ON-LINE ARTIST AGREEMENT
Miamibestnews.com (STS) ., a FLORIDA corporation located at 1835E Hallandale blvd #845 Hallandale FL33009(“STS”) enters this agreement with [Artist/USER] ("you"), c/o is being entered into in consideration of the mutual benefits and covenants contained in this Agreement.
1. PURPOSE: Subject to your approval rights in this Agreement, STS will offer products relating to the musical group/musician professionally known as "[ArtistName]" ("Artist") and the members of Artist, on Miamibestnews.com (STS) (the “ONLINE STORE"). The ONLINE STORE will provide Internet access for online distribution of products ("Product"). It is intended that the Product, digital downloads, merchandise, collectible items and special or limited edition items not available from any other source.
2. TERM: The term of this Agreement (the "Term") initial contract period (1) years.
3. MERCHANDISER AGREEMENTS. If you (or Artist) enter into any agreement during the Term (of this Agreement) pursuant to which you grant the Rights to any third party, you shall cause such third party to grant to TS MUSIC any consents and licenses that may be required from such third party in connection with the sales of Product.
4. DEVELOPMENT; HOSTING; CUSTOMER SERVICE:(a) Miamibestnews.com STS has designed and developed the, including the source code, the Product catalog, and the commerce system, and is solely responsible for the costs of such design and development. (b) During the Term, STS will host (i.e., provide the server for) and maintain the Catalog, including by providing periodic source code programming updates and improvements. In this regard, Miamibestnews.com will use its commercially reasonable best efforts to correct any material "bug" or defect as soon as reasonably possible after Miamibestnews.com becomes aware of such material "bug" or defect. (c) Miamibestnews.com shall handle all customer orders and inquiries, provide all necessary credit card accounting and processing services and develop payment, delivery and refund policies. To effect the foregoing, Miamibestnews.com shall also provide an on-line and toll-free telephone service center that will take orders and respond to customer inquiries. On-line inquiries will be responded to within 24 hours of receipt and the telephone service will be operational Mondays through Fridays from 9:00 a.m. to 7:00 p.m. ESTERN Time (excluding holidays) and will enable customers who prefer not to place orders on- line to place orders by facsimile or telephone. (d) Unless you and Miamibestnews.com agree otherwise in writing, Miamibestnews.com (or its designee) shall process orders received from the ONLINE STORE and arrange to have the ordered
5. PRODUCT SUPPLY AND INVENTORY: (a) You will have the right to approve the Products that are to be sold through the ONLINE STORE and the retail price of each Product item. (b) You and Miamibestnews.com STS agree to cooperate with each other and use their commercially reasonable best efforts to make the necessary arrangements to ensure the timely supply of Product to fulfill Catalog customer orders. You will be responsible for providing all Products in acceptable digital format. If Miamibestnews.com should nevertheless pay any Product Costs on your behalf (which Miamibestnews.com is not TSMC Online Catalog Artist Agmt. 13.8 Page 1 of 6 Initial:____ obligated to do), all such Product Costs will be deducted from any and all monies otherwise payable to you hereunder and, to the extent STS is at any time unable to do so, you agree to promptly reimburse Miamibestnews.com for the excess upon demand. As between you and Miamibestnews.com you shall own and be solely responsible for all Artist Product inventory. (c) Upon the expiration of the Term, TS Music will remove all digital Artist Product inventories, which inventory shall be free and clear of any encumbrances by STS or any third party deriving rights through STS.
6. PRODUCT SALES AND CATALOG REVENUES:
(a) Artist Product:
(i) Upon Miamibestnews.com receipt of a verified order and payment for a particular item of Artist Product, Miamibestnews.com shall provide purchaser download link or download.
(ii) STS shall pay you a purchase price equal to 90% of the "Gross Artist Product Revenue," which means the amount actually received by STS in respect of Artist Product sold through the STORE, less all related Deductible Amounts. The term "Deductible Amounts" means all third party fulfillment fees and related charges; sales, use and value-added taxes; credit card and other third party service fees; and any credits for returns, rebates, cancellations and exchanges.
(iii) Notwithstanding anything to the contrary contained, as between Miamibestnews.com and you, [USER] shall be solely responsible for all Product Costs and Deductible Amounts [USER ] associated with customer bad debts in respect of Product hereunder shipped by Miamibestnews.com (or its designee).
(c) Database: Miamibestnews.com will own the customer database as specifically identified with the Catalog (the "Database").
