Bandtunes Legal Information

Bandtunes.com  Services

  Online Goods Registration Form

  Artist Agreement

This Artist Agreement (the "Agreement") is a legal agreement between you (either an individual artist or the legal authorized representative of a group artist) and Bandtunes.com.com, Inc. ("Bandtunes.com") regarding uploading your audio materials to the Bandtunes.com.com website (the "Bandtunes.com Site") and the distribution of certain other materials by means of the Bandtunes.com Site. If you are agreeing on behalf of a group artist to be bound by the terms of this Agreement, each reference to "you" in this Agreement shall refer to each member of the group or the group as a whole, as applicable. BEFORE YOU CLICK ON THE "I AGREE" BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "I AGREE" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND DO NOT UPLOAD ANY MATERIALS OR SEND ANY FINISHED GOODS TO THE Bandtunes.com SITE.

 Your Materials. For purposes of this Agreement, "Materials" means (i) sound recordings and/or audiovisual works of your vocal and musical performances (whether performed by you alone or accompanied by others); (ii) the musical compositions (including music lyric) embodied in such recordings, audio-visual works or other works; (iii) multimedia works provided by you to Bandtunes.com, and (iv) your name(s) (both legal and professional), trademarks, trade names, likenesses, photographs, biographical materials and all other graphic and/or textual material provided by you to Bandtunes.com.

 Finished Goods. For purposes of this Agreement, "Finished Goods" means audio CDs embodying sound recordings of your vocal and musical performances (whether alone or accompanied by others), all or any merchandise supplied to Bandtunes.com by you to be offered for sale over the Bandtunes.com Site. You shall deliver any Finished Goods hereunder, at your sole cost and expense, to the address indicated to you by Bandtunes.com in the Bandtunes.com Online Goods Registration Form. You shall ensure that all Finished Goods containing recordings or audiovisual works shall bear an appropriate notice indicating that you (or your group) are the artist(s) whose performance(s) or likeness(es) are embodied in such Finished Goods. Such notice must include your true name and address, along with the true name and address of the manufacturer of each of the Finished Goods. The terms relating to Bandtunes.com's distribution of Finished Goods are set forth in Section 2 below.

 This Agreement is in three sections. Section 1 applies if you intend to allow Bandtunes.com to distribute your Materials free of charge over the Internet or by means of a promotional "sampler" compact disc. Section 2 applies if you intend to allow Bandtunes.com to distribute the Materials and/or Finished Goods over the Bandtunes.com Site at a price to end users. Section 3 sets forth general terms and conditions which apply to you under either Section 1 or Section 2.

 Payment. The rights granted by you in this agreement are granted to Bandtunes.com for no cost, the consideration being the value to you of Bandtunes.com's distribution and dissemination of the Materials and/or Finished Goods hereunder, subject to Bandtunes.com's obligation to account to you for Finished Goods sold over the Bandtunes.com Site as described in Section 3, and you hereby acknowledge the adequacy and receipt of such consideration.

Section 1: Promotional Materials

 Grant of License. You hereby grant to Bandtunes.com, its successors, assigns, agents, distributors and licensees at no charge the right and license, throughout the universe to (i) prepare "samplers" of any or all of the Materials for promotional purposes, and prepare one or more compilations containing any or all of the Materials, which may be combined with third party products; and (ii) display, copy, reproduce (and to mechanically reproduce each musical composition included in the Materials), exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means, electronically publish and synchronize with visual images any or all of the Materials (including the foregoing samplers and compilations), by any and all means and media now known or hereafter devised, discovered or developed, with the exception of standard audio-only compact discs manufactured primarily for home entertainment as opposed to computer data and broadcast formats. Notwithstanding the foregoing, Bandtunes.com shall have the right from time to time to couple data format copies of Materials with sound recordings of other artists, as well as audiovisual works and multimedia materials of theirs, in promotional "sampler" compact discs reproducing sound, audiovisual works and/or multimedia materials. Bandtunes.com, and persons authorized by Bandtunes.com, may manufacture, distribute, reproduce, copy, publicly perform, and otherwise exploit such compact discs in any manner. Your sound recording(s) to be included in that promotional compact disc shall be mutually determined by Bandtunes.com and you. Bandtunes.com shall inform you of the proposed track listing of such compact disc and you shall have the right to approve or deny including your recording in such compact disc based on that track listing.

