Terms and Conditions
Effective as of April 9, 2012
YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY COMPANY THROUGH THE SITE OR WITH RESPECT TO YOUR FERTILITY RECORDS PACKAGE DISTRIBUTION ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT PURCHASED DISTRIBUTION PACKAGE (S) OR USE THE SERVICES OFFERED BY COMPANY.
1. GRANT OF RIGHTS.
(a) The rights granted hereunder shall include the sales of Books, Videos and Recordings (as defined in Section 2 below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, cloud services and so-called "disc-on-demand" services. You and Company agree that the Internet consumer stores (“Consumer Stores”) (e.g., iTunes, Amazon, Spotify, Rhapsody) licensed to exploit your Recordings hereunder must be approved by you.
(b) By clicking the "I Agree" button, you irrevocably grant to Company, throughout the world and during the Term (as defined in Section 7 below), the non-exclusive right:
(c) You agree that you will not use the Site or Services to transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. You acknowledge and agree that Company may disable access to and/or terminate your account and/or remove or disable access to any Recordings or any associated materials you provide to Company in the event that Company receives any claim that, if true, would constitute a violation of your representations and warranties hereunder. Please see the Copyright Policy for further information.
(d) You agree that Company may freeze any and all revenues in your account that are received in connection with Recordings or other materials submitted by you which Company believes, in its good faith discretion, violate the Terms of Service, and that such revenues will be forfeited by you if Company determines, in its good faith discretion, they are the result of fraud and/or infringement. You agree that you will not be entitled to reimbursement for any fees paid by you to Company in the event Company disables access to your account, your Recordings and/or any other materials you provide to Company, or to any revenues forfeited by you as set forth in the preceding sentence.
(e) You agree that Company may terminate your account if you violate the Terms of Service or, in Company’s good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.
The term "Recordings" shall be defined as the sound recordings and audiovisual recordings that you submit to Company at any time. Company, in its sole discretion, reserves the right to reject any materials (including, without limitation, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images and artwork at your sole expense, in the format(s) required by Company or the Consumer Stores. Technical descriptions of such format(s) will be provided to you upon request. You agree that Company and/or its suppliers will have the right to supplement existing artwork necessary to complete the packaging for discs-on-demand. Reasonable efforts will be made to provide you with approval rights over such artwork, but in the event that you object to any such artwork your only remedy shall be to (a) provide appropriate replacement artwork or (b) request prospective discontinuation of delivery of your materials in such manner. In no circumstances shall Company have any liability to you with respect to the quality, sufficiency or other aspect of the creation and delivery of such discs-on-demand.
(a) Company will pay you sixty percent (60%) of Net Income (as defined in Section 3(b) below). Net Income will be posted to you in a timely fashion after Company's receipt thereof. We will compute Net Income under this Agreement within sixty(60) days after the first day of January and July of each year for the preceding six (6) month period and will pay your Net Income share within sixty (60) days. All payments which we may be required to make to you may be made personally or by depositing the same, postage prepaid, in any box, chute or other receptacle authorized by the United States Post Office for mail, addressed to you at the address specified to us at the time of purchase: The date of service of any payments so deposited shall be the date of deposit.
(b) "Net Income" shall be defined as Company's actual receipts from Consumer Stores less any tax, fee or charge related to the Sale of your Recordings. Any objection relating to any accounting statement or any lawsuit arising there-from must be made (and any lawsuit commenced) no later than one (1) year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.
(c) To the extent that you owe any amounts to Company as a consequence of the Terms of Service or otherwise, Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise payable to you.
(d) In the event that Company has, in its good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, Company reserves the right to discontinue distribution until resolution of the suspect activities to the satisfaction of Company is obtained. Furthermore, you agree that such revenues will be forfeited by you if Company determines, in its good faith discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by Company (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by Company from any monies otherwise payable to you hereunder. Certain Consumer Stores may also have policies related to fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies, if any, and such policies shall be binding upon you hereunder.
