Last updated 1/14/13.
Welcome to the CD Baby Artist Agreement (together with any and all applicable Addenda the "Agreement"), between you and CD Baby (a division of Audio & Video Labs, Inc., along with our licensees and assignees collectively referred to in this Agreement as "us," "we," and "CD Baby"). This Agreement contains the general terms and conditions under which CD Baby offers the "Services" (as defined below). If you choose to utilize the Digital Download and Distribution Service (as defined below) or the Consignment Service (as defined below) or the "Sync Distribution Service" (as defined below) or any combination of such services, the Digital Download Addendum and/or the Consignment Service Addendum and/or the Sync Distribution Addendum (each an “Addendum” and collectively the “Addenda”) will apply as applicable. Use of the Services, including through the submission of sound recordings (and the musical works embodied therein) for distribution by CD Baby (whether by upload to the CD Baby website (www.cdbaby.com) (the "Website") or through the submission of physical embodiments of your sound recordings (and the musical works embodied therein) (e.g., as CDs or DVDs) to CD Baby, constitutes your agreement to and acceptance of this Agreement and any applicable Addendum.
THIS AGREEMENT, WHEN ACCEPTED BY YOU AFTER YOU ENTER YOUR FULL LEGAL NAME AND CLICK “I AGREE” WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, BAND, GROUP OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, BAND, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING “I AGREE.” THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “I AGREE” BUTTON BELOW.
We reserve the right to add, delete and/or modify any of the terms and conditions contained in this Agreement pursuant to the provisions of Section9 below. Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and CD Baby that arose prior to the date of such modification. In the event of substantive changes to the terms of this Agreement, you will be notified by email. If any modification is unacceptable to you, your only recourse is to discontinue use of the Services. Your continued use of the Services following posting of a change notice or new agreement on the Site or notice to you via e-mail, will constitute your binding acceptance of the changes.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH CD BABY FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES..
1. Terms of Service:
This Agreement is incorporated into and subject to the Terms of Service (http://www.cdbaby.com/terms) (TOS”). All initially-capitalized terms not defined in this Agreement are defined in the TOS.
You hereby appoint us as your authorized representative for the sale and other distribution of “Your Content” (as defined below). Accordingly, you hereby grant to us and our “Licensees” (as defined below) the non-exclusive right, during the Term (as defined below) and throughout the “Authorized Territory” (as defined below), to:
(a) Reproduce and create derivative works of Your Content (including any Physical Product) by converting Your Content into Digital Masters, including less than full-length versions of sound recordings (“Clips”) that can be used for promotional purposes as authorized herein and, if necessary, reproducing Your Content in new Physical Product;
(b) Publicly perform, publicly display, communicate to the public, and otherwise make available Your Content, and portions thereof as embodied in Clips, by means of digital audio transmissions (on an interactive or noninteractive basis) through the Website, a Licensee website, or via a CD Baby Widget you or any person authorized by you may place on any website, to identify the availability of Your Content for license, sale or distribution and to promote Your Content, on a through-to-the-listener basis, without the payment of any fees or royalties to (i) the songwriters, composers, or music publishers owning any rights in and to Your Content; (ii) any performing artist(s) (including non-featured vocalists and musicians) on Your Content; (iii) any other person involved in the creation of or owning any portion of Your Content, including, but not limited to a record label, and (iv) any agents for any of the foregoing, including, without limitation, performing rights organizations (“PROs”) and unions or guilds, whether U.S.-based (such as ASCAP, BMI, SESAC, SoundExchange, AFTRA and AFM) or foreign (e.g., PRS for Music, PPL, CMRRA, CSI, GEMA, etc.);
(c) Distribute Your Content in accordance with any applicable Addendum;
(d) Place or embed Your Content in magazines, web sites, CD Baby advertisements, and any and all other media, whether now known or hereafter developed, but specifically excluding television and movies, to promote the CD Baby Service;
(e) Use and distribute Copyright Management Information as embodied in a Digital Master of Your Content;
(f) Use Your Content and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(g) Reproduce, distribute, and publicly perform and communicate to the public Your Content (including Clips) as part of a downloaded program that may include multiple sound recordings and other content, commonly known as a “podcast;” and
(h) Authorize our Licensees to perform any one or more of the activities specified above or in an applicable Addendum.
The term of this Agreement will commence on the Effective Date and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice (the “Term”), which notice, if sent by (a)CD Baby, may be sent to you at the last e-mail address you provided to CD Baby and (b)you to CD Baby, must be sent only to the following e‑mail address: firstname.lastname@example.org with the following information: (a)your username; (b)the e‑mail address associated with your Account; (c)all album titles for which you are requesting termination; and (d)which Services you are terminating (e.g., Physical Distribution, Digital Distribution, and/or Sync Distribution). Any termination notice provided by you pursuant to this section shall be permanent and irreversible. Notwithstanding anything to the contrary herein, CD Baby may at any time in its sole discretion, with or without notice to you: (i)suspend or limit your access to or your use of the Services and/or (ii)suspend or limit your access to your Account (as defined in Section11(a)).
4. Payments to You:
(a) Pricing the Sale of Your Content. Except as otherwise set forth in an Addendum, you will have the discretion to set the pricing for the sale of Your Content on the Website. Notwithstanding the foregoing, CD Baby and its distributors and partners may set pricing differently for third-party websites than for the Website, including, by way of example and not limitation, to cover additional costs or to provide discounts for promotions. CD Baby reserves the sole and exclusive right to set the pricing for any digital audio transmissions of Your Content, whether on an interactive or non-interactive basis, provided that Your Content will be priced the same as all other content on the Service licensed by CD Baby for interactive or non-interactive digital audio transmissions. You will also be subject to additional set up fees and charges as more fully explained on the Website, including, but not limited to, fees for CD Baby’s administering mechanical royalties for the reproduction and distribution of musical works (as applicable), as such fees and charges may be updated by CD Baby from time to time, and you are responsible for reviewing those fees and charges. Your acceptance of this Agreement is an acceptance of the CD Baby fees and charges, which are available here: http://members.cdbaby.com/cd-baby-cost.aspx).
(b) Licensee Records. CD Baby, may, but need not, audit the books and records of Licensees and may accept any representations made in a Licensee accounting statement delivered to CD Baby as true and complete. CD Baby shall have no liability to you for failure to audit or investigate any accountings rendered to it by any Licensees.
(c) Offsets. You hereby authorize CD Baby to offset against any amounts owed to you pursuant to this Agreement any amounts that you may owe to CDBaby, whether under an indemnification provision or for costs, expenses, and deductions authorized in this Agreement.
(d) Recordkeeping; Audits. We will maintain books and records which report the sale or other licensed uses of Your Content. You may, but not more than once a year, at your own expense, engage a Certified Public Accountant (“CPA”) to examine those books and records directly related to the sale or other licensed uses of Your Content, as provided in this Section4(d), only. You may have your CPA make those examinations only for the purpose of verifying the accuracy of the statements sent to you. All such examinations will be in accordance with generally accepted accounting principles (“GAAP”) procedures and regulations. Your CPA may make such an examination for a particular statement only once, and only within one (1) year after the date we send you that statement. Your CPA may make such an examination only during our usual business hours, and only at the place where such books and records are maintained in the ordinary course of business. You must provide us with thirty (30)-days written notice prior to commencing an audit and must identify the name, address, telephone number, and email address of the CPA conducting the audit on your behalf. You may not engage the CPA on a contingent fee basis (i.e., your CPA must be paid on a flat fee or time-based basis). We may postpone the commencement of your CPA’s examination by notice given to you not later than five (5) days before the commencement date specified in your notice. In the event of any postponement initiated by us, the running of the time within which the examination may be made will be suspended during the postponement. If your CPA’s examination has not been completed within three (3) months from the time commenced, then we may require you to terminate the audit upon seven (7) days’ notice, which notice may be given at any time. We will not be required to permit the CPA to continue any examination after the end of that seven (7)‑day period. Your CPA will not be entitled to examine any other records that do not specifically report sales or other licensed uses of Your Content for which CD Baby has actually received payment. Your CPA may act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination on your behalf will not be knowingly released, divulged, published or shared with any other person, firm or corporation, other than to you or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Your CPA may not share the results of the examination conducted on your behalf with any third party without our express written permission.
(e) Objections to Accountings. If you have any objections to a CD Baby accounting statement made available to you, you agree that you shall give us specific notice of that objection, including a copy of your CPA’s analysis of the accounting statement, and your reasons for it within eighteen (18) months after the date we send or make that statement available to you. Each statement shall become conclusively binding on you at the end of that eighteen (18)‑month period, and you will no longer have any right to make any other objections to it notwithstanding any audit rights you may otherwise have under any applicable law or regulation. Any payments determined to be owed you following an audit shall be paid within forty-five (45) days of the delivery of your CPA’s audit report, unless objected to in writing by CD Baby, in which case any payments due shall be postponed pending the resolution of the audit dispute. A late fee of one-half percent (0.5%) shall be due for underpaid royalties. Unless otherwise prohibited by law, you will not have the right to sue us in connection with any statement, or to sue us for unpaid royalties for the period a statement covers, unless you commence the suit within that eighteen (18)-month period. If you commence suit on any controversy or claim concerning statements rendered to you under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to a determination of the amount of royalties due for the accounting periods concerned, and the court shall have no authority to consider any other issues or award any relief except recovery of any royalties found owing, plus interest at the rate of one-half percent (0.5%) per month. Your recovery of any such royalties plus interest shall be the sole remedy available to you by reason of any claim related to our statements.
