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Terms and Conditions
SONGSLIDE ARTIST AGREEMENT Date of last revision: November 7, 2006 This SongSlide Artist Agreement (the "Agreement") is a binding contract between SongSlide Inc. ("SongSlide"), and you and any artist or other person on whose behalf you are entering this contract (collectively, "You" or "Your"). Please read this contract carefully and print it for Your records. After fully reading this contract, click the "I Agree" button below to indicate Your agreement to all the terms of this Agreement. If you do not agree to all the terms and conditions contained in this Agreement, do not click on "I Agree," in which case you will not be permitted to use any of the Services (as described below). If you are executing this Agreement in hard copy form, and not on the SongSlide website, fill out and sign the signature block at the end of this Agreement to accept this Agreement. SongSlide may modify the terms of this Agreement in its sole discretion upon providing at least seven (7) days' advance notice to You. If You do not agree to such modification, You must stop all use of the Services and terminate this Agreement immediately by cancelling Your SongSlide account or by giving notice of termination to SongSlide at any time before the new version of this Agreement takes effect, in accordance with the procedures described below. Your continued use of the Services after the effective date of the modification to the Agreement constitutes your acceptance of such modified Agreement. Section 1. Services 1.1 Description of Services. SongSlide offers the following services (the "Services") in which it (a) enables artists to make digital audio files of sound recordings (each, as "Song") available for preview, purchase, licensing and download on SongSlide's Internet website currently located at www.SongSlide.com, and any successor thereto (collectively, the "SongSlide Site"), (b) enables artists to display images, text, music clips and other content and information in connection with such Songs (the “Song Related Materials”), (c) facilitates the payment and download process for Songs purchased by customers of the SongSlide Site (each such customer and potential customers, a "Customer"), and (d) provides other related functionality and services in accordance with the terms and conditions of this Agreement. For purposes of this Agreement, the term "Your Songs" means Songs which you submit to the SongSlide Site under this Agreement, including without limitation Songs you upload or otherwise post directly to the SongSlide Site and those that SongSlide creates and uploads to the SongSlide Site from a compact disc or similar media You provide to SongSlide. 1.2 Conditions to Services. To be eligible for SongSlide's Services, You must comply fully with the terms of this Agreement, as well as other documentation or instructions that SongSlide may provide or make available to You. However, You acknowledge that SongSlide ultimately is under no obligation to provide any of the Services to You , and SongSlide reserves the right at any time, without notice and in its sole discretion, to modify or discontinue the Services, to terminate or suspend your account, and to remove or reject any Works (as defined below) You provide to SongSlide without any liability to you or any other person. You understand and agree that Your use of the Services is limited to Songs in which you own and control the copyright in both the sound recording and in the underlying musical composition embodied therein (the “Compositions”), and You agree not to submit, upload or otherwise use in any manner on or in connection with the Services or the SongSlide Site any Song in which you do not own and control all such rights. Section 2. Artist Payment Plan 2.1 Artist payments. For each copy of Your Songs sold to a Customer through the SongSlide Site, SongSlide will pay You a portion of the amount actually received from the Customer for such Song as indicated on the SongSlide Price Selector tool which appears on the SongSlide Site (or any successor pricing tool or method implemented by SongSlide) as the portion of the purchase price the "Artist" will receive from such sale (the "Commission"). Notwithstanding the foregoing, You acknowledge and agree that SongSlide may change its method of calculating the Commission amounts at any time, upon notice to You, and in its sole discretion, however any such changes will affect only the Commission amounts You will earn on Your Song sales that occur after such changes are implemented (i.e., changes in calculating the Commission amount will not apply retroactively to past sales). All amounts payable under this contract are to be paid in United States dollars. 