CONTENT DISTRIBUTION AGREEMENT
December 23, 2020
Please read the following distribution agreement (the “Agreement”) carefully. This is a legal agreement between you (“you” or “Owner”) and Loonaq Records, “loonaqrecords.com” (“Loonaq Records”). By clicking on the “accept” or “yes” or “agree” or “setuju” button at the submission form you agree to be legally bound by these terms and conditions and in particular you are warranting that you are the Owner of all rights title and interests in the Intellectual Property Rights in the content and all the components involved in the content that you wish to upload. If you are not the Owner or the account holder or if you don’t agree with these terms and conditions then you must not upload the content.
1. DEFINITIONS AND INTERPRETATION
Words shall have the meanings given to them in this Agreement, including without limitation as set out below: –
Content – means sound recordings, video content (i.e., audiovisual works), and the musical works embodied in such sound recordings and video content, and any album related artwork, photos, liner notes, metadata and other material related to your sound recordings and video content that you have provided to Loonaq Records, either by digital upload to the Website or by delivery of Physical Product, either directly or via a third party acting on your behalf.
Distributor – The person or legal entity duly authorized as distributor by the Owner of the content;
Fees – The fees and other amounts payable under this Agreement, including those specified in Clause 6;
Intellectual Property Rights – All current and future rights of copyright and all rights in the nature of copyright in all language and all other intellectual property rights of whatever nature, whether registered or unregistered, including trademarks and design rights to which you now or may at any time after the date of this Agreement be entitled by virtue of or pursuant to any of the laws in force on a worldwide basis;
Marketing Materials – All lyrics, text, photographs, pictures and graphics for use in a catalogue with the Track.
Net Revenue – In relation to any Track, the price paid by any purchaser of the Track after deduction of : (i) VAT and other sales tax, (ii) import duties or similar government levies; (iii) deduction of a Partner’s fees;
Owner – The owner;
Partners – The music retailers that you have selected when uploading the content;
Submitter – Refer to Account, account holder or uploader;
Track – Means the music track(s) to be uploaded by you pursuant to these terms and conditions including the musical composition, lyrics and the recording;
VAT – Means:(i) value added tax as defined in the Value Added Tax Act 1994 and(ii) any similar tax in any other jurisdiction; and
You – The Owner or Distributor who has an account with Loonaq Records and who wishes to upload a content(s) pursuant to the terms of this Agreement.
In this Agreement, unless the context otherwise requires:
a. The singular includes the plural and vice versa;
b. References to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
c. ‘including\’ (or similar words) means including without limitation;
d. References to “writing” or “written” include by email;
e. Clause headings do not affect their interpretation; and
f. References to legislation (including any subsidiary legislation) include any modification or re-enactment thereof .
2.1 This Agreement shall commence from the date of the upload of the content and continue for the period of three years (the Initial Terms) at which point it will be renewed for successive periods of one year unless terminated earlier:
i. By you on written notice to expire at any time subject to the provisions of clause 2.2; or
ii. By us on immediate notice at any time at our sole and absolute discretion and without the requirement to give any reasons for termination.
2.2 If you serve notice of termination you acknowledge that Loonaq Records may be obligated to supply the content to a Partner for a period beyond the terms of this agreement and you agree that Loonaq Records may continue to supply the content to such Partner(s) until Loonaq Records may withdraw the content without being in breach of terms of the Partner agreement. Loonaq Records will use its reasonable endeavours to do so but you should be aware that if the Partner(s) consent this will still take approximately one to two months for withdrawal of the content from all Partner sites.
2.3 Notice may be served by email by you to [email@example.com] and by Loonaq Records to you at the email address provided by you when you register an account with Loonaq Records or any subsequent email address that you notify to Loonaq Records. Notice is deemed served upon sending without the requirement for a read notice or other confirmation. Please note that any failure to maintain a current email account or to notify us of a change does not affect the validity of service of notice on you by Loonaq Records.
