Music Distribution Agreement
BY CLICKING THAT YOU AGREE TO THE DISTRIBUTION AGREEMENT, YOU UNCONDITIONALLY CONSENT TO BE BOUND BY AND BECOME A PARTY TO THESE TERMS, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, A GROUP OR A CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THESE TERMS, CLICK THE “CANCEL” BUTTON. THE “EFFECTIVE DATE” OF THIS DISTRIBUTION AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “AGREE” BUTTON BELOW.
2. Scope of Agreement
HA9 provides digital distribution services, as well as digital asset management services, including metadata management, catalog encoding, royalty collection and reporting services to artists, artist managers and other owners and distributors of content. You, the Content Distributor, are in the business of recording, producing and/or marketing sound recordings, musical compositions, and/or other intellectual property owned, administered or distributed by you.
This Distribution Agreement covers digital distribution and other rights in and to the copyrights associated with the content you submit to us, including any and all current and future sound recordings and any underlying musical and literary compositions embodied in such content (the “Music”). Additionally, this Distribution Agreement covers all other digital assets and the rights thereto, including without limitation, album covers and other artwork, image files, marketing materials, trade names, trademarks, and logos, etc., that you submit to us (“Digital Assets”). Together, the Music and the Digital Assets shall be referred to collectively as the Catalog (“Catalog”). You may from time to time elect to add to the Catalog by logging into your account in the back-end content distribution and management system provided through the Service (“HA9 Artist Dashboard”) and supplying new content or amending existing content, the submission or amendment of which shall be subject to the terms of this Distribution Agreement.
For any individual track or album within the Catalog, this Distribution Agreement shall commence on the Effective Date and shall continue until either you, by logging into the Service and changing your settings, or we, by sending you an email, submit a termination request.
4. Rights You Grant Us
Subject to this Distribution Agreement you hereby authorize HA9 to store, copy and distribute your Catalog to any consumer and B2B digital music stores, distributors and other third-party services available to you through the Service (“Third Party Music Services”).
To the extent necessary for HA9 to facilitate the distribution to Third Party Music Services authorized by you in the Artist Settings section of the HA9 Artist Dashboard, you hereby grant to HA9 the right and authorization to distribute, license, sell, stream, transmit, synchronize (as applicable, only with visual images embodied within videos on YouTube), perform, promote, and otherwise exploit such Catalog and any and all rights in and to the sound recording(s) and the underlying composition(s) in such Catalog, throughout the world, in any and all media or formats now known or hereafter devised, including without limitation by:
- permanent digital downloads;
- temporary digital downloads;
- interactive streaming;
- non-interactive streaming;
- interactive radio; and
- non-interactive radio (DMCA compliant, compulsory license);
- Semi-interactive radio (voluntary license);
- The servicing of any and all “existing” and “to be” developed digital and mobile delivery methods.
You authorize HA9 to sub-license any rights granted by you under this Distribution Agreement to any Third Party Music Services, as required to provide the Service hereunder. The authorization and grant of rights hereundershall be exclusive as to the Third Party Music Services, authorized in the HA9 Artist Dashboard.
HA9 does not guarantee placement of the Catalog with any Third Party Music Services and reserves the right to remove any content from the Service and reject distribution of any content in its discretion.
5. Your Obligations to Others
In connection with exploitation of the Catalog contemplated hereunder, you shall be solely responsible for (a) all record royalties due to artists, producers and other persons who performed in the making of the Music and other royalty participants, (b) all royalties due to any party as a result of samples included in the Music (c) all payments that may be required under collective bargaining agreements applicable to you and your affiliates, and (d) all music publishing licenses and royalties.
For digital download sales in the United States, your payment typically includes the mechanical royalty on the underlying composition. In the case of the iTunes Match service, your payment includes a publishing portion that covers both the mechanical and public performance royalties. If you do not own or control the underlying composition(s) in your sound recording(s), it is your obligation to pay these publishing royalties to the person or entity that does. Outside of the United States, HA9 customarily requires Third Party Music Services to secure and pay for music publishing licenses (and such license fees may or may not be deducted by the Third Party Music Services concerned from the proceeds payable to HA9). If any Third Party Music Service outside of the United States does not agree to secure and pay for music publishing licenses, HA9 shall have the right, in its sole discretion, to either (i) decline to license such Third Party Music Service or (b) assume the responsibility to clear and pay for the music publishing licenses required in connection with such Third Party Music Service’s sales, which license fees HA9 shall have the right to deduct from amounts payable to you hereunder.
6. Revenue / Payment
HA9 will pay Content Distributor one-hundred percent (100%) of any Net Royalties received from the authorized Third Party Music Services. “Net Royalties” as used herein means HA9’s actual receipts from the Third Party Music Services for the sale, distribution or other use of your Catalog, less any (a) tax, bank transfer and PayPal or other payment services transaction fees (if any); (b) marketplace costs, including without limitation any fees, payments, royalties or other consideration payable by HA9 to song aggregators and digital retail stores; and (c) licensing fees and royalties payable to song publishing licensors and compulsory mechanical licensors, as applicable.
Content Distributor shall be solely responsible for tracking and paying any taxes and governmental fees associated with or incurred in exploitation of the Catalog through the Service, including without limitation any tariffs, value-added taxes or governmental fees.
