feasible after AIRPLAY DIRECT's receipt of such notice of withdrawal,
and RIGHTS HOLDER shall use commercially reasonable efforts to clear such
withdrawn RIGHTS HOLDER Content or Artwork and shall promptly notify AIRPLAY
DIRECT if and when such RIGHTS HOLDER Content has been cleared and is
again authorized for use or broadcast by AIRPLAY DIRECT and its Broadcasters.
4. Parental Advisory.
If RIGHTS HOLDER provides a parental advisory warning about a
particular sound recording in the RIGHTS HOLDER Content, AIRPLAY DIRECT
shall use or forward such parental advisory information to Broadcasters.
RIGHTS HOLDER shall be responsible for determining parental advisory warning
status.
5. Names and Likenesses; Promotional Use and
Opportunities.
AIRPLAY DIRECT may use and authorize its Broadcasters to use the names
and likenesses of, and biographical material concerning, any Digital Master,
artists, bands, producers and/or songwriters, as well as track and/or
album name, and Artwork, in any marketing materials for the promotion
and advertising of the applicable Digital Master which is offered for
broadcast 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 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 authorized exploitation of applicable Digital
Masters).
AIRPLAY DIRECT and any of its Broadcasters shall have
the unrestricted right to market, promote and advertise the Digital Masters
available for broadcast as it determines in its discretion. Without limiting
the foregoing, AIRPLAY DIRECT and any of its broadcasters shall have the
right to determine which sound recordings, irrespective of any particular
artist, record company or label affiliation, would best further their
commercial purposes, and to promote such sound recordings more than others.
6. Ownership.
As between the Parties, all right, title and interest in and to
(i) the RIGHTS HOLDER Content, (ii) the Digital Masters, (iii) the Clips,
(iv) all copyrights and equivalent rights embodied therein, and (v) all
materials furnished by RIGHTS HOLDER, except as to any rights of AIRPLAY
DIRECT (whether pre-existing or under this Agreement), shall remain the
property of RIGHTS HOLDER, it being understood that under no circumstances
shall AIRPLAY DIRECT have any lesser rights than it would have as a member
of the public.
7. Modification, Termination and Effect of
Termination.
AIRPLAY DIRECT reserves the right, in its 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 by email 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.
Either party shall have the right to terminate this
Agreement prior to the expiration of the Term in the event that the other
party breaches any material representation, obligation or covenant contained
herein, unless such breach is cured prospectively, no later than thirty
(30) days from the date of receipt of written notice of such breach, or
if not able to be so cured, then resolved to the other party's satisfaction,
not to be unreasonably withheld.
Sections 1, 3, 7, 8, 9, 10 and 11 shall remain in full
force and effect following the expiration or earlier termination of this
Agreement. The expiration or earlier termination of this Agreement shall
not relieve RIGHTS HOLDER or AIRPLAY DIRECT of their respective obligations
to make any payments with respect to the sale or other use of Digital
Masters in the periods prior to such expiration or termination (and the
associated accounting) in accordance with this Agreement.
8. Indemnification and Limitation of Liability.
1. RIGHTS HOLDER will indemnify and hold harmless, and upon AIRPLAY DIRECT's
request, defend, AIRPLAY DIRECT and its Broadcasters and affiliates (and
their respective directors, officers and employees) from and against any
and all losses, liabilities, damages, costs or expenses (including reasonable
attorneys' fees and costs) arising out of a claim by a third party by
reason of: (i) a breach of any warranty, representation, covenant or obligation
of RIGHTS HOLDER under this Agreement; or (ii) any claim that any Digital
Master, sound recording or RIGHTS HOLDER Content, Artwork, metadata or
any other materials provided or authorized by or on behalf of RIGHTS HOLDER
hereunder or AIRPLAY DIRECT's or its Broadcasters use thereof violates
or infringes the rights of another party. RIGHTS HOLDER will reimburse
AIRPLAY DIRECT and its Broadcasters and affiliates on demand for any actual
payments made in resolution of any liability or claim that is subject
to indemnification under this Section 9, provided that AIRPLAY DIRECT
obtains RIGHTS HOLDER's written consent prior to making such payments,
such consent not to be unreasonably withheld, delayed or conditioned.