3. GRANT OF LICENCE
3.1 In consideration of Loonaq Records performing its obligations pursuant to the terms of this Agreement you grant to Loonaq Records the non-exclusive rights for the duration of this Agreement and any run off period referred to in clause 2.2:
a. In consideration of Loonaq Records performing its obligations pursuant to the terms of this Agreement you grant to Loonaq Records the non-exclusive rights for the duration of this Agreement and any run off period referred to in clause 2.2:
(i) To hold, perform, market, publish and distribute the content in a digital format as part of Loonaq Records’s catalogue of music for commercial exploitation and sell the content to customers online via Loonaq Records’s website;
(ii) To grant a sub-license/media distribution agreement (on terms to be agreed between Loonaq Records and the respective Partner at Loonaq Records’s sole and absolute discretion) to Partners of the right to hold, perform, market, publish and sell the content; and/or
(iii) To use such of the Marketing Materials as Loonaq Records or a Partner sees fit.
3.2 You shall retain ownership of all Intellectual Property Rights in the content and the Marketing Materials.
3.3 You waive your moral rights save for the right to be identified as the author or, if a Distributor, attribute the author to the content.
4. LOONAQ RECORDS’S OBLIGATIONS
4.1 Loonaq Records shall seek to sell the content in accordance with the terms of the license granted pursuant to clause 3.1, but Loonaq Records gives no warranty that the content will be made available to Partners or for download from Loonaq Records‘s website or if it is made available for sale via a Partner or Loonaq Records’s website that any sales will be made.
4.2 Loonaq Records reserves the right to withdraw the content (and the Marketing Materials) from its catalogue and from any of its Partner’s catalogues at any time (in addition to and without prejudice to the rights of termination set out in clause 2.1.b) without notice on the grounds of quality or if there are grounds to suspect that the content (or the Marketing Materials) infringes a third party’s Intellectual Property Rights.
5. SUPPLY OF TRACK AND MARKETING MATERIALS
5.1 You may only submit the Track via upload in either a .wav or .mp3 format or any text for Marketing Materials should be compatible with Word and any photographs/ graphics or pictures for Marketing Materials must be uploaded as .jpg or .gif format.
5.2 Loonaq Records will where possible use the Marketing Materials with the Track and procure that the Partners use the Marketing Materials but gives no warranty or assurance and accepts no obligation to use the Marketing Materials other than to credit you or if you are a Distributor, your named author with being the author of the Track in Loonaq Records ‘s catalogue if the Track is listed in the catalogue.
5.3 You as the submitter with Loonaq Records are the only individual that is permitted to upload content and are responsible for and will be held accountable for any unauthorized use of your account on a full indemnity basis.
You shall pay to Loonaq Records the amounts detailed on Loonaq Records ‘s website. Loonaq Records reserves the right to: (i) deduct any outstanding amounts from payments that Loonaq Records may owe to you; and/or (ii) suspend the provision of Loonaq Records’s services pursuant to this Agreement.
6.2 Loonaq Records shall pay to you 50% of the Net Revenue for your Track for the duration of this Agreement.
6.3 Loonaq Records pay all Fees on 60 days after the preceding month subject to there being a minimum amount of 50 USD due. If there is less than 50 USD due then the Fees are not payable and Loonaq Records shall withhold payment until such time that there is 50 USD due and payable to you or termination of this Agreement.
6.4 Loonaq Records will make available the report of the downloads of your Track, which you will be able to access via your email.
7.1 Loonaq Records does not seek to exclude or limit any liability for personal injury or death arising from Loonaq Records’s negligence; fraud or fraudulent misrepresentation; or any other liability to the extent the same cannot be excluded or limited by law.
7.2 Loonaq Records’s liability in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profits or any special, indirect or consequential loss or damage whatso ever.
7.3 Subject to the provisions of clauses 7.1 and 7.2, in no event shall Loonaq Records’s liability (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under this Agreement shall not exceed the total amount received by Loonaq Records from you as payments of Fees as part of distribution cost and or Loonaq Records’s commission for sale of the Tracks.
8. THIRD PARTY OBLIGATIONS
8.1 You shall be solely responsible for securing and paying for digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from musical composition copyright owners or their agents in connection with Company’s exploitation of rights hereunder, as well as royalties due to artists, producers and other persons who performed in the making of the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.
8.2 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, Company customarily requires Consumer Stores to secure and pay for music publishing licenses (and such license fees may or may not be deducted by the Consumer Store concerned from the proceeds payable to Company). If any Consumer Store outside of the United States does not agree to secure and pay for music publishing licenses, Company shall have the right, in its sole discretion, to either (i) decline to license such Consumer Store or (ii) assume the responsibility to clear and pay for the music publishing licenses required in connection with such Consumer Store’s Sales, which license fees Company shall have the right to deduct from amounts payable to you hereunder. To the extent that Company is required or elects, in its sole discretion, to pay any of the foregoing amounts, such payments will be deducted from any amounts otherwise payable to you hereunder.