(e) In connection with your decision to a streaming media player, iPhone application or other so-called widgets or applications (the “Streaming Players”) as platforms for users to stream your Recordings, you hereby waive any right to digital artist royalties, performance royalties or any other fees or royalties, statutory or otherwise, that Company may be obligated to pay you or a third party in connection with the use of such Streaming Players. For the avoidance of doubt, to the extent that you utilize a Streaming Player on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that Company is not responsible to make any third party payments in connection with the Recordings and underlying musical compositions which you own and/or control.
(f) To the extent that you elect to use certain Recordings from your Fertility Records catalog to distribute free to any parties (via a Streaming Player, directly through your own website or otherwise), you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries. Without limiting any of the foregoing, you expressly agree to either waive music publishing royalties (if you own or control such rights) or pay any necessary royalties due to third party music publishers as a result of any such free distribution.
(g) In the event that Company is presented with a claim of infringement of copyright, trademark, right of publicity or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, you agree that Company may freeze any and all revenues in your account that are received in connection with the disputed Recordings or other materials submitted by you, and that such revenues will be forfeited by you if Company determines, in its good faith discretion, they are the result of fraud and/or infringement. Furthermore, if in Company’s reasonable business judgment it elects to engage an attorney to review and/or respond to such claim, Company shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to Company (such as a PayPal account, credit card or debit card) (each a “Payment Method”) a minimum of Three Hundred Dollars ($300) to offset the costs of associated legal fees and expenses.
4. THIRD PARTY OBLIGATIONS.
(a) You shall be solely responsible for securing and paying for digital phonorecord delivery, mechanical and any other licenses 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.
(b) 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 (b) 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.
(c) To the extent that Company permits you to select certain Recordings from your Fertility Records catalog to distribute free to fans or directly through your own website, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries.
5. WARRANTIES; REPRESENTATIONS; INDEMNITIES.
(a) You warrant and represent that you are at least eighteen (18) years of age, you have the right and authority to enter into this agreement and to grant to Company all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, audiovisuals, images and any other materials furnished by you to Company or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site and/or Consumer Stores’ websites shall not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity; and that Company shall have the right to exploit same in any 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 payable to you hereunder.
(b) You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach or a claim which, if true, would constitute a breach of the foregoing warranties and the Terms of Service, including reasonable attorneys' fees and expenses.
(c) Company shall give you prompt notice of any claim that is subject to the foregoing indemnification obligation and you shall defend Company at your expense with counsel approved by Company, which approval shall not be unreasonably withheld. In the event you fail to retain approved counsel, Company may, if it so elects, defend itself at your cost and expense and you agree that Company may require your participation in such defense as a third party or otherwise and you hereby waive any objection or claim to compensation in respect of same. If a claim is made Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to Company's prior written approval.
(d) THERE ARE NO REPRESENTATIONS OR WARRANTIES BY COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN AS EXPRESSLY SET FORTH IN THE TERMS OF SERVICE.
6. Package Distribution (Silver, Gold & Platinum).
In consideration of the services rendered hereunder, all Recordings submitted by you and distributed by Company to the Consumer Stores require that you purchase a one-year recurring fee-based Distribution Package deal.These fees may be amended from time to time by Company without notice to you. You expressly agree that Company is authorized to deduct your recurring Package Deal Distribution subscription fees, any applicable tax and other charges you may incur in connection with your use of the Services directly from your Fertility Records account (i.e., your share of Net Income) or charge such fees to any Payment Method you provide to Company. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of your Fertility Records account by you or anyone else using your account. If you notify Company in writing that you are terminating your one year Distribution Agreement for one or more of your Recordings, no further subscription fees will be charged to your Fertility Records account or Payment Method for those Recordings and all terminated Recordings will be removed from their respective Consumer Stores. You will not be entitled to reimbursement of any pre-paid fees with respect to any terminated Recordings. It is your responsibility to notify Company if your Payment Method has changed by making the appropriate changes to your Fertility Records account settings. If you do not provide a valid Payment Method your service may be disconnected or interrupted at Company’s sole discretion.
These Terms of Service shall apply at all times while you utilize Fertility Records distribution, Site or Services.