(f) Affiliation with Other Performing Rights Organizations for Royalties.
Nothing contained in this Agreement shall prohibit you from affiliating with any PRO for the receipt of royalty payments for the public performance or communication to the public of your sound recordings or musical works made by a third party, excluding only public performances or communications to the public of sound recordings or musical works made by CD Baby pursuant to the Authorizations set forth in Section2 of this Agreement.
(g) Tax Information. CD Baby will use its reasonable efforts to collect sales and other taxes owed on the sale of Your Content (“Sales Tax”), and to remit such Sales Tax on your behalf to relevant government authorities. Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax owed in connection with the sale or distribution of Your Content pursuant to this Agreement, and you hereby indemnify CD Baby for any Sales Tax that may be owed in addition to those amounts collected and remitted on your behalf by CD Baby.
5. Your Obligations:
(a) You, or a licensee acting on your behalf (e.g., a company such as Rightsflow), will be responsible for obtaining and paying for any and all clearances or licenses required in the Authorized Territory (or any portion thereof) for the use of any musical works embodied in Your Content. Without limiting the generality of the foregoing, you (either directly or through a third party acting on your behalf) shall be responsible for and shall pay (i)any royalties and other sums due to artists (featured and non-featured), authors, co‑authors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Your Content, (ii)all mechanical royalties or other sums payable to music publishers and/or authors or co-authors of musical compositions embodied in Your Content from sales or other uses of Your Content [Please see the information at http://members.cdbaby.com/faq.aspx with regard to publishing issues.], (iii)all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or AFTRA), and (iv)any other royalties, fees and/or sums payable with respect to Your Content or other materials provided by you to us. You agree that the amount payable to you is inclusive of any so‑called “artist royalties” that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays or communications to the public of the sound recordings and musical works constituting Your Content.
(b) Parental Advisory Labeling. You will be responsible for complying with the Recording Industry Association of America’s (“RIAA”) Parental Advisory Logo (“PAL”) Standards, as applicable, for so long as you use the Services. Information about the RIAA PAL Program is available here: http://www.riaa.com/toolsforparents.php?content_selector=parental_advisory
6. Right to Withdraw Material; Termination of Authorizations to Licensees
You have the right, at any time during the Term, to withdraw the authorizations set forth in Section2 above and the applicable Addenda, for the sale or other uses of all or any portion of Your Content, upon written notice to us (a “Withdrawal Notice”) or to terminate this Agreement pursuant to Section3 of this Agreement (a “Termination Notice”). Upon receipt of a Withdrawal Notice with respect to any of Your Content or a Termination Notice with respect to all of Your Content, we will promptly remove those elements of Your Content covered by such Withdrawal Notice or Termination Notice, as the case may be, from the Website (and in no event more than five (5) business days following receipt of a Withdrawal Notice or Termination Notice), and shall, within five (5) business days following our receipt of a Withdrawal Notice or Termination Notice, advise our Licensees via a “Takedown Notice” that they are no longer authorized to sell or offer for any other use those elements of Your Content covered by such Takedown Notice. Your submission of a Withdrawal Notice or Termination Notice shall not in any way limit the authorizations granted to us or any Licensees prior to the implementation of your Withdrawal Notice or Termination Notice, and will not limit in any way the rights of end users who have acquired Your Content.
CD Baby is not responsible for, and has no liability for, any delays of our Licensees in removing Your Content from any websites or services owned or operated by such Licensees. You shall remain solely responsible for enforcing the removal of Your Content from our Licensees’ websites and services in the event such Licensees fail to remove Your Content following receipt of a Takedown Notice or following the termination of any rights granted to such Licensees by CD Baby; provided, however, that CD Baby may, in its sole and absolute discretion, continue to assist you to effectuate the removal of Your Content from Licensees’ websites and services. CD Baby may, but need not, provide you with notice in the event CD Baby terminates or allows to expire any authorizations previously granted to a Licensee for the distribution of Your Content. Nothing in this Agreement shall limit any remedies you may have at law or in equity against any Licensee that is using Your Content in violation of the terms of any license granted to such Licensee by you or CD Baby.
7. Names and Likenesses; Promotional Use and Opportunities:
(a) Name and Likeness of Artists and Songwriters. You hereby grant to CD Baby during the Term the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning, any artists, bands, producers and/or songwriters, as well as track and/or album name, and all artwork related to your sound recordings or audiovisual works, in any marketing materials for the sale, promotion, and advertising of Your Content, which is offered for sale or other use under the terms of this Agreement (e.g., an artist or band name and likeness may be used in an informational fashion, such as by textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the exploitation of Your Content).
(b) Promotion.You hereby grant to us and our Licensees the right to market, promote, and advertise Your Content as available for purchase or license, in any and all media, whether now known or hereafter developed, as we and they determine in our and their discretion.
(a) Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, all right, title, and interest in and to (a)Your Content, (b)the Digital Masters, (c)the Clips, (d)the Physical Product (if applicable), (e)all copyrights and equivalent rights embodied therein, and (f)all materials furnished by you, will be yours.
9. Modification, Termination and Effect of Termination:
(a) Modification of Agreement. We reserve the right to change, modify, add to, or remove all or part of this Agreement, in our sole discretion, at any time and from time to time. Notice of any material change will be sent to you by electronic mail at least fifteen (15) days prior to its effective date. If the e-mail you have provided to us is no longer functioning, then, in addition to any other remedies we may have with respect to your Account and use of the Services, we shall be authorized to communicate with you via any other reasonable manner we may choose in our sole discretion, including through notice on the web page through which you access your Account information or via any accounting statement. The most recent date of this Agreement shall be identified on the first page hereof. In the event that you do not consent to any such proposed changes in the Agreement, your sole recourse shall be to terminate this Agreement by notice to us, and your failure to submit a Termination Notice within fifteen (15) days of the date of our notice to you shall constitute your acceptance of such changes to the extent Your Content is still available through the Services. To terminate your Agreement, you must send a Termination Notice to email@example.com and include in the subject line of your e-mail “Termination of Artist Agreement.”
(b) Consequences of Termination. The expiration or termination of the Agreement will not relieve either you or us from our respective obligations incurred prior to the effective date of your termination of the Agreement. In addition, provisions of this Agreement intended to survive the termination of this Agreement shall survive termination, including, but not limited to, the Indemnification, Disclaimers, Limitation of Liability; Basis of the Bargain, and General Provisions.
10. Monitoring of Your Content; Removal of Content from Website:
(a) Monitoring. CD Baby does not control Your Content and does not have any obligation to monitor Your Content for any purpose. CD Baby may choose, in its sole discretion, to monitor, review or otherwise access some or all of Your Content, but by doing so CD Baby assumes no responsibility for Your Content, no obligation to modify or remove any inappropriate elements of Your Content, or to monitor, review or otherwise access any other artist’s content or artwork.
(b) Right of Removal. CD Baby reserves the right, in its sole and absolute discretion, to remove any of Your Content from the Website if such content: (i)is patently offensive, pornographic or defamatory; (ii)is the subject of a dispute between you or us and a third party; (iii)is content to which you cannot document your rights therein upon CD Baby’s request; (iv)violates the intellectual property rights or other protected interests of a third party; (v)is the subject of a takedown notice by a party claiming to own the rights therein, or (vi)is the subject of any fraudulent activity, or for any other reason in CD Baby’s sole and absolute judgment is necessary to protect the business interests of CD Baby and any of its business partners or Licensees. CD Baby may also remove Your Content from the Website if you are abusive or rude or provide false or intentionally misleading information to any CD Baby employees or agents. CD Baby shall have no liability to you for the removal of any of Your Content from the Website or any Licensee website or service other than to provide you a credit (but not a refund) for any fees previously paid by you for making Your Content available via the Website or through Licensees. The removal of any of Your Content shall not relieve CD Baby of the obligation to pay you any royalties that may have accrued prior to the removal of Your Content.
(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by CD Baby’s removal of Your Content from the Website or Licensee’s websites or services. In order for you to terminate this Agreement following the removal of any of Your Content, you must send CD Baby a Termination Notice.
11. Account Information; Disclosures:
(a) Your Account Information. In order to access some features of the Website, including your account information and periodic statements, you will have to create an online account (“Account”). You hereby represent and warrant that the information you provide to CD Baby upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up‑to-date at all times during the Term of this Agreement.
(b) Password. As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify CD Baby by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by CD Baby and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying CD Baby that your Account has been compromised.
(c) Disclosure of Information. You acknowledge, consent, and agree that CD Baby may access, preserve, and disclose your Account information and Your Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i)comply with legal process; (ii)enforce this Agreement; (iii)respond to a claim that any of Your Content violates the rights of third parties; (iv)to respond to your requests for customer service; or (v)to protect the rights, business interests, property or personal safety of CD Baby and its employees and users, and the public.
12. Prohibited Use of the Website and Licensee Websites and Services:
(a) You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage CD Baby, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or Your Content, do or attempt any of the following:
(b) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended;
(c) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload Your Content to the Website;
(d) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;
(e) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties;
(f) Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
(g) Create a false identity or impersonate another for the purpose of misleading others as to your identify, including, but not limited to, providing misleading information to any feedback system employed by CD Baby;
(h) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;
(i) Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;
(j) Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in Your Content; or
(k) Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
13. Availability of Services:
CD Baby may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and CD Baby makes no commitment to update any aspect of the Website. CD Baby makes no representations and warranties with respect to availability of the Website and may discontinue the Service at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of Your Content uploaded to the Website or otherwise delivered to CD Baby as Physical Product.
