Updated March 18, 2010
Please read the following Artist Agreement (this “Agreement”) carefully before signing up as an Artist on the www.audimated.com website (the “Site”), before registering with or opening a merchant account on the Site ("Account"), offering any products for sale on the Site or using the various Services we provide, as defined below, so that you are aware of your legal rights and obligations with respect to the Site or Equity Music Inc. and any of its affiliates, parents and subsidiaries (individually and collectively, "we," "us," “our” or "EM").
o OUR BUSINESS CHANGES CONSTANTLY, AS DO OUR POLICIES, RULES AND REGULATIONS POSTED ON THE SITE, INCLUDING THIS AGREEMENT. IT IS YOUR EXPRESSED OBLIGATION TO CHECK THE SITE FREQUENTLY TO SEE IF THERE ARE ANY RECENT CHANGES TO THIS AGREEMENT. WE RESERVE THE RIGHT TO REVISE THIS AGREEMENT AT ANY TIME WITHOUT PROVIDING NOTICE. YOUR CONTINUED USE OF THE SITE, THE SERVICES (AS HEREINAFTER DEFINED) AND/OR YOUR ACCOUNT SHALL BE DEEMED AN IRREVOCABLE ACCEPTANCE OF ANY SUCH REVISIONS.
o ANY CONTROVERSY, CLAIM, DEMAND OR DISPUTE ARISING OUT OF OR IN RELATION TO ANY PORTION OF THIS AGREEMENT, OR THE BREACH THEREOF, MUST BE RESOLVED BY A COURT LOCATED IN MIAMI-DADE COUNTY, FLORIDA EXCEPT AS OTHERWISE DESCRIBED IN THE ARBITRATION OPTION SECTION (SEE SECTION BELOW AND WWW.ADR.ORG FOR FURTHER DETAILS).
o YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL BE LIABLE UNDER ANY AND ALL OBLIGATIONS AS SET FORTH IN OUR SITE’S TERMS AND CONDITIONS AND THIS AGREEMENT.
1) Description of the Site: The Site directly promotes and permits its Users to promote digital content, such as sound recordings, videos and ring tones as well as promotional products and merchandise (“Products”) produced by, related to, promoted by or featuring various music artists (“Artists”). The Site enables its users, members or visitors (“Users”) to purchase, rent or license (as applicable) Products, under certain terms and conditions as set forth in the T&Cs. The Site also allows Users to network, socialize and communicate with other users based on mutual or expressed interests in various featured music artists, geographic location or musical genre. All activities and capabilities offered by or through the Site shall individually and collectively be referred to as “Services”. Users of the Site may, where and if available, submit any photograph(s), video(s), image(s), text, rating, opinions and/or comment(s) or other content to the Site (“Submission(s)”).
EM reserves the right to add, change, modify, suspend or discontinue any portion of the Site or the Service(s) offered at any time. EM may also impose limits on certain Services or features and/or restrict User or Artist access to parts of the Site or to the entire Site in our sole and absolute discretion and without notice or liability to anyone.
2) Affiliate Programs. For the purpose of this Agreement, an Affiliate shall be defined a User who promotes, markets or otherwise advertises ("Promote" or a "Promotion") a Product which is registered for sale, rent or license (“Sale” or “Sell”) on the Site to other potential Users, for the purpose of earning a percentage of the Sale price of any Product sold as a result of such Promotion ("Commissions").
