A) The Artist owns and/or controls the copyright in and to the master recording (the “Master Recording”).
B) Company is engaged in the sale and digital distribution of master sound recordings.
C) Company desires to sell and digitally release the Master Recording, and the Artist hereby engages Company to be the Artist’s digital distributor, and grants a license to Company to sell and digitally release the Master Recording in accordance with the terms and conditions set out by this Agreement.
The parties agree as follows:
1. Ownership Period
1.1 The initial term of this Agreement shall be a period of one (1) year from the date of execution of this Agreement (the "Ownership Period") whereupon Company shall be granted an exclusive license for the rights as set out herein.
1.2 The Ownership Period may be extended by mutual agreement for a period of two (2) years (the “Extension Period”) whereupon all rights granted herein, shall be on a non- exclusive basis.
1.3 A party wishing to extend the Ownership Period must give the other notice of its intention in writing prior to the expiry of the Ownership Period and only in the event that the other party accepts the extension of the Ownership Period in writing shall the Ownership Period extend for the Extension Period. If the proposed extension by one party is rejected by the other party, this Agreement shall end at the expiry of the Ownership Period. If neither party gives the other a notice of extension, the Ownership Period shall end at the expiry of that the Ownership Period.
1.4 A reference to “Term” in this Agreement shall means the Ownership Period together with the Extension Period (if applicable).
1.5 Upon expiry of the Term, all rights in and to the Master Recording granted under this Agreement shall immediately revert to the Artist.
2.1 The rights granted to Company herein shall be for the World (the "Territory").
3. Grant of Rights.
3.1 The Artist grants to Company an exclusive license during the Ownership Period and a non- exclusive license during the Extension Period, throughout the Territory to:
a) reproduce, edit and convert the Master Recording to technological or commercial standards in various digital data formats now known or later developed including but not limited to WAV, WMA, WMV, AAC, aac+, aac+ enhanced, ATRAC, Real Audio, Quick Time, MP3, MPEG4, WAV, OggVorbis, SMAF, rmf, MFM) (the “Digital Master”);
b) make so called master ringtones and ringback tones from the Master Recording subject to the Artist’s consent over such ringtones and ringback tones;
c) store the Master Recording in an unencrypted form on Company’s servers for the purposes of creating different compressed versions of the Master Recordings using different codecs and to encode such versions with meta data and digital rights management software;
d) promote, market, distribute and sell copies of the Digital Master through all digital media and by means of all digital platforms (including through all forms of online and mobile technology, by means of so-called streaming subject to the Artist’s consent), paid downloading, approved ringtones and ringback tones) during the Term:
(i) direct to consumers via the Company website http://www.stormcaster.ru (the “Website”); and
(ii) to third party retailers, online stores, portals and other online intermediaries (“Licensed Partners”) for sale to consumers;
e) create, perform and make available streaming samples of the Digital Master on the Website and/or any Licensed Partner website to promote the sale of the Digital Master;
f) reproduce, display, distribute and electronically deliver artwork to consumers via theWebsite;
g) print, publish, disseminate and otherwise use the Artist’s approved names, approved photos and approved biographies on the Website and authorize others to use the Artist’s approved names, approved photos and approved biographies.
h) otherwise deal in or use the Master Recording, Digital Master, Digital Remixes, Artwork, metadata and in such manner as may be reasonably necessary to exercise Company’s rights under this Agreement.
3.2 Subject to prior written consent of the Artist, Company shall be entitled to produce remixes of the Master Recording (the “Digital Remixes”) at Company’s expense. The
Artist shall have final creative approval over any new remixes produced by Company before promotional use and/or commercial release. For the avoidance of doubt, copyright in the remixes shall be owned by the Artist and licensed on an exclusive basis to the Company during the Ownership Period and on a non-exclusive basis during the Extension Period, throughout the Territory on the same terms and conditions set out in Clause 3.1.
3.3 Company acknowledges that all rights not specifically granted to Company in the Master Recording, are reserved by the Artist, and nothing contained herein shall prevent or restrict the Artist from exploiting the Master Recording in non-digital formats during the Ownership Period, and in any and all formats during the Extension Period, including physical formats, throughout the Territory.
4.1 Within [30 Days] of execution of the Agreement, the Artist will deliver to Company a digital master recording of the Master Recording.
4.2 The Artist, at its own expense, may furnish camera-ready artwork for the Master Recording. Such artwork shall be delivered in digital format at the time of delivery of the Master Recording.
4.3 Company shall have the right to modify or conform the artwork to meet Company specifications and standards. However, Company shall consult with Artist before making any such modification. In the event that Artist elects not to furnish artwork, Company shall prepare the artwork and shall consult with Artist regarding the design and the Artist shall have final approval of all final artwork produced by Company.
5. Production of Master Recording.
5.1 Artist shall be responsible for payment of all expenses incurred in the production of the Master Recording and shall obtain the appropriate permission, clearance or release from any person or union who renders services in the production of the Master Recording.
6.1 In accordance with the rights granted by the Artist to Company herein, Company intends to contract with Licensed Partners for distribution and exploitation of the Digital Master and Digital Remixes. Company will be entitled to receive 50% of all Net Receipts (the “Royalties”), and the Artist shall be entitled to receive the remaining 50% of Net Receipts (the “Artist Royalties”)
For the purposes of this Agreement, Net Receipts, shall mean gross income which Company actually receives during the Term, from direct sales and exploitation of the Digital Master and Digital Remixes by the Company, or is credited from Licensed Partners which is directly and identifiably attributable to the sale and other exploitation of the
Digital Master or Digital Remixes hereunder, after the deduction of any taxes and bonafide expenses actually incurred by Company in undertaking exploitation of the Digital Master and Digital Remixes.
