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Digital Distribution Agreement
You might be wondering, "Am I signing away the rights to my music?!"
In simplest terms by accepting this agreement you represent that you:
- Own the content
- Are authorized to accept the agreement
- Authorize us to convert your music into a streamable format
- Authorize us to use your artwork
- Authorize us to stream your music
- Understand the non-exclusive license being granted
You maintain full ownership and can request to be removed whenever you want!
Audagy Digital Distribution Agreement
Welcome to the Audagy LLC, herein after referred to as Audagy, Artist Digital Distribution Agreement (“Agreement”). This Agreement contains the terms and conditions under which Audagy offers the “Digital Download and Distribution Service”. Use of the Digital Download and Distribution Service constitutes your agreement to and acceptance of this Agreement.
Audagy (referred to in this Agreement as “us,” “we,” and “Audagy”) reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Site. In the event of substantive changes to the terms of this Agreement, you will be notified by email. If any modification is unacceptable to you, your only recourse is to discontinue use of the Consignment Service. Your continued use of the Consignment Service, following posting of a change notice or new agreement on the Site (as more fully described below in Paragraph 8), will constitute your binding acceptance of the changes.
The following, when accepted by you (whether as an individual, or as the authorized representative for an artist, band, group, or corporation) and us shall be a binding contract. Please read this Agreement carefully. By entering your name and clicking on the “I AGREE” button below, you will become a party to, and will be bound by this Agreement. The “Effective Date” of this Agreement is the date on which you click the “I AGREE” button below.
(a) You hereby grant to us the non-exclusive right, during the Term and throughout the Territory, to:
(i) Reproduce and convert Your Authorized Content into streaming quality audio files ("Digital Master");
(ii) Perform and make available, for promotional purposes and without remuneration to the artist, portions of Your Authorized Content (“Clips”) by “streaming”;
(iii) “Stream” Your Authorized Content, either on-demand or as part of an internet radio service;
(iv) Use and distribute Copyright Management Information as embodied in a Digital Master;
(v) Display and electronically fulfill and deliver Authorized Artwork used in connection with Your Authorized Content for personal use, solely in conjunction with the applicable Digital Master;
(vi) Use Your Authorized Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement; and
By uploading Your Content to the Audagy, you also grant a limited, worldwide, non-exclusive, royalty-free, fully paid up, license to other users of Audagy to use, repost, transmit or otherwise distribute, publicly display, publicly perform, make available and otherwise communicate to the public, Your Content utilising the features of Audagy from time to time, and within the parameters set by you using the Services. Notwithstanding the foregoing, nothing in these Digital Distribution Agreement terms grants any rights to any other user of the Platform with respect to any proprietary name, logo, trademark or service mark uploaded by you as part of Your Content (for example, your album artwork) (“Marks”), other than the right to reproduce, publicly display, make available and otherwise communicate to the public those Marks, automatically and without alteration, as part of the act of reposting sounds with which you have associated those Marks.
The Term of this Agreement will commence on the Effective Date and will continue, unless and until terminated by either you or us, upon thirty (30) days written notice.
3. Right to Withdraw Material:
You have the right, at any time during the Term, to withdraw your permission for the sale or other uses of Your Authorized Content and Authorized Artwork, upon written notice to us at firstname.lastname@example.org with subject (“Withdrawal”). Within 15 business days following our receipt of your notice of Withdrawal. Sending of your notice of Withdrawal will not limit your responsibility for other uses of Your Authorized Content and/or Authorized Artwork that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired Your Authorized Content or Authorized Artwork.
4. Names and Likenesses; Promotional Use and Opportunities:
(a) You hereby grant to us, during the Term, the right to use and use the names and approved likenesses of, and biographical material concerning any artists, bands, producers and/or songwriters, as well as track and/or album name, and Authorized Artwork, in any marketing materials for the promotion and advertising of the applicable Digital Master, (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).
Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, all right, title and interest in and to (i) Your Authorized Content and Authorized Artwork, (ii) the Digital Masters, (iii) the Clips, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you, will be yours.
6. Modification, Termination and Effect of Termination:
(a) We reserve the right to change, modify, add to, or remove all or part of this Agreement, in our sole discretion. Notice of any such change will be sent to you by email at least seven (7) days prior to its effective date. In the event that you do not consent to any such proposed changes, your sole recourse shall be to terminate the Term of this Agreement, by notice to us as provided above, and your failure to do so within ten (10) days of the date of any such email from us to you shall constitute your acceptance of such changes.
(b) The expiration or termination of the Term will not relieve either you or us from our respective obligations incurred prior to or during the Term. Accordingly, applicable provisions of this Agreement will continue to apply even after the expiration of the Term.
You hereby indemnify, save, and hold us harmless from any and all damages, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys’ fees) arising out of or connected with any claim, demand, or action which is inconsistent with any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding copyrights or any other rights in and to any other forms of intellectual property. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Pending the determination of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this paragraph.
