This distribution agreement (this “Agreement”) is a binding legal agreement between You and Venice Innovation Labs Inc., PO Box 927, Culver City, CA 90232 (“Distributor”, “we,” “our” or “us”) regarding Your use of Distributor’s distribution service on Distributor’s platform (the “Platform”). If you are entering into this Agreement on behalf of one or more other people, a group, or a company or other entity, then by accepting this Agreement, You represent and warrant to us that You are duly authorized to do so on behalf of all such person(s)/entity(ies) and to bind them to this Agreement and that Distributor is fully entitled to rely on that fact (in which case, the term “You” includes all such people and entities) in our performance under this Agreement. Reference is hereby made to the membership to the Platform that You have purchased and/or acquired that is currently active (“Platform Membership”).
By clicking “I agree” to this Agreement, You are accepting the terms and conditions below. On the date You click “I agree”, this Agreement will automatically become effective as of the date that the Platform Membership first became effective (the “Effective Date”).
If You do not agree to the terms of this Agreement, please select the “I decline” button below. If You do not accept these terms, You may not access or use Distributor’s distribution services on the Platform in any manner.
Notwithstanding anything to the contrary herein, in the event You are currently party to a separate and active distribution and license agreement with Distributor and/or in the future become party to a separate distribution and license agreement with Distributor for the same Content subject to this Agreement (“Other Venice Distribution Agreement”), then such Other Venice Distribution Agreement shall supersede and control and this Agreement shall not be effective even if you click “I agree”.
1. CERTAIN DEFINED TERMS.
a. “Additional Content” means all remixes, videos, and other derivatives of the Recordings Delivered to Distributor hereunder.
b. “Artist” means the recording artist whose performances are embodied in the Recordings.
c. “Composition(s)” means any and all musical composition(s) embodied in the Recordings.
d. “Content” means the Recordings, Ancillary Materials (as defined below), and, if applicable, Additional Content Delivered to Distributor hereunder and/or uploaded to the Platform.
e. “Deliver” or “Delivery” or “Delivered” as used herein shall mean actual receipt and acceptance by us of fully mixed, edited and equalized Recordings (each such Recording subject to Distributor’s approval as technically and commercially satisfactory in Distributor’s sole discretion), together with all applicable artwork and materials (collectively, “Ancillary Materials”), consents, approvals, clearances, licenses, mechanical licenses, permissions, and side artist, sample and producer agreements, including without limitation, in connection with any Third Party Contributors of the Recordings.
f. “DSP” means a digital retailer or service provider.
g. “Recording(s)” means all audio and audio-visual recordings embodying the recorded performances of Artist.
h. “Territory” means the universe.
i. “Third Party Contributors” means artists, producers, mixers, remixers, session musicians, video producers and the owners and/or controllers of any rights in and to any so-called “sample” embodied in any Recordings and Ancillary Materials.
2. ROYALTY. While the Platform Membership is active, Distributor shall credit to Your account an amount equal to one hundred percent (100%) of Net Income (defined below) derived from the exploitation of the Content (“Active Member Revenue Share”). In the event the Platform Membership is inactive at any time during the Term of this Agreement for any reason (including, without limitation, if You do not renew the Platform Membership, if Distributor is unable to charge You for any monies due, if You do not pay any fees or other sums due to maintain the Platform Membership, etc.), then Distributor shall be entitled to collect and retain or receive a commission, for its sole account and benefit, in the amount of ten percent (10%) of all Net Income derived from the exploitation of the Content and Distributor shall credit to Your account, in lieu of the Active Member Revenue Share, an amount equal to ninety percent (90%) of Net Income derived from the exploitation of the Content (“Inactive Member Revenue Share”). Any reference herein to “Your Revenue Share” shall refer to either the Active Member Revenue Share or the Inactive Member Revenue Share, as applicable.
a. Your Revenue Share credited to Your account is deemed “all-in” and shall be inclusive of all royalties payable to the You, Artist, Third Party Contributors, songwriters and/or music publishers, and all other persons and entities in connection with the exploitation of the Content (including mechanical royalties, except to the extent that third parties or platforms pay such royalties directly to any applicable songwriters and/or music publishers).
b. “Net Income” means (i) gross revenue actually received by or credited to Distributor directly and identifiably arising from the exploitation of the Content, on a fully-cross collateralized basis across all Content, less (ii) Deductions. “Deductions” mean any and all costs and expenses incurred by or charged to Distributor in connection with the exploitation of the Content, including, without limitation, returns, manufacturing costs, platform fees, standard payment processing fees and video encoding & delivery fees ($30 per video, regardless of whether SD, HD, or 4K), ingestion fees, distribution fees, synchronization agent fees, conversion costs, and any taxes, VAT, surcharges, other fees or duties imposed by government agencies or Distributor’s partners and actually paid by or charged to Distributor. Distributor shall have no obligation to pay Net Income to You, unless and until Distributor has actually received or been credited the applicable gross revenue.