2.2 Date of artist payments. Each calendar month will have two payment periods (each a "Payment Period"), the first beginning on the first (1st) day and ending on the fourteenth (14th) day of such month, and the second beginning on the fifteenth (15th) day and ending on the last day of such month. SongSlide will calculate the total amount of unpaid Commissions You have earned through the last day of each Payment Period (including Commissions earned in prior Payment Periods for which payment has not been issued). If Your total unpaid Commissions total twenty dollars ($20.00) or more, SongSlide will issue a payment to You within five (5) days after the last day of such Payment Period, less any applicable deductions for chargebacks, returns, refunds, insufficient funds, cancellations or fraudulent orders. If your total unpaid Commissions total less than twenty dollars ($20.00), then such Commissions will be held until the next Payment Period in which the total amount of unpaid Commissions payable to you equals twenty dollars ($20.00) or more. For example, if you have earned $15 in Commissions between April 1 and April 14, and have no outstanding Commissions from prior Payment Periods, SongSlide will not pay you within five (5) days of the end of that Payment Period, and your $15 will carry over to the next Payment Period. If you earn an additional $10 in Commissions between April 15 and April 30, SongSlide will issue a $25 payment to You by May 5, less any applicable deductions for chargebacks, returns, refunds, insufficient funds, cancellations or fraudulent orders. 2.3 Method of artist payments. All payments to You under this contract will be issued to You through the PayPal payment service, or such other payment method as SongSlide may specify from time to time. It is Your sole responsibility to establish and maintain a valid and proper PayPal account to receive payments under this contract, and to provide SongSlide with all information necessary for SongSlide to make payments to Your PayPal account. You are solely responsible for any fees or taxes that You or SongSlide may incur in conducting a payment transaction through PayPal to You. For purposes of this contract, SongSlide shall have satisfied its payment obligation to You if it authorizes PayPal to conduct a payment transaction to the PayPal account You specify to SongSlide, without subsequently withdrawing such authorization. Section 3. Submission of Songs and Content to the SongSlide Site You may upload, post, or otherwise submit (“Submit”) Songs or Song Related Materials to the SongSlide Site only in accordance with the terms and conditions of this Agreement and the policies and procedures of SongSlide as specified by SongSlide from time to time. By Submitting any Songs or Song Related Materials to the SongSlide Site, you agree, and represent and warrant, that such Songs and Song Related Material: (a) are not unlawful, libelous, defamatory, obscene, pornographic, lewd, harassing, threatening, invasive of privacy or publicity rights, abusive, fraudulent or otherwise objectionable; (b) do not constitute, encourage or provide instructions for a criminal offense or otherwise create liability or violate any local, state, national or international law; (c) do not infringe upon or violate any patent, trademark, trade secret, copyright or other intellectual or proprietary or other right of any third party; and (d) do not contain any viruses, worms, defects, hoaxes, Trojan horses, corrupted data or other harmful, disruptive, deceptive or destructive files or any items or materials which may otherwise expose SongSlide or its users to any harm or liability of any type. 4. Licenses and Ownership of Your Songs and Song Related Materials 4.1 Ownership. Title to and ownership of Your Songs and Song Related Materials You provide, other than any keywords, labels, descriptive words, or similar tags You create or that are associated with Your Songs or Song Related Materials (the "Tags"), are and remain the exclusive property of You and Your licensors. You acknowledge and agree that all Tags and all rights associated therewith are owned exclusively by SongSlide. To the extent SongSlide does not own any Tags, You hereby assign, and will assign, all right, title and interest in and to such Tags, and all intellectual property and proprietary rights associated therewith, to SongSlide. 4.2 License to Your Works. You hereby grant to SongSlide a nonexclusive, worldwide license to reproduce, distribute (including by means of a digital phonorecord delivery), market, sell, store, broadcast, webcast, podcast, stream, transmit, publicly perform, publicly display, create clips, excerpts and other derivative works of, alter, reformat and otherwise use Your Songs, the Song Related Materials and the Compositions You Submit to SongSlide in connection with providing and promoting the Services and the SongSlide Site (Your Songs, the Song Related Materials and the Compositions shall hereinafter be collectively referred to as the "Works”) The licenses granted herein shall include the right to sublicense such rights to Customers for their personal, non-commercial use. 4.3 License to Your information, likeness. You hereby grant to SongSlide the right to use Your name, voice, likeness, biographical data, and musical performance in and in connection with providing or promoting Your Songs, the Song Related Materials, the Services and the SongSlide Site. 4.4 Use of Your trademarks. You hereby grant to SongSlide a nonexclusive, royalty-free, worldwide license to use and reproduce any and all of Your trademarks, service marks, trade names and trade dress, including, without limitation, Your name, Your musical group name and any logos associated with You or Your musical group) (collectively, "Your Marks") in connection with the advertising, promoting, performance, marketing , selling or other distribution of Your Songs and the Song Related Materials. Section 