8. Additional Representations and Warranties of the Parties:
(a) You represent and warrant that you have the full authority to act on behalf of any and all owners of any right, title or interest in and to Your Authorized Content or Authorized Artwork, or metadata.
(b) You represent and warrant that you own or control 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 us shall not violate or infringe the rights of any third party.
(c) You and we represent and warrant that we will not act in any manner which conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by you or us will interfere with our performance of our obligations under this Agreement.
(d) Each party represents and warrants that it shall perform its obligations hereunder in full compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.
(e) We make no guarantees whatsoever about there being any minimum uses of any Digital Master.
9. General Provisions:
(a) The parties hereto agree and acknowledge that the relationship between them 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.
(b) This Agreement contains the entire understanding of the parties relating to the subject matter hereof. This Agreement supersedes all previous agreements or arrangements between us pertaining to the digital distribution of content, provided that if you previously entered into a digital distribution agreement with us in the past, and elected any options, those options will remain in place under this Agreement. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, 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.
(c) This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
(d) 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 electronic mail to the addresses provided to and by you upon registration with the Audagy Site, or as properly updated.
(e) This Agreement will be governed and interpreted in accordance with the laws of the State of Missouri applicable to agreements entered into and to be wholly performed in Missouri, without regard to conflict of laws principles.
(f) 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.
(g) The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) 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.
10. Certain Definitions:
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) “Authorized Artwork” means album cover artwork and any other artwork relating to Your Authorized Content that you provide to us. All such artwork will be deemed to have been properly cleared and/or licensed by you for all purposes, unless you provide us with written notice to the contrary.
(b) Authorized Territory” means the Universe, or more limited territories, if you so choose, in the registration process.
(c) “Copyright Management Information” means the digital information conveying information regarding a Digital Master, such as your name, the title of the applicable album, the name of the song and the record company name, and same shall be subject to the protection of Title 17, Section 1202 of the United States Copyright Law.
(d) “Digital Master” or “Digital Masters” means a copy or copies of Your Authorized Content in digital form.
(f) “Your Authorized Content” means sound recordings and underlying musical compositions that you have designated for digital distribution by us. Any such sound recordings and the underlying musical compositions must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you.
Terms of Service
- You must be at least 13 years old to open an Audagy account.
- You can't use Audagy to steal music or other content, and you have to listen to it through Audagy.fm.
(EFFECTIVE AS OF AUGUST 15, 2013)
PLEASE READ CAREFULLY Should you have any questions concerning this Agreement, you may contact Audagy support at email@example.com.
1. AUTHORIZED USERS
1.1 Residence; Age Requirement; Authority. In order to use any of the Audagy Services, you must be at least 13 years of age. You represent that (i) you have read and understood, and that you agree to be bound by, this Agreement, and (ii) you are at least 13 years old. If you do not agree to, or cannot comply with, any of the terms and conditions of this Agreement, please do not check the acceptance box and do not attempt to access any of the Audagy Services. NOTWITHSTANDING ANY DESCRIPTIONS OR REPRESENTATIONS ON THE AUDAGY SERVICES, NOT ALL FEATURES OF THE AUDAGY SERVICES MAY BE AVAILABLE IN YOUR COUNTRY.
1.3 Account Confidentiality. You agree that you will not allow others to use any aspect of your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of your account. You agree to notify us immediately of any unauthorized use of your password and/or account. Audagy will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify and hold harmless Audagy, its partners, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same. <
1.4 Security. To prevent unauthorized access, to maintain data accuracy, and to ensure the appropriate use of Account Information, Audagy uses appropriate physical, technical and administrative procedures to safeguard the information we collect.
We use Secure Sockets Layer (SSL) encryption when collecting or transferring sensitive data such as credit card information. SSL encryption is designed to make the information unreadable by anyone but us. Credit card numbers are used only for processing payments and are not used for other purposes.
2. LICENSE TO AUDAGY SERVICES
2.1 License Grant.
A. Audagy grants to you a limited, non-exclusive, non-transferable license to access and use the Audagy Services in legally authorized jurisdictions for personal and commercial purposes. If you subscribe to any of the Audagy Services, this license is contingent upon your payment of any applicable subscription fees and your compliance with any other terms and conditions applicable to you as a subscriber. Any violation by you of the license provisions contained in this Section 2.1 may result in the immediate termination of your right to use the Audagy Services. Audagy reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE AUDAGY SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
2.2 Updates. Audagy may from time to time make available to all users of the Audagy Services, updates at no cost or subject to additional fees in Audagy's sole discretion. "Updates" means any updates, upgrades or error corrections to the Audagy Services that Audagy makes available generally to users of the Audagy Services. Notwithstanding anything else contained in this Agreement, Audagy will have no obligation to continue producing or releasing new versions of the Audagy Services or any updates thereto.