The duration of this Agreement shall be for one year from the date of release. At the end of this time this Agreement shall be null and void and all rights shall be returned to you. You further grant to Fertility Records the right of first refusal to distribute the follow-ups to this release, under the same terms as set forth in this agreement, and that you will provide said follow-ups within (30) days after receiving notice from us. Packages Distribution may be renewed on an annual basis if agreed by both parties.
You acknowledge and agree that, in the course of negotiating and transacting business with Company, you may become aware of certain otherwise confidential information related to Company’s business and 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 agree to keep such information confidential. You hereby expressly agree that Company shall have the right to provide information relative to the sales of your Recordings hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.
9. OTHER AGREEMENTS.
You acknowledge that in providing the Services and payments hereunder, Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Consumer Stores shall be within the sole discretion of Company. You agree that the Terms of Service shall be subject to any applicable terms and conditions of such other agreements that Company enters into with respect to such Consumer Stores. You expressly acknowledge that certain Consumer Stores may, with respect to audiovisual recordings, require that your audiovisual recordings be made available on their websites at certain times and in certain formats relative to the availability of such materials elsewhere in the marketplace. To the extent that such requirements are not met, the individual Consumer Stores may have the right to discontinue the availability of said audiovisual recordings in their store(s). Company will, upon your written request, provide you with the current specifics of such requirements.
10. BAR CODES AND UNIVERSAL PRODUCT CODES.
Company will provide you with free bar codes and universal product codes (“UPCs”). These are for your use only and may not be transferred or resold. If transferred or resold, Company will charge you Fifty-Five Dollars ($55.00) per bar code or UPC, plus any revenue made by you from such transfer or resale. Company may deduct such charges from any Net Income owed to you by Company or charge such amounts to any Payment Method you provide to Company.
(a) The Site and Services may be used and accessed solely for lawful purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site and Services:
(b) Company does not guarantee exploitation of the Recordings, which will depend on consumer preference, nor on the inclusion or participation of any given Consumer Store. Company reserves the right in its sole discretion to decline to engage in business with any given Consumer Store. Except as specifically set forth in these Terms of Service, Company shall have no obligations to you.
(c) Company shall not be deemed in breach of the Terms of Service unless you have given Company notice of the breach and Company has failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder.
(d) In no event will Company, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, Services, Company products or any Company content, no matter whether the damages are foreseeable and whether or not Company has been advised of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and in no event will Company’s aggregate liability to you exceed One Hundred Dollars ($100).
(e) The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of Nevada excluding that body of law pertaining to the conflict of laws. Any legal action or proceeding arising under the Terms of Service shall be brought exclusively in courts located in the State and County of Nevada, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The parties to this agreement waive their respective rights to a trial by jury. In the event that any provision in the Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of the Terms of Service will not be deemed a waiver of such right or provision. You may not assign the Terms of Service (by operation of law or otherwise) without the prior written consent of Company and any prohibited assignment will be null and void. Company may assign the Terms of Service or any rights or obligations hereunder without your consent. The relationship of the parties under the Terms of Service is that of independent contractors and the Terms of Service shall not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that the Terms of Service and the rules, restrictions and policies contained herein, and Company's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Company. The Terms of Service, together with the rules and policies of Company, constitute the entire agreement between Company and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given (a) by Company via email (in each case to your email address of record), (b) a posting on the Site, or (c) by you via email to [email protected] or to such other address as Company may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
(g) It is your responsibility to deliver all necessary information, metadata, songs, graphic files or any other information or music in the format required. You acknowledge that Company will not be obligated to furnish its services hereunder until receipt of said materials.
(h) You authorize Company to make and perform clips of your Recordings up to ninety (90) seconds in length via streaming or download free of charge (the "Clips") to promote the band, artist and/or Sale of applicable Recordings. To the extent that you own or control the publishing rights in the musical compositions embodied in your Recordings used in the Clips (the “Compositions”), you authorize Company to make and perform clips of your Compositions up to ninety (90) seconds in length via streaming or download free of charge to promote the band, artist and/or Sale of applicable Recordings. Said Clips may be created by Company or any third party affiliated with Company by using any consecutive ninety (90) seconds of the applicable Recording(s).