5. Representations and Warranties In addition to the representations and warranties made in Section 3 above, You hereby represent and warrant to SongSlide that (a) You are the copyright owner of the Works, and You have full authority and power and all necessary rights to enter into this Agreement, to grant the rights and licenses granted herein and to permit the use and exploitation of the Works by SongSlide as contemplated herein; (b) neither the Works nor any use thereof by SongSlide and the Customers as contemplated herein infringes upon or violates any intellectual property, contract or other rights of any third party, or violates any applicable law; and (c) Your Marks do not and will not infringe, misappropriate or otherwise violate any copyright, trademark, or other intellectual property or other proprietary rights of any third party. You further represent and warrant to SongSlide that any Internet websites to which You provide an Internet link do not, and will not, contain any infringing, defamatory, libelous, harmful, obscene, or otherwise offensive or objectionable content or material, including without limitation content that promotes violence, hate, gambling, alcohol, cigarettes or illicit drugs. Section 6. Indemnification You will defend, indemnify and hold harmless SongSlide and its subsidiaries and parent companies, and each of their directors, officers, employees, agents, attorneys, affiliates, successors and assigns ("Indemnified Parties") from and against any and all claims, costs, losses, damages, liabilities, judgments and expenses, including reasonable attorneys' fees ("Claims") arising out of or in connection with (a) the Works or Your Marks or the use or exploitation thereof by SongSlide as contemplated in this Agreement, (b) Your breach or alleged breach of this Agreement or any representations or warranties contained herein, or (c) Your gross negligence or willful misconduct. You will not acquiesce to or settle any Claim without the prior written approval of SongSlide. Notwithstanding the foregoing, in its sole discretion and at any time, SongSlide may elect to defend some or all Claims, in which case SongSlide shall have exclusive control and discretion in the defense and resolution of such Claims. Section 7. Disclaimers, Limitations and Reservations 7.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS CONTRACT, THE SERVICES, THE SONGSLIDE SITE AND THE WORKS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND SONGSLIDE HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SONGSLIDE SITE, THE SERVICES, THE WORKS, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PEFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. Without limiting the generality of the foregoing, You acknowledge and understand that the SongSlide Site and the Services may be subject to temporary shutdowns, malfunctions, technical or administrative errors, and other problems, and that SongSlide will have no obligation to You with respect to such shutdowns, malfunctions, errors or other problems. 7.2 Limitation of Liability. EXCEPT FOR A PARTY'S BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER SONGSLIDE NOR YOU WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR THE SONGSLIDE SITE, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SONGSLIDE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH ANY THIRD PARTY PAYMENT SERVICE (SUCH AS PAYPAL). NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL THE AGGREGATE LIABILITY OF SONGSLIDE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY SONGSLIDE TO YOU UNDER THIS AGREEMENT. Section 8 Term and Termination 8.1 Term. This contract shall commence as of the date You click the "I Accept" button for this contract, or sign a hard copy of this contract, and will continue until terminated as provided herein (the "Term"). 8.2 Termination. Either Party may terminate the Term in its sole discretion, with or without cause, immediately upon written notice to the other Party. For purposes of the foregoing, Your cancellation of Your account with SongSlide will be deemed to be such a notice of termination. 8.3 Effect of termination. Upon termination of this Agreement by either Party, SongSlide will pay You any yet-unpaid Commissions within fifteen (15) days following termination, provided that You are not in material breach of any provision of this Agreement. Upon termination for any reason, SongSlide will remove Your Songs and the Song Related Materials from the SongSlide Site and stop all use and exploitation thereof within seven (7) days following such notice of termination. However, You acknowledge and agree that even after removal, copies of Your Songs and the Song Related Materials may remain viewable in cached and archived pages of the SongSlide Site, and SongSlide shall not be liable for any such usage after termination. 