3. RIGHTS. By uploading Your Content onto the Platform, You hereby irrevocably grant to Distributor and its distributors and licensees the following rights, during the Term, throughout the Territory:
a. The non-exclusive right and license to reproduce, copy, disseminate, transmit, perform, communicate, broadcast, promote, market and otherwise exploit the Content in any and all media and by any means whether now or hereafter known, including, but not limited to, digital, and electronic formats (including the exploitation of any audiovisual works associated with the Content including music videos), but specifically excluding only physical formats, throughout the Territory during the Term. Upon expiration of the Term, Distributor shall have the continued right to exploit the Content on a non-exclusive basis until such time as You submit a written takedown request. Within twenty (20) business days of receipt of a written takedown request, Distributor will instruct all platforms and services serviced by Distributor to remove the Content in question. Notwithstanding anything to the contrary contained herein, Distributor will not be responsible or liable for any take down delay or default by any DSP or platform.
b. [The exclusive right to collect the so-called “label’s share” of neighboring rights and performance royalties, including SoundExchange, attributable to the performance, communication, broadcast, lending and/or rental of the Content, but excluding any royalties or other monies payable in respect of the so-called “artist’s share” from such exploitations.]
c. The non-exclusive right and license to: (i) manufacture, reproduce and distribute each Composition on records throughout the Territory; (ii) print and reproduce the title and/or lyrics of each Composition on record artwork and in audiovisual works; and (iii) reproduce, manufacture, distribute, perform and exploit each Composition in audiovisual works (including music videos) and in advertisements for the Content in any and all media now known or hereafter devised, in any manner (including publicly and for profit). Distributor shall not be required to make any payment in connection with the foregoing uses of the Composition(s), and You acknowledge and agree that Your Revenue Share is sufficient consideration for the foregoing grant of rights. This paragraph shall bind You, Artist and any publishing designee, or any other party deriving rights from You or Artist; and any assignment made of the ownership of copyright in, or the rights to license or administer the use of, any Composition will be made subject to the provisions of this paragraph.
d. The non-exclusive right and license to print, publish, disseminate and to authorize others to print, publish, and disseminate approved likeness, approved biography, approved photos, and other approved promotional materials provided by You concerning each Artist, including names, both legal (for writer credits) and professional, whether presently or hereafter used by Artist, and name(s) of others whose work is embodied on the Content, including any person whose musical, vocal, or production services are embodied on the Content (the “ID Materials”) for the purposes of trade, advertising, and other exploitations solely in connection with the marketing, promotion and sale of the Content pursuant to this Agreement.
e. Distributor is not obliged to distribute Recordings and/or any other Content Delivered by you (including if a Recording is technically unsatisfactory or inappropriate in any way) but Distributor will use reasonable efforts to notify You of any decision not to distribute any such Recording and/or other Content. Distributor will use reasonable commercial efforts to credit You where possible in line with industry practice in connection with commercial release of the Recordings, to the extent that Distributor is provided with the necessary information, but Distributor, its designees, licensees, and/or agents will not be in breach of this Agreement for any failure to credit. Distributor will use reasonable commercial efforts to rectify any such failure prospectively following written notice from You, where rectification is feasible, practical and within Distributor’s control.
f. You hereby agree to execute such other documents reasonably required by Distributor to effectuate the terms of this Agreement, including, a power of attorney in a form provided by Distributor.
4. DELIVERY / CLEARANCES. You are solely responsible and liable, at your cost, for: (a) the creation, clearance and Delivery to Distributor of all Content hereunder; and (b) any costs, fees and royalties payable in connection with engaging the services of and securing rights from any third parties whose rights, work, performances or services are embodied in any Recordings or Ancillary Materials (including any Third Party Contributors). “Delivery” is complete once all Content and any related metadata, label copy, credits and similar information has been received by Distributor, or as otherwise agreed by Distributor in writing.