 Section 2: For Sale Materials and Finished Goods

 Grant of License. You hereby grant to Bandtunes.com, its successors, assigns, agents, distributors and licensees a right and license to (i) prepare royalty-free edited music "clips" of any and all of the Materials to be distributed by Bandtunes.com to the public, (ii) display, reproduce (and to mechanically reproduce each musical composition included in the Materials and/or in the Finished Goods), exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through electronic means, electronically publish and synchronize with visual images the Materials, throughout the universe, by any and all means and media now known and hereafter developed with the exception of audio-only compact discs manufactured primarily for home entertainment as opposed to computer data and broadcast formats (other than compact discs embodying the promotional "samplers" referenced in Section 1 above) and to distribute Finished Goods by any and all means now known or hereafter developed. All distributions of Finished Goods shall be pursuant to Bandtunes.com's policies as the same may be established from time to time.

 Payment. You must notify Bandtunes.com in the Bandtunes.com Online Goods Registration Form which of the Materials and/or the Finished Goods are to be offered for sale, and the base prices at which you require Bandtunes.com to sell each of the Materials and Finished Goods that you designate as "for sale" (as opposed to promotional distributions). With respect to Materials or Finished Goods that you designate as "for sale," Bandtunes.com will charge end users the base prices set by you to download such Materials or to purchase Finished Goods from the Bandtunes.com Site. Bandtunes.com will pay you eighty percent (80%) of the gross receipts derived from the sale of the "for sale" Materials or Finished Goods over the Bandtunes.com Site that are not returned, which payment shall be Bandtunes.com's sole obligation to you and shall be inclusive of any and all royalties and other payments of any kind in connection with the Materials or Finished Goods. For purposes of this section, "gross receipts" shall be determined by multiplying (a) the base price of the Materials and/or Finished Goods designated by you in the Bandtunes.com Online Goods Registration Form by (b) the number of units of the Materials or Finished Goods sold to end users over the Bandtunes.com Site during the accounting period concerned and which are not returned. The base price does not include any monies that Bandtunes.com may charge to end users for (i) sales, excise or other taxes, (ii) customs duties, import or export taxes or levies, (iii) shipping, handling, insurance charges, and (iv) allowances for returned Materials and/or Finished Goods. Materials and Finished Goods will be considered "sold" to an end user when Bandtunes.com receives full payment from the end user in U.S. dollars in the United States and the period specified by Bandtunes.com as the period during which the end-user may return such item has passed. Within seventy five (75) days of the last day of each calendar quarter, Bandtunes.com shall provide you with (A) a quarterly report setting forth the Materials and Finished Goods distributed by Bandtunes.com during such preceding quarter, and (B) all amounts due to you in connection with such distribution, which payment shall be made in the form of a single check made payable to you. For each calendar quarter in which monies otherwise payable to you by Bandtunes.com under this Agreement is equal to or less than twenty five dollars ($25), Bandtunes.com shall withhold such payment until either the next calendar quarter in which the total monies payable to you by Bandtunes.com under this Agreement is greater than twenty-five dollars ($25.00), or, if earlier, Bandtunes.com shall pay to you the amount then being withheld upon termination of this Agreement. Bandtunes.com agrees to keep books and records reflecting the gross revenues received for the Materials and Finished Goods distributed hereunder for a period of one (1) year after issuing any quarterly report related thereto. Bandtunes.com shall allow a certified public accountant on your behalf, during Bandtunes.com's normal office hours, no more than once during such one (1) year period, to inspect such records solely for the purpose of ascertaining the correctness of Bandtunes.com's quarterly reports issued to you. Each quarterly report rendered to you shall be deemed final and an account stated unless Bandtunes.com receives your written objection to such report and you complete your inspection within such one (1) year period. If Bandtunes.com uses reports generated by third parties in preparing your statements, Bandtunes.com will have the right to rely on all such reports. At no time will Bandtunes.com financial books or records leave our office premises, for any purpose.

 Section 3: General Terms

 Copyright. You shall at all times retain all right, title and interest in and to the Materials and the Finished Goods provided by you hereunder, including, without limitation, the copyrights therein and thereto.

