Merchant DOWNLOADS/CD Content Agreement
This agreement contains the terms and conditions that apply to your participation in the RadioIcons.com Merchant DOWNLOADS/CD Content ("Your Content"). As used in this agreement, "we" and “us” and “our” and "RadioIcons.com" mean Radio Icons, Inc., and its affiliates, licensees and assignees, and "you" means: Artist. "Album" means any individual Compact Disc (CD) that you would like to include to Your Content, "CD" means each Compact disc of a particular Album that you deliver to us in connection with Your Content. DOWNLOADS means any digital content, partially or totally can be referred as “Your Content.” The CD part of this agreement is currently limited to CDs shipped to and from our U.S. fulfillment centers.
AUTHORIZATION
You hereby appoint us as your authorized representative for the sale and other distribution of “Your Content” (as defined below). Accordingly, you hereby grant to us and our “Licensees” (as defined below) the non-exclusive right, during the Term (as defined below) and throughout the “Authorized Territory” (as defined below), to:
(a) Reproduce and create derivative works of Your Content (including any Physical Product) by converting Your Content into Digital Masters, including less than full-length versions of sound recordings (“Clips”) that can be used for promotional purposes as authorized herein and, if necessary, reproducing Your Content in new Physical Product;
(b) Publicly perform, publicly display, communicate to the public, and otherwise make available Your Content, and portions thereof as embodied in Clips, by means of digital audio transmissions (on an interactive or non-interactive basis) through the Website, a Licensee website, or via a Radio Icons Widget you or any person authorized by you may place on any website, to identify the availability of Your Content for license, sale or distribution and to promote Your Content, on a through-to-the-listener basis, without the payment of any fees or royalties to (i) the songwriters, composers, or music publishers owning any rights in and to Your Content; (ii) any performing artist(s) (including non-featured vocalists and musicians) on Your Content; (iii) any other person involved in the creation of or owning any portion of Your Content, including, but not limited to a record label, and (iv) any agents for any of the foregoing, including, without limitation, performing rights organizations (“PROs”) and unions or guilds, whether U.S.-based (such as ASCAP, BMI, SESAC, SoundExchange, AFTRA and AFM) or foreign (e.g., PRS for Music, PPL, CMRRA, CSI, GEMA, etc.);
(c) Distribute Your Content in accordance with any applicable Addendum;
(d) Place or embed Your Content in magazines, web sites, Radio Icons advertisements, and any and all other media, whether now known or hereafter developed, but specifically excluding television and movies, to promote the Radio Icons Service;
(e) Use and distribute Copyright Management Information as embodied in a Digital Master of Your Content;
(f) Use Your Content and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(g) Reproduce, distribute, and publicly perform and communicate to the public Your Content (including Clips) as part of a downloaded program that may include multiple sound recordings and other content, commonly known as a “podcast;” and
(h) Authorize our Licensees to perform any one or more of the activities specified above or in an applicable Addendum.
YOUR OBLIGATIONS
(a) You, or a licensee acting on your behalf (e.g., a company such as a Talent scout/management company), will be responsible for obtaining and paying for any and all clearances or licenses required in the Authorized Territory (or any portion thereof) for the use of any musical works embodied in Your Content. Without limiting the generality of the foregoing, you (either directly or through a third party acting on your behalf) shall be responsible for and shall pay (i)any royalties and other sums due to artists (featured and non-featured), authors, co‑authors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Your Content, (ii)all mechanical royalties or other sums payable to music publishers and/or authors or co-authors of musical compositions embodied in Your Content from sales or other uses of Your Content. (iii)all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or AFTRA), and (iv)any other royalties, fees and/or sums payable with respect to Your Content or other materials provided by you to us. You agree that the amount payable to you 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 and for any public performances, public displays or communications to the public of the sound recordings and musical works constituting Your Content.
(b) Parental Advisory Labeling. You will be responsible for complying with the Recording Industry Association of America’s (“RIAA”) Parental Advisory Logo (“PAL”) Standards, as applicable, for so long as you use the Services.