You agree that you will not:
3.1 use the Audagy Services to reproduce copyrighted materials;
3.2 copy, store, edit, change, prepare any derivative work of or alter in any way any of the tracks streamed through the Audagy Services;
3.3 make the Audagy Services available over a network (other than the Audagy network) where it could be used by others;
3.4 provide your password to any other person;
3.5 translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Audagy Services or any portion of them, except as expressly allowed under applicable law;
3.6 circumvent any technology used by Audagy or its licensors to protect content accessible via the Audagy Services;
3.7 rent, lease or sublicense any of the Audagy Services; or
3.8 use the Audagy Services in any way that violates the terms of this Agreement.
As between you and Audagy, you acknowledge that Audagy owns or has a license to all title and copyrights in and to the Audagy Services. All title and intellectual property rights in and to the licensed content in the Audagy Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties.
5. AUDAGY TRADEMARKS AND THIRD-PARTY TRADEMARKS
The following are trademarks of Audagy: Audagy, and its design logo, as well as certain other Audagy trademarks, service marks, graphics, and logos (collectively, the "Audagy Trademarks") used in connection with the Audagy Services. The Audagy Services may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to Audagy Trademarks or the trademarks of any third party.
The Audagy Services use technology to protect the digital information provided by Audagy from unauthorized use. Your use of the Audagy Services may be limited by such technology. You acknowledge that, from time to time, Audagy may modify or discontinue using such technology. Security modifications made by Audagy may from time to time include required updates to the Audagy Services. IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.
This Agreement will remain effective until terminated by you or terminated by us; provided that Sections 3 – 5 and 9 - 13 will survive termination and continue in effect.
EXCEPT FOR ANY APPLICABLE GUARANTEES THAT CANNOT BE EXCLUDED UNDER LOCAL APPLICABLE LAWS:
9.1 THE AUDAGY SERVICES (INCLUDING ANY SOFTWARE CONTAINED THEREIN) AND ANY UPGRADES OR PLUG-INS AND ANY LICENSED CONTENT ARE LICENSED TO YOU "AS IS." ANY USE OF THE AUDAGY SERVICES WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUDAGY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. AUDAGY MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE AUDAGY SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND AUDAGY DISCLAIMS ANY LIABILITY RELATING THERETO.
9.2 AUDAGY MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF THE AUDAGY SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, AUDAGY MAY MODIFY, SUSPEND, OR DISCONTINUE THE AUDAGY SERVICES (INCLUDING ANY CONTENT) OR YOUR USE OF THEM. WHENEVER AUDAGY ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE AUDAGY SERVICES, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.
9.3 YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION TO US IS AT YOUR OWN RISK. AUDAGY DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
9.4 YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING THE AUDAGY SERVICES. AUDAGY WILL HAVE NO LIABILITY TO YOU FOR ANY SUCH CONTENT.
9.5 SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH THE AUDAGY SERVICES MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT AUDAGY ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES.
10. LIMITATION OF LIABILITY
EXCEPT FOR ANY APPLICABLE LIABILITIES OR REMEDIES THAT CANNOT BE EXCLUDED UNDER LOCAL APPLICABLE LAWS:
10.1 IN NO EVENT WILL AUDAGY BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF AUDAGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AUDAGY OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
10.2 AUDAGY'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF ONE DOLLAR (US $1.00) OR THE TOTAL AMOUNT PAID BY YOU FOR THE APPLICABLE AUDAGY SERVICES AT ISSUE.
YOU WILL INDEMNIFY AND HOLD AUDAGY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (I) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (II) YOUR USE OF THE AUDAGY SERVICES.
12. GENERAL INFORMATION
12.1 You will be responsible for providing the DSL, cable modem and any other hardware and software necessary to use the Audagy Services.
12.2 Audagy or its business partners may present advertisements or promotional materials via the Audagy Services. Your dealings with, or participation in promotions of any third-party advertisers via the Audagy Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. You agree that Audagy is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Audagy Services.
12.3 The Audagy Services may present links to third-party Web sites or third-party services not owned or operated by us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service.
12.4 The Audagy Services are owned or licensed by Audagy and are protected by the copyright laws of the United States and other countries in which the Audagy Services are made available. You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.
12.5 This Agreement will be governed by the laws of the State of Missouri, without regard to conflicts of laws provisions thereof. Except as expressly prohibited by applicable law, the exclusive jurisdiction for any claim, action or dispute with Audagy or relating in any way to your use of the Audagy Services will be in the state and federal courts of the State of Missouri and the venue for the adjudication or disposition of any such claim, action or dispute will be in the County of Jackson, Missouri.
12.6 Should you have any questions concerning this Agreement or need technical support, you may contact Audagy support by sending an email to firstname.lastname@example.org.
12.7 Audagy may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email, mobile text message, written or hard copy notice, or through conspicuous posting of such notice on Site, as determined by Audagy in its sole discretion. Audagy reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement.