BANDWITH RADIO – INTERNET SOUND RECORDINGS DISTRIBUTION AGREEMENT
Summary of Agreement:
1) We provide space on our servers to house Your original works and Internet websites for you to display Your works;
2) You represent and warrant that the person(s) or managing body engaged in signing this contract has the legal right to the material’s licensing and royalty rights;
3) You waive royalties associated with the streaming Your original works as well as synchronization royalties by us on our websites;
4) We provide the ability for Your works to be listened to on our streaming online radio website;
5) If you wish to sell Your original works through our site, you agree that each work will have a list price of $1.00 (All currency is in US Dollars);
6) For each work sold for $1.00 (each paid download), you will receive 60 cents and we will pay the cost of transaction, sales tax, and distribution of funds.
This Internet Sound Recordings Distribution Agreement ("Agreement") is between BandwithRadio, LLC, ("we", "us", “our”, "BWR”, “BandwithRadio” or "Distributor"), a Wisconsin Corporation and you (“you” or “Client” or "Contributor"). By accessing and using the BWR Website, you hereby agree to the Terms and Conditions of Use and this Agreement.
1. OVERVIEW:
1.1 We own and operate the Website with the URL http://bandwith.org (the "Website" or “Site”). From this Website, we offer, “Sound Recordings to our Customers via live stream and download.” Customers receive this live stream and any downloads by either purchasing a Subscription to listen to music on the BandwithRadio Internet Radio Station, or by purchasing Credits to download music from our Contributors. Our Contributors are primarily Artists, and some are Independent Record Labels.
We license the rights to offer Sound Recordings from our Contributors on our “Websites”, i.e. http://bandwithradio.com/ and also Third Party Websites and/or Applications through associated Websites and/or Applications through associated Web Application Software (Widgets, iPhone and Mobile Applications, RSS Feeds and the like).
We retain a portion of Pay-Per-Download Fees (see Consideration Section) as a "Distribution Cost," in that we deduct a portion of the Pay-Per-Download Fee to pay for bandwidth, infrastructure and associated overhead costs, and distribute the remainder to our Contributors.
2. LICENSE GRANT:
2.1 You hereby grant to us a non-exclusive, worldwide license to offer downloading and streaming from any of our Websites of copies of the Sound Recordings as you determine by the selections made and listed of the Sound Recordings on Your User Settings on the Website each time you upload a new list of Songs (see Para. 4.1) along with any new Sound Recordings and the included songs that you release during the term of this Agreement (all such Sound Recordings and the included songs being referred to herein as "Your Sound Recordings" and to a specific song as “Your Song”). Each of Your Songs that are listed will be designated by you as either offered for free or sale. You have delivered a copy of Your Sound Recordings that you have released to us in either MP3 format or a digital format that can be converted to MP3. The license you are granting to us includes the license to offer any and all of Your Sound Recordings that have been delivered to us by You in any and all digital or electronic formats over the Internet via streaming and/or downloading with waiver of all royalties subject to the Consideration offered in Section 4.
2.2a You hereby grant to us a non-exclusive, worldwide license to convert Your Sound Recordings digitally to various formats so that BWR is able to normalize the quality of all uploaded music on any of our Websites, and you waive any mechanical royalties. A copy of the original work and format that you provide will be stored by BWR, but what is heard on the radio and on the music store sites will be digitally augmented.
2.2b You hereby grant us a non-exclusive, worldwide license to stream Your Sound Recordings digitally through our Websites, and you waive any royalties associated with these actions; including but not limited to performance, song writer’s, composer’s, and publisher’s royalties.
2.3 You hereby grant to us a non-exclusive, worldwide license to synchronize Your Sound Recordings on any of our Websites.
2.4 You also authorize our subscribers to make copies of Your Sound Recordings for personal uses, including the right to copy Your Sound Recordings onto CDs, DVDs, MP3 Players and other digital and electronic formats both invented and not yet invented.
2.5 You also grant to us the right to license all of the rights you are granting to us to third parties through technologies offered through our Websites (such as widgets) in order to publicize the band/musical artist, such as by playing Your Songs on social sites of third parties. The 'third parties' are limited to social network sites and do not include business, for-profit or commercial enterprises such as radio and streaming internet stations, commercials, video, etc.
2.6 The above license includes the license to use portions of Your Sound Recordings and the names of the artists, performers and songwriters of Your Sound Recordings to promote both Your Sound Recordings and our Website.
3. TERM AND TERMINATION:
3.1 The license you are granting to us under this Agreement shall remain in effect until terminated by either party, who may terminate the term by giving the other party a minimum of thirty (30) days prior notice. Additionally, either party may terminate upon fifteen (15) days prior notice at any time for a material breach if the other party does not cure the material breach during such fifteen (15) day period.
4. CONSIDERATION:
4.1 You will have complete control over charging or not charging Website users to download Your Songs. You can designate which of Your Songs you wish to offer for Free Sample, Download, or Sale through Your User Settings on the Website. (see Para. 2.1). A fee of $1.00 per song per download will be assigned to Your Sound Recordings or Songs offered for sale by you. Free samples can be listened to through the interactive Website Bandwith.org, but cannot be downloaded by site users. Free downloads can be downloaded by site users free of charge to be used at their listening discretion. The use or copy of any downloaded material by any third party (other than BWR and Client) that causes a possible reduction in gains of the Client is in violation of copyright laws and therefore strictly prohibited without express written consent of the Client.
4.2 Your Songs that are available for sale will have a list price of $1.00 per song per download through Bandwith.org. As part of the Registration Data, Client is required to provide its tax identification number (TIN), either its Employer Identification Number (EIN) or Social Security Number (SSN) to participate. Revenue generated for each download shall be allocated as follows: 60% will go to you as payment for the material. The remaining 40% (40 cents) will be used to pay for the e-commerce transaction (ranging from 30 - 40 cents). Any revenue remaining after payment to you and the transaction fees will go to BWR toward operation costs and payment distribution (sending checks or direct deposits to Clients).
4.3 You can distribute Your merchandise, such as apparel through BWR limited to the catalog listed with BWR (available upon request). As part of the Registration Data, Client is required to provide its tax identification number (TIN), either its Employer Identification Number (EIN) or Social Security Number (SSN), to participate. Client is responsible for supplying text, product information, logo and images for use on merchandised items. You will receive 85% of the profit-revenue generated from sales of merchandise, while BWR will receive 15%. Profit-revenue is defined as the list price minus the cost of manufacture. For example, if a T-shirt costs $15.00 to produce and the price to the consumer is $20.00, you will receive 85% of $5.00 ($4.25) while BWR will receive $0.75. The consumer will be responsible for any shipping and handling fees. Production price lists will be made available for clients.
4.4 Clients will have two options for receiving periodic payments from BWR for merchandise and material sales: (a) mailed check and (b) direct deposit, as follows:
(a) Payment checks will be sent to an approved address in the name of the registered Client. Payment to Client will be made at a minimum of $50.00. Once Your combined sales have reached a minimum of $50.00 a payment will be sent from BWR to you. The payment by check will be made payable to the registered Client. BWR is not responsible for the failure of the registered Client to distribute funds to partners, members, or other third party individuals or entities with a stake or interest in the Client’s enterprises.
(b) Payment by direct deposit will be made once Your combined sales have reached a minimum of $50.00 a payment will be sent from BWR to you. Such deposit will be made to the account provided by the registered Client. BWR is not responsible for the failure of the registered Client to distribute funds to third party individuals or entities with stake in the client’s enterprises.
4.5 Payments to You shall be sent by BWR periodically, usually monthly, within approximately thirty (30) days after the end of each calendar month if Your earned balance is $50 or more. BWR reserves the right to change this payment plan to a different periodic payment, such as quarterly payments upon notification to the Client. If, at the end of the payment period (e.g. monthly), you have not yet attained a payout amount of $50.00, Your balance will carry over to the next payment period. In the event the Agreement is terminated, BWR shall pay Your earned balance to You within approximately forty five (45) days after the end of the calendar month in which the Agreement is terminated by You (following BWR's receipt of Your written request, including by email, to terminate the Agreement) or by BWR. In no event, however, shall BWR make payments for any earned balance less than $10.00.
5. REPORTS:
5.1 We will provide reports to you through Your user account on the Website and at the time of each payment to you, setting forth the following information:
(a) Number of song downloads and merchandizing revenue;
(b) Refunds and adjustments; and
(c) A calculation of the amount payable to you.
6. BOOKS AND RECORDS:
6.1 You will have the right, upon seven (7) business day’s notice, to review our books and records to determine the amounts owed to us and/or the accuracy of reports we have given to you. Such audits may be made by you and/or Your designated representatives and are at Your cost. We will make all books and records available for review at our office in a convenient manner: all books and records will be reasonably organized and copying facilities of reasonable speed and quality will be available for use on the premises. In the event that you conduct an audit and discover a discrepancy greater than 2% of what you are owed, we will pay you:
(a) The amount of the deficiency;
(b) Your reasonable costs of conducting the audit including accounting fees; and
(c) Accrued interest. If you discover a discrepancy equal to or less than two (2%) percent, we will immediately pay you the difference with applicable interest.
7. CONFIDENTIALITY:
7.1 In the event you are permitted to view certain of our confidential information and materials, because you are a Contributor, then you agree that Your disclosure and use of such confidential information and materials will be restricted as set forth in this section.
7.2. Confidential Trade Secrets: You acknowledge and agree that any and all confidential information and materials of and relating to our business, from which we derive actual or potential economic value from such confidentiality, constitute our confidential and proprietary trade secrets (such confidential information and proprietary trade secrets being referred to herein as the "Confidential Information"). Our "Confidential Information" includes the following, to the extent not publicly disclosed:
(a) Sales and financial information relating to our operations, including, but not limited to, our advertising revenue and information about our website traffic (hits and "stickiness");
(b) The identities of our subscribers and potential subscribers and information or data relating to discussions with those subscribers and potential subscribers such as their objectives and needs; and
(c) The terms of our agreements with you and our other employees, contractors, dealers, and customers.
Notwithstanding any other provisions of this Agreement, Confidential Information shall not include:
(a) Information which is, or subsequently becomes, within the knowledge of the public generally through no fault of Yours;
(b) Information which you can substantiate by written documentation was known to you at the time of receipt; or
(c) Information which is subsequently obtained lawfully from a third party who had obtained the information free of any confidentiality obligations.
7.3 You agree that you will keep any and all of the Confidential Information that we provide to you in confidence and not use it or disclose it to any other person or entity except as reasonably required for the purposes for which we have allowed you to have the Confidential Information. With respect to all such information, you will exercise the same degree of care to protect our Confidential Information that you exercise with respect to protecting Your own confidential information, and in no event less than reasonable care.
7.4 In the event that any of the information referred to hereinabove is confidential but does not constitute a trade secret under Wisconsin law, such confidential information not constituting a trade secret shall be subject to the restrictions provided for herein for no longer than two (2) years from the date of this Agreement foregoing, in the event that you receive a subpoena or other validly issued administrative or judicial process requesting any of the documents or other materials or other disclosure of any of the Confidential Information, and are not prevented under applicable law from disclosing such fact, you shall promptly notify us and tender to us the defense of such demand. Unless the demand shall be timely limited, quashed, or extended, you shall thereafter be entitled to comply with that demand to the extent required by law. If requested by us, you shall cooperate at our expense, in the defense of such demand.
8. NO OBLIGATION TO USE OR MAKE AVAILABLE SOUND RECORDINGS:
8.1 Notwithstanding any other term of this Agreement, we are not obligated to make Your Sound Recordings available or otherwise exploit Your Sound Recordings in any manner or offer any of Your new releases or other Sound Recordings on a pay-per-download basis
9. DELIVERY:
9.1 By completing the electronic signature and agreeing to these terms, the songs that You listed for upload to our site will be stored within our database. We are entitled to copies of Your Sound Recordings that you have already delivered to us. We are entitled to have you deliver additional copies of any of Your Sound Recordings that you may have already delivered to us in the same or different formats.
10. SECURITY PRECAUTIONS:
10.1 We will endeavor to implement whatever copyright protection scheme we deem to be optimal for our system. There may be copyright protection schemes that provide better protection than what we implement, but that would disrupt service to our customers. There is no protection scheme that will absolutely prevent someone from making unauthorized copies of Sound Recordings that are downloaded. We reserve the right to reject any protection scheme that we do not believe will work for us or believe would be too costly or difficult for us to implement. Subject to meeting our obligations to allow our customers to copy Sound Recordings onto CDs, MP3 Players and the like, we do agree to make reasonable commercial efforts to restrict the number of copies of any Sound Recording burned onto CDs or DVDs using anyone password to no more than three (3) times and to MP3 players to no more than three (3) times in any calendar quarter without special permission from us which we may grant if the customer has a reasonable explanation of why it is reasonable for that customer to be entitled to an additional three (3) of each. For example, the customer may tell us that the customer's computer crashed and a previous copy was lost.
11. MARKETING EFFORTS:
11.1 We will exert whatever marketing efforts we consider to be appropriate; we are not required to exert any marketing efforts.
