Last Updated: 01/11/12 17:48
This agreement (“Agreement”) governs your use of the Musicality integrated marketing and commerce platform, consisting of the services, widgets, APIs, developer kits, and tools provided by Musicality TV Limited (“Musicality “) on or through the Musicality managed domains (collectively, the “Artist Tools And Services”) for the management of products owned or controlled by you that you wish to sell to Musicality (each a “Product” and collectively the “Products”) for resale by Musicality.
To use the Artist Tools And Services, you will create an artist account (“Artist Account”) containing your accurate and truthful contact and payment information. You may designate members of your management team and others, such as band members and designers, as authorized users of your Artist Account. Those authorized users will have full rights to access your Artist Account and to take any actions that you are authorized to take under this Agreement. However, you are solely responsible for any activity that occurs on your Artist Account and for maintaining the confidentiality of your Artist Account password and for keeping current your account information.
Musicality is not paid for, responsible for, nor involved with the distribution of anything not distributed through the Artist Tools And Services. Musicality acknowledges and agrees that this Agreement is non-exclusive and that you may sell your Products by any other method, including but not limited to, direct sales, by other physical and online retail outlets and distributors, and by alternative software mechanisms. Musicality will be paid a sales fee (“Sales Fee”) calculated as a percentage of the retail sales price of each individual package sold by You using the Artist Tools And Services, as described more fully in Section 10.2 herein; and a artist site rental as described in section 10.1.
You will be responsible for uploading the Products to the Artist Tools And Services. The Artist Tools And Services will guide you through this process. You can easily add or remove Products, change suggested retail prices, or edit Product information through your Artist Account at any time. You will cooperate with Musicality in providing accurate information for each Product, such as images or verbal descriptions. You acknowledge that inaccurate information, such as inaccurate information about the product, shipping, weights, and any other input data may adversely affect the performance of the Artist Tools And Services and customer satisfaction. Musicality is not responsible for any issues relating to inaccurate information and any resultant costs or charges (e.g. refunds, or reshipping charges). These shall be paid by you and deducted from the monthly net payment (“Monthly Net Payment”) described in section 9.2.
You will be responsible for fulfilling product orders from fans irrespective of whether you contract directly with a fulfillment partner. As such, you will be responsible for, without limitation, warehousing, obtaining factory SKUs and pick-pack-and-shipping physical products to customers as the orders are placed. You will enter the SKUs and product quantities into the Artist Tools And Services, and you will be responsible for inventory management, such as deciding when to have more goods manufactured. You are responsible for having your products delivered to your designated warehouse in a timely manner, with proper packing documentation included. If your failure to do so causes a split shipment, such that an additional shipping fee is charged, you will be responsible for charging and collecting such additional shipping fees.
You are responsible for ensuring that either you or your designated fulfillment partner complies with the following requirements (i) You must insert your agreed-upon shipping or delivery rates into the Artist Tools And Services (ii) You must update the delivery status with the date that the order was shipped (iii) and You must notify customers when the order has shipped and if there are any delays (iv) You must update the delivery date in the Artist Tools And Services and communicate the new delivery date to customers (or provide a status update to customers if the new delivery date is not known) and (v) Your designated fulfillment partner must invoice you directly for their fees; Musicality has no relationship with them and will not make payments on your behalf.
For each individual Product and Product bundle, you will provide Musicality with your suggested retail price. Musicality policy is to charge customers the suggested retail price that you provide.
You are a client of Musicality utilizing Musicality services for reselling your products as described more fully in section 4. Musicality is the retailer and seller of record for sales of products to customers. As required by law, Musicality will display “Powered by Musicality” language as directed by payment card providers in the checkout flow. To comply with payment card provider rules and trademark law, you will not display any payment card logos or associated insignia in your Artist Tools And Services.
You are solely responsible for and shall pay all royalties, fees and other monies owing any person or entity arising out of the use, sale, distribution or other exploitation of any Product on or through the Artist Tools And Services, including without limitation (i) any sums due to artists, authors, co-authors, copyright owners and co-owners, producers and any other record royalty participants and (ii) fees for any rights, consents, royalties or any other sums payable to any third party in connection with the exploitation of any materials contained in the Products protected by any intellectual property rights.
After we activate your account (i.e. from the date you receive login credentials sent by Musicality to the email address you designated), we will provide you with access to training orientation upon your request and reasonable email assistance. If you desire or require additional implementation assistance, please contact us.
We aim to make the Artist Tools And Services available continuously, excluding scheduled maintenance, downtime resulting from outages of third party connections or utilities, or other reasons beyond our control. We will endeavour to complete scheduled maintenance in three hours per week during low usage periods, during which time the system will be unavailable. If you feel the Artist Tools And Services are not meeting these goals, please contact us at firstname.lastname@example.org and we will work to resolve the situation.
When a customer places an order for physical products through the Artist Tools And Services, you will immediately (or when available for preordered products) sell those products to Musicality for resale to that customer. You will receive orders in a timely manner through the Artist Tools And Services. When a customer purchases a Product, title to the Product will pass from you to Musicality to enable resale to the customer. Musicality will not have physical possession of your products at any time. You will fulfill and deliver all orders of physical products on behalf of Musicality as our fulfillment agent directly to customers using the information provided in the order we have provided to you. You will not make partial shipments due to preordered or unavailable products, unless you agree to be responsible for all additional delivery costs. If you cannot completely fulfill any order within five (5) business days after we send the request to you (except for preordered products), you must promptly cancel the order using the Orders feature of the Artist Tools And Services. For preordered products you will indicate the estimated delivery date in the Artist Tools And Services. If the products are not available to be delivered by the estimated shipping date that you indicated, then you must notify the customer via email of the updated estimated shipping and delivery date. If you cancel an order we will automatically refund payment to the customer as laid out later in this Agreement.
Musicality will fulfill orders for digital Products placed through the Artist Tools And Services. Musicality will provide customers with an online mechanism to access or download digital Products.
You will accurately address each shipment and delivery of products to the customer address provided in the order we have passed to you. Using the Artist Tools And Services, you will insert your shipping and delivery charges. You acknowledge and agree that Musicality will charge the customer and pay you the agreed-upon shipping and delivery amount you specified. Your failure to insert proper shipping and delivery charges on the offer creation pages will not relieve you of the obligation to ship and deliver such products. Musicality will pay the shipping and delivery charges directly to you in the Net Monthly Payment described in Section 8 of this Agreement. Any other shipping and delivery charges or other costs incurred must be invoiced directly to you by your supplier and paid by you.
As between you and Musicality you bear all risk of loss during the shipment of products until delivered to the customer. You are responsible for purchasing any insurance you deem necessary while the product is in transit. You are responsible for complying with all applicable shipping laws and regulations necessary to ensure prompt delivery of products to the customer, including the declaration of accurate values and descriptions necessary for applicable customs regulations, and the payment of any duties or the like.
After you ship the product, you will promptly acknowledge the shipment using the Orders feature of the Artist Tools And Services. You will not indicate an order has “shipped” until you actually ship the product. You will give us prompt and accurate information concerning the order fulfillment. An order will not be deemed shipped and delivered and Musicality will not distribute proceeds to you in the Net Monthly Payment as described in Section 8 until you have (i) shipped and delivered the product and (ii) marked the product as “shipped” in the orders feature of the Artist Tools And Services.
Musicality is not responsible for any additional charges in connection with customer returns of physical products for any reason. If we receive a customer request for a refund or to return a product, we will promptly forward any information to you via email. Then you must promptly respond to the enquiry or complaint with the customer and either (i) request us to refund the customer payment or (ii) you must ship the customer the appropriate replacement product at no additional cost to us or the customer. We will not be responsible for reimbursing you for any of these losses including without limitation, shipping and handling or payment card fees. If at any time the customer enquires or complains directly to Musicality, to the customer’s payment card issuer, or to a third party such as a law enforcement agency or consumer protection agency concerning your products, we will promptly forward the enquiry or complaint to you. If you fail to respond adequately and promptly to the customer, we reserve the right to respond and resolve the issue at our reasonable discretion.
If at any time the customer enquires or complains directly to Musicality, to the customer’s payment card issuer, or to a third party such as a law enforcement agency or consumer protection agency concerning your products, we will promptly forward the enquiry or complaint to you. If you fail to adequately respond to the enquiry or complaint by the end of three (3) business days then Musicality reserves the right to make a unilateral decision on a reasonable course of restitution including suspension or closure of your Artist Account or reference to law enforcement organizations.
If you fail to ship and deliver all products within five (5) business days after receipt of an order (or within 5 days of stated availability for preordered products), or if you fail to reship a product that was lost or damaged from the original shipment within five (5) days of receiving a customer complaint, we will notify you that your order is subject to cancellation. At any time thereafter we may reasonably cancel the order and process a refund to the customer. If you contact us before we cancel the order, we may, at our reasonable discretion, grant you an extension of time. We will promptly inform you when a purchase order has been cancelled, but you are responsible for any losses you suffer if you ship any products after you receive a cancellation notice from us (unless we had granted an extension of time to you in writing, including email).
Musicality will provide you with the ability to charge customers pay per view to watch your real time video internet broadcasts using the Artists Tools And Services. Musicality will collect payment from the customer and include the proceeds in the Net Monthly Payment described in section 8. Musicality will not refund customers unless you cancel the event in which case we will refund them in full.
Musicality will provide you with the ability to charge customers a monthly subscription for access to your premium content including if you choose, real time video broadcasts using the Artists Tools And Services. Subscription revenues will be collected from the customer and included in the Net Monthly Payment described in Section 8. Musicality will not normally refund subscription fees.On request from the customer, Musicality will cancel future subscription collections and advise you by email.
Musicality will collect revenues from customers on your behalf and include them in the Net Monthly Payment. Musicality will not refund payments to customers made for music downloads as music is normally well known before purchase.
Musicality provides support by assisting you in the use of the Artist Tools And Services to sell products, assisting fans with their questions, and assisting with refunds. Musicality requires You to provide a customer support email or a customer support form link when you set up your Musicality Artist Tools And Services. You must address any support requests related to physical orders, shipping and fulfillment that you fulfill.
Musicality will verify a customer’s payment card information, collect and process the payment card information, and collect the purchase price and any applicable fees and taxes detailed by you in Artist Tools And Services.
Musicality will provide an accounting for you in which Musicality will report the gross proceeds we receive from the sale of your Products as described above less any deductions as set forth in Section 9 (“Net Monthly Payment”). Within thirty (30) days after the end of each calendar month, Musicality will provide you with accounting statements describing the gross proceeds and Net Monthly Payment for the previous month (“Artist Statement”). If you have opted to be paid electronically by BACS or other electronic banking system then Musicality will pay you the Net Monthly Payment within thirty (30) days after the end of each calendar month. If you have opted to be paid via wire transfer, then the cost of the wire transfer will be deducted from your Net Monthly Payment. Musicality TV will retain a minimum balance in your Artist Account of £250.
The Net Monthly Payment to you includes the gross funds we collect from the sale of your Products including shipping and delivery charges, less the following deductions:
(i) Sales Fees payable to Musicality as described in Section 9.2 herein;
(ii) VAT or other sales taxes as defined in Section 10.3;
(iii) refunds or payment card chargebacks to customers (such as credit card charge backs, defined below in Section 10.5), disputed charges, or fraud,
(iv) actual online bandwidth costs incurred by us whilst providing services to your customers;
(v) Video production services we have supplied to you under specific agreement;
(vi) An Artist Site rental fee of either £10 per month for use of the Musicality Lite Artist Tools And Services; or an Artist Site rental fee of £40 per month for use of the Musicality Pro Artist Tools And Services. You will be charged one of these fees each month depending on which package you selected when you applied for an Artist Site.
For all items You sell using the Artist Tools And Services, Musicality shall retain a Sales Fee of twenty percent (20%) of the net retail sales price after the deductions listed in section 9.1 (iii-vi) for downloads and merchandise; and a Sales Fee of 30% for all subscription of pay per view sales. Sales Fees will be calculated on each transaction after deducting shipping, handling and VAT or other sales taxes. Musicality will deduct its Sales Fees prior to remitting the Net Monthly Payment. The Sales Fees are non-refundable.
“VAT” means any sales, goods, or use tax, or similar government fees based on our sale of Products we purchase from you. We will not place VAT into your account but will pay VAT actually collected on the sale of your Products to the appropriate government authority pursuant to regulations. For Products we sell, both in the UK or internationally where Musicality has a legal obligation to collect VAT or use taxes (as determined by Musicality), Musicality will be solely responsible for the collection and remittance of any and all applicable VAT or similar taxes. You will be solely responsible for the collection and payment of any and all applicable VAT or use taxes imposed on your sale or licensing of Products to Musicality.
We are not responsible for clearing rights or licensing your Products, and we do not deduct or reserve fees to account for such payments unless they are imposed upon us by a regulatory body or we reasonably determine you will not pay them. Musicality may be required to pay third party licensing fees, such as iPhone licensing fees to Apple for digital distribution using the iPhone format, or other similar fees. We will deduct the actual cost of any such fees from the Net Monthly Payment. You are responsible for securing all rights in your Products and paying the appropriate royalties to others such as PRS, MCPS or others.
