This ONLINE MUSIC DISTRIBUTION AGREEMENT (the "Agreement") is entered into by and between APMC Online Store (hereafter "APMC"), and the CLIENT/ARTIST effective as of the date of accepting the terms herein to APMC Online Store, (hereafter the "Effective Date").
1. APMC Online Store is an Internet based platform that sells or offer for free various artistic works on behalf of client and/or their managers. APMC allows consumers to purchase digital content through various payment platforms.
2. Client, who has not signed an exclusive agreement with any online digital distribution company, wishes to enter into a nonexclusive agreement with APMC to market, distribute and sell the Client's digital Work to consumers under the terms and conditions of this Agreement.
Section 1:
DEFINITIONS
For purposes of this Agreement, the following capitalized terms are defined as follows:
1.1. "Client" means an artist, company or any legal body that agrees to sell their digital works on APMC Online Store in accordance with this agreement
1.2. "Derivative Works" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, sound recording, reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted.
1.3. "Formats" means all electronic media formats including, but not limited to, the following: MP3, MP4, OGG, JPEG
1.4. "Payment service platforms" means all electronic payment platforms being used to receive payment from consumers such as, but not limited to Airtel Money, PayPal
1.5. "Sale" means where money is paid and received by APMC Online Store for the occurrence of any of the following: i. a consumer requests to download a copy of Artist's Work; ii. Sublicensing of the Artist's Work, in whole or part, for commercial purposes; and iii "Sale" shall not include promotional activities by APMC Online Store (where no cash sale has occurred).
1.6. "Work" means all forms of sound, music, photograph, audio-visual, literary works that Artist intends to provide to APMC Online Store.
Section 2.
WARRANTIES OF NON-EXCLUSIVITY,
ORIGINALITY AND OWNERSHIP
2.1. Client Warranties: By offering the Work for release under this Agreement, Client represents and warrants the following:
a. Client is the sole author of the Work and/or
has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights hereunder, without Client or APMC having to pay any royalties, compulsory license fees, residuals or any other payments.
b. The Work does not infringe the copyright,
trademark, publicity rights, common law rights, or any other right of any third party or is otherwise illegal or constitute defamation, invasion of privacy, pornography or any tort injury to any third party.
c. Client currently is not bound by an exclusive agreement with any online digital distribution company and client does not require the permission of any other party to enter into this agreement. Client shall provide APMC immediate notice if it enters into an exclusive agreement with any online digital distribution company or publisher for the distribution of Merchandise.
Section 3.
NON-EXCLUSIVE LICENSE GRANT TO
APMC
3.1. Non-Exclusive License Grant.
a. Subject to the terms and conditions of this Agreement, Client hereby grants APMC a nonexclusive right and license throughout the universe to freely and without restriction use and exercise the rights in the Work submitted or uploaded, in whole or in part, as stated below:
i. to publicly perform, play, display, sale, distribute the Digital work, or cause to do the same;
ii. to market, license, sublicense, distribute and sell the digital works, including individual tracks, extracts, lyrics, samples and other constituent parts from the Digital Works;
iv. to use the Work to promote the Client, the Work and APMC (and its products and services) and to use the name and likeness biographical material, logos, trademarks photographs, symbols, emblems, designs, and any other visual representations of the Client, and any other individuals performing or otherwise represented in the Work.
3.2. Term and Termination.
1 This Agreement shall commence on the effective date of accepting the terms herein and shall remain in force unless and until terminated by either party where there is a considerable breach of the terms in this contract.
2
a. This Agreement may be terminated when either Party breaches any of the provisions of this Agreement, of which breach has not been remedied within thirty (30) days of written notice of the breach, and without prejudice to any remedies available to the non-breaching Party.
3.3. Client's Reservation of Rights. APMC shall not grant rights that are greater than the rights granted under this Agreement. All other rights are reserved to Client. Other than the Work identified by Attachment hereto, Client shall have no obligation to license any other work or music. Subject to the nonexclusive license grant conferred to APMC herein, Client shall retain all rights to the copyright interests in the Work.
Section 4.
PAYMENT AND ROYALTY FEE
4.1. Sales Commission Fee. In full consideration of all commission fees due to Client, APMC shall pay Client sixty percent (60%) of all Net revenue actually received by APMC from a Sale, in whole or in part, ("commission Fee").
4.2. Net Revenue. For purposes of computing royalties, the term "Net Revenues" means the total revenue generated from the sales of the Work after deducting taxes of any kind and union guild or other third party fees that may be required by contract or the Copyright Act if any, royalties payable to the copyright society of Malawi, and any other fees payable to payment service providers such as Airtel Money.