3) Selling Products. If you register any Products for sale via our Services, You agree, acknowledge, represent and warrant that:
a) All Products you register for sale via EM, the Site and our Services, and the offers and sale thereof, comply with all applicable U.S. federal and state laws and regulations.
b) Without further conditions or limitations, You authorize EM to list any Product You register for Sale and make it available for Sale to Users and/or for Affiliates to Promote at a price you designate ("Retail Price").
c) EM may remove any Product from the Site at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
d) You will advise EM of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or relation to such Product you receive from any person, company or entity that purchased such Product or received a Promotion in connection with such Product within two business days of your receipt of such complaint. You shall assist EM, at your sole cost and expense, in taking any steps and actions, as necessary and appropriate, or as reasonably requested by EM to respond to and/or resolve such complaints.
e) For any retail transaction involving a physical product, EM will collect and remit state or local transfer taxes (including but not limited to sales or use tax) where it is legally required to do so. Where EM does not collect and remit state or local transfer taxes on a transaction, it is possible that you will have the legal obligation to pay such taxes. You may wish to consult a tax professional to determine if you will have this type of obligation in any particular state.
f) You will not use the Site or our Services to: (i) make any false or deceptive statement or claim regarding your Product or sales of your Product; (ii) offer any promotions or incentives to Affiliates unless you intend to fulfill such promotions or incentives; or (iii) suggest in any way, whether express or implied, that your Product(s) are endorsed, approved or sponsored by EM in any way. EM reserves the right to suspend your ability to use the Site or our Services at any time.
4) Sale Earnings: At the completion of every Sale of your Products, your Account will be credited (“Payout”) the Retail Price minus any and all fees and costs. Fees and costs shall include both any and all Commissions paid out to Affiliates, both Direct and Downline, any applicable credit card processing fees and a service fee paid out to EM in the amount of ten percent (10%) of the Retail Price. All Payouts shall be subject to the following rules:
(a) It is your sole obligation to designate the Retail Price, Commissions and any discounts offered to buyers of Product you list on the Site.
(b) All Sales of your Products shall be subject to the Retail Price, Commissions and any discounts indicated at the time of Sale.
(c) All Commissions shall be paid out to Affiliates, based on the Affiliate Codes in accordance with the Site’s T&Cs.
(d) Commissions shall only be paid out to Affiliates for Sales based on Affiliate Codes (aka Coupon Code or Identification Code) as issued and tracked by our computer system.
(e) An Affiliate Code shall track Sales resulting from the Promotion by a User of a specific Product or an Artist. A User shall earn a Commission whenever his Affiliate Code is used by other Users (“Direct Affiliate”) in the purchase, rent or license (“Purchase”) of your Product. For example, User A who Promotes a specific song by you shall earn a Commission in the event User B uses User A’s Affiliate Code in the Purchase of that song.
(f) Moreover, Commissions may be earned by Users whose Affiliate Code is later promoted by other Users for further Sale of that particular Product or Artist (“Downline Affiliate”). For example, based on the above example, if User B Promotes the song first promoted to him by User A to Users C &D, both Users A & B shall earn a Commission in the event Users C & D purchase the song Promoted or any other Product of that particular Promoted Artist.
(g) A User may earn a Commission from no more than five Users downline by level from him/her. Based on the example above relative to User A, User B is a level 1 Downline Affiliate and Users C & D are level 2 Downline Affiliates.
(h) Your Account shall be credited for Payouts following receipt by EM of payment for Sale and reporting by EM’s own internal computer system.
(i) You may cash-out (“Cash Out”) any Payout in accordance with the rules established by EM and published to the Site, which may change from time to time at our sole and absolute discretion. The above not withstanding, a Cash Out must be for no less than $5.00 per transaction.
(j) EM may, in its sole and absolute discretion, force a Cash Out at any time.
(k) Payouts credited to your Account do not accrue interest.