6.2 In respect of mechanical royalties, if the Artist owns or controls the rights in the musical composition embodied on the Master Recording, it shall grant or procure the grant to Company of a mechanical license in respect of the musical work, to be paid by Company at the normal industry rates in each country of the Territory.
7.1 During the Term, Company agrees to keep all proper and usual records and books of account and make all usual and proper entries relating to the manufacture and sale of the Digital Master and Digital Remixes.
7.2 Company shall account to the Artist quarterly during the Term (the “Accounting Period”).
The Artist will be issued a statement from Company within thirty (30) days of each Accounting Period spelling out exactly how many downloads of the Digital Master and Digital Remixes were sold and the monies accrued to the Artist (the “Royalty Statement”) and Company will pay the Artist the Artist Royalties that are due to the Artist based on the agreed percentage as set out in Clause 6 for each sale as described in each Royalty Statement.
7.3 If the Artist Royalties do not exceed $50.00 (USD), all monies accrued in that Accounting Period shall carry forward to subsequent quarters and paid to the Artist if the total amount of Artist Royalties exceeds $50.00 (USD).
7.4 The Artist Royalties shall be payable by by Paypal or AlertPay directly into the Artist’s nominated bank account.
8. Promotional Recordings.
8.1 No royalties will be due on Digital Masters or Digital Remixes furnished on a promotional basis.
9. Artist Warranties.
9.1 The Artist warrants to Company that the Artist has the power and authority to enter into this Agreement, and that the Artist is the copyright holder of the Master Recording, or has or will obtain all necessary and appropriate rights, licenses and clearances to grant the license in this Agreement with respect to the Master Recording and the underlying musical composition in the Master Recording.
9.2 Artist represents and warrants that the Master Recording is original to the Artist except for material in the public domain and such excerpts from other works as may be included with the written permission of the copyright owners and that proper clearances or permission have been obtained from the artists of any copyrighted material, including but not limited to any digitally reprocessed samples of material incorporated in the Master Recording.
9.3 Artist warrants that Artist's use of any name or moniker will not infringe on the rights of others and that Artist's use of any musical composition or arrangement will not infringe on the rights of others.
9.4 Artist further warrants that the Master Recording does not:
*contain any libelous material
*infringe any trade name, trademark, trade secret or copyright
*invade or violate any right of privacy, personal or proprietary right, or other common law or statutory right.
9.5 Company and the Artist hereby indemnifies the other and undertakes to defend the other against and hold the other party harmless (including without limitation attorney fees and costs) from any bona fide claims and damage arising out of a breach of the warranties or obligations under this Agreement. The Artist agrees to reimburse Company for any payment made by Company with respect to this Clause, provided that the claim has been settled or has resulted in a final judgment against Company or its licensees. Artist shall notify Company in writing of any infringements or imitations by others of the Master Recording which may come to Artist's attention.
10.1 The Artist shall have the right to terminate this Agreement prior to the expiration of the Term if:
a) Company breaches any material term of this Agreement; or
b) Company fails to account and make payment of Royalties here under and Company fails to rectify such breach or promptly account to the Artist within thirty (30) days of receiving written notice from the Artist of such breach.
10.2 Either party shall have the right to terminate this Agreement prior to the expiration of the Term should the other party enters into liquidation, is declared insolvent in any legal proceedings or is declared bankrupt.
10.3 Upon termination of this Agreement, all of the Rights granted herein to Company shall immediately cease and Company shall immediately return to the Artist all copies of the Master Recording (including all digital copies thereof) and other materials. Company shall within seven (7) days of termination provide the
Artist with a full and complete final accounting of all sales of the Master Recording made up to the date of termination together with payment of any Royalty due to the Artist pursuant to such accounting.
11.1 The terms and conditions of this Agreement are confidential between the parties.
11.2 This Agreement shall be binding upon the successors and assigns of the parties.
11.3 In the event of a dispute between Company and Artist regarding the terms, construction or performance of this Agreement, such dispute shall be settled by binding arbitration in Russian Federation, Moscow.
11.4 Company and Artist hereby submit to the jurisdiction of the courts of Russian Federation for the enforcement of this Agreement or any arbitration award or decision arising here from.
11.5 In the event that a party is forced to obtain an attorney to enforce the terms of this Agreement, the party prevailing in such action of enforcement shall be entitled to the recovery of attorney's fees incurred in such action.
11.6 Company and Artist agree to perform their obligations under this Agreement, in all respects, in good faith.
11.7 Neither party may assign or transfer all or part of its rights and/or obligations under this Agreement without the prior consent in writing of the other party, such consent not to be unreasonably withheld.
11.8 Any notices or delivery required herein shall be deemed completed when hand-delivered, delivered by agent, or placed in the Mail, postage prepaid, to the parties at the addresses listed herein.
11.9 Nothing contained in this Agreement shall be meant to establish either Company or the Artist as a partner, joint venture or employee of the other party for any purpose. No waiver by either party of any right shall be construed as a waiver of any other right.
11.10 This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. If a court finds any provision of this Agreement invalid or unenforceable as applied to any circumstance, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.