 Name, Likeness and Biographical Material. You grant to Bandtunes.com the right to use your name(s), approved likeness(es) and approved biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Bandtunes.com Site, Materials, Finished Goods and the promotional compact disc referred to in Section 1.

 Materials and Finished Goods on the Bandtunes.com Site. You hereby waive any and all privacy, publicity, moral or other proprietary rights held by you (and any other person(s) whose performances are embodied in the Materials and/or the Finished Goods) under the laws of the United States and any other country in connection with the exploitation of the Materials and the distribution of the Finished Goods hereunder. You may remove the Materials or Finished Goods from the Bandtunes.com Site at any time upon five (5) days prior written notice to Bandtunes.com. 

Artist Warranty. You hereby represent and warrant to Bandtunes.com that (i) you have the right to enter into this Agreement and to grant the rights and licenses granted by you herein; (ii) you are of the age of majority; (iii) the sound recordings in the Materials and the Finished Goods contain only your original performances and contain no "sampled" or "replayed" material or material otherwise embodying the performances of any other party, unless, prior to Bandtunes.com's use of such sound recordings, you have obtained a license permitting the use as provided in this Agreement of such "sampled", "replayed" or other material from the original author and/or performer and the current copyright proprietor of such material and/or the copyright proprietor of the underlying work; (iv) you are the original composer of all music and lyrics contained in the Materials and Finished Goods, or, prior to Bandtunes.com's use of such music and lyrics, you have acquired by assignment or by valid license from the original composer(s) and/or the copyright proprietor(s) of the original musical composition(s) from which such music and lyrics are derived, the rights to adapt, broadcast, communicate, copy, distribute, perform, produce, or otherwise exploit such music and lyrics as provided in this Agreement; (v) no Materials or Finished Goods submitted by you violate any law, or violate or infringe on the rights of any person, including without limitation contractual rights, intellectual property rights, publicity and privacy rights and the rights against libel, defamation, slander or unfair competition, and that no consent, license or permission is necessary or shall be required by you or any third party in connection with the transactions contemplated by this Agreement; (vii) you are under no disability, restriction or prohibition with respect to your right to execute this Agreement, either on your own behalf or on behalf of each member of your group, (viii) the Material does not and will not contain any viruses or other programming routines that may interfere with computer systems or data, (ix) all factual assertions that you have made and will make to Bandtunes.com or its designees are true and complete, and (x) if any member of your group is a minor, you hereby warrant that you have 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.

 Monitoring Materials. Bandtunes.com has no obligations with respect to the content of the Materials and/or Finished Goods provided by you hereunder, including, but not limited to, any duty to review, edit or monitor any content in the Materials or the Finished Goods. Bandtunes.com, at its sole discretion, may elect to electronically monitor the Materials and may disclose any content as necessary to satisfy any law, regulation, or other governmental request or to properly operate the Bandtunes.com Site and protect any of its end users. You expressly acknowledge that Bandtunes.com reserves the right, in its sole discretion, and at any time, to block access to, remove or cease offering for sale any Materials or Finished Goods uploaded to or otherwise distributed using the Bandtunes.com Site without requiring or providing advance notice to you. You expressly agree that Bandtunes.com shall not be liable to you or any person or entity whose performances are embodied in any of the Materials or Finished Goods, or who claims rights by or through you and who asserts a claim in connection therewith, for any action Bandtunes.com takes to remove, cease offering for sale or restrict access to such Materials or Finished Goods, including but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Bandtunes.com shall have the right, but not the obligation, to report distributions of Materials and/or Finished Goods (whether or not offered for sale) to entities such as Soundscan, and no information relating to the number of downloads or units sold shall be deemed to be confidential or proprietary information of yours.

 Rights Payments. You shall be responsible for all licensing, reporting and payment obligations of all kinds in connection with the Materials, the Finished Goods or both, and the use of the Materials and the Finished Goods as set forth in this Agreement. Such payments include those relating to union and/or guild payments, "sample" or "replay" licenses or payments, mechanical, synchronization and public performance rights in the Materials, the Finished Goods, or both, including, without limitation, digital phonograph distribution licenses, as well as any other third party payments of any kind whether in connection with the Materials, the Finished Goods or both (collectively, "Rights Payments").