(i) Company reserves the right, in its sole discretion, to refuse to provide its services to you or any customer for any or no reason whatsoever.
(j) If an audiovisual master is rejected by a Consumer Store because it does not meet that store’s technical or editorial specifications, you must pay a resubmission fee based on your distribution package deal before resubmitting the master. In the event you are unable or unwilling to correct the errors or quality issues in order to resubmit the audiovisual master, there shall be no refund on previously paid fees - the fees paid for the initial submission and any resubmission are not refundable under any circumstance.
<b>FERTILITY RECORDS COPYRIGHT POLICY</b>
Fertility Records respects the copyrights of others and expects its users to do the same. In compliance with the Digital Millennium Copyright Act of 1998 as embodied in 17 U.S.C. § 512 (the “DMCA”), a copy of which may be found on the United States Copyright Office website at http://www.copyright.gov/title17/92chap5.html#512, Fertility Records will respond expeditiously to remove or disable access to material that is claimed to infringe copyrighted material or to be the subject of activity that infringes copyrighted material and was posted online using Fertility Records Digital Distribution service.
DMCA Notification of Claimed Infringement
If you are a copyright owner or authorized to act on behalf of the owner of an exclusive right under copyright that is allegedly infringed, please notify Fertility Records of the material that is claimed to be infringing or to be the subject of infringing activity and was posted online using the Fertility Records service by completing a DMCA Notification of Claimed Infringement (the “Notification”) as described below and delivering it to Fertility Records’ Designated Copyright Agent. It is important to emphasize that you should only submit a Notification if you own or control the copyrighted material that is claimed to be infringing because under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material is infringing may be liable for damages.
To be effective, the Notification must be a written communication provided to Fertility Records’ Designated Copyright Agent that includes substantially the following:
Once completed, please deliver the Notification to Fertility Records’ Designated Copyright Agent at:
Fertility Records, Inc.
7582 Las Vegas Blvd South, Box 308
Las Vegas, NV 89123
Upon receipt of a valid Notification, Fertility Records will respond expeditiously to remove or disable access to the material that is claimed to be infringing or to be the subject of infringing activity.
DMCA Counter Notification
If material you have posted online using the Fertility Records Distribution service has been removed or disabled in response to a DMCA Notification of Claimed Infringement, Fertility Records will promptly forward the Notification to you and inform you that it has removed or disabled access to such material. If you own or control the rights to the material you posted online using the Fertility Records Distribution service and you believe that your material was removed or disabled by mistake or misidentification, you may send Fertility Records’ Designated Copyright Agent a DMCA Counter Notification (the “Counter Notification) as described below. It is important to emphasize that you should only submit a Counter Notification if you own or control the copyrighted material that is claimed to be infringing because under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be liable for damages.
To be effective, a DMCA Counter Notification must be a written communication provided to Fertility Records’ Designated Copyright Agent that includes substantially the following:
Once completed, please deliver the Counter Notification to Fertility Records’ Designated Copyright Agent at:
Fertility Records, Inc.
7582 Las Vegas Blvd South, Box 308
Las Vegas, NV 89123
Upon receipt of a Counter Notification, Fertility Records will promptly forward it to the Claimant and inform the Claimant that Fertility Records will replace the removed material or cease disabling access to it unless the Claimant notifies Fertility Records’ Designated Copyright Agent within ten (10) business days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity with regard to the material posted online by you using the Fertility Records Distribution service. If Fertility Records receives notification that the Claimant has filed such a lawsuit, it will be unable to replace the removed material or cease disabling access to it. If Fertility Records does not receive such notification, it may, in its sole discretion, replace the removed material of cease disabling access to it.
Please note that when Fertility Records forwards the Counter Notification to the Claimant it includes your personal information. By submitting a Counter Notification, you consent to having your information revealed in this way. Fertility Records will not forward a Counter Notification to any party other than the Claimant.
By purchasing a Silver, Gold or Platinum distribution package you agree to the terms and conditions regarding your purchase for a one (1) year Distribution Package Deal, with Fertility Records, Inc. as well as any and/or other Distribution Packages Deal with Fertility Records Inc.