The following terms shall have the following meanings for purposes of this Agreement:
Digital Master or Digital Masters means copies of RIGHTS HOLDER Content in digital form, which MondoTunes may sell or authorize Distributors to sell worldwide via permanent digital download, streams or burns or otherwise, as individual tracks or as a whole album or otherwise, or via any other "electronic commerce" or "eCommerce" channel/platform now known or hereafter developed, without restriction, pursuant to the terms and conditions of this Agreement.
Distributor means any third party vendor/platform, including, without limitation, iTunes, Amazon, Emusic, Myspace, Facebook, Spotify, Twitter, etc., that MondoTunes may authorize to carry out the marketing, distribution, streaming, display, and sale or other use of the Digital Masters pursuant to the terms of this Agreement (including on demand burns). It is understood that MondoTunes currently subdistributes Content via a third party parent distribution entity/ies, but RIGHTS HOLDER shall be in breach if it contacts such party parent distributor(s) for any reason, unless with MondoTunes' prior consent.
Term: Either party can terminate, for any reason, and at any time with 60 days prior written notice subject to paragraph 7. Until such time, the Term is ongoing/continues.
Territory: The Universe.
RIGHTS HOLDER Content means sound recordings and underlying musical compositions that RIGHTS HOLDER has made available to MondoTunes either before or during the Term. Any sound recordings and the underlying musical composition that are provided by or on behalf of RIGHTS HOLDER to MondoTunes must be and are owned or controlled by RIGHTS HOLDER and/or have been cleared by RIGHTS HOLDER.
Artwork means album cover artwork and any other artwork relating to RIGHTS HOLDER Content that RIGHTS HOLDER has made available to MondoTunes. Any artwork that is provided by or on behalf of RIGHTS HOLDER to MondoTunes before or during the Term will be deemed to have been cleared by RIGHTS HOLDER (and shall be deemed included in the definition of Content for the purposes of this agreement).
Subject to the terms of this Agreement, RIGHTS HOLDER hereby appoints MondoTunes as RIGHTS HOLDER's authorized representative for the sale and other distribution in all digital and/or electronic configurations of all Digital Masters (and related Content, including the songs embodied therin) controlled by RIGHTS HOLDER at digital stores/platforms/sites worldwide. RIGHTS HOLDER agrees to supply MondoTunes with ready for sale digital files as requested by MondoTunes at RIGHTS HOLDER sole expense. RIGHTS HOLDER agrees to deliver these Digital Masters to the server as directed by MondoTunes. Additionally, RIGHTS HOLDER hereby grants rights to MondoTunes, during the Term, the right to: (i) reproduce and convert RIGHTS HOLDER Content delivered by RIGHTS HOLDER into Digital Masters; (ii) promote, sell, stream, display, distribute and electronically fulfill and deliver Digital Masters, as individual tracks or entire albums or otherwise, without restriction, and associated metadata to purchasers who may use such Digital Masters; (iii) display and electronically fulfill and deliver Artwork for personal use; (iv) use RIGHTS HOLDER Content, Artwork and metadata as may be reasonably necessary or desirable for MondoTunes to exercise MondoTunes's rights under the terms of this Agreement; and (v) authorize or appoint any third party Distributors to perform the activities (i)-(iv). The parties acknowledge that if during the Term there is sufficient demand for a physical release and such rights are available, by mutual approval at that time MondoTunes shall also have rights to distribute physical product under the same terms and conditions, based on mutually approved amounts and customary pressing rates.
RIGHTS HOLDER shall obtain and pay for any and all necessary clearances and licenses in the Territory for all RIGHTS HOLDER Content, music and Artwork. Specifically, RIGHTS HOLDER shall be responsible for and timely pay (i) any and all 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, and (iv) any other royalties, fees and/or sums payable with respect to the RIGHTS HOLDER Content, Artwork, metadata and other materials made available to MondoTunes and MondoTunes's use thereof.
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 MondoTunes and/or any Distributors to use any RIGHTS HOLDER Content or Artwork as provided for herein, or RIGHTS HOLDER reasonably believes that MondoTunes or its Distributors continued sale or other use of any RIGHTS HOLDER Content or Artwork violates or will violate the terms of any of RIGHTS HOLDER'S agreements with any third party, including, without limitation, any applicable copyright owner, artist, producer, or distributor, etc., or does or shall violate the rights of any third party whatsoever, then RIGHTS HOLDER shall immediately notify MondoTunes in writing thereof and RIGHTS HOLDER shall have the right to withdraw, upon such written notice to MondoTunes, authorization for the sale or other use of such RIGHTS HOLDER Content or Artwork. Following such withdrawal, MondoTunes shall cease to offer such RIGHTS HOLDER Content or Artwork for sale or other use, or will use reasonable efforts to cause such cessation as soon as commercially feasible after MondoTunes's receipt of such notice, and RIGHTS HOLDER shall promptly use its best efforts to clear such withdrawn RIGHTS HOLDER Content or Artwork and shall promptly notify MondoTunes if and when such RIGHTS HOLDER Content has been cleared and is again authorized for use or sale by MondoTunes to any third party other than MondoTunes in respect of any withdrawn RIGHTS HOLDER Content.
MondoTunes has the ability to provide world-wide online marketing in areas of global press releases, global album reviews, EPK's (electronic Press Kits), and global blog/forum monitoring and posting (hereinafter Marketing). MondoTunes's objective is to assist artists to maximize overall hype/buzz. At the election of RIGHTS HOLDER, the RIGHTS HOLDER via a separate agreement may authorize MondoTunes to Market RIGHTS HOLDER Digital Masters and Artwork.