14. Additional Representations and Warranties:
(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:
(i) is authorized to enter into this Agreement on the terms and conditions set forth herein.
(ii) will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.
(iii) shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
(b) Representations and Warranties by You. You represent and warrant to CD Baby that:
(i) you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to Your Content, including, but not limited to, all musical works embodied in Your Content, and that you are authorized to provide Your Content to us for the uses specified in this Agreement. For the avoidance of doubt, if you are acting on behalf of an artist, band, group or corporation, you hereby represent and warrant to CD Baby that you are fully authorized to enter into this Agreement on behalf of such artist, band, group or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.
(ii) you own or control all of the necessary rights in Your Content in order to make the grant of rights, licenses, and permissions herein, and that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Your Content, and to use such individual's identifying or personal information (to the extent such information is used or contained in Your Content) as contemplated by this Agreement.
(iii) the use or other exploitation of Your Content, including, but not limited to, any musical works embodied in your sound recordings, by us and our Licensees as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
(iv) to the extent you are the songwriter of any or all of the musical works embodied in Your Content, whether in whole or in part (e.g., as a co‑writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any PRO, whether based in the United States or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to us and our Licensees for the public performance and communication to the public of Your Content, including as Clips, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the use of the musical works in Your Content when publicly performed, communicated or otherwise transmitted by CD Baby or its Licensees.
(v) you have not assigned any of the rights in and to the sound recordings embodied in Your Content to any third party (e.g., a record label) that obtained exclusive rights in and to such sound recordings.
15. No Representations and Warranties With Respect to Sales and Distributions:
CD Baby makes no guarantees regarding the minimum number of unit sales or uses of Your Content. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with CD Baby for the sale, distribution or licensed use of Your Content, including by paying the royalties they owe us for the distribution of Your Content. If a Licensee refuses to pay us for the use of Your Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sale, distribution or licensed use of Your Content if such third party fails or refuses to pay such amounts to CD Baby upon CD Baby's request.
(a) Indemnification. You hereby agree to indemnify, defend, and hold CD Baby harmless from and against any and all damages, claims, liabilities, costs, losses, and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims”) arising out of any breach or alleged breach of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, any Claims made by a PRO or music publisher with respect to any public performances or communications to the public of any musical works embodied in Your Content, any contributor to any sound recording included within Your Content, including claims from any unions, guilds, background musicians or vocalists, engineers, etc., or any other party for any use or misuse of any other forms of intellectual property or proprietary rights in Your Content, including, but not limited to, trademark rights and invasions of the right of privacy or publicity. You agree to reimburse us, on demand, for any payment made by us at any time with respect to any Claims to which the foregoing indemnity applies. Pending the resolution of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this Section.
(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by CD Baby or imposes any conditions or obligations on CD Baby other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe CD Baby an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
(a) THE WEBSITE AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CD BABY AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CD BABY OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. CD BABY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY CD BABY, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER YOUR CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
18. Limitation of Liability; Basis of the Bargain:
(a) CD BABY SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. CD BABY SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY CD BABY OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF YOUR CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH CD BABY OR OTHERWISE. CD BABY’S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY CD BABY FOR THE DISTRIBUTION OR LICENSING OF YOUR CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST CD BABY.
(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND CD BABY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CD BABY, CD BABY'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT CD BABY WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
19. Dispute Resolution:
(a) Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND CD BABY AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to CD Baby, to you via any other method available to CD Baby, including via e-mail. The Notice to CD Baby should be addressed to: [CD Baby / ATTN: Joel Andrew / 13909 Airport Way / Portland, OR / 97230] (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and CD Baby do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or CD Baby may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against CD Baby, then CD Baby will promptly reimburse you for your confirmed payment of the filing fee upon CD Baby receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and CD Baby agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND CD BABY AGREE THAT YOU AND CD BABY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that this Agreement and your use of the Services and the Website evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Applicable Law. This Agreement and your use of the Services and the Website shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and CD Baby under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Multnomah County, Oregon, and you and CD Baby hereby submit to the personal jurisdiction and venue of these courts.
(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which CD Baby seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by CD Baby or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against CD Baby, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(h) Claims. You and CD Baby agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the Services or the use of the Website, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
(i) Improperly Filed Claims. All claims you bring against CD Baby 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 this Dispute Resolution section, CD Baby may recover attorneys’ fees and costs up to $5,000, provided that CD Baby has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
20. General Provisions:
(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture between you and CD Baby, and CD Baby shall not have a fiduciary obligation to you as a result of your entering into this Agreement.
(b) Entire Agreement. This Agreement together with the TOS contains the entire understanding of the parties relating to the subject matter hereof. This Agreement (including all Addenda) supersedes all previous agreements or arrangements between you and CD Baby pertaining to the Services, provided that if you previously entered into a digital distribution or consignment agreement with us in the past, and elected any options specifying or limiting the scope of the distribution of Your Content, the limitations and authorizations with respect to the distribution of Your Content shall remain in place under this Agreement and the applicable Addendum. This Agreement cannot be changed or modified except as provided herein.
(c) Waiver; Severability. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
(d) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
(e) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by you upon registration with CD Baby, or as properly updated, or, in the absence of a valid electronic mail address, via any other method CD Baby may elect in its sole discretion, including, but not limited to, via posting on the Website.
(f) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of California applicable to agreements entered into and to be wholly performed in California, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the TOS.
(g) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
(h) Headings. The titles and headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
(i) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(j) Assignment. CD Baby may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining CD Baby’s prior written consent.
21. Certain Definitions:
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) Authorized Territory” means the universe, or more limited territories, to the extent so limited by you, during the CD Baby registration process.
(b) “CD Baby Widget” means a (i) software application available on the Website that you or someone authorized to act on your behalf may embed on third-party websites, (ii) link, code, script or any other software or instruction that you or someone authorized to act on your behalf may embed or place on a third-party website, including, but not limited to, social media websites such as Facebook, that permits a user of such third-party website to access content hosted and/or streamed from servers owned or controlled by or on behalf of CD Baby, including Your Content, or (iii) standalone software available for use on mobile devices, smartphones (e.g., iPhones, Android phones), tablet computers (e.g., iPads), set-top boxes, and other hardware now known or hereafter developed (collectively, "Hardware"), that facilitates or enables the public performance, communication to the public or other transmission of Your Content via the Internet or any other transmission medium through such third-party websites or on or through any Hardware. The CD Baby Widget may provide access to all of Your Content or give you the ability to control which of Your Content is available through third-party websites, as CD Baby may choose in its sole discretion.
(c) “Consignment Service” means the service that enables you to market and have sold Physical Products via the Website and/or through CD Baby’s partners (e.g. distributors, retailers) http://members.cdbaby.com/cd-distribution.aspx on a consignment basis following your delivery of Your Content to CD Baby as Physical Product.
(d) “Copyright Management Information” means the digital information conveying information regarding a Digital Master, including, by way of example and not limitation, the title of the applicable album, the name of the song, the ISRC code, the marketing label, and the record company name.
(e) “Digital Download and Distribution Service” means the online services operated by CD Baby for the sale, distribution or licensing of Your Content and other content through the Website or through websites and services operated by or on behalf of Licensees.
(f) “Digital Master” or “Digital Masters” means a copy or copies of Your Content in digital form, whether created by you or CD Baby.
(g) “Licensee” means any third party licensee that we may authorize to carry out the marketing, distribution, licensing, and sale or other use of Your Content pursuant to the terms of this Agreement, including, by way of example and not limitation, Apple iTunes, MediaNet, Rhapsody, online streaming services (e.g., webcasters), and others that CD Baby may chose in its sole and absolute discretion.
(h) “Physical Product” means Your Content as fixed in physical product such as CDs, DVDs, LPs, etc.
(i) “Service” means either, any combination, or all of the Digital Download and Distribution Service, the Consignment Service, and the Sync Distribution Service.
(j) “Sync Distribution Service” means the service that enables you to have Your Content made available for synchronization and other licensing.
(k) “Threshold Amount” means the dollar amount set by you initially upon your registration with CD Baby, or as subsequently modified by you, which amount shall in no event be less than $10.
(l) “Your Content” means sound recordings, video content (i.e., audiovisual works), and the musical works embodied in such sound recordings and video content, and any album related artwork, photos, liner notes, metadata and other material related to your sound recordings and video content that you have provided to CD Baby, either by digital upload to the Website or by delivery of Physical Product, either directly or via a third party acting on your behalf. Any such sound recordings and video content (and the musical works embodied therein), artwork, photos, liner notes, metadata, or other material provided by you to CD Baby, must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized under this Agreement. For the avoidance of doubt, Your Content encompasses each sound recording and the musical work (i.e., the notes and lyrics) embodied in each sound recording.
Welcome to the CD Baby Consignment Services Addendum between you and CD Baby. This Consignment Services Addendum is part of and incorporates the terms of the CD Baby Artist Agreement, and contains additional terms and conditions under which CD Baby offers the Consignment Service. By electing to use the Consignment Services, you are subject to the terms and conditions of this Consignment Services Addendum and the CD Baby Artist Agreement.
1. Additional Grant:
In addition to the rights granted in the CD Baby Artist Agreement, you hereby grant to us and our Licensees, the non-exclusive right, during the Term and throughout the Authorized Territory, to:
(a) Promote, sell, distribute, and deliver Your Content as Physical Product to purchasers and resellers who may use such Physical Products;
(b) Reproduce Your Content in Physical Product and as Clips;
(c) Publicly perform, communicate to the public, and distribute Your Content, including as Clips, to promote the sale and distribution of your Physical Product, including as embodied in a podcast; and
(d) Reproduce and publicly display any visual elements of Your Content (e.g., album cover artwork, images, etc.) received in Physical Product in digital form in connection with the promotion, advertisement, sale, and distribution of Your Content as embodied in Physical Product.
2. Consignment Services:
Delivery of Your Content and/or Physical Product. You will ship or deliver to CD Baby all of Your Content that you want to use with the Consignment Service in accordance with the applicable instructions on the Website. You must also ship or deliver all materials required to package and market any of your Products (e.g., CD inserts, album artwork, etc.). CD Baby may, in its sole and exclusive discretion, determine whether all or any portion of Your Content complies with such instructions and is satisfactory for use with the Consignment Service.
Costs of Creation and Delivery. You will be solely responsible for the creation of Your Content that you ship or deliver to CD Baby and for all Physical Product that is held on consignment by CD Baby on your behalf, and will pay all costs associated with its creation and any copies made there from by you or on your behalf. Without limitation to the preceding sentence, you will be responsible for all shipping and handling charges and insurance on the Physical Product during shipment and delivery to CD Baby.
Maintaining and Returning Stock. CD Baby reserves the right to charge a fee to store any Physical Product you send to us in excess of any amounts we request. We reserve the right to return Physical Product to you from time to time, at your sole expense, as deemed appropriate by CD Baby in our sole discretion. Additionally, for Physical Product that has not sold for a period of 12 months, we reserve the right to charge you a storage fee for the continued storage of such Physical Product. CD Baby will notify you of its intent to return any Physical Product to you or to charge you a storage fee as authorized herein, as applicable. Any charges or fees that CD Baby is authorized to pass on to you pursuant to this paragraph may be debited against any amounts that CD Baby otherwise owes to you. If you do not respond to any return notice from CD Baby within 21 days of the date of the request, or if CD Baby’s attempt to return Physical Product to you is unsuccessful because of an inaccurate email or physical address on file with us, then CD Baby shall have the right to recycle, destroy or discard the Physical Product without any compensation or liability to you. CD Baby will contact you at the current e‑mail address on file to notify you of the exhaustion of Product stock on hand and request additional shipments. You agree to comply with minimum stock levels for the Product as established by CD Baby from time to time.
Customer Returns. Customer returns sent to CD Baby in new condition will be restocked, debited from your sales, and added back to active inventory. Any returned Physical Product that is defective or damaged will not be restocked, will be debited from your sales, and will be returned to you or recycled or destroyed, at CD Baby’s discretion.
Insurance. You acknowledge and agree that CD Baby does not carry insurance relating to Physical Product stored by CD Baby under this Agreement, and CD Baby shall have no responsibility or liability for any damage, destruction, loss or other impairment of any of Your Content absent CD Baby’s gross negligence or intentional misconduct. If you desire for the Your Content when embodied in Physical Product to be insured, then you must obtain such insurance at your expense.
You may set the price of and discounts for Your Content as embodied in Physical Product, provided that your price, including any discount, must exceed Four Dollars ($4.00) per unit of Physical Product (the “CD Baby Minimum”). For information on discounts, please see http://members.cdbaby.com/faq.aspx#distribution1.
Payment for Physical Product Sales:
For each sale of your Physical Product through the Website (or sold by CD Baby through its distributors), CD Baby will subtract Sales Tax, the CD Baby Minimum, and such other fees as may be listed on the Website for shipping, handling, and processing (for a listing of fees click here http://members.cdbaby.com/cd-baby-cost.aspx) from the aggregate amounts collected from customers and distributors, and remit to you any remaining amounts. CD Baby will use commercially reasonable efforts to make a payment to you (by wire or electronic transfer) for Physical Product sales no later than 15 days after amounts were actually received by CD Baby and your Threshold Amount has been met. The default Threshold Amount is $50 and can be changed at any time as long as it equals or exceeds the Minimum Threshold of $10. You may withdraw funds by physical check for a charge of $1.50 USD per check withdrawal to cover processing fees. If a check is not redeemed after 180 days from the date it was issued, the funds (minus the fee) will be returned to your Account. If you have provided an undeliverable mailing address and two or more consecutive payments have been returned to CD Baby as undeliverable, we may stop sending future payments to you until you provide a deliverable mailing address. Funds may also be requested in the form of a direct deposit (ACH), which will incur a fee of $2.50 for bank accounts located outside of the United States; direct deposits to US based bank accounts are free of charge. Refer to our FAQ (link to our updated FAQ) for a complete list of eligible countries. Additional fees for returned direct deposit (ACH) transactions will be your responsibility; the current schedule of fees can be found in our FAQ (link to our updated FAQ).
Welcome to the CD Baby Digital Distribution Addendum between you and CD Baby. This Digital Distribution Addendum is part of and incorporates the terms of the CD Baby Artist Agreement, and contains additional terms and conditions under which CD Baby offers the Digital Download and Distribution Service.
1. Additional Authorization:
While selling Your Content on the Website is non-exclusive (meaning you have the right to sell your music and videos directly), the rights granted by you to us under this Digital Distribution Addendum are exclusive with respect to serving as your authorized representative for distributing Your Content to third party distributors for online redistribution, because online retailers (e.g., iTunes, Amazon, etc.) will refuse content that may be delivered by multiple parties.
2. Additional Grant:
In addition to the rights granted in the CD Baby Artist Agreement, You hereby grant to us the exclusive right (as explained below), and to our Licensees the non-exclusive right, during the Term and throughout the Authorized Territory, to:
(a) Reproduce, promote, sell, distribute, and deliver Your Content as Digital Masters to purchasers and resellers who may use such Digital Masters in accordance with usage rules approved by us and pursuant to any limitations imposed by your distribution preferences (e.g., only Digital Master Sales);
(b) Use and authorize others to license the use and sale of Your Content in connection with all manner of phone services, such as, but not limited to, sales or licenses of Your Content as downloads (including, without limitation, downloads to cell phones) and for use as ringtones (including mastertones) and ringback tones;
(c) Use so‑called “kiosks” to reproduce, distribute, market, and promote Your Content, including, without limitation, by allowing the burning of compact disc and DVD copies of any of Your Content (to the extent not expressly prohibited by you) or by allowing a copy of Your Content to be transferred to digital storage devices, including smartphones and other handheld devices (e.g., iPods, USB drives, etc.);
(d) Use and authorize others to allow copies of Your Content to be distributed as so-called “conditional” downloads, whether tethered to a device, time limited, play limited or otherwise;
(e) “Stream” and authorize others to “stream” Your Content on-demand as part of an Internet radio service, on a multi-channel video programming distribution service, or via any other interactive distribution platform or technology, whether now known or hereafter developed, or as part of a non-interactive service; and
(f) Reproduce, distribute, and publicly display visual elements of Your Content (e.g., album cover artwork, images, etc.) in connection with the promotion, advertisement, sale, and distribution of Your Content.
(g) Create and authorize others to create fingerprints of Your Content for purposes of audio recognition, which shall remain the property of CD Baby and/or its third party partners; and
(h) Use and authorize others to license the use of any album related artwork, photos, liner notes, metadata and other material related to, but not including, your sound recordings and video content that you have provided to CD Baby in perpetuity.
3. Payments to You:
(a) Wholesale rates. For digital content resold through our Licensees (including, by way of example and not limitation, iTunes, Amazon.com, eMusic, Rhapsody, and other partners), we will pay you an amount equal to ninety-one percent (91%) of the net wholesale price actually received by us from our Licensees for the sale or other licensed uses of your Digital Masters (the “License Fee”) net of Sales Tax. Distribution fees owed to CD Baby by any entity with whom CD Baby has entered into a contractual relationship that are not received or collected by CD Baby (e.g., as a result of the other party’s failure to perform under a contract) are not included within the calculation set forth in this Section3(a).
(b) Retail Sales Rates. For digital content sold directly through our Website, we will pay you an amount equal to ninety-one percent (91%) of the retail price actually received from a customer for the sale or other licensed use of Your Content net of Sales Tax. For a listing of all current fees, visit http://members.cdbaby.com/cd-baby-cost.aspx. Retail sales fees owed to CD Baby by any entity with whom CD Baby has entered into a contractual relationship that are not received or collected (e.g., as a result of charge backs, breach of contract, failure to pay, etc.) are not included within the calculation set forth in this Section3(b).
(c) Payment for Digital Distribution. We will attempt to provide you with accounting details on a daily basis in the secure members’ login area at http://members.cdbaby.com, but we shall not be deemed in breach of this Addendum for failure to provide you with such information on a daily basis. We will use commercially reasonable efforts to provide you with payments for digital distribution (by wire or electronic transfer) within seven (7) business days from the date that your Account balance exceeds the Threshold Amount. You may withdraw funds by physical check for a charge of $1.50 USD per check withdrawal to cover processing fees. If a check is not redeemed after 180 days from the date it was issued, the funds (minus the fee) will be returned to your Account. Funds may also be requested in the form of a direct deposit (ACH), which will incur a fee of $2.50 for bank accounts located outside of the United States; direct deposits to US based bank accounts are free of charge. Refer to our FAQ (link to our updated FAQ) for a complete list of eligible countries. Additional fees for returned direct deposit (ACH) transactions will be your responsibility; the current schedule of fees can be found in our FAQ (link to our updated FAQ). Such payment shall constitute full and adequate consideration for all rights granted, and all obligations undertaken, by you in this Agreement.