You warrant, represent and undertake on a full indemnity basis to Loonaq Records that:
i. You are acting as principal not agent and have the right, power and authority to enter into this Agreement as the accountholder and without obtaining any consents of any third parties;If you are the account holder on behalf of a band or a group, that all individuals concerned have assigned ownership of all rights title and interest in the Intellectual Property Rights in the Track to you and that you do not need to obtain any further consents and further that Loonaq Records will not have any obligation to make any further payments;
ii. If you are the Owner that: you are the sole Owner of all rights title and interest in the Intellectual Property Rights in all components of the Track without limit of territory or time period and the Track is your sole and original creation and you do not need to obtain the consent of any licensor of any Intellectual Property Rights in the Track;
iii. If you are the Distributor that: the Track is the sole and original creation of the artist for whom you are distributing the Track and that artist is the owner of all rights title and interest in the Intellectual Property Rights in all components of the Track and you do not need to obtain the consent of any licensor of any Intellectual Property Rights in the Track;
iv. You have not copied any element of the Track or the Intellectual Property Rights in the Track;
v. You have not charged or assigned by way of security any of the Intellectual Property Rights in the Track;
vii. If you are in a country where it is a legal requirement, that you have registered and will maintain registration of your copyright ownership of the Track;
viii. The Track and/or the Intellectual Property Rights are not subject to any claims or litigation, are free from all liens and encumbrances, do not infringe any rights (whether of intellectual property of otherwise) of any third party or not otherwise unlawful; and
ix. You are the owner of all rights title and interest in the Intellectual Property Rights in the Advertising Materials or if any elements of the Advertising Materials are owned by a third party then your uploading of such Advertising Materials and making available to Loonaq Records and Partners pursuant to this Agreement is permitted by and does not constitute a breach of the terms or conditions of any license agreement.
You shall fully indemnify and keep indemnified and hold harmless Loonaq Records from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Loonaq Records as a result of or in connection with any breach of warranty (clause 8), action, demand or claim whatsoever that arises in connection with Loonaq Records‘s (or any Partner’s) use or sale of the Track or Advertising Materials whomsoever and howsoever arising anywhere in the world.
11. ENTIRE AGREEMENT
This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
a. If Loonaq Records is requested to supply your details as part of a third party claim for infringement of Intellectual Property Rights by a Track (or Marketing Materials) uploaded by you, you confirm and agree that Loonaq Records may provide all details provided by you to Loonaq Records to in relation to your account and such Track (or Marketing Materials) to the person making such request in Loonaq Records’s sole and absolute discretion; and
b. If, in Loonaq Records’s sole and absolute discretion, Loonaq Records suspects that the Track or the Marketing Materials infringe a third party’s intellectual property rights then Loonaq Records shall be entitled to supply your details to any intellectual property office, customs and revenue or law enforcement agency.
13.1 Except as otherwise expressly stated, time shall not be of the essence with regard to the party’s obligations under this Agreement.
13.2 Provisions which by their terms or intent are to survive termination of this Agreement will do so.
13.3 The parties are independent and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
13.4 This Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.
13.5 No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other’s prior written consent or except as expressly permitted in this Agreement.
13.6 No amendment or variation of this Agreement will be valid unless agreed in writing by an authorized signatory of each party.
13.7 If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
13.8 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
13.9 This Agreement shall be binding upon, and ensure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title.
The language of this Agreement is English. All documents, notices, waivers and other written communications between the parties in relation hereto will be in English.
15. GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter is governed by and shall be construed in accordance with the laws of Malaysia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Indonesia to settle any disputes and claims which may arise out of, or in connection with, this Agreement.
16. EXECUTION OF THIS AGREEMENT
- To accept these terms and conditions and commence uploading content please click on the “accept” button on submission form.
- By clicking “accept” or “yes” or “agree” or “setuju” you agree to enter into this digital distribution agreement with Loonaq Records under the terms and conditions specified above. If you don’t agree with the terms and conditions or don’t want to engage Loonaq Records to distribute your content, do not click “accept” or “yes” or “agree” or “setuju”.