5. YOUR REPRESENTATIONS AND WARRANTIES.
a. You represent, warrant, covenant, and agree that: (i) You have the full right, power and authority to enter into and fully perform this Agreement, and is not and will not be under any disability, restriction or prohibition, contractual or otherwise with respect to Your right to execute this Agreement, grant all of the rights granted to us hereunder and fully perform each and every term hereof; (ii) all music and other material embodied in the Recording(s), the ID Materials and/or the Composition(s) (including, without limitation, so-called “interpolations” and “samples”), and all of Artist’s and Your arrangements, Compositions, ideas, designs and inventions in connection with the Recording(s) and the Composition(s) are or will be original with You or in the public domain throughout the world or used with the written consent of the original owner thereof, and shall not infringe upon or violate any common law or statutory rights of any person, corporation, or entity, including without limitation contractual rights, copyrights, trademarks, and rights of privacy or publicity; (iii) the Content does not and will not contain unauthorized or uncleared portion(s) or interpolation(s) of third party recording(s) and/or composition(s), video(s) and/or other material(s), or portions thereof whether musical, lyrical or otherwise, not owned and/or controlled by You; (iv) You have not granted and will not grant or attempt to grant to any other person, firm, corporation or entity, rights of any kind which are inconsistent with the grant of rights to Distributor or which will in any way conflict with or impair the rights granted to Distributor under this Agreement; (v) Distributor shall not be required to make any payment of any nature for, or in connection with, the rendition of Your or Artist’s services or the acquisition, exercise or exploitation of rights granted to Distributor pursuant to this Agreement, except as specifically provided herein; (vi) You have obtained mechanical and synchronization licenses for each Composition (as necessary), and You shall administer and pay all publishing royalty payments, if any, owing to the publisher(s)/song writer(s) of each Composition from share of Net Income; (vii) You shall make any and all payments which may be due to any and all Third Party Contributors, songwriters publishers, and all others whose work and/or performances are embodied in the Recording(s), the Composition(s), the artwork and any other content submitted by You from Your Revenue Share; (viii) Artist has reached the age of majority; (ix) You have a valid and binding agreement with Artist that grants You the rights to furnish Artist’s services and to grant the rights granted to Distributor hereunder in accordance with the provisions hereof; and (x) You shall be solely responsible for and shall pay any withholding, employment or other taxes required in connection with Artist’s services hereunder.
b. You agree to indemnify, defend and hold Distributor and each of Distributor’s parents, affiliates, subsidiaries, employees, licensees and assigns harmless against any claim, liability, cost and expense (including outside attorney’s fees) in connection with or arising from any third party claim that is inconsistent with any agreement, covenant, representation, or warranty made by You or Artist hereunder.
6. NOTICE. Any notice, report or other correspondence required or permitted to be given hereunder shall be in writing and shall be sent by registered or certified mail, postage prepaid, or by e-mail, provided the intended recipient affirmatively acknowledges receipt of the notice, report or other correspondence concerned. Notices to Distributor shall be sent to the address first set forth above to the attention of Business & Legal Affairs with a copy via email to legal@venicemusic.co.
7. ACCOUNTING.
a. Accountings shall be made, along with payment of any royalties due, within ninety (90) days of the end of each semi-annual accounting period ending on June 30 and December 31 of each calendar year. Accountings and payments will be made to the address set forth on Your completed W-9 (or W-8BEN) tax form or, in Distributor’s discretion, may be remitted via email to an email address and bank account designated by You. You shall provide Distributor with You relevant contact and billing information. Distributor, in its discretion, may elect to account more frequently than semi-annually and may make available an electronic portal for viewing and downloading accounting statements in lieu of mailing or transmitting them directly to You. Distributor is under no obligation to make a payment until the amount due to You is $100 USD or greater.
b. Statements shall be binding upon You and not subject to objection by You unless specific objection in writing, stating the basis thereof, is given to Distributor within two (2) years from the date each statement is rendered, viewed and/or downloaded, as the case may be. You shall have two (2) years from the date each statement is rendered, viewed and/or downloaded to conduct an inspection of Distributor’s books and records specifically relating to Your sales and payment activity. All such inspections shall be at Your sole cost and expense, take place at the location where Distributor normally keeps such books and records and shall be conducted during normal business hours. All such inspections shall be made upon prior written notice to Distributor at least thirty (30) days prior to the date You intend to conduct such inspection. You may only inspect records relating to each statement once and may only conduct such an inspection once a year. Distributor shall have the absolute right in accounting to rely upon the statements received from third parties and shall not be liable in any manner whatsoever for any error, omission, or other inaccuracy in such third party statement or information.
8. TERM / TERMINATION. This Agreement shall commence on the Effective Date and will continue unless and until terminated by either party in accordance with this paragraph 8 (the “Term”). The Term of this Agreement may be terminated for any reason: (a) by Distributor by sending written notice to You at any time for any reason or for no reason at all; or (b) by You, by sending 30 days’ written notice to Distributor. For the avoidance of doubt, the inactive status, expiration or other termination of the Platform Membership shall not terminate the Term of this Agreement.