4. MondoTunes Radio
MondoTunes provides an optional Internet-based promotional radio service governed by the Digital Millennium Copyright Act, which includes, but is not limited to, transmitting, broadcasting and distributing streaming audio content through its distribution network to end-user interfaces now or hereafter known and devices capable of receiving streaming transmissions, including, without limitation, transmissions via the Internet and/or via mobile/wireless technologies/computers/satellite, etc. All permissions, warranties and indemnities that apply to the Digital Masters/Content, also apply to this service. In the event that paid advertisers support the service and such ads directly relate to artist's content, then a royalty sharing model will apply.
RIGHTS HOLDER shall receive an all in royalty of 100% of the Net Receipts collected/received by MondoTunes hereunder for Sales that occur during the Term. MondoTunes keeps $0 in royalty fees, and we pass on to you 100% of the net royalties (After all our distribution partners take their fees). You also retain 100% ownership of your master recordings, publishing and songwriting credits. MondoTunes agrees to account to RIGHTS HOLDER for final sales on a quarterly basis for periods ending March 31st, June 30th, September 30th and December 31st. Statements and payments will be due within 60 days of the end of these periods. Notwithstanding the foregoing, if at the end of any payment period there is not at least $50 owed to Artist (Minimum Accounting Threshold), then MondoTunes shall have no obligation to account until such time as there is at least the Minimum Accounting Threshold due (and any lesser amounts from prior periods will carry over in the meantime). Such payment shall constitute full consideration for all rights granted and obligations undertaken by RIGHTS HOLDER hereunder.
JMD Distribution, LLC is required to hold funds if it is ``unable to locate a Copyright Owner within 3 years from the date of payment by a Licensee'' 37 CFR 380.4(g)(2). If JMD Distribution, LLC is unable to locate the rightful payee, then the funds become subject to Sec. 380.8, which requires the JMD Distribution, LLC to retain “unclaimed" funds for "a period of 3 years from the date of distribution." See, e.g., 37 CFR 380.8. JMD Distribution, LLC may apply those funds to offset its costs at the end of the three-year holding period. Id.223 See also, e.g., 37 C.F.R. §§ 380.8, 380.17, 380.27. JMD Distribution, LLC hereby provides notice that it may assess in administrative fee to said unclaimed funds.
6. Names and Likenesses, Promotional Use and Opportunities
MondoTunes may use and authorize its Distributors to use the names and pre-approved 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 sale, promotion and advertising of the applicable Digital Master which is offered for sale or any other use or display under the terms of this Agreement.
As between the Parties, all right, title and interest in and to (i) the RIGHTS HOLDER Content; (ii) the Digital Masters; (iii) all copyrights and equivalent rights embodied therein, and (iv) all materials furnished by RIGHTS HOLDER, except as to any rights of MondoTunes (whether pre-existing or under this Agreement), shall remain the property of RIGHTS HOLDER, it being understood that under no circumstances shall MondoTunes have any lesser rights than it would have as a member of the public.
8. Modification, Termination and Effect of Termination
MondoTunes reserves the right, in its sole discretion, to change, modify, add or remove all or part of this Agreement. An update to the Terms And Conditions Section shall by itself be considered proper notice of any amendments and/or modification to this Agreement. 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 sixty (60) days form 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, 7, 8, 9 and 10 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 MondoTunes 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.
9. Indemnification and Limitation of Liability
RIGHTS HOLDER will indemnify and hold harmless, and upon MondoTunes's request, defend, MondoTunes and its Distributors and affiliates (and their respective directors, officers, agents 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 reason of: (i) a breach or alleged 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 MondoTunes's or its Distributors use thereof, violates or infringes the rights of another party. RIGHTS HOLDER will reimburse MondoTunes and its Distributors and affiliates on demand for any payments made or incurred in connection with any potential liability or claim that is subject to indemnification under this Section 9. MondoTunes shall promptly notify RIGHTS HOLDER of any such claim, and RIGHTS HOLDER may assume control of the defense of such claim at its sole cost and expense. MondoTunes shall have the right, at its expense, to participate in the defense thereof under RIGHTS HOLDER's direction.
10. Additional Representations and Warranties of the Parties
RIGHTS HOLDER represents and warrants that it owns or controls, or has the full legal authority to act on behalf of any and all owners, of all 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.
11. 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. MondoTunes may assign or transfer any part of this Agreement to any third party without RIGHT HOLDERs consent and it shall be relieved of its liability hereunder.
Governing Law. This Agreement shall be governed and interpreted in accordance with the internal laws of the State of California, County of Los Angeles, applicable to agreements entered into and wholly to be performed therein, without regard to principles of conflict of laws.
Dispute. If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the assistance of a mutually-agreed upon mediator in Los Angeles County or Orange County, California. Any costs and fees other than attorney fees shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution, prior to going to court, the parties agree to submit the dispute to non-binding arbitration in the same city or region, conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The non-prevailing party in any arbitration, mediation or court adjudication shall pay the prevailing party's attorney's fees. There shall be a 30 day cure period from time of notice hereunder before any party can seek legal redress.
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.
Legal Advice. RIGHTS HOLDER hereby acknowledges, represents and warrants that it has been advised and given the opportunity to seek counsel of its choosing in connection with this contract, and RIGHTS HOLDER acknowledges, represents and warrants that it is executing this Agreement voluntarily after consultation with independent legal counsel or after intentionally deciding not to seek the advice of independent counsel with respect to the advisability of executing this Agreement.