Welcome to the CD Baby Sync Distribution Addendum between you and CD Baby. This Sync Distribution Addendum ("Sync Distribution Addendum") is part of and incorporates the terms of the CD Baby Artist Agreement, and contains additional
terms under which CD Baby offers the Sync Distribution Service. To the extent that there is any conflict between the terms of this Sync Distribution
Addendum and any term(s) (a) in the CD Baby Artist Agreement (including any other Addenda), and/or (b) in the Terms of Service (http://www.cdbaby.com/terms), the terms of this Sync Distribution Addendum will control.
1. Additional Authorization.
As further described below, this Addendum allows us to provide Your Authorized Content (defined below) to our Licensees that specialize in licensing
sound recordings (and the musical works embodied therein) for a variety of contexts, including film, television, video games, websites, multimedia,
user-generated content, and various application programming interface ("API") services.
Please keep in mind that, although you may have defined the Authorized Territory for the use of Your Authorized Content for other purposes (e.g., for
purposes of the Digital Download and Distribution Service), all licenses and authorizations granted, and all representations, warranties, undertakings
and covenants made by you under this Sync Distribution Addendum are for uses and exploitations throughout the universe.
2. Additional Definitions.
For the purposes of this Sync Distribution Addendum, the following capitalized terms shall have the following meanings:
(a) "All Media" means contracts, of any duration, permitting third parties to synchronize, perform (including public
performance), display, communicate to the public, reproduce, deliver, transmit, and/or otherwise use Your Authorized Content in and/or in connection
with any and all media, and by any means, now known or hereafter devised, including films, videos, television programs (including cable and digital
cable), advertisements (including commercials), games (including app-games, console games, and computer games), background music (e.g., in-store music,
on-hold music, etc.), corporate projects/works (e.g., videos, slideshows, presentations, social media channels, teleconferences, podcasts, social media
sites), video blogs, and merchandise (e.g., toys), and which contracts may include the privilege to make a musical arrangement to the extent necessary
without changing the basic melody, fundamental character or the lyrics of the composition, which arrangement will not be considered a "derivative work"
by law. For the avoidance of doubt, "All Media" includes all uses of the type set forth in Section 2(d) below (but is not limited by, and does not
include any limitations set forth in, Section 2(d)).
(b) "Authorized Term" has the meaning set forth in Section 5 of this Sync Distribution Addendum.
(c) "Gross Revenues" means all license fees, revenues, or other consideration (including barter transactions) paid or payable
to a Licensee for any licensed use of Your License Content pursuant to the provisions of this Addendum.
(d) "MicroSyncSM" means contracts of any duration, permitting third parties to synchronize, perform
(including public performance), display, communicate to the public, reproduce, deliver, transmit and/or otherwise use Your Authorized Content in and/or
in connection with New Media Projects, and to exploit Your Authorized Content in any and all online or mobile media (whether now known or hereafter
devised), and which contracts may include the privilege to make a musical arrangement to the extent necessary without changing the basic melody,
fundamental character or the lyrics of the composition, which arrangement will not be considered a "derivative work" by law. Such contracts may also
include the right to make a limited number of physical reproductions (e.g., DVD, CD) of the Licensed Content in each New Media Project in which Your
Authorized Content is used, not to exceed 100.
(e) "New Media Project" means a production or project which makes use of new media or multimedia platforms, including
website-music, Flash animations and presentations, videos, slideshows, Powerpoint presentations, online or mobile video sharing (e.g., YouTube,
Animoto, etc.), so-called "apps" (including app-games), and web-based online video games, but not any productions or projects that might be deemed to
be for traditional distribution channels or platforms, such as traditional broadcast television, theatrical release, or DVDs/CDs (except for the
limited number of copies described in Section 2(d) herein).
(f) "Represent" means the right to: (i) reproduce Your Authorized Content on computer servers owned or
controlled by a Licensee; (ii) publicly perform, communicate to the public, publicly display, reproduce and distribute,
without payment to you (or any third party, including any collection society(ies)) Your Authorized Content (including by way
of offering permanent digital copies, full-length streaming transmissions, or both), through any online or mobile stores or other
services operated by a Licensee (e.g., Rumblefish’s Music Licensing Store, Rumblefish’s Friendly Music Store, or the Rumblefish
API), for purposes of permitting a Licensee’s customers to preview Your Authorized Content for potential licensed use(s);
(iii) publicly perform, communicate to the public, publicly display, reproduce and distribute, without payment to you
(or any third party, including any collection society(ies)) Your Authorized Content for promotional purposes by way of
full-length streaming transmissions, except that, in the case where such promotional streaming transmissions are not
being accessed on a website or application of an online or mobile store or service offered by a Licensee (e.g., in the
case of promotional streaming transmissions through widgets that users post on third party sites, such as promotional
streaming transmissions through so-called “Facebook status updates”), the streaming transmissions will be limited to (90)
seconds in duration; (iv) issue All Media and MicroSyncSM licenses (depending on which option you enabled when opting
in to the Sync Distribution Service); (v) authorize third parties to derive or generate revenues from the sale or barter
of advertising to be displayed or performed in conjunction with audiovisual works embodying Your Authorized Content,
provided such authorization is for a fee and not for free (except in the case of promotional uses expressly authorized
by you); (vi) reproduce, distribute, publicly display, communicate to the public, and/or otherwise use, and authorize
others to reproduce, distribute, publicly display, communicate to the public and/or otherwise use, the names and approved
likenesses of, and biographical material concerning any artists, bands, producers and/or songwriters, as well
as track and/or album name, and all artwork related to your sound recordings, or musical works, in connection with the use
of Your Authorized Content; (vii) exercise or grant those rights which are not expressly granted under this Sync Distribution
Addendum, but which may be reasonably necessary for Licensees, or customers of a Licensee, to have in furtherance of the
intended purposes of this Sync Distribution Addendum; and (viii) fully sublicense (through single or multiple tiers)
any of the foregoing rights or any of the other rights that CD Baby or Licensees are authorized to exercise pursuant to
this Sync Distribution Addendum.
(g) "UGC Networks" means YouTube and such other services that permit user-generated content to be uploaded to the service; but
only to the extent that CD Baby has entered into a written agreement with a Licensee specifically authorizing such other online video services.
(h) "Your Authorized Content" means the sound recordings, and the musical works embodied in such sound recordings, and any
album related artwork, photos, liner notes, metadata and other material related to your sound recordings that you have provided to CD Baby and that you
elect in your CD Baby Member's account to make available pursuant to this Sync Distribution Addendum. Any such sound recordings (and the musical works
embodied therein), artwork, photos, liner notes, metadata, or other materials must be owned or controlled by you and/or have been cleared by you for
all purposes and rights granted and authorized under this Sync Distribution Addendum. For the avoidance of doubt, Your Authorized Content embodies each
sound recording and the musical work(s) (i.e., the music and lyrics) embodied in each sound recording.
3. Additional Grant.
In addition to the rights granted in the CD Baby Artist Agreement, you hereby grant to CD Baby the non-exclusive right to sublicense Licensees, and to
our designated Licensees the nonexclusive right, to Represent Your Authorized Content for use on a nonexclusive basis during the Term and throughout
the universe in strict compliance with this Sync Distribution Addendum and any agreement separately entered into between CD Baby and a Licensee. CD
Baby shall have sole discretion over the Licensees to be granted sublicenses pursuant to this Addendum.
4. Exclusive Content ID Administration Rights.
(a) During the Authorized Term and throughout the universe, CD Baby or one or more of its Licensees will, with respect to Your Authorized Content, be
the exclusive administrator of all so-called "Content ID" controls (and any similar controls, including any controls that allow for the monetization of
content that is identified via content-matching and/or audio fingerprinting technologies) on UGC Networks, it being acknowledged that this will allow
CD Baby or our Licensees to (i) ensure that a Licensee's customers who have been granted a license pursuant to Section 3 of this Sync Distribution
Addendum are able to exercise such license; and (ii) collect additional revenues that may be generated from the use of Your Authorized Content on UGC
Networks consistent with the grant of rights in Section 3 of this Sync Distribution Addendum.
(b) In the event that the administration of Content ID controls (and/or similar controls) for any of Your Authorized Content is returned to you ( e.g., after the Authorized Term), you will neither administer, nor authorize any third party(ies) to administer such Content ID controls (or
similar controls) in a manner that would disable any licensed uses of Your Authorized Content that, during the Authorized Term, were authorized by
Licensee or a customer of a Licensee.
The term of this Sync Distribution Addendum ("Authorized Term") commences on the date on which you clicked the "I Agree" button
related to this Sync Distribution Addendum, and will continue unless and until terminated. If you wish to terminate the Authorized Term, you must
provide us with written notice at email@example.com. Within seven (7) business days of our receipt of your Termination Notice we shall advise
Licensees that they are no longer authorized to Represent Your Authorized Content. If a Licensee fails to discontinue further licensing of Your
Authorized Content following receipt of a notification of termination of a license, you retain all rights to pursue any causes of action against such
third party, and hereby agree that you shall have no claims or causes of action, including, but not limited to, for monetary damages or injunctive
relief, against CD Baby for any third party's unauthorized use of your licensed content. However, any licenses that, during the Authorized Term, shall
have been issued by a Licensee, or by a customer of a Licensee, for the use of any of Your Authorized Content as permitted in this Sync Distribution
Addendum, shall continue and remain in full force and effect, it being agreed that the term of any such licenses shall be separate and apart from the
Authorized Term and will, accordingly, survive termination of the Authorized Term. Provisions of this Sync Distribution Addendum, which, by their
nature or sense, are intended to survive the termination of the Authorized Term, such as, but not limited to, the provisions in Sections 4(b), 7, 8, 9,
10, 11 and 12, will survive the termination of the Authorized Term.