(l) As an Artist, you agree, acknowledge, represent and warrant that:
a. EM shall have the sole right and responsibility for processing all Sales. You acknowledge that all agreements relating to Sales shall be between EM and the User.
b. All determinations of whether a Commission is payable to a User, Direct Affiliate or a Downline Affiliate will be made by EM and will be final and binding on the Artist.
c. You will not suggest or imply any warranty or other policy with respect to any Products other than EM’s written policies;
d. You will not make any unlicensed or unauthorized use of or otherwise infringe or misappropriate any materials protected by any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right ("IP Rights").
e. You will not interfere with or undermine EM’s tracking of Commissions;
f. All communications and/or representations made by you in connection with any Promotions and/or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner, and will otherwise comply with your country's laws and all U.S. federal and state laws, including U.S. Federal Trade Commission regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTCs endorsement rules.
g. Except as provided for by our Services, you will not offer, suggest or imply the availability of any rebates, coupons, tickets, vouchers or similar incentives to induce or encourage the purchase of a Product.
h. If you send, or cause to be sent, any messages or communications by electronic means, including but not limited to email and instant messages ("Emails") in connection with the Direct or Downline Affiliate Promotion or Sale of any Product, then you agree, acknowledge, represent and warrant that all such Emails shall be in full-compliance with all applicable federal and state laws and regulations.
i. You assume sole responsibility for obtaining and maintaining all relevant and necessary licenses and permits associated with any business operations as EM’s Affiliate.
j. You agree and acknowledge that EM, in its sole discretion, may suspend your Account(s) or hold any or all funds in you’re Account if EM suspects or has reason to believe and/or if a person otherwise claims that you have been involved with any of the following:
i. Illegal activity, including but not limited to, fraud, spam or other illicit commercial activities or any other activity which violates any federal, state, local or foreign law whether currently in effect or hereafter enacted or amended ("Law");
ii. Violation or infringement of any person's rights, including without limitation, any IP Rights;
iii. Misrepresenting, over-promising, making false, deceptive or misleading statements or any other acts in violation of federal or state law affecting consumer protection and commercial activities;
iv. A breach of any term of this Agreement or otherwise violating EM’s rules or policies or interfering with EM's business.
5) Misconduct: Following the suspension of an account or holding of funds EM may review your Account in any manner decided by EM at its sole discretion. EM may seize and/or retain funds in your Account as liquidated damages and/or for the benefit of third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (a) are not a penalty, and (b) are reasonable and not disproportionate to such presumed damages to EM. You agree and acknowledge that EM may also pursue other remedies as allowed by law.
6) License: By registering and opening up an Artist Account, you hereby grant EM the following rights in full and complete consideration of EM’s promotion, marketing and Sale of your Products (the “Services”). The rights granted by you demand no further consideration due from EM or any third party, and with the understanding that EM, in its sole and absolute discretion may choose whether or not to open, maintain or cancel your Account. The following rights granted by you to EM are a fundamental element of the basis of the bargain between us and you. These rights are required to permit the operation of our Services. The Site and Services would not be provided to you without such a grant of rights.
a) You hereby grant EM a non-exclusive, unlimited, worldwide, fully paid, irrevocable license to copyright, edit, copy, use, destroy, publish, broadcast, archive, retrieve, upload, excerpted, post, distribute, sell, market, promote, license, exhibit, transmit, project, reproduce, create derivative products of and otherwise use and/or exploit (together “Publish”) your Products together with any interviews, submitted information, video, audio, audiovisual or written materials as well as your name, voice, likeness, photograph, performance, appearance and any and all biographical material via, thru and on the Site as permitted by this Agreement or the T&Cs as posted on the Site. The above license shall include the right granted by you to EM to create, promote and distribute mixed tapes, CD or other compilations of songs and/or performances you Sell or Promote through the Site (“Mix Tapes”). EM may, in its sole and absolute discretion, designate the Retail Price of any Mix Tapes.
b) In the event you perform or display on the Site any material originally written, composed, choreographed, photographed or produced by you, (collectively called the “Original Material”), you hereby grant to EM, without charge, any and all rights necessary to Publish the Original Material in any and all media and as part of EM-produced or designed Products now known or hereafter devised, and for any other purpose worldwide.
c) You hereby grant EM a non-exclusive, unlimited, worldwide, fully paid, irrevocable, perpetual license to Publish your name, voice, likeness, photograph, audio/video and any and all biographical material for the purpose of advertising or promoting your participation on the Site. This provision shall survive termination of the Agreement.