(d) Other Revenues: The term "Gross Exploitation Revenue" means the amount actually received by Miamibestnews.com in respect of activities contemplated in this Agreement and not set forth above in this paragraph 6 including, for example, income in respect of advertising contained on the Catalog (e.g., hyperlinks to, and banners and other advertisements for, other Internet web sites), less all agent commissions and other related Deductible Amounts. You shall have the right to approve all such advertising and other activities.
(e) Accounting: The term "Gross Income" means Gross Artist Product. Miamibestnews.com shall compute your share of Gross Income and render statements thereof to you within 60 days after March 31, June 30, September 30 and December 31 for the preceding three-month period. Miamibestnews.com shall deduct from your share of Gross Income all chargeable amounts under this Agreement. Each such statement shall include an itemized breakdown of the sources of the applicable revenue and shall be accompanied by the payment of the amount of monies, if any, earned by you during the accounting period to which the statement relates. Miamibestnews.com shall be entitled from time to time to withhold from payments otherwise due reserves against anticipated returns, rebates, credits, cancellations and exchanges, provided that such reserves shall be liquidated within two accounting periods following their establishment. You or a certified public accountant on your behalf may, at Miamibestnews.com offices and at your expense, examine Miamibestnews.com books and records relevant to the calculation of your share of Gross Income solely for the purposes of verifying the accuracy of statements rendered by Miamibestnews.com to you. Such books and records may be examined as aforesaid only (i) during Miamibestnews.com normal business hours, (ii) upon reasonable notice to Miamibestnews.com, and (USER) within two years after the date a statement is due. Further, you shall not have the right to examine such books and records more frequently than once in any twelve-month period or more than once with respect to any particular statement. Each statement shall be deemed final and binding upon you as an account stated and shall not be subject to any claim or objection by you (A) unless you notify Miamibestnews.com of your specific written objection to the applicable statement, stating the basis in reasonable detail within two years after the date such statement is due, and (B) unless, within said two year period, you make proper service of process upon Miamibestnews.com in a suit instituted in a court of proper jurisdiction.
(a) During the Term, Miamibestnews.com shall cause the Miamibestnews.com website located at Miamibestnews.com (the “ONLINE STORE"), to contain a featured hyperlink to, and prominently placed advertising for, the Catalog. Also, Miamibestnews.com may include on the Catalog a featured hyperlink to, and prominently placed advertising for the UBL at no charge to the UBL Affiliate or Miamibestnews.com Other marketing activities in respect of the ONLINE STORE shall be subject to your approval, and may involve the development of strategic relationships with, for example, other Internet web sites and/or Artist's record you to create Catalog hyperlinks. Any third party marketing costs incurred with your approval shall be deducted from any monies otherwise payable to you.
(b) You agree to use your commercially reasonable best efforts to:
(i) Keep Miamibestnews.com apprised of Artist's professional activities (e.g., touring and recording) and provide Miamibestnews.com reasonable access to Artist's professional relationships (e.g., with tour promoters and record labels);
(i) Cause the URL of the Catalog to be included on all advertisements for Artist records released during the Term or for concerts to be performed during the Term, and on the liner notes of Artist's records and concert programs;
(ii) Cause on-line events and/or sites featuring Artist or any member of Artist (e.g., the official Internet web site of Artist's fan club, any official Internet web site relating to any member of Artist, any on-line "chats" featuring Artist or any member(s) of Artist, cybercasts of Artist's live performances, interviews or other audiovisual programs featuring Artist or any member(s) of Artist) to prominently feature, on both the front and main event page(s), a hyperlink to, and banner advertising for, the Catalog; and
8. Ownership; Grant of Rights; Post-Term Rights:
(a) Artist Content: As between you and STS, any and all artwork, trademarks, logos, graphics, video, sound recordings, musical compositions, text, data and other materials supplied by you to Miamibestnews.com in connection with this Agreement, as well as the URL and the domain name or names assigned to the Catalog and/or the Artist Site (collectively, the "Artist Content"), shall remain your sole and exclusive property. You hereby grant to Miamibestnews.com during the Term and throughout the universe (the "Territory") a non- exclusive, royalty-free license to use, copy, modify (with your prior consent), distribute, publicly perform and display and otherwise exploit the Artist Content in connection with the development, maintenance and operation of the Catalog and/or the Artist Site and the advertising and promotion of the Catalog and/or the Artist Site and of Miamibestnews.com in connection with the Catalog and/or the Artist Site.
(b) Developed Content: As between you and Miamibestnews.com STS MY ET, any and all text, graphics, audio, video, artwork and designs you create or its employees or your agents during the Term for use solely on the Catalog, including any additions to or modifications of Artist Content you make or your employees or agents, (collectively, the "Developed Content"), shall be your sole and exclusive property.