A Licensee is obligated to pay to CD Baby a "CD Baby Artist Royalty”" in an amount that is set forth in the agreement entered
into between CD Baby and the Licensee pursuant to the rights granted in this Sync Distribution Addendum. CD Baby shall remit to
you a portion of the CD Baby Artist Royalty attributable to the use of Your Authorized Content actually received from a Licensee.
CD Baby will use commercially reasonable efforts to make a payment to you (by wire or electronic transfer) for amounts generated
pursuant to the rights granted in this Addendum no later than 15 days after amounts were actually received by CD Baby from a
Licensee and your Threshold Amount has been met. The default Threshold Amount is $50 and can be changed at any time as long as it
equals or exceeds the Minimum Threshold of $10. You may withdraw funds by physical check for a charge of $1.50 USD per check
withdrawal to cover processing fees. If a check is not redeemed after 180 days from the date it was issued, the funds
(minus the fee) will be returned to your Account. If you have provided an undeliverable mailing address and two or more
consecutive payments have been returned to CD Baby as undeliverable, we may stop sending future payments to you until you
provide a deliverable mailing address. Funds may also be requested in the form of a direct deposit (ACH), which will incur a fee of $2.50 for bank accounts located outside of the United States; direct deposits to US based bank accounts are free of charge. International clients using International ACH (direct deposit) to receive payments are responsible for any currency losses due to market fluctuations if the International ACH payment is returned or rejected. These amounts will be deducted directly from your CD Baby account. Refer to our FAQ (link to our updated FAQ) for a complete list of eligible countries. Additional fees for returned direct deposit (ACH) transactions will be your responsibility; the current schedule of fees can be found in our FAQ (link to our updated FAQ). Payments pursuant to this Addendum constitute full and complete consideration for
the licenses and authorizations granted, and representations, warranties, undertakings, and covenants made by you under this
Sync Distribution Addendum. Although CD Baby reserves the right to take any actions available to it in any dispute with a
Licensee, nothing in this Sync Distribution Addendum obligates CD Baby to collect any amounts due it by a Licensee or initiate
any cause of action against a Licensee for non-payment of any CD Baby Artist Royalties.
7. Third Party Clearances.
a. Third Party Clearances. You will be responsible for obtaining and paying for any and all clearances or licenses required throughout
the universe for the use of Your Authorized Content. Without limiting the generality of the foregoing, you shall be responsible for and shall pay (i)
any royalties and other sums due to artists (featured and non-featured), authors, co-authors, copyright owners and co-owners, producers,
engineers, and any other record royalty participants from sales or other uses of Your Content, (ii) all mechanical royalties or other sums payable to
music publishers and/or authors or co-authors of musical compositions embodied in Your Authorized Content from sales or other uses of Your Authorized
Content, (iii) all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or
guilds such as AFM or AFTRA), and (iv) any other royalties, fees and/or sums payable with respect to Your Authorized Content or other materials
provided by you to us. You agree that the amount payable to you is inclusive of any so-called "artist royalties" that might otherwise be required
to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays or
communications to the public of the sound recordings and musical works constituting Your Authorized Content. To the extent permitted by law, you hereby
waive any so-called "moral rights" in Your Authorized Content applicable under the laws of any jurisdiction.
b. Notification of Collection Societies. If any portion of Your Authorized Content is now or in the future administered in any
territory(ies) by any performance rights society, or any other collection society, you will be responsible for ensuring that such collection societies
are notified of this Agreement, and of any other agreements or activities related to this Sync Distribution Addendum, in accordance with any
obligations that may be applicable (e.g. obligations under agreements that relate to such collection societies' administration of public
performance rights in Your Authorized Content).
c. Subject to the immediately succeeding sentence, and, except as expressly provided in this Sync Distribution Addendum, any Licensees shall have no right under this Sync Distribution Addendum to grant a free license for the public performance of any of your musical works embodied in Your Authorized Content to any party that is a licensee of a performing rights organization authorized to license your musical works as of the date such party obtains a license from a Licensee. The restrictions set forth in the foregoing sentence do not apply in the case of licenses for the public performance of any of the musical works embodied in Your Authorized Content where the applicable license shall have been issued for any use described in Section 2(d) or 2(e).
8. Representations and Warranties by You.
You represent and warrant to us that: (i) you have the full right, power, and authority to act on behalf of any and all owners of any right, title or
interest in and to Your Authorized Content, including all musical compositions embodied in Your Authorized Content, and that you are authorized to
provide Your Authorized Content to us for the uses specified in this Sync Distribution Addendum; (ii) If you are acting on behalf of an artist, band,
group or corporation, you represent and warrant that you are fully authorized to enter into this Sync Distribution Addendum on behalf of such artist,
band, group, or corporation and to grant all rights and assume and fulfill all of the obligations, covenants, representations and warranties set forth
in this Sync Distribution Addendum; (iii) you own or control all of the necessary rights in Your Authorized Content in order to make the grant of
rights, licenses, and permissions herein, and that you have permission to use the name and likeness of each identifiable individual person whose name
or likeness is contained or used within Your Authorized Content, and to use such individual's identifying or personal information (to the extent such
information is used or contained in Your Authorized Content) as contemplated by this Sync Distribution Addendum; (iv) the use or other exploitation of
Your Authorized Content by us, or by Licensees, or by any customers of Licensees, all as contemplated and authorized by this Sync Distribution
Addendum, will not infringe or violate the rights of any third party, including any privacy rights, publicity rights, copyrights, contract rights, or
any other intellectual property or proprietary rights; (v) no rights in or to any of Your Authorized Content have been assigned or otherwise provided
to any third party that obtained exclusive rights; and (vi) no fees or payments of any kind shall be payable to any third party for the use of Your
Authorized Content as contemplated by this Sync Distribution Addendum.
9. LIMITATION OF LIABILITY: BASIS OF BARGAIN. THE LIABILITY LIMITATIONS APPLICABLE TO CD BABY UNDER THE CD BABY MEMBER
AGREEMENT WILL ALSO BE AFFORDED TO LICENSEES AND LICENSEE CUSTOMERS (WITH LIABILITY BEING LIMITED TO THE AMOUNT THAT WAS PAID BY THE APPLICABLE
LICENSEE TO CD BABY FOR THE LICENSED USE OF YOUR AUTHORIZED CONTENT IN THE SIX MONTHS PRIOR TO THE APPLICABLE DISPUTE). APPLICABLE LAW MAY NOT ALLOW
THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH CASES YOU AGREE
THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND OUR LICENSEES, AND ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CD BABY, OUR LICENCEES' AND LICENSEE CUSTOMERS' LIABILITY SHALL BE LIMITED TO THE
MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT OUR LICENSEES WOULD NOT BE ABLE TO OFFER THEIR SERVICES ON AN ECONOMICALLY FEASIBLE
BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILIY.
a. Indemnification. You hereby agree to indemnify, defend and hold harmless CD Baby and Licensees and customers of Licensees
exercising rights consistent with the grant of rights set forth in this Addendum, from and against any and all damages, claims, liabilities, costs,
losses, and expenses (including, but not limited to, legal costs and attorneys' fees) (collectively, "Claims") arising out of
any breach or alleged breach of any of the warranties, representations, covenants or agreements made by you in this Addendum. You agree to reimburse
us, on demand, for any payment made by us at any time with respect to any Claims to which the foregoing indemnity applies. Pending the resolution of
any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not
exceed your potential liability to us pursuant to this Section 10(a).
b. Indemnification Request. If we make an indemnification request to you under this Section, we may permit you to control the defense,
disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement
or agree to any disposition that requires any admission of liability by CD Baby or any Licensee or customer of a Licensee or imposes any conditions or
obligations on CD Baby or a Licensee or customer of a Licensee (for the purposes of this Section 10, the "Indemnified Parties")
other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to
the Indemnified Parties. If the Indemnified Parties, in their reasonable and good faith judgment conclude that you are not capable of defending the
interests of one or more of the Indemnified Parties against any Claims, then the Indemnified Parties, either individually or collectively, shall have
the option to control the defense in any matter or litigation through counsel of their own choosing to defend against any such Claim for which you owe
the Indemnified Parties an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
11. DISPUTE RESOLUTION. YOU AGREE THAT IN THE EVENT YOU INITIATE A CLAIM OR DISPUTE AGAINST A LICENSEE, SUCH CLAIM OR DISPUTE
MUST BE RESOLVED EXCLUSIVELY IN THE MANNER THAT CLAIMS AGAINST CD BABY ARE RESOLVED UNDER THE CD BABY MEMBER AGREEMENT, AND THAT FOR CLAIMS OR DISPUTES
AGAINST A LICENSEE, SUCH LICENSEE WILL BE ENTITLED TO ALL BENEFITS OF THE DISPUTE RESOLUTION PROVISIONS OF THE CD BABY MEMBER AGREEMENT.
(a) Construction. Wherever the words "include," "includes" or "including" are used in this Sync Distribution Addendum, they shall be
deemed to be followed by the words without limitation. In relation to the rights, remedies, and benefits granted hereunder, and the representations and warranties herein, the term "Licensees" is
deemed to include Licensees' sublicensees as well as Licensees' successors and assigns.
(b) No Minimum Use Guarantees. You agree that CD Baby makes no guarantees regarding any minimum amount of uses or minimum payments
that may be generated from the use of Your Authorized Content pursuant to this Addendum.