d) You understand that during the course of your participation on the Site you may reveal, and other parties may reveal, information about you that is of a personal, private, embarrassing or unfavorable nature, which information may be factual and/or fictional. You further understand that your appearance, depiction and/or portrayal on the Site may be disparaging, defamatory, embarrassing or of an otherwise unfavorable nature which may expose you to public ridicule, humiliation or condemnation. You further acknowledge and agree that EM shall have the right to (a) include any or all such information and appearances, depictions or portrayals on the Site in its sole discretion, and (b) Publish the materials containing any or all such information and appearances, depictions or portrayals in any manner whatsoever in any and all media now known or hereafter devised, or for any other purpose in perpetuity. You hereby waive and shall have no claim against EM for invasion of privacy, right of publicity violation, defamation or any other cause of action arising out of the production, duplication, broadcast or exhibition of your appearance on the Site and you expressly release EM and its respective agents, employees, licensees and assigns from any and all claims which you have or may have for any such claims.
e) You represent, warrant, covenant and indemnify EM to the effect that (a) you are the sole and exclusive owner with all rights, titles and interests to and in any Products you Sell or other materials you make available or publish on the Site and (b) that any and all such Products are ones that you have originally created in their entirety and that no other parties need to be contacted for permission to Publish, air and otherwise use your Products, in whole or part, as set forth in this Agreement.
f) You agree that the inclusion of your Products and your participation on the Site, if any, shall not be deemed to be a performance and is not employment under any collective bargaining agreement or performing arts guild and does not entitle you to wages, salary, residuals, corporate or other benefits (as for example, pension, health and welfare benefits) or other compensation under any such collective bargaining agreement or otherwise.
g) You agree that you shall not have the right to terminate or rescind this Agreement or to enjoin or restrain the distribution or any other exploitation of the rights granted herein.
h) You acknowledge that EM is relying on your representations herein and that a breach by you hereunder would cause EM irrevocable injury and damage that cannot be reasonably or adequately compensated by damages in an action at law; and, therefore, you hereby expressly agree that EM shall be entitled to injunctive and other equitable relief to prevent and/or cure any breach or threatened breach of this Agreement by you.
7) Fees: There is no cost to being an Artist on the Site, except for the payout of any Commissions, service fee or discounts on the Sale of your Products as indicated herein with:
a) Digital Distribution: Artist shall pay a fee to EM in exchange for EM’s services in submitting Artist’s Products to digital music services such as iTunes and Rhapsody.
b) CD Duplication: Artist shall pay a fee to EM in exchange for EM’s services in pressing physical copies of Artist’s music CD and shipping or storing them.
c) Copyright Submission Services: Artist shall pay a fee to EM in exchange for EM’s services in helping the Artist submit a registration for copyright.
d) Music Video: Artist shall pay a fee to EM in exchange for EM’s services in producing the Artist’s music videos.
e) Featured Promotions: Artist shall pay a fee to EM in exchange for EM’s services in advertising and promoting the Artist on the Site’s homepage.
f) Site’s Radio: Artist shall pay a fee to EM in exchange for EM’s services in featuring or promoting the Artist’s music on the Site’s radio services as described therein.
g) Mix-tape Publishing: Artist shall pay a fee to EM in exchange for EM’s services in Producing or Publishing Artist’s music in mix-tapes, as described therein. Further, EM and Artist shall equally share in any net revenues generated by the sale of these mix-tapes.
8) Term/Termination: We may decide at any time in our sole and absolute discretion whether to remove and/or terminate your access to the Site or our Services, for any reason, including but not limited to violations of this Agreement or the T&Cs. We may or may not provide notice to you of such termination through any reasonable means including, but not limited to, sending notice to you at the e-mail address that you provided during or subsequent to registration or purchase. Such termination is effective when executed by us or upon transmittal by us. However, your obligations of indemnification pursuant to this Agreement and the T&Cs shall survive any termination or the cancellation of Account or this Agreement.
a) Withdrawal of consent or request to have your Account terminated will have no effect on the legal validity and/or enforceability of these T&Cs for the time period prior to your request and during the time period needed for us to reasonably act to comply with your request.