(c) Miamibestnews.com STS MY ET Content: As between you and Miamibestnews.com STS MY ET, any and all commerce technology, HTML formatting code, source and object code, programming code and software, as well as all text, graphics, audio, video, artwork and designs provided by TS MUSIC in connection with this Agreement which does not constitute Developed Content (collectively, the "Miamibestnews.com STS MY ET Content") shall be Miamibestnews.com STS MY ET sole and exclusive property. Notwithstanding the foregoing, upon the expiration of the Term and provided you are not in breach of this Agreement, Miamibestnews.com STS MY ET shall grant to you a perpetual non-exclusive license throughout the Territory to use, modify, publicly perform and display all Miamibestnews.com STS MY ET Content used in the Catalog and owned and controlled by Miamibestnews.com STS MY ET, solely in connection with operating and maintaining the Catalog. In consideration of such license, if you elect to so utilize any such Miamibestnews.com STS MY ET Content in connection with the Catalog after the Term, you agree to pay, or cause your licensee to pay,Miamibestnews.com STS MY ET a royalty equal to [%] of the gross revenues earned in connection with the Catalog after the expiration of the Term, but only for as long as you continue to use any such Miamibestnews.com STS MY ET Content. In this regard, you shall account in the same fashion and within the same time periods, and Miamibestnews.com STS MY ET shall be accorded the same examination rights and be subject to the same limitations and restrictions, as apply with respect to your accountings under paragraph 6(g) above. Nothing contained in this Agreement shall impose upon Miamibestnews.com STS MY ET any obligation whatsoever to provide you with updates, hosting, maintenance or support with respect to the Catalog or such Miamibestnews.com STS MY ET Content after the expiration of the Term. You shall not be entitled to use any name, trademark or service mark of Miamibestnews.com STS MY ET or its affiliates in any manner whatsoever without obtaining the prior written consent of Miamibestnews.com STS MY ET or the applicable affiliate of Miamibestnews.com STS MY ET
(d) Artist Identification: You hereby grant to Miamibestnews.com STS MY ET the non- exclusive right during the Term throughout the Territory to use the names of Artist and Artist's tours, and the names and approved photographs and other approved likenesses of the members of Artist, on the Catalog and in advertisements and promotions of the Catalog and of Miamibestnews.com STS MY ET in connection with the Catalog. In this regard, at no cost to Miamibestnews.com STS MY ET , you agree to provide Miamibestnews.com STS MY ET with all photographs, graphics, logos and similar items reasonably required by Miamibestnews.com STS MY ET to create your Catalog entries and readily available to you promptly following Miamibestnews.com STS MY ET request.
9. THIRD PARTY CLEARANCES: You shall obtain all necessary third-party clearances in connection with all Artist Content and Product (including the payment of any associated fees, royalties and other costs). Without limiting the generality of the foregoing, with respect to all uses of musical compositions, sound recordings and audiovisual productions in connection with the Catalog, you agree to grant or cause Artist and/or any applicable third parties (e.g., music publishers, record companies and performing rights societies) to grant to TS MUSIC any and all required rights. However, TS MUSIC shall not use any particular sound recording, musical composition or audiovisual production on the Catalog, or provide access to any feature or service on the Catalog that entails the public performance of music (e.g., live audio streaming), except at your request or with your approval. If TS MUSIC nevertheless shall pay, with your approval, any third party clearance cost relating to the Catalog (which TS MUSIC is not obligated to do), all such amounts shall be deducted from any and all monies otherwise payable to you under this Agreement (except to the extent deducted from monies otherwise payable by TS MUSIC.
