UPLOADING TERMS OF SERVICE AND CONDITIONS
Introduction
The following is a brief overview (in plain English) of the terms and conditions under which submissions to dmusic.com will be accepted. In general, by submitting musical, photographic, artistic, computer-generated and/or other materials (audio, visual, audiovisual and otherwise) to us and agreeing to the terms and conditions set forth below, you are giving us the nonexclusive right (i.e., you can grant similar rights to others at any time) to use those materials on and as part of our websites (e.g., to include your materials in our database which we make freely available over the World Wide Web) as well as the right to make certain other uses of your submitted material. Our right to so use your materials will continue until 120 days after you notify us in writing of your desire to end the agreement. After this time period ends, we will remove your materials from our websites, except that we shall continue to have the right forever to use your name and likeness on our websites solely in connection with the promotion and marketing of our business (e.g., we can refer to you as a former member of dmusic.com). We reserve the right to make changes to this agreement in the future but any changes would not apply to you unless you accept those changed terms.
Agreement
This agreement ("Agreement") is a legal agreement between you, either an individual artist or the legal authorized representative of a group artist ("Artist"), and DMUSIC NETWORK, LLC, a California limited liability company ("dmusic"), regarding uploading certain of Artist's audio, visual, audiovisual and other materials to the dmusic.com website or any successor(s) thereto and/or assigns thereof (the "dmusic Site(s)") and dmusic's use of such materials. If Artist is agreeing on behalf of a group artist to be bound by the terms of this Agreement, each reference to "Artist" in this Agreement refers to each member of the group or the group as a whole, as applicable. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Term. The term ("Term") of this Agreement shall commence on the date that the "Artist Materials" (defined below) are initially uploaded to any dmusic Site(s) and shall continue thereafter until either Artist or dmusic terminates this Agreement in writing. To the extent this Agreement is terminated by Artist, the rights granted hereunder shall terminate 120 days after dmusic's actual receipt of such notice. If this Agreement is terminated by dmusic, this Agreement will terminate upon Artist's receipt of such notice. In connection with any such termination of this Agreement, the parties agree to cooperate in providing an orderly termination of their relations.
Ownership. Artist shall at all times retain all right, title
and interest in and to the Artist Materials provided by Artist hereunder (including,
without limitation, the copyrights therein and thereto), subject to the non-exclusive
rights granted to dmusic under this Agreement. Artist is free to grant similar
rights to others during and after the Term of this Agreement.
License to Use Artist Materials. Artist hereby grants to dmusic a worldwide, royalty-free non-exclusive license to do the following things during the Term for any purpose whatsoever, including a commercial purpose: (a) to prepare and encode Artist Materials, or
any portion thereof (including sound clips) for digital transmission and the making
of digital phonorecord deliveries (i.e., downloads) in any format and by any means
now known or hereafter devised; (b) to display, copy, reproduce (and to mechanically
reproduce each musical composition included in the Artist Materials), exhibit,
publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through
any electronic means (including analog and digital), electronically publish and
synchronize with visual images any or all of the Artist Materials, including any
portion thereof, and to include them in compilations for such purposes, by any
and all means and media now known or hereafter devised (for avoidance of doubt,
the rights granted to dmusic hereunder include the rights to make the sound recordings
and musical compositions included in the Artist Materials available as digital
audio transmissions [e.g., streaming formats such as Real Audio] and as digital
phonorecord deliveries [e.g., downloadable formats such as MP3] and the rights
to make Artist Materials available on dmusic Site(s) and/or third-party websites,
whether affiliated with dmusic or not, and on hardware devices of all kinds);
(c) to modify, adapt, change or otherwise alter the Artist Materials; (d) to create
derivative works based on the Artist Materials or any part or element thereof;
and (e) the right to sublicense to any third party the Artist Materials or any
part or element thereof. Artist hereby disclaims any and all right, title, or
interest in any and all material with which Artist Materials may be combined or
into which all or any portion of Artist Materials may be incorporated. As used
in this Agreement, the term "Artist Materials" means (A) sound recordings and/or
audiovisual works of Artist's vocal and/or instrumental performances, (B) the
musical compositions (i.e., songs, lyrics) embodied in those recordings and works,
(C) Artist's name(s) (including professional names), trademarks, trade names,
likenesses, photographs, biographical materials, artwork, liner notes, and other
graphical or textual materials that Artist uploads to dmusic, and (D) any and
all "skins," computer-generated images or other artwork or images that Artist
submits to dmusic.