We are not obligated to pay you any amounts that are connected with any activities deemed fraudulent or criminal. We will determine, at our reasonable discretion, the existence or possibility of fraud or criminal activity, and we may make any enquiries and investigations we deem appropriate. Musicality may deduct from the Net Monthly Payment any amounts attributable to Chargebacks (a “Chargeback” is a refund that occurs when a credit card processor or bank revokes a prior transaction which may be done for such reasons as fraud, suspected fraud, or customer complaint), orders which Musicality determines to be fraudulent or criminal.
We strive to treat customers fairly, so if we receive significant numbers of complaints about Product quality, your time-based membership programs, or other unusual circumstances, we may notify you and suspend access to your Artist Account or withhold a reserve or suspend payments to you until you have resolved those issues. If those circumstances are not quickly resolved, we may refund some payments to your customers (even if your user terms or other applicable agreement with your customers provides otherwise). We also respect intellectual property rights and we know you do too. If we receive claims, demands, lawsuits, subpoenas or enquiries from others, we will notify you and may suspend payments to you until you have demonstrated to our reasonable satisfaction that you have secured and paid for all rights necessary to distribute and sell your Products. We will withhold payments until the issues are resolved, at which time we shall promptly remit such funds to you. We will not release those payments to any third party unless a court orders us to do so or you instruct us to do so. If there are insufficient funds in your Artist Account after Deductions have been made for two consecutive months, then Musicality may suspend payments to you until funds in your Artist Account exceed our minimum payment threshold set forth in Section 8.2.
Sometimes Artists receive financial credit from third parties enabling Artists to distribute Products at a reduced charge or for free in exchange for including their branding on the Artist Tools And Services or on the Artist Site. You may not utilize the Artist Tools And Services or your Artist Site for sponsorships pursuant to this Agreement. If you would like to create sponsorships using the Artist Tools And Services or your Artist Site, you must enter into a separate agreement with Musicality.
Musicality will not have any ownership rights in your Products. You hereby grant a worldwide royalty free license to Musicality to resell your Products through the Artist Tools And Services. This license includes (i) use, display and otherwise perform the Artist Tools and Services on your behalf (ii) stream, transmit, feature, promote, market, or otherwise sell and distribute the Products to customers on or through the Artist Tools And Services; (iii) use and publicly display, and to permit others to use and publicly display the name(s), trademarks, likeness, biographical materials and similar proprietary rights of you and all other members of your band or group in connection with the Artist Tools And Services and (iv) use all other information you provide to us.
To the extent generally available using the Artist Tools and Services, Musicality will provide you access to customer data (i.e., name, address, email) for customers who purchase your Products; such customer data will be owned solely by you. However you acknowledge and agree that Musicality may (i) use customer and user data (including your data) in an aggregate, anonymous form, (ii) use, supply to third party chart reporting organizations, and publish your sales data for chart reporting purposes, and (iii) supply to other third parties with your express permission. We will not target communications to your customers without your express consent.
You are entirely responsible for the Products that you make available for distribution through the Artist Tools And Services, and you will ensure that you comply with any third party requirements based on the use of your Products. including payment of any money owed to those third parties (such as royalties). You represent and warrant to Musicality that (i) You own, control, or have all licenses, rights, consents, and permissions to use and authorize Musicality to use each and every image and sound contained or embodied in the Products to enable use, display, and distribution of the Products through the Artist Tools And Services (ii) You have the written consent, release, and/or permission to use the name or likeness of each and every identifiable individual person and to include and use such individual’s name or likeness in the Products to enable use, display, and distribution through the Artist Tools And Services (iii) The use, sale, or other promotion or distribution of the Products on or through the Artist Tools And Services or otherwise does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity (iv) You have full authority to act on behalf of any and all owners or licensees of any right, title or interest in and to any Product (v) You will perform your obligations hereunder in compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance (vi) You will not knowingly collect personal information from children 15 years of age or younger, and if you become aware that you have inadvertently collected the personal information of a child 15 years of age or younger, you will immediately delete such information.
You are responsible for all of your activity in connection with the Artist Tools And Services. By way of example, and not as a limitation, you shall not either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Product, or content on or through the Artist Tools And Services, that: is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or tortious; infringes upon any third party’s right, title or interest; contains software viruses or any other technology that is designed or intended to disrupt, damage or interfere with the proper function of any software, hardware, or telecommunications equipment, system, data or other information; circumvent or manipulate our fee structure, the billing process; impose an unreasonable or disproportionately large load on Musicality (or its third party providers’) infrastructure, or interfere or attempt to interfere with the proper working of or activity on the Artist Tools And Services.