4.3 Payment Terms. APMC shall provide payment of the Sales commission Fee in Malawi Kwacha and/or U.S. dollars to Client depending on payment method used by consumer at least two (2) times per year, on or before June 30 and December 31st. Unless other payment arrangements are made between APMC and Client. All payments from APMC will be made to Client's account. APMC reserves the right, in its sole discretion, to select an alternative or an additional payment service.
4.7 APMC reserves the right to introduce fees that it may deem necessary for the better management of the store and shall provide a written notice to the client or any other concerned party at least 30 days before enforcing such fees.
Section 5.
OPERATIONAL DUTIES
5.1. Selection of content. APMC shall, at its sole discretion, select whether the Work, in whole or in part, is acceptable for use under this Agreement.
5.2 Marketing of the Work. Work that has been accepted by APMC shall be posted and made available on APMC Online store and categorized by Client's name and genre. APMC, in its sole discretion, shall be permitted to promote, market, and advertise the Work and Client without limitation.
5.3 Pricing. APMC shall set the minimum price for products. APMC may allow the client to decide, in his or her sole discretion, the price plan of all Sales of the Work. However APMC may offer advice to the client on the price the work.
5.4 Limitations.
a. Other than the Sales commission Fees stated herein, APMC shall have no obligation to provide to Client any kind of payment, including an advance, license fees, residuals, Internet fees or any other form of compensation.
5.5 Client's Promotion Information and Merchandise. Upon request, Client shall provide to APMC its biographical material including the following: i. Four substantially different group photographs (high quality suitable for posters and press kits); ii. Bio's for each group member; iii. High quality digital copies of album artwork. Items ii. and shall not be required for group composed of more than 6 people.
Section 6.
INDEMNITY, DISCLAIMER AND LIMITATION OF LIABILITY
6.1 Client's Indemnity. Client shall indemnify and defend APMC and hold APMC harmless from and against any and all costs, liabilities, losses, damages and expenses arising out of any claims, actions, suits, or proceedings of any kind from any third party claim relating to (i) a breach of Client's warranties and/or duties under this Agreement, (ii) any claim for royalties and/or infringement of copyright, trademark, patent or other intellectual property rights or (iii) any third party claims arising out of Client's conduct or representations under this Agreement. Further, in the event that a third party infringement claim is brought, APMC shall have no obligation hereunder to defend or protect the Client's copyright interests.
6.2 Disclaimer. APMC MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.3 Limitations on Liability. APMC makes no warranty with respect to the accuracy or effectiveness of APMC website, including content contained therein, nor any errors or problems of any kind that may arise from the website. APMC shall not be responsible for losses, damages, costs, or expenses of any kind resulting from the use or distribution of the Work by APMC or use by any consumer or end user. This includes, without limitation, any liability for business expenses or damages experienced by Client or any third persons as a result of any deficiency, defect, error, or malfunction with the Website or the transfer or distribution of the Work. APMC shall not be liable for any indirect, special, incidental, or consequential damages relating to or arising out of the subject matter of this Agreement.
Section 7.
General.
7.1 Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered as follows (i) by email, or (ii) SMS, or (iv) by certified or registered mail, return receipt requested, five days after deposit in the mail.
7.3. Arbitration and Controlling Law.
The Client and APMC shall make all efforts to solve any dispute or disagreement arising between them under or in connection with this agreement amicably by direct informal negotiation. In the event that any dispute has arisen and the parties have not been able to settle the same, within fourteen (14) days then, any party may elect to commence arbitration. Such dispute shall be referred to arbitration by a single arbitrator to be appointed by agreement between the Parties or in default of such agreement within 14 days of the notification of a dispute, upon the application of either Party, by the Chairman for the time being of the Copyright Society of Malawi. Where arbitration has failed the matter may be resolved through the involvement of the courts.
7.6 Assignment. APMC may assign this Agreement to any entity to which it transfers all or substantially all of its ownership interest, whether through merger, acquisition or sale of assets. Otherwise, neither party may assign, voluntarily, by operation of law, or otherwise, this Agreement without the other party's prior written consent, and any attempt to do so without that consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
7.7 Entire Agreement. This Agreement is the entire agreement between Client and APMC which supersedes any prior or contemporaneous agreement or understanding, whether written or oral, and any other communications between Client and APMC relating to the subject matter of this Agreement. This Agreement may not be changed orally, but only by a writing signed by both parties which specifically references this Agreement.