Name and Likeness. Artist hereby grants to dmusic (i) a worldwide,
royalty-free, non-exclusive license to use during the Term Artist's name(s), group
name, photograph and/or likeness(es) and biographical materials solely in connection
with the distribution, exploitation, promotion, marketing and advertising of the
Artist Materials and the dmusic Site(s), and (ii) a perpetual, worldwide, royalty-free,
nonexclusive license to use Artist's name(s), group name, photograph and/or likeness(es)
and biographical materials solely in connection with the promotion and marketing
of dmusic and/or the dmusic Site(s). Artist also agrees not to assert any privacy,
publicity, moral or similar rights (including, without limitation, any right of
proceeds and any European Rental and Lending Rights) held by Artist (and any other
person(s) whose performances are embodied in the Artist Materials) under the laws
of the United States and any other country in connection with the exploitation
of such materials.
Payment. Unless otherwise agreed between Artist and dmusic
in a writing signed by both parties, the license granted to dmusic pursuant to
this Agreementshall be royalty-free, i.e., Artist will not receive any monies
for dmusic's use of the Artist Materials notwithstanding any advertising and/or
other revenue dmusic may receive.
Representations and Warranties. Artist represents
and warrants that: (a) Artist has the full right and power to enter into and perform
this Agreement and to grant dmusic all rights to use the Artist Materials as contemplated
in this Agreement, (b) Artist has secured all necessary third-party consents,
rights, licenses and permissions, if any, required in order for Artist to enter
into and perform this Agreement and to grant dmusic all rights to use the Artist
Materials as contemplated in this Agreement (including, without limitation, consents
and permissions from music publishers, recording companies, performers and owners
of any samples that are used in the Artist Materials), (c) the Artist Materials
(and dmusic's use thereof as contemplated under this Agreement) do not and will
not infringe on any rights of any third party, including any trademark, copyright,
patent, trade secret, right of privacy or publicity or moral rights of any third
party, (d) all information that Artist has provided or will provide to dmusic
is true and complete, (e) the Artist Materials do not and will not violate any
law, statute, ordinance or regulation, (f) the Artist Materials do not and will
not be defamatory, trade libelous, pornographic or obscene, (g) the Artist Materials
do not and will not contain any viruses or other programming routines that may
detrimentally interfere with computer systems or data, whether those of dmusic
or any third party, and (h) if any member of Artist's group is a minor, Artist
hereby warrants that Artist has the legal right to execute this Agreement on behalf
of the minor artist and guarantee such person's performance of the terms of this
Agreement. These warranties shall survive any termination of this Agreement.
Third Party Payments. Artist shall be responsible for all licensing, reporting and payment
obligations of any kind to third parties in connection with the Artist Materials,
including, without limitation, any applicable union and/or guild payments, "sample"
or "replay" licenses or payments, and mechanical, synchronization or public performance
royalties.
Indemnity. Artist agrees to indemnify, reimburse and hold dmusic and
its members, officers, directors, representatives, employees, agents, successors,
designees, licensees, sublicensees and assigns harmless from and against any and
all liability, loss, damages, judgments, costs and expenses (including reasonable
attorney's fees, costs and expenses and court costs) arising out of or related
to (a) Artist's use of the dmusic Site(s); (b) any breach or alleged breach of
Artist's representations and warranties and/or any breach, alleged breach or violation
of the notices, terms and conditions hereof; and (c) Artist's violation or alleged
or threatened violation of any rights of a third party.