You shall not and you shall not permit anyone else to: (i) in any way reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Artist Tools And Services, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Artist Tools And Services, (iii) copy, rent, lease, distribute, or otherwise transfer any or the rights that you receive hereunder, or (iv) utilize the Artist Tools And Services in a manner that Musicality, in its reasonable discretion, deems detrimental to Musicality business. You shall abide by all applicable regulations.
You are responsible for your communications with customers, including communications through the Artist Tools And Services, and for providing us with accurate and complete customer information so that the Artist Tools And Services operate properly and efficiently. You agree that the information you provide will be generated from your interactions with your customers and will be maintained and updated by you. You shall not use the Artist Tools And Services to take any action that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail.
This Agreement is effective from the date of our notification to you confirming access to Your Artist Account. The term will be indefinite until either Musicality or You advise the other in writing (this may be email) that they wish to give thirty (30) days notice of termination for any reason.
Musicality may contact you if it believes there has been a material breach of this Agreement and require you to remedy the material breach to our satisfaction within fourteen (14) days following our initial notification to you.
Either after thirty (30) days notice of expiration or fourteen (14) days notice of termination, Musicality will send you written notification by email that your Artist Site is removed from the Website and that your access to the Artist Tools And Services has been terminated. Musicality will destroy or dispose of all material relating to your Artist Site. Musicality will (i) require you to fulfill all outstanding orders placed by us (ii) handle any customer queries satisfactorily and to their natural conclusion (iii) advise subscription customers they will no longer be able to get access to your Artist Site and that their subscriptions are cancelled with immediate effect. You agree that Musicality TV will receive its Sales Fees for any purchases attributable to the Artist Tools and Services during the period leading up to expiration or termination and that it can handle customer refunds in the normal way as described earlier in this Agreement.
If there is any remaining outstanding balance on your Artist Account and once Musicality are satisfied no further refunds or expenses will be incurred, it will send the balance of your Artist Account to You during the next Net Monthly Payment cycle. Your Artist Account will then be closed.
All provisions of the Agreement that by their nature should survive termination shall survive, including without limitation, dispute resolution (Sec. 14.4), termination (Sec.13.2), warranty disclaimers (Sec. 14.3), indemnity (Sec. 14.1), and limitations of liability (Sec. 14.2).
If legal actions are taken against Musicality because you made a misrepresentation or breached any part of this Agreement, you (and not Musicality) are responsible for all damages. You shall be fully responsible and shall indemnify and defend Musicality and all of its agents, customers, affiliates and suppliers and employees, from all liabilities and expenses resulting from third party claims, including reasonable outside legal fees, that arise from or relate to (a) an actual or claimed violation of any intellectual property and proprietary rights of any person or entity, including without limitation, rights of publicity, by you or any person you authorize or permit to use your Artist Account; and (b) your actual or claimed violation of any applicable laws, rules, regulations or your contractual obligations; and (c) your Products. Musicality reserves the right at any time to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Musicality in asserting any available defenses.
Musicality cannot guarantee the identity or information of any users with whom you interact in the course of using the Artist Tools And Services. You will not hold Musicality responsible for actions or inactions of unaffiliated users, including anything they individually or collectively post. In no event shall Musicality or its directors, employees, agents, suppliers or customers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Artist Tools And Services or any other subject matter of this Agreement (i) for any lost profits, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever.
The Artist Tools And Services are provided “as is” and “as available” and are without warranty of any kind, express or implied, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, non-infringement or other warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed.
This Agreement shall be governed by English law and disputes will be settled in the English courts.
This Agreement is the entire agreement between you and Musicality with respect to the Artist Tools And Services. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Musicality shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond the reasonable control of Musicality including, without limitation, mechanical, electronic or communications failure or degradation including “line-noise” interference. The Agreement is personal to you, and is not assignable, transferable or sub-licensable by you except with Musicality prior written consent. Musicality may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. All notices under the Agreement will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail to Musicality at email@example.com or to you at the address that you provide to us; or the day after it is sent, if sent for next-day delivery by recognized overnight delivery services. You agree that Musicality may list you as a client in its marketing materials, including the Musicality website and blog, and in press releases. You agree to keep confidential all of the terms of this Agreement and not to disclose any terms, including without limitation, pricing, to any third party, except when required to do so by operation of law. We reserve the right, in our sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Artist Tools And Services following the posting of any changes to this Agreement constitutes acceptance of those changes.