MONITORING /REMOVAL OF CONTENT FROM WEBSITE
(a) Monitoring. Radio Icons does not control Your Content and does not have any obligation to monitor Your Content for any purpose. Radio Icons may choose, in its sole discretion, to monitor, review or otherwise access some or all of Your Content, but by doing so Radio Icons assumes no responsibility for Your Content, no obligation to modify or remove any inappropriate elements of Your Content, or to monitor, review or otherwise access any other artist’s content or artwork.
(b) Right of Removal. Radio Icons reserves the right, in its sole and absolute discretion, to remove any of Your Content from the Website if such content: (i)is patently offensive, pornographic or defamatory; (ii)is the subject of a dispute between you or us and a third party; (iii)is content to which you cannot document your rights therein upon Radio Icons request; (iv)violates the intellectual property rights or other protected interests of a third party; (v)is the subject of a takedown notice by a party claiming to own the rights therein, or (vi)is the subject of any fraudulent activity, or for any other reason in Radio Icons sole and absolute judgment is necessary to protect the business interests of Radio Icons and any of its business partners or Licensees. Radio Icons may also remove Your Content from the Website if you are abusive or rude or provide false or intentionally misleading information to any Radio Icons employees or agents. Radio Icons shall have no liability to you for the removal of any of Your Content from the Website or any Licensee website or service other than to provide you a credit (but not a refund) for any fees previously paid by you for making Your Content available via the Website or through Licensees. The removal of any of Your Content shall not relieve Radio Icons of the obligation to pay you any royalties that may have accrued prior to the removal of Your Content.
CD ORDERS
We will E-mail to you an order and shipping instructions for initial quantity and you agree to confirm and accept each order to the extent you have CDs of the ordered albums in stock (i.e. in your possession or control) or otherwise available to you. If you cannot fill the order completely with the exact order then, in your reply, please list items on backorder. Thereafter, if our inventory of the Album falls below a minimum inventory level that we designate, we may send you an order for additional units.
CD SHIPPING
You will promptly ship the ordered CDs to us. All CDs must be properly packaged for protection against damage, and terms of freight must be F.O.B. Destination. Freight charges must be marked “Prepaid.” We may reject any CD if it is defective, damaged, overage (meaning that we did not order it from you), and we may return it to you at your expense.
PURCHASE AND PAYMENT
When we receive a valid customer order, we will purchase a DOWNLOAD/CD from your inventory. For each DOWNLOAD/CD we purchase from you, we will pay you 50% of our suggested retail list price for the DOWNLOAD/CD. If Your Content is associated with our Talent Scout Program, then 10% off the top of our suggested retail list price will be deducted first. Legal title to the DOWNLOAD/CD will transfer to us at the time we purchase the DOWNLOAD/CD from you. Payment from us to you will be made on a monthly basis, for sales we made in the preceding month, only if the amount payable is at least $50. We will accrue and withhold payments until the total amount due is at least $50.
CD RETURNS
If we find that there is insufficient customer demand for your Album, we may choose to cease carrying it in this program. In such case, we will attempt to return all CDs to you. You will pay all charges (including insurance, and freight) incurred to ship the CDs to your location. If we have an outdated or incorrect address for you or if we cannot charge to your freight account, we can choose to liquidate the CDs and keep the proceeds or destroy the CDs.
CD CUSTOMER RETURNS
We will retain ownership of CDs that are returned by our customers, and we will store those CDs, at our cost, in our company-owned inventory. We reserve the right to fulfill customer orders from our inventory of returned CDs before we purchase or order additional CDs.
TERM
Either party may cancel this agreement, upon (30) days’ written notice; the terms of this agreement remain in effect for all orders placed before the notice of cancellation. If you terminate this agreement, we may return some or all your products, at your expense.