(c) Third Party Beneficiaries. Licensees and any Licensee customers are intended third party beneficiaries of this Sync Distribution
Addendum. This Sync Distribution Addendum confers rights,
remedies, benefits, representations, and warranties to Licensee and Licensee customers. The rights granted in this Sync Distribution Addendum are
assignable by CD Baby. The rights granted to a Licensee or a customer of a Licensee pursuant this Addendum shall be assignable by a Licensee or a
customer of a Licensee except as otherwise limited in any agreement entered into between CD Baby and a Licensee.
Last Updated: February 5th, 2013
This CD Baby Publishing Administration Addendum (the “Publishing Addendum”) governs the terms upon which CD Baby, a division of Audio & Video Labs, Inc., (”CD Baby”) will provide you (“you” or “Writer”) with music publishing administrative services (the “Publishing Services”) as described in this Addendum in accordance with the options you select in connection with your CD Baby account registration (“Account Registration”) or as you may later update in connection with your account settings. Please read these terms carefully prior to using or registering for the Publishing Services. BY REGISTERING FOR A CD BABY PACKAGE THAT INCLUDES PUBLISHING SERVICES OR SIGNING UP TO ADD PUBLISHING SERVICES, YOU AGREE TO THE TERMS OF THIS PUBLISHING ADDENDUM AS WELL AS TO THE TERMS OF THE CD BABY ARTIST AGREEMENT (THE “ARTIST AGREEMENT”) AND THE CD BABY TERMS OF SERVICE (THE “TOS”). If you do not agree to all these terms, then you may not use the Publishing Services. To the extent that there is any conflict between the terms of this Publishing Addendum and any term(s)in the Artist Agreement of the TOS, the terms of this Publishing Addendum will control.
If you are registering for CD Baby or otherwise signing up for the Publishing Services on behalf of one or more other writers, a group, or a company or other entity, then you represent and warrant to us that you are duly authorized to do so on their behalf and to bind them to this Addendum. The term “you” and “your” and “Writer” includes all such people and entities.
1. GRANT OF RIGHTS
During the Term and Exploitation Period (as defined below), you hereby grant to CD Baby, its successors, licensees and assigns, the sole and exclusive rights of administration, promotion and collection throughout the world (the “Territory”) with respect to one hundred percent (100%) of all of your right, title and interest (“Writer’s Interest”) in and to the musical compositions you submit to CD Baby via the CD Baby Web site (the “Site”) (the “Compositions”), except that this grant does not include the right to grant or administer any synchronization rights for the Compositions and with respect to the manufacture and distribution of physical copies of the Composition, the rights granted hereunder shall be nonexclusive. The rights you grant to CD Baby include, without limitation, the sole and exclusive (except as set forth above) right, license, privilege and authority throughout the Territory with respect to Writer’s Interest in and to all Compositions, whether now in existence or whether created during the Term, to do the following:
a) To register the Compositions, if you have not already done so, at your request and on your behalf, with the relevant performance rights organizations (e.g., ASCAP or BMI) (“PROs”) and other licensing agencies (e.g., The Harry Fox Agency) for which CD Baby may offer such registration services (the “Third-Party Registrations”). Such Third-Party Registrations will be made in accordance with the then current rules, terms and conditions of the applicable PRO or licensing organization and will require the payment of the applicable fees as specified by CD Baby. As CD Baby makes additional PROs and licensing agency registrations available, you may request registration with such additional PROs and agencies at any time. If you are already registered with such PROs or other third parties, you will need to execute such letters of direction as we provide to enable us to administer your account with such PROs or other third parties on your behalf during the Term and Exploitation Period. For the avoidance of doubt, you understand that we will not be able to start collecting publishing income on your behalf unless and until the necessary Third-Party Registrations and/or letters of direction are accurately completed.
b) To perform and license others to perform the Compositions publicly or privately, for profit or otherwise, by any means or media whatsoever, whether now known or hereafter conceived or developed, including, without limitation public or private live performances, radio broadcast, television, Internet, mobile telecom.
c) At your request or with your permission, to do or allow others to do the following: (i) substitute new titles for any of the Compositions; (ii) make any arrangement, adaptation, translation, dramatization or transposition of any of the Compositions or of the titles, lyrics or music thereof, in whole or in part, and in connection with any other musical, literary or dramatic material;(iii) add new lyrics to the music of any Composition or new music to the lyrics of any Composition, and (iv) prepare derivative works based on the Compositions, regardless of any so-called "moral rights".
d) To make or cause to be made, and to license others to make phonograph records, master recordings, digital downloads, streams, podcasts, ringtones, transcriptions, soundtracks, pressings and any other mechanical, electrical or other reproductions of the Compositions, in whole or in part, including without limitation, the right to grant licenses to third parties authorizing so-called "sampling" and/or interpolation of the Compositions, and to use, manufacture, advertise, license, sell, or otherwise exploit such reproductions for any and all purposes, including, without limitation, private and public performances, radio broadcast, television, sound motion pictures, wired radio, phonograph records, and any and all other means and devices, whether now known or hereafter conceived or developed, but excluding any synchronization rights. Synchronization rights, if applicable, are covered by the CD BABY Sync Addendum.
e) To print, publish, sell and distribute, and to authorize others to print, publish, sell and distribute, copies of the Compositions, in all forms, including, without limitation, sheet music, orchestrations, arrangements and other editions of the Compositions, separately or together with other musical Compositions, including, without limitation, in song folios, compilations, song books, mixed folios, personality folios and lyric magazines, with or without music.
f) To sublicense any or all of the rights granted herein to any persons or entities.
g) To exercise and exploit during the Term and Exploitation Period, exclusively, any and all other rights now or hereafter existing with regard to Writer’s Interest in any and all Compositions under and by virtue of any common law or statutory laws or provisions, including without limitation, copyright laws, including so-called grand rights and small performance rights, but excluding any synchronization rights.
h) To administer and collect all monies derived from the exploitation of the Compositions during the Term and Exploitation Period throughout the Territory. After the Term and Exploitation Period, we shall continue to have the right to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period. In addition, you understand that it is your responsibility to notify the relevant PROs or other third party licensing agencies or licensors at the end of the Exploitation Period, and if you fail to do so, we may continue to receive income on your behalf. If we receive monies that were earned after the applicable Exploitation Period for a particular Composition(s) from a PRO or other third party licensing agency, licensor or other entity due to their acts or omissions or your failure to notify the relevant third party of the expiration of the Exploitation Term, you acknowledge that our receipt thereof will not be a violation of this agreement and that we have the right to accept such monies on your behalf. In such event, our Administration Fees will apply to such monies, and we will remit all Net Income to you as and when we would otherwise have accounted to you if this Addendum and Exploitation Term were still in effect.
i) To use the names (real and professional), biographical information and likenesses of the writers of the Compositions (including but not limited to Writer) in connection with the marketing and/or promotion of the Compositions and of our Site and the Publishing Services.
2. PUBLISHING SERVICES
The specific Publishing Services to be provided will be as specified on the Site in accordance with the options you select in your Account Registration and is contingent upon the payment of all applicable fees. You or your designee will be the contracting party in any licenses entered into in connection with the Publishing Services.
You acknowledge that the term of individual licenses may extend beyond the Term and/or Exploitation Period hereof and you authorize CD Baby to enter into such licenses on your behalf.
3. YOUR ACCOUNT
a) In order to use the Publishing Services, you must create a CD Baby account (the “Account”). Writer will be asked as part of the Account Registration to select a unique user name and password and to provide CD Baby with accurate, complete registration information to obtain access to the Site and the Publishing Services. Writer will be solely responsible for any and all activity transacted and charges incurred under Writer’s Account, so please ensure that you keep you user name and password confidential and safe. If at any time Writer’s registration information changes or if you learn or suspect that your Account has been used or obtained by a person not authorized to use it, please notify CD Baby immediately at firstname.lastname@example.org. Any materials submitted to CD Baby will not be returned.
b) Writer may not assign or transfer Writer’s Account, rights, obligations, or interest under this agreement to anyone else unless otherwise agreed in writing by CD Baby. Any assignment, encumbrance or other transfer of Writer’s Interest in any Composition(s) will remain subject to this agreement during the Term and Exploitation Period. A purported assignment, encumbrance or other transfer not in accordance with this paragraph will be void and without effect ab initio.
a) In consideration of the Publishing Services rendered hereunder, you shall be obligated to pay to CD Baby the registration fees described in the relevant Account Registration (the “Registration Fees”) and the administration fee as set forth below (the “Administration Fee”). You also agree to pay any applicable Third-Party Registration fees and any other fees as specified in your Account Registration or otherwise authorized under your Account.
b) When you sign up for the Publishing Services, you will be providing CD Baby with credit card information and authorization to charge your Registration Fee, any applicable taxes, and other charges you may incur in connection with your use of the Site and the Publishing Services directly to your credit card account. If, at any time, we are unable to charge or otherwise recover the relevant fees from the credit card provided at Account Registration, you hereby authorize us to deduct said amounts from any monies then existing or accruing in the future to you in your CD Baby account (i.e., your share of Net Income); otherwise, we may suspend our Publishing Services and/or terminate the Term.
c) CD Baby shall retain an Administration Fee of fifteen percent (15%) of the “Gross Receipts.” As used herein, Gross Receipts shall mean the total amounts actually collected on your behalf by CD Baby which are attributable to the exploitation of Writer’s Interest in the Compositions.