12. REPRESENTATIONS, WARRANTIES AND DOCUMENTS:
12.1 You represent and warrant to us that:
(a) You own all proprietary rights in Your Sound Recordings;
(b) There are no restrictions against Your granting the rights to us that you are granting hereunder;
(c) You have not previously assigned or licensed any rights in Your Sound Recordings to anyone else except as stated above;
(d) You own the copyrights in Your Sound Recordings and they have not passed into the public domain;
(e) There are no liens or encumbrances on Your Sound Recordings;
(f) The artists, producers and engineers who have contributed to Your Sound Recordings have all assigned any and all copyrights in Your Sound Recordings to you in writing;
(g) You have obtained written privacy and publicity rights releases from each and every person who is featured as an artist in any of Your Sound Recordings, and you have been granted the right to use and exploit such likenesses, images, and voices in any way you desire and the right to assign and license those right to others, and you have licensed those rights to us hereunder;
(h) You have not previously assigned any exclusive rights permitting streaming or downloading of Your Sound Recordings over the Internet to anyone else; and
(i) You have likewise not licensed any rights in Your Sound Recordings to anyone else that would prohibit you from licensing the rights you are granting to us hereunder. The representations and warranties set forth above are true now and will be true in the future.
12.2 You agree to deliver to us copies of any documents we reasonably request supporting Your right to license the rights granted to us hereunder including employment agreements, copyright assignments and privacy and publicity rights releases.
12.3 Either party agrees to provide the other party with a signed paper copy of this Agreement within thirty (30) days of a written request.
13. INDEMNITY:
13.1 You agree to indemnify and hold us harmless from any and all losses and damages including attorney’s fees and litigation, resulting from claims made against us by third parties for our exploiting Your Sound Recordings in any manner that you have authorized us to so exploit it under the terms of this Agreement.
14. GOVERNING LAW:
14.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin.
15. MODIFICATIONS:
15.1 We may make changes to this Agreement upon thirty (30) days written notice to you, advising of the change and the effective date thereof. Such changes will be effective if you do not notify us that you object within thirty (30) days. If you do provide notice to us of objection, then we may either continue exploiting Your Sound Recordings under the terms of this Agreement without such change or elect to discontinue exploiting Your Sound Recordings.
16. SEVERABILITY:
16.1 The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement. but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
17. NOTICES AND PAYMENTS:
17.1 All notices shall be in writing and shall be delivered, faxed, emailed or sent by registered or certified mail, postage fully prepaid, with a copy sent by ordinary mail. The following addresses, fax numbers and email addresses shall be used for each party for these purposes:
To: BandwithRadio, LLC c/o: 2208 Arizona Ave., Iowa City, IA 52240 Email: tony@bandwith.org
Any party may change the address, fax number and/or email address for that party by written notice hereunder. Except as provided in the next sentence below, all notices shall be effective upon the date of the earlier of delivery or attempted delivery, if mailed certified mail, delivery, if hand delivered, and faxing or emailing, if faxed or emailed. If faxed or emailed, such notice shall not be effective at the time faxed or emailed unless a copy is also sent that same day by next day (or next business day) delivery via Federal Express, United Parcel Service, Airborne, U.S. Postal Service (Express Mail) or any of their successors. 17.2 All payments shall be made by mail, couriered or wired. The following addresses or wiring instructions shall be used for each party for these purposes:
To: BandwithRadio LLC c/o: 2208 Arizona Ave., Iowa City, IA 52240 Email: tony@bandwith.org
Any party may change address or wiring instructions for that party by written notice hereunder. Any payment shall be effective on the date delivered or received.
18. ARBITRATION:
18.1 Any controversy or claim arising out of or relating to this Agreement, and any other disputes between the parties hereto, shall be settled by binding arbitration held at Eau Claire, Wisconsin, U.S.A. before a mutually agreeable arbitrator under the rules established by the Uniform Arbitration Act and the arbitrator, who shall be empowered and permitted to grant preliminary and permanent equitable relief in addition to awarding damages.
19. INTERPRETATION:
19.1 The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.
20. ENTIRE AGREEMENT:
20.1 This Agreement and the separate Terms of Service Agreement embodies the entire agreement and understanding of the parties and supersedes all prior agreements, representations and understandings between the parties hereto relating to the subject matter hereof.
21. GENERAL
21.1 You and BWR are independent contractors, and no partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
21.2 A printed version of this Agreement and of any notice given in electronic form shall be admissible in any arbitration proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.