9. NO DISTRIBUTOR WARRANTIES / LIMITATION ON LIABILITY.
a. THE PLATFORM AND DISTRIBUTOR’S SERVICES ARE OFFERED AND PROVIDED TO YOU AS-IS. DISTRIBUTOR MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION AS TO THE AMOUNT OF INCOME THAT MAY BE EARNED BY OR PAYABLE TO YOU HEREUNDER, OR AS TO THE CONDITION, QUALITY, CONTINUITY OF OPERATION, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF OUR PLATFORM OR SERVICE. WE DO NOT GUARANTEE THAT ACCESS TO OR USE OF THE PLATFORM OR SERVICE WILL BE CONTINUOUS, UNINTERRUPTED, ERROR-FREE OR SECURE. ANY AND ALL WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER DISTRIBUTOR NOR ANY OF ITS AFFILIATES, EMPLOYEES, OWNERS, EMPLOYEES, REPRESENTATIVES OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOST SALES, LOSS OF DATA OR LOSS OF GOODWILL, FOR ANY ACTS OR OMISSIONS OF DIGITAL STORES OR THEIR CUSTOMERS, ID SERVICES, OR FOR YOUR USE OF OR ACCESS TO THE PLATFORM OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL DISTRIBUTOR’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUMS ACTUALLY DUE TO YOU IN ACCORDANCE WITH PARAGRAPH 2 ABOVE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN DISTRIBUTOR AND YOU.
10. MISCELLANEOUS.
a. Notwithstanding the foregoing, failure by either party to perform any of its obligations under this Agreement shall not be deemed a breach of this Agreement until the party claiming breach has given the other party written notice of such alleged breach itemizing the specific details thereof, and such breach has not been corrected within thirty (30) days after giving such notice. In the event You breach this Agreement, Distributor shall be entitled to seek injunctive and other equitable relief in addition to, and without limitation of, whatever legal remedies are available to Distributor to prevent or cure any such breach or threatened breach.
b. You acknowledge and agree that, in the performance of each parties obligations under this Agreement, You may become aware of certain otherwise confidential information related to Distributor’s business and/or business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, You hereby warrant that you shall keep such information confidential. You hereby expressly agree that Distributor shall have the right to provide any data, information or metrics relative to the sales or performance of your Content to third parties, to aggregate such information in charts and other comparative informational materials and to disseminate the same in any manner.
c. Distributor reserves the right to amend or update this Agreement or any part thereof upon notice to You, such notice may be given via email or on the Platform.
d. Distributor will have the right in its sole discretion to sub‐license in the ordinary course of business any rights granted under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, successors in interest, and permitted assigns. Distributor shall have the right without Your consent to assign this Agreement in whole or in part to any third party. You shall not be permitted to assign this Agreement in whole or in part, except Your right to receive payment due to You hereunder. Any assignment made in contravention of this paragraph shall be deemed void ab initio.
e. Nothing herein contained shall constitute a partnership or a joint venture between Distributor and You. Neither party hereto shall hold itself out contrary to the terms of this paragraph, and neither party hereto shall become liable for any representation, act, or omission of the other party contrary to the provisions hereof. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever unless said remedy is specifically granted by us in writing to such third party.
f. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and, except as provided in paragraph 10(c) above, may only be modified, altered, or amended by a written agreement signed by all parties.
g. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California applicable to agreements entered into and wholly performed in California, without regard to any conflict of laws principles. You and Distributor hereby agree that the exclusive jurisdiction and venue for any action, suit or proceeding based upon any matter, claim or controversy arising hereunder or relating hereto shall be in the state or federal courts located in the State of California and County of Los Angeles.
h. If any covenant, term or provision of this Agreement is deemed to be contrary to law, that covenant, term or provision will be deemed separable from the remaining covenants, terms and provisions of this Agreement and will not affect the validity, interpretation or effect of the remainder of this Agreement.
i. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND HAVE BEEN ADVISED BY DISTRIBUTOR OF THE SIGNIFICANT IMPORTANCE OF RETAINING AN INDEPENDENT ATTORNEY OF YOUR CHOICE TO REVIEW THIS AGREEMENT ON BEHALF OF YOU AND ARTIST. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE HAD THE UNRESTRICTED OPPORTUNITY TO BE REPRESENTED BY AN INDEPENDENT ATTORNEY. IN THE EVENT OF YOUR FAILURE TO OBTAIN AN INDEPENDENT ATTORNEY OR WAIVER THEREOF, YOU HEREBY WARRANT AND REPRESENT THAT YOU WILL NOT ATTEMPT TO USE SUCH FAILURE AND/OR WAIVER TO OBTAIN AN ATTORNEY AGAINST DISTRIBUTOR OR ANY OF ITS SUCCESSORS, LICENSEES OR ASSIGNS.