REPRESENTATIONS AND WARRANTIES BY YOU. YOU REPRESENT AND WARRANT TO RADIO ICONS THAT:
(i) you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to Your Content, including, but not limited to, all musical works embodied in Your Content, and that you are authorized to provide Your Content to us for the uses specified in this Agreement. For the avoidance of doubt, if you are acting on behalf of an artist, band, group or corporation, you hereby represent and warrant to Radio Icons that you are fully authorized to enter into this Agreement on behalf of such artist, band, group or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.
(ii) you own or control all of the necessary rights in Your Content in order to make the grant of rights, licenses, and permissions herein, and that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Your Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in Your Content) as contemplated by this Agreement.
(iii) the use or other exploitation of Your Content, including, but not limited to, any musical works embodied in your sound recordings, by us and our Licensees as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
(iv) to the extent you are the songwriter of any or all of the musical works embodied in Your Content, whether in whole or in part (e.g., as a co‑writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any PRO, whether based in the United States or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to us and our Licensees for the public performance and communication to the public of Your Content, including as Clips, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the use of the musical works in Your Content when publicly performed, communicated or otherwise transmitted by Radio Icons or its Licensees.
(v) you have not assigned any of the rights in and to the sound recordings embodied in Your Content to any third party (e.g., a record label) that obtained exclusive rights in and to such sound recordings.
ADDITIONAL REPRESENTATIONS AND WARRANTIES
You warrant and represent to us that (a) you have full right, power and authority to provide Your Content to us and to authorize us to re-sell them, (b) your sale of Your Content to us, and our worldwide promotion, distribution, and resale thereof, will not violate any contract by which you are bound or any applicable law or regulation; (c) you will deliver all CDs to us in new, merchantable condition and will not violate or misappropriate any copyright, trademark or other intellectual property or other rights of any third party.
ADDITIONAL GRANT OF RIGHTS
With respect to each DOWNLOAD/CD, you grant to us and our affiliated companies and licensees a royalty free, non-exclusive, worldwide, irrevocable right and license to (a) use, display and distribute any copyrighted works and works capable of being copyrighted (i.e. words, images, sound and artwork), and any trademarks and tradenames contained on the DOWNLOAD/CD, (b) adapt, modify and reformat Content (c) sub-license the foregoing rights pursuant to marketing relationships into which we enter for the sole purpose of promoting sales of the DOWNLOAD/CD.
INDEMNIFICATION
You release us and agree to indemnify, defend and hold harmless Radio Icons, Inc., its affiliated companies, and their respective officers, directors, employees, and agents against any claim, loss, damage, settlement, cost, expense or other liability (including, without limitation, reasonable attorneys' fees) arising from or related to your breach of any representation or warranty contained in this agreement.
RELATIONSHIP OF PARTIES
You and Radio Icons, Inc., are independent contractors, and nothing in this agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. We reserve the right to purchase, outside of this agreement, DOWNLOAD/CD’s from other sources, even if they are similar or identical to your DOWNLOAD/CD.
DISCLAIMERS
(a) THE WEBSITE AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, RADIO ICONS AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RADIO ICONS OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. RADIO ICONS AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY RADIO ICONS, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER YOUR CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
LIMITATION OF LIABILITY
(a) RADIO ICONS SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. RADIO ICONS SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY RADIO ICONS OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF YOUR CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH RADIO ICONS OR OTHERWISE. RADIO ICONS TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY RADIO ICONS FOR THE DISTRIBUTION OR LICENSING OF YOUR CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST RADIO ICONS.
(b) YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND RADIO ICONS. YOU UNDERSTAND AND AGREE THAT RADIO ICONS WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
APPLICABLE LAW
This agreement is made in and will be governed by the laws of the State of Florida, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. This agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. Failure to enforce strict performance of any provision of this agreement will not constitute a waiver of the right to enforce such provision or any other provision of this agreement subsequently.
By clicking the I AGREE BUTTON you have agreed and executed this agreement.
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