8.4 Survival. Sections 1.2, 3, 4.1, 5, 6, 7, 8, 9 and 10 will survive the termination or expiration of the Term. Section 4 hereof shall survive for so long as Your Songs or the Song Related Material remain on the SongSlide Site in accordance with the terms of this Agreement. Section 9. Confidentiality You agree to protect and retain in confidence all non-public information and know-how of SongSlide disclosed to or acquired by You pursuant to or in connection with this Agreement, which is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential, including without limitation all nonpublic information regarding the Services, the SongSlide Site, or SongSlide’s finances, plans, marketing, legal affairs, customers, prospects, vendors, employees, products, services, programs, techniques, technology, ideas, inventions, research, testing, contracts, opportunities, methods, procedures, know-how, trade secrets and other activities, that become known to You through disclosure, observation or otherwise ("Confidential Information"). You agree not to use or disclose, and to use your reasonable best efforts to protect, the Confidential Information, and in any event, to take precautions at least as great as those taken to protect Your own confidential information of a similar nature. The foregoing restrictions shall not apply to any information that (a) was known by You prior to disclosure thereof by SongSlide, (b) was in or entered the public domain through no fault of yours or wrongdoing of a third party, (c) is disclosed to You by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed), or (e) is independently developed by You without reference to any Confidential Information of SongSlide. Upon request , or in any event upon any termination or expiration of the Term, You shall return to SongSlide all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information. You acknowledge that breach of this provision by You would result in irreparable harm to SongSlide, for which money damages would be an insufficient remedy, and therefore that SongSlide shall be entitled to seek injunctive relief to enforce the provisions of this Section 9. Section 10. Miscellaneous 10.1 Relationship of Parties. The Parties are independent contractors, and this contract will not be construed to create or evidence a partnership, joint venture, franchise, employment or agency relationship between them. Neither Party has any authority to enter into any agreement on behalf of the other Party. 10.2 Taxes. Each Party will pay, collect, remit and otherwise be responsible for such taxes as may be imposed upon such Party in the first instance with respect to any transactions under this contract. 10.3 Severability. If any provision of this contract is declared by any court of competent jurisdiction to be invalid or unenforceable, all other provisions of this contract shall not be affected, shall be legal, valid and enforceable to the fullest extent possible, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effect the purpose of this contract. 10.4 Force Majeure. Neither SongSlide nor You will be liable for, or will be considered to be in breach of or default under this contract on account of, any delay or failure to perform as required by this contract as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence (a "force majeure event"). If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event. 10.5 Notices. Any notice or other communication under this contract given by any Party to any other Party will be in writing. A notice or other communication sent to SongSlide will be deemed properly given (a) when sent to the email address ArtistSupport@songslide.com, or such other email address as SongSlide may specify from time to time, or (b) when received by SongSlide, if sent by postal mail to SongSlide Inc., Attn: Legal Department, P.O. Box 15275 Seattle, WA 98115. In addition, by cancelling Your account with SongSlide, You will be deemed to have given SongSlide notice of termination, as described in Section 8 above. A notice or other communication sent to You will be deemed properly given when sent to the email address You provide when registering for an account or updating Your registration information with the SongSlide Site. It is Your responsibility to ensure that SongSlide has current and accurate records of Your contact information. 10.6 Assignment. You may not assign this contract, in whole or in part, and any such assignment by You will be void. SongSlide may assign this contract, in whole or in part, in its sole discretion, including all licenses granted to SongSlide herein. This contract will be binding on and enforceable by SongSlide and its successors and assigns. 10.7 No Waiver. The failure of either Party to enforce any provision of this contract will not constitute a waiver of the Party's rights to subsequently enforce the provision. 10.8 Governing Law; Jurisdiction. This contract will be interpreted, construed and enforced in all respects in accordance with the laws of State of Washington, without reference to its choice of law rules to the contrary. You irrevocably consent to personal jurisdiction and venue in the state and federal courts located in King County, Washington with respect to any actions, claims or proceedings arising out of or in connection with this contract, and agree not to commence or prosecute any such action, claim or proceeding other than in the aforementioned courts. 10.9 Entire contract; Modifications. This contract represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter. SongSlide may change this contract in its sole discretion in accordance with the terms stated at the beginning of this contract. To accept this contract, click the "I ACCEPT" button below. If You do not agree to all the terms of this contract, do not click the button.
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