5. PAYMENT OF NET INCOME; ACCOUNTING
a) CD Baby shall remit to you, in accordance with Section 6(c) below, all Net Income (as defined below) collected on your behalf in connection with the to the exploitation of Writer’s Interest in the Compositions. “Net Income” shall mean the Gross Receipts actually received by CD Baby on your behalf in connection with the exploitation of your Writer’s Interest in the Compositions, less the Administration Fee applicable to such Gross Receipts, and less all actual and reasonable non-overhead costs or expenses paid or incurred by or on behalf of CD Baby in connection with the administration and exploitation of the Compositions, the performance of this Agreement and the collection of income, including, without limitation audit fees, collection expenses, and any taxes required to be deducted. With respect to licensees outside the United States, if applicable, monies received by or credited to CD Baby directly attributable to exploitation of the Compositions in the United States shall be calculated “at source”.
b) In the event that CD Baby has, in its reasonable business judgment, reason to suspect that Writer’s account has been subjected to and/or involved in fraudulent activities, CD Baby reserves the right to suspend the payment of the Net Income to Writer’s Account and to block your ability to otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates’ actions or omissions, any costs incurred by CD Baby (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by CD Baby from any monies otherwise payable to you hereunder. Certain of CD Baby’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
c) The Net Income payable by CD Baby to you hereunder shall be posted to your Account on or before the 10th day of April for the period ending the preceding December 31st, and on or before the 10th day of July for the period ending March 31st, and on or before the 10th day of October for the period ending the preceding June 30th and on or before the 10th day of January for the period ending the preceding September 30th, together with an account of the amounts earned by you during such quarterly period. CD Baby will issue payments from your Account when the amount in your Account reaches the level you designate in your Account Registration. CD Baby may also issue payments from your Account at additional times in its sole discretion.
d) All accountings rendered and payments made by CD Baby to you shall be binding upon you and not subject to any objection for any reason unless specific objection in writing, stating the basis thereof is given to CD Baby within one (1) year from the date rendered. Statements and payments shall be sent in accordance with the relevant instructions in the Registration. No generalized objection (such as, but not limited to, a generalized claim of over-reporting of deductions or underreporting of income or any similar generalization) shall be deemed a valid objection.
6. TERM; TERMINATION
a) The term of this Publishing Addendum (the “Term”) will commence when you register for the Publishing Services (either by specifically signing up for the Publishing Services or for a package that includes the Publishing Services) and will continue until terminated by either party as set forth below. However, notwithstanding any termination of this Publishing Addendum, the rights granted and the Publishing Services provided under this Addendum will continue with respect to any particular Composition until the end of the Exploitation Period (as defined below) for such Composition. In addition, after the Term and Exploitation Period, CD Baby shall continue to have the right to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period. CD Baby will continue to account to you for all such income. “Exploitation Period” for a Composition shall commence upon the date on which you submit such Composition and will continue until the later of (a) the end of the Term or (b) twelve (12) to eighteen (18) months after you submit the Composition to us, unless earlier terminated by CD Baby as set forth below. For example, if you submit a Composition on January 1st and the Term ends on February 1st of that year, then the Exploitation Period for that Composition shall continue until December 31st of that year.
b) You may terminate this Publishing Addendum at any time by sending an email to email@example.com with a request to cancel along with your email address and account number]Such termination will be effective thirty (30) days from the date on which we receive such cancellation notice, subject to the rules and regulations of the relevant performance, licensing and other collection rights organizations. Registration Fees are non-refundable once paid, and will not be prorated upon termination.
c) CD Baby may terminate this Publishing Addendum and/or may also terminate the Exhibition Period for any of all of the Compositions at any time upon written notice, for any reason or for no reason. Termination of your Account or of the CD Baby service as a whole will also constitute termination of this Publishing Addendum.
d) The following Sections will survive any termination of this Addendum: Sections 1 and 2 (for the duration of any applicable Exploitation Periods) and Sections 3, 4, 5, 6, 7, 8, 9, and 10. After the Term and Exploitation Period, we shall continue to have the right, but not the obligation, to collect all income payable in respect of exploitations of the Compositions that was earned during or before the Term and/or Exploitation Period. We will continue to account to you for all such income.
CD Baby reserves the right at any time to modify this agreement and to impose new or additional terms or conditions on your use of the Publishing Services. We will inform you of any proposed modifications (e.g., by e-mail or through your account page on the Site) and you may terminate this Addendum upon written notice if you do not wish to accept them. Otherwise, such modifications and additional terms and conditions will be deemed accepted and incorporated into this agreement.
8. WARRANTIES AND INDEMNIFICATION
Writer hereby warrants and represents as follows:
a) Writer is at least eighteen (18) years of age and not currently signed to an exclusive songwriter, co-publishing, administration or other agreement regarding Writer’s Interest in any Compositions or Writer’s songwriting services.
b) All registration information and other information you submit to CD Baby is and will remain truthful and accurate. You will notify us promptly if any information changes or needs to be updated. In the event we are put on notice with respect to a discrepancy or any inaccuracy with respect to information provided in the Registration, we shall have the right to suspend payments generated in connection with the Compositions in question until the discrepancy or inaccuracy is resolved to our reasonable satisfaction, without limitation of our indemnity rights as set forth below.
c) Writer has and shall continue to have the full right, power and authority to enter into and fully perform this agreement and grant the rights granted herein. Without limiting the foregoing, no consent or other permission of any third party is required, nor shall it be required, in order to effectuate the grant of rights made to CD Baby under this agreement, or CD Baby’s enjoyment of such rights and the proceeds thereof as contemplated hereunder.
d) All Compositions are wholly original to Writer, and neither the Composition nor any portion thereof (including any music, title, lyrics or other material) infringes or shall infringe upon any copyright, trademark, publicity rights or other statutory, common law or other rights of any third party; violates or shall violate any applicable law, rule or regulation or will otherwise cause any harm to or liability for CD Baby. Without limiting the foregoing, no Composition embodies a “sample” or other portion of a musical composition owned or controlled by a third party.
e) The Compositions are and shall be free from any adverse claims, liens or encumbrances of any kind by any person or entity.
f) CD Baby shall not be required to make any payments of any nature for, or in connection with, the exploitation of the Compositions except as specifically set forth herein.
g) You will not interfere or attempt to interfere with the proper working of the Site or the Publishing Services or any transaction conducted on Site and will not take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure.
h) You shall at all times defend, indemnify and hold harmless CD Baby and its affiliates and their respective members, employees, affiliates, representatives, agents, licensees and distributors (collectively, the "Other Indemnitees") from and against any and all claims, liabilities, damages, judgments, losses, costs and expenses, including actual out-of-pocket legal expenses and reasonable attorneys’ fees, arising out of (i) any exercise of the rights granted under this agreement, (ii) any breach or alleged breach by Writer of any warranty, representation or agreement made herein, (iii) any act, error or omission committed by Writer or any person or entity acting on Writer's behalf or under Writer's direction or control, and (iv) the Compositions and any use or exploitation thereof as contemplated under this Addendum. You will reimburse CD Baby and the Other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which CD Baby or the Other Indemnitees are entitled to be indemnified, or CD Baby may elect to deduct any such payments from all sums otherwise due you hereunder.
9. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY
IN NO EVENT WILL CD BABY BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE PUBLISHING SERVICES, EVEN IF CD BABY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CD BABY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO CD BABY FOR THE PUBLISHING SERVICES.
THE SITE AND THE PUBLISHING SERVICES ARE PROVIDED ON AN "AS-IS," “AS AVAILABLE” BASIS AND CD BABY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND REGARDING THE SITE AND THE PUBLISHING SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CD BABY CANNOT GUARANTEE AND DOES NOT PROMISE ANY REVENUE OR OTHER SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE PUBLISHING SERVICES. TO THE EXTENT THESE DISCLAIMERS AND LIMITATIONS ARE LIMITED BY APPLICABLE LAW, THEY SHALL OTHERWISE APPLY TO THE FULLEST EXTENT OF SUCH LAW.
You acknowledge that any exploitation of the Compositions is speculative and that CD Baby cannot guarantee that the Compositions will be exploited at all or that any Net Income will be generated or earned hereunder. You waive all claims and warrant, represent and agree that you will not make any claim, nor will any liability be imposed upon CD Baby based upon a claim, that more Net Income could have been generated or better business achieved than that which was actually generated or achieved by CD Baby and/or its licensees.
CD Baby does not guarantee, represent, or warrant that your use of the Site or Publishing Services will be uninterrupted or error-free, and you agree that from time to time CD Baby may suspend the Site and Publishing Services for indefinite periods of time for technical maintenance or upgrade or otherwise, or may cancel the Publishing Services at any time, without notice to you. The functions and features of the Site and Publishing Services are subject to change without notice.
Your use of the Site and the Publishing Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR REGISTRATION AND ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR THE PUBLISHING SERVICES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
CD BABY®, the CD Baby logo, and other CD Baby trademarks, service marks, graphics, and logos used on the Site or in connection with the Publishing Service are trademarks or registered trademarks of Audio & Video Labs, Inc., in the U.S. and/or other countries. You are granted no right or license with respect to any of the foregoing.
This agreement is entered into in the State of Oregon and shall be construed in accordance with the laws of said state applicable to contracts to be wholly performed therein, without reference to any conflict of laws principles. The Courts located in Multnomah County, Oregon (State and federal), shall have sole and exclusive jurisdiction over any controversies arising out of, or in connection with this agreement; any action or other proceeding which involves such a controversy will be brought in those courts, in Multnomah County.