10. REPRESENTATIONS AND WARRANTIES: INDEMNITY:
(a) You represent and warrant that you have the full right, power and authority to enter into and to perform this Agreement and to grant to Miamibestnews.com STS MY ET all rights and licenses set forth in this Agreement. Neither you nor Artist is under any restriction or obligation that may or will impair your full performance of this Agreement. No exploitation or use of Artist Content or the sale of any Product shall violate or infringe upon any common law or statutory rights of any party, including contractual rights, copyrights, and rights of privacy or publicity or shall defame any person or entity; and
(b) You agree to indemnify and hold Miamibestnews.com STS MY ET and its members, employees, attorneys, agents, successors, assigns and licensees harmless against any claim, liability, cost and expenses (including attorneys' and accountants' fees reasonably incurred) in connection with any breach or alleged breach of this Agreement by you. In this regard, v STS MY ET shall not settle any claim without first notifying you of the terms of any proposed settlement and obtaining your consent, provided you post within ten days after such notice, a bond, satisfactory to Miamibestnews.com STS MY ET in its reasonable discretion, to assure Miamibestnews.com STS MY ET of reimbursement for all damages, liabilities, costs and expenses (including legal expenses and counsel fees reasonably incurred) that Miamibestnews.com STS MY ET in its reasonable business judgment, incur as a result of such a claim. If you fail to post such a bond, you shall be deemed to have consented to Miamibestnews.com STS MY ET settlement. You shall, upon demand, pay the person or entity being indemnified hereunder for any payment made or required to be made by such person or entity at any time (including after the Term) in respect of any liability, damage, or expense to which the foregoing indemnity relates. Without waiving any right or remedy available to Miamibestnews.com STS MY ET, if any such claim is made, Miamibestnews.com STS MY ET shall have the right to withhold monies otherwise payable to you under this Agreement in an amount reasonably related to such claim and to deduct therefrom payments required under this paragraph. Miamibestnews.com STS MY ET shall not withhold monies otherwise payable to you after you post a bond meeting the above- described conditions.
(c) You acknowledge that Miamibestnews.com STS MY ET is making no representations and warranties concerning anticipated the amount of compensation payable to you. You warrant, represent and agree that neither you nor Artist nor any third party shall make any claim, nor shall any liability be imposed upon Miamibestnews.com STS MY ET based upon any claim, that more sales could have been made or better business could have been done in connection with the Catalog than was actually made or done. You agree that Miamibestnews.com STS MY ET shall not be liable for any special, consequential, incidental or indirect damages in connection with or arising out of this Agreement, however caused, under any theory of liability.
(a) All notices, accounting statements and payments to either party shall be sent to such party's address first mentioned in this Agreement, or such other address as the parties designate by notice to the other. All notices sent under this Agreement must be in writing to be effective, and, must be sent by a third party messenger, by air courier service with a written acknowledgment of receipt, by registered or certified mail, return receipt requested, or through a telegraph office. The date of personal delivery, of mailing or faxing, or the date of delivery to a telegraph office, as the case may be, of any such notice shall be deemed the date of the giving (except, with respect to notices of change of address, the date of which will be the date of receipt by the receiving party). Until Miamibestnews.com STS MY ET notifies you otherwise, a copy of all notices to TS MUSIC shall be simultaneously sent to Miamibestnews.com STS MY ET
(b) No failure by any party to this Agreement to perform any of its obligations shall be deemed a breach of this Agreement, unless the other party has given notice of such alleged breach in reasonable detail and such alleged breach is not cured within 30 days after the giving of such notice.
(a) The parties intend this Agreement to be the final expression of their understanding and agreement and as a complete and exclusive statement of the terms; this Agreement supersedes all prior and contemporaneous negotiations, understandings, and agreements between the parties hereto with respect to the subject matter. The parties acknowledge and agree that neither party has made any representations or promises in connection with this Agreement nor the subject matter. The parties shall negotiate in good faith to replace any invalid, illegal or unenforceable provision (the "Invalid Provision") with a valid provision, the effect of which comes as close as possible to that of the Invalid Provision. This Agreement cannot be canceled, modified, amended or waived, in part or in full, in any manner except by an instrument in writing signed by the party to be charged. No waiver by either party, whether expressed or implied, of any provision of this Agreement or default shall affect such party's right to thereafter enforce such provision or to exercise the right or remedy set forth in this Agreement in the event of any other default, whether or not similar. Words in the singular number shall include the plural, and vice versa. Whenever examples are used in this Agreement with the words "including," "for example," "e.g.," "such as," "etc." or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof. The paragraph headings are used solely for convenience and shall not be used in the interpretation or construction of this Agreement. All exhibits attached are incorporated into this Agreement by reference.
(b) In entering into this Agreement and providing services pursuant, you and Miamibestnews.com STS MY ET each has and shall have the status of independent contractors. Nothing contained shall contemplate or constitute either party being an agent or employee of the other party, and nothing shall constitute a partnership, joint venture or fiduciary relationship between the parties.
(c) This Agreement is entered into in the State of Washington and the validity, interpretation and legal affect of this Agreement shall be governed by the laws of the State of FLORIDA applicable to contracts entered into and performed entirely within the State of FLORIDA. The courts located in FLORIDA (state and federal), only, will have jurisdiction of any controversy regarding this Agreement; any action or other proceeding which involves such a controversy will be brought in those courts, in Washington and not elsewhere.
SOUNDT STUDIOS LLC