Accounting statements and your Net Royalties will be posted to your HA9 user account in a timely fashion after HA9’s receipt thereof. Once payment has been credited to your HA9 user account, you will be able to withdraw the outstanding amount at your discretion. Your balance must exceed a minimum of USD 10 to withdraw money from your account. You will be solely responsible for any bank transfer and third party transaction fees or other charges related to such withdrawals.
Unless other payment arrangements are made between you and HA9, HA9 shall remit payment to you according to the settings in your HA9 Dashboard.
Content Distributor shall have the right to appoint a certified public accountant who has signed confidentiality agreement with respect to HA9’s books, to audit HA9’s books and records to verify the accuracy of such statements, once with respect to any statement, once in each year, at Content Distributor’s expense, at the place where HA9 maintains such records, during HA9’s normal business hours and on at least thirty (30) days’ prior notice. All objections concerning payments hereunder shall be submitted by Content Distributor within one (1) year after the date of payment, after which time all objections shall be waived.
7. Processing Your Content
Subsequent to your acceptance of this Distribution Agreement, and your delivery of the digital files of the Music with accurate metadata and cover artwork that fulfil the requirements set forth on the HA9 Artist Dashboard, HA9 may deliver the Music and applicable Digital Assets to the selected Third Party Music Services.
You may indefinitely withhold any of the Music from any store(s) of your choosing by selecting the appropriate option in the HA9 Artist Dashboard prior to the submission of the release. You may also, after withholding Music from a particular store, email email@example.com to request delivery of the Music to such store, at HA9’s discretion.
8. Warranty & Disclaimer
Each party warrants and represents to the other party that it has the right and authority to enter into and perform this Distribution Agreement, and that it will comply with all applicable laws in the performance of this Distribution Agreement.
Additionally, you hereby warrant and represent that you own, control and/or administer the Catalog, including both the Music and the Digital Assets, that the Catalog shall not infringe on the copyrights, trademarks, patents, moral rights, trade secrets, intellectual property rights, privacy rights, contractual rights, or other rights of any person or entity and, without limitation, that HA9 shall have the right to exploit the Catalog in all manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity, other than the amounts due to you described under this Distribution Agreement.
You hereby agree to defend, indemnify, and hold HA9 harmless from any and all costs, losses, damages, or expenses arising out of any breach of the foregoing warranties and representations. You also hereby agree to indemnify, defend, and hold HA9 and those authorized by HA9 to use and/or exploit the Catalog harmless from and against any and all claims, damages, costs, liabilities, and expenses, including reasonable counsel fees and litigation expenses, arising out of the use of the Catalog as contemplated hereunder. If a claim is made, HA9 reserves the right to withhold payment of royalties hereunder in an amount reasonably related to the claim and potential expenses.
If you are acting for the benefit of, and/or as an agent or representative of any artist, individual, group, or corporation, you and the parties that you represent shall be bound to the terms of this Distribution Agreement and shall be jointly and severally liable for your breach of the Distribution Agreement and for breach of the Distribution Agreement by any of the parties you represent.
HA9 DISCLAIMS ANY WARRANTY NOT EXPRESSLY SET FORTH HEREIN, AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, HA9 MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE FUNCTIONALITY, PERFORMANCE, OR RESULTS OF HA9’S WEBSITE OR SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HA9, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND.
Nothing in this Distribution Agreement removes or limits either party’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence.
9. Covenant Not to Sue
In consideration of HA9’s entering into this Distribution Agreement, you covenant and agree, in respect to the Catalog not to bring, assert, pursue, maintain, join in or directly and/or indirectly support, assist, fund, lend resources to, or otherwise participate in any litigation, involving or asserting any claim based upon or alleging any form of copyright infringement arising from HA9’s or any Third Party Music Service’s exploitation of the rights licensed by you to HA9 herein through the operation of the Service, and in accordance with this Distribution Agreement, that you have, had or may have against HA9 prior to the Effective Date or during the Term. In addition, where you have authorized HA9 to distribute the Catalog to and on YouTube, you covenant not to sue any user of the YouTube service who synchronizes any Music in a video uploaded to the YouTube website, to the extent your claim is based on the alleged infringement of rights granted by you to HA9 herein.
10. Changes to the Agreement
Occasionally we may, in our discretion, make changes to the Distribution Agreement. When we make material changes to the Distribution Agreement, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully.
11. Entire Agreement
Other than as stated in this section or as explicitly agreed upon in writing between you and HA9, this Distribution Agreement constitutes all the terms and conditions agreed upon between you and HA9 and supersede any prior agreements in relation to the subject matter of this Distribution Agreement, whether written or oral.
11. Severability and Waiver
Unless as otherwise stated in the Distribution Agreements, should any provision of this Distribution Agreement be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of this Distribution Agreement, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by HA9 or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive HA9’s or the applicable third party beneficiary’s right to do so.
HA9 may assign the Distribution Agreement or any part of it, and HA9 may delegate any of its obligations under the Distribution Agreement. You may not assign the Distribution Agreement or any part of them, nor transfer or sub-license your rights under the Distribution Agreement, to any third party.
13. Choice of Law and Dispute Venue
These Distribution Agreement shall be governed by and construed in accordance with Andorran laws, without regard to its conflict of law rules.
Any dispute or claim arising out of or in connection with these Terms of service, or the breach, termination or invalidity thereof, shall be finally settled by Andorran courts, with the Andorra la Valla District Court as the first instance, unless otherwise provided by mandatory law.