 Indemnification. You agree to indemnify, defend and hold harmless Bandtunes.com and its successors, assigns, agents, designees and licensees from any claim, liability, cost and expense (including unpaid Rights Payments and attorneys' fees and costs) in connection with any claim which is inconsistent with any agreement, undertaking, representation or warranty made by you herein.

 Bandtunes.com Error. Bandtunes.com will use good business practices in classifying the Materials and/or Finished Goods as "promotional" or "for sale" in accordance with your requirements as set forth in the Bandtunes.com Online Goods Registration Form. If Bandtunes.com fails to properly classify the Materials and/or Finished Goods (such failure, an "Error"), Bandtunes.com's sole liability and your sole and exclusive remedy for such Error shall be for Bandtunes.com to use reasonable efforts to correct the Error after you have provided prompt notice to Bandtunes.com of the Error.

 DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Bandtunes.com DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO (1) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE Bandtunes.com SITE, AND (2) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE Bandtunes.com SITE AND ANY SERVICES PROVIDED BY Bandtunes.com HEREUNDER. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Bandtunes.com BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE Bandtunes.com SITE, EVEN IF Bandtunes.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 Term. The term of this agreement shall be for a period of one year from the first day that Bandtunes.com determines that the Materials are uploaded to the Bandtunes.com Site, unless earlier terminated as set forth herein. The term shall be automatically extended for additional one year terms on each anniversary of such date unless Bandtunes.com or you terminate this license in writing within 30 days of the expiration of any such one-year period, or if this Agreement is otherwise terminated as permitted by its terms.

 Termination. Without limiting Bandtunes.com's right to remove Materials or Finished Goods from the Bandtunes.com Site, Bandtunes.com has no implied obligation to promote or distribute the Materials in any particular manner or in any minimum quantities, insofar as either party may terminate this Agreement with respect to some or all of the Materials for convenience at any time upon 7 days' written notice. Either party may terminate this Agreement for default upon 30 days' written notice provided that such default is not cured within such 30 day period. Upon any termination or expiration of this Agreement, Bandtunes.com may fulfill any orders placed prior to such termination or expiration, and Bandtunes.com will have a 30-day period (the "Sell-off Period") during which Bandtunes.com may sell off all of the Finished Goods or the "for sale" Materials in its possession. After the Sell-off Period, Bandtunes.com will destroy all embodiments of the Materials and the Finished Goods within its possession or, upon your request, Bandtunes.com will return to you, at your sole cost and expense, all such embodiments of the Materials and the then-remaining inventory of Finished Goods. All rights and obligations that by their nature continue beyond termination shall survive any termination, including without limitation, your indemnification obligation, and any unpaid Rights Payments or other payments to be made by or to you.

 General. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES. ANY DISPUTE BETWEEN YOU AND Bandtunes.com REGARDING THIS AGREEMENT WILL BE SUBJECT TO THE EXCLUSIVE VENUE OF THE STATE AND FEDERAL COURTS IN THE CITY OF LOS ANGLES IN THE STATE OF CALIFORNIA. Your sole remedy for a breach of this Agreement by Bandtunes.com shall be an action at law for money damages, if any. You hereby waive any right to, or to seek, injunctive or other equitable relief in connection with any breach or alleged breach of this Agreement by Bandtunes.com. This Agreement may not be amended by you unless an officer of Bandtunes.com has approved and signed such amendment. You shall be solely responsible for providing all copyright notices and other legal notices in connection with the Materials and/or the Finished Goods hereunder. Bandtunes.com takes no responsibility for any failure by you to include such notices in or on the Materials and/or Finished Goods. You do not have the right to use any of Bandtunes.com's trademarks, copyrights or other proprietary information or property in or in connection with any activity, or to create any implied endorsement thereof, unless authorized by Bandtunes.com in writing in advance, which authorization may be withheld by Bandtunes.com at its discretion. This Agreement is the entire agreement between you and Bandtunes.com and supersedes any other communications or advertising with respect to the Materials and the Finished Goods. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect.

 Should you have any questions concerning this Agreement, or if you desire to contact Bandtunes.com for any reason, including, without limitation, for purposes of notifying Bandtunes.com of any claims of infringement, please contact: Bandtunes.com  Services.