AIRPLAY DIRECT shall promptly notify RIGHTS HOLDER of any such claim,
and RIGHTS HOLDER may assume control of the defense of such claim. AIRPLAY
DIRECT shall have the right, at its expense, to participate in the defense
thereof under RIGHTS HOLDER's direction.
EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION,
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS
OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.
9. Additional Representations and Warranties
of the Parties.
1. RIGHTS HOLDER represents and warrants that it has the full authority
to act on behalf of any and all owners of any right, title and interest
in and to the RIGHTS HOLDER Content.
Each party represents and warrants that it has full
authority to enter into this Agreement and to fully perform its obligations
hereunder and has obtained all necessary third-party consents, licenses
and permissions necessary to enter into and fully perform its obligations
herein.
Each party represents and warrants that it owns or
controls the necessary rights in order to make the grant of rights, licenses
and permissions herein, and that the exercise of such rights, licenses
and permissions by the other party hereto shall not violate or infringe
the rights of any third party.
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.
Each party represents and warrants that it shall perform
in compliance with any applicable laws, rules and regulations of any governmental
authority.
10. General Provisions.
No Agency or Joint Venture. 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.
Entire Agreement, Modification, Waiver. This
Agreement, including any annexes, schedules and exhibits hereto, 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. This Agreement cannot
be changed or modified except by a writing signed by the parties. A waiver
by either party of any term or condition of this Agreement in any instance
shall not be deemed or construed as a waiver of such term or condition
for the future, or of any subsequent breach thereof. If any provision
of this Agreement is determined by a court of competent jurisdiction to
be unenforceable, such determination shall not affect any other provision
hereof, and the unenforceable provision shall be replaced by an enforceable
provision that most closely meets the commercial intent of the parties.
Binding on Successors. This Agreement shall
be binding on the assigns, heirs, executors, personal representatives,
administrators, and successors (whether through merger, operation of law,
or otherwise) of the parties.
Notices. 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:
(i) on the delivery date if sent by electronic mail to the addresses provided
to and by RIGHTS HOLDER upon registration with the AirPlay Direct Site,
or as properly updated.
Governing Law. This Agreement shall be governed
and interpreted in accordance with the internal laws of the State of Georgia
applicable to agreements entered into and wholly to be performed therein,
without regard to principles of conflict of laws.
Remedies. To the extent permitted by applicable
law, the rights and remedies of the parties provided under this Agreement
are cumulative and in addition to any other rights and remedies of the
parties at law or equity.
Headings. The titles used in this Agreement
are for convenience only and are not to be considered in construing or
interpreting the Agreement.
No Third-Party Beneficiaries. 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.
Force Majeure. For the purposes of this Agreement,
"Force Majeure" shall mean any event which a party hereto could
not foresee, such as fire, flood, acts of God or public enemy, Internet
failures, earthquakes, governmental or court order, national emergency,
strikes or labor disputes, the effect of which it could not reasonably
prevent or predict and which renders impossible or impractical the performance
of contractual obligations either totally or in part. The party invoking
a Force Majeure shall notify the other party within three (3) business
days of its occurrence by accurately describing all the circumstances
of the situation involved and its effect upon the performance of its contractual
obligations. The taking place of a Force Majeure shall have the effect
of suspending the obligations of the party which has invoked the provisions
of this Section to the extent such obligations are affected by the Force
Majeure. Contractual dates shall be extended for a period equal to the
duration of a Force Majeure. The cessation of a Force Majeure shall be
communicated by notice within three (3) business days of its occurrence
by the party that invoked it.
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