9) Indemnification: You agree to indemnify, defend and hold us, and our subsidiaries, affiliates, officers, parent companies, agents, co-branders or other partners, and employees (each a "Covered Party"), harmless, at your expense, against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by any Covered Party or other third party and arising out of, (i) your use or misuse of the Site or the Services, (ii) arising from your breach of this Agreement, or (iii) arising from your violation or breach of any term of this Agreement, the T&Cs or any policies, rules or guidelines referenced herein.
10) Warranties: You expressly agree that access and/or use of the Site and/or Services is at your sole risk. The Site and Services are provided on an "AS IS" and "AS AVAILABLE" basis, without any express or implied warranty of any kind, including, but not limited, non-infringement of intellectual property. The Site and/or Services may contain bugs, errors, problems or other limitations.
a) We and the Covered Parties have no liability whatsoever for your use of, or inability to use, the Site and/or Services to the fullest extent permitted by applicable law. We and the Covered Parties are not liable to you or to any third party for any indirect, special, incidental or consequential damages, whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if advised of the possibility of such damages.
b) The negation of damages set forth above is a fundamental element of the basis of the bargain between us and you. The Site and Services would not be provided to you without such limitations. No advice or information, whether oral or written, obtained by you from us through the Site and/or Services shall create any warranty, representation or guarantee not expressly stated in this Agreement. We are not responsible to you and/or any third party, without limitation, for: 1) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to or alteration of, communications; 2) the conduct of any person, whether online or offline; 3) any computer virus or other malicious, destructive or corrupting code, agent, program or macros; or 4) any infringement of another's rights, including intellectual property rights.
c) You agree that EM is not the publisher of Submissions, as define in the T&Cs, found on the Site and, as such, shall not be liable for damages arising there from including, without limitation, any and all criminal and/or civil liability.
d) EM shall not be liable to you for any Services, goods and/or information available from third parties, even if obtained at or through the Site and/or Services. If you are dissatisfied with the Site and/or Services or with this Agreement, your sole and exclusive remedy is the cancellation of your Artist Account and to discontinue use of the Site and Services.
11) Miscellaneous: Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in, or associated with, the Site or Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision, or any other provisions in this Agreement.
a) You expressly authorize us to comply with any and all lawful notices, subpoenas, court orders and/or warrants without prior notice to you.
12) Dispute Resolution: If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and us agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our Services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by sending an email to email@example.com. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
a) Choice of Law and Forum - This Agreement shall be treated as though it were executed and performed in Miami, Florida and shall be governed in all respects by the laws of the State of Florida without regard to conflict of law provisions. You agree that any Claim or dispute you may have against us must be resolved by a court located in Miami-Dade County, Florida, except as otherwise agreed by the parties or as described in the Arbitration Option section below. You agree to submit to the personal jurisdiction of the courts located within Miami-Dade County, Florida for the purpose of litigating all such Claims or disputes.
b) Arbitration Option - For any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c) Improperly Filed Claims - All Claims you bring against us must be resolved in accordance with this Dispute Resolution Section. All Claims filed or brought contrary to this Dispute Resolution Section shall be considered improperly filed. Should you file a Claim contrary to the Dispute Resolution Section, we may recover attorneys' fees and costs up to $1000, provided that we notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the Claim.
13) Legal Warning: Any attempt by any individual, whether an Artist, a User or otherwise to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Site and/or Services, is a violation of criminal and civil law and we will diligently pursue all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
14) Contact Us:
Equity Music Inc.
3346 SW 25th Street
Miami, FL, 33133