DISCLAIMER
DMusic's Performance. Artist acknowledges and agrees that
the operation of the dmusic Site(s) may from time to time encounter technical
or other problems and may not necessarily continue uninterrupted or without
technical or other errors and dmusic shall not be responsible to Artist or others
for any such interruptions, errors or problems or an outright discontinuance
of the dmusic service. There are no assurances whatsoever that any of the Artist
Materials or any part or element thereof shall actually be utilized on the dmusic
Site or if so utilized continue to be available for any particular time. dmusic
has the right, in dmusic's sole and absolute discretion, to remove from the
dmusic Site(s) at any time the Artist Materials or any part thereof and/or to
revoke any sublicense granted by dmusic to any affiliate or unaffiliated third
party. The dmusic Site may be discontinued at any time, with or without reason.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DMUSIC
DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO (1) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE DMUSIC SITE, AND (2)
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT WITH RESPECT TO THE DMUSIC SITE AND ANY SERVICES PROVIDED BY
DMUSIC HEREUNDER. IN ADDITION, ALTHOUGH DMUSIC INTENDS TO TAKE REASONABLE STEPS
TO PREVENT THE INTRODUCTION OF VIRSUES OR OTHER DESTRUCTIVE MATERIALS TO THE
DMUSIC SITE(S), AND WHETHER OR NOT DMUSIC IMPLEMENTS THE AFOREMENTIONED REASONABLE
PROTECTIONS, DMUSIC DOES NOT WARRANT THAT THE DMUSIC SITE(S), ANY PART THEREOF,
OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE DMUSIC SITE(S) IS
FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS. No Liability
for Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT (INCLUDING NEGLIGENCE) SHALL DMUSIC, ITS OFFICERS, DIRECTORS, MEMBERS,
PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES,
EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY
OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF (A) THE
USE OR INABILITY TO USE THE DMUSIC SITE(S), (B) THE RELIANCE ON ANY CONTENT
ON OR ACCESSED THORUGH THE DMUSIC SITE(S), AND/OR (C) ANY GOODS OR SERVICES
ADVERTISED ON THE DMUSIC SITE(S) OR ACCESSED THORUGH THE DMUSIC SITE(S), EVEN
IF DMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Copyright and Trademark Notices. dmusic, Dimension Music, DMusic Network, the dmusic logos,
and the layout and design of the dmusic Site(s), among other marks that may
appear on the dmusic Site(s) are trademarks of DMUSIC NETWORK, LLC (the "dmusic
Marks"). Other trademarks and service marks on the dmusic Site(s) may be the
property of the advertisers, content partners and/or providers, or other third
parties. You may not use any of the dmusic Marks without dmusic's prior written
permission.
MISCELLANEOUS
Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED
IN ALL RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS
OR ANY OTHER JURSUDCICTION'S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND
JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT SHALL BE THE APPROPRIATE
STATE OR FEDERAL COURT LOCATED IN LOS ANGELES, CALIFORNIA, AND YOU AND DMUSIC
BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. Assignment.
dmusic shall have the right to assign this Agreement in whole or in part to
any person or business entity. Notice. All notices, requests and other communications
("Communications") under this Agreement must be in writing and sent to the address
set forth below for each party. Communications shall be deemed received: (i)
for Communications sent by registered or certified mail, postage prepaid, return
receipt requested or by Federal Express or other reputable overnight courier
service, on the date of receipt or refusal as indicated on the return receipt;
(ii) for Communications sent by personal delivery, on the date of personal delivery;
and (iii) for Communications sent by facsimile, upon transmission subject to
telephone confirmation of receipt. No other form of notice shall be accepted
under this Agreement.
Entire Agreement. This Agreement sets forth the entire understanding
and agreement of Artist and dmusic as to the subject matter hereof and supersedes
all prior proposals, discussions or agreements (oral and written) with respect
to such subject matter. Modification. This Agreement may be changed only by
a writing signed by both parties which specifically refers to the parties' intent
to amend this Agreement.
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