ARTIST SERVICES TERMS AND CONDITIONS
on April 23, 2009
READ THESE TERMS AND CONDITIONS CAREFULLY; THIS IS A BINDING CONTRACT.
and related Audiolife Internet widget applications (the “Web Site”),
is an on-line music production, distribution and promotional service
made available to you by INHANCE MEDIA, a California Corporation (“Inhance
Media,” “we” or “us”). The Web Site
enables registered account holders to promote, sell, distribute content
and products throughout the web and allows users to browse, preview
and purchase such content and products that are made available through
the Web Site.
Services Terms and Conditions (these “T&C”) set forth
the terms and conditions under which we provide our service that will
allow you to create, produce, market, and sell customized merchandise,
books, photos, compact discs, DVDs, digital music downloads, ringtones,
and CD-ROMS (collectively, "Products") through the
Web Site (the "Artist Services").
All of the
services available through the Web Site, whether offered by us and/or
our business partners are referred to herein as the “Services,”
which shall include, but not be limited to, the Artist Services.
Certain Services may require you to agree to additional terms and conditions.
A full description of the Services available through the Web Site and
the fees associated with such Services can be found here: [URL].
We may amend
these T&C at any time by posting the amended T&C on the Web
Site, and you agree that you will be bound by any changes to the T&C.
For your convenience, the date of last revision is included at the top
of this page. We may make changes to the Web Site and/or the Services
at any time. You understand that we may discontinue or restrict your
use of the Web Site and/or the Services for any reason or no reason
with or without notice.
Your use of
the WEB Site AND/OR THE SERVICES, or BY clicking
format, signifies that you agree to these T&C and constitutes your
binding acceptance of these T&C, including any modifications that
WE make from time to time.
can use the Artist Services (defined below) you must agree to these
T&C, and the[Terms of Service URL] or “TOS”. The TOS are
fundamental parts of this T&C and are incorporated into this T&C
by this reference. You are responsible for complying with these T&C
and the TOS. Capitalized terms that are not otherwise defined
in these T&C have the meanings set forth in the TOS. In addition,
there may be other documents and agreements that apply to your use of
the Web Site.
If the terms
of these T&C conflict with the TOS, these T&C will govern and
Eligibility for Artist Services.
will only knowingly provide the Artist Services to parties that can
lawfully enter into and form contracts under applicable law. If you
are under the age of 18, but at least 13 years of age, you may use the
Artist Services only under the supervision of a parent or legal guardian
who agrees to be bound by this Agreement. The Artist Services are not
intended for children under the age of 13.
as an Artist.
users of the Artist Services (each, an “Artist”) may use
the Artist Services. To become an Artist, you must open an Artist account
(an "Account") with Inhance Media through its online
registration process. Your Account will be linked with a series of
modifiable aspects of the Web Site (the “Artist Page”) which
includes tools and materials to allow you to market Products through
your Artist Page.
You must provide
Inhance Media with accurate and complete contact and payment information
when you open an Account. You must immediately notify Inhance Media
if any of this information changes. If you do not provide Inhance Media
with complete, accurate, and updated contact information, you may not
be eligible to sell Products. Inhance Media will use your Account
You will need
to select a password if you open an Account. You will be solely and
exclusively responsible for keeping your password confidential and all
use of your password and Account, including, without limitation, any
use by any unauthorized third party. You must notify Inhance Media immediately
if you believe your password has been or may be obtained or used by
any unauthorized person or entity. In addition, you must notify Inhance
Media immediately if you become aware of any other breach or attempted
breach of the security of your Account or the Inhance Media Service.
You must use
the Artist Services in a manner that demonstrates common sense and respect
for the rights of Inhance Media and third parties and in accordance
with applicable laws and regulations.
If you offer
Products through your Artist Page and/or related widgets, you will be
solely and exclusively responsible for ensuring that your Artist Page,
any content or materials that you submit to Inhance Media for use with
your Products ("Content"), and any web sites linked
to your Artist Page comply with the terms and conditions of TOS, the
You will not
design, produce, market or sell a Product or post, distribute or transmit
any Content through the Web Site and/or its related widgets that is,
as determined by Inhance Media in its sole and absolute discretion:
offensive or inappropriate;
would constitute, assist or encourage a criminal offense, or that would
violate any local, state, national, or international law, rule or regulation;
3. you do not
have the lawful right to design, produce, market, sell, distribute,
reproduce, or perform any other action necessary to carry out the terms
hereof, including your obligations pursuant to this T&C and the
your affiliation with any person or entity;
the rights of a third party, including, without limitation, copyrights,
trademarks, patents, trade secrets, and rights of privacy and publicity;
defamatory or slanderous;
7. obscene or
8. harmful to,
or exploitative of, minors in any way.
Media has no obligation to monitor the transactions or communications
made through its Web Site, it reserves the right to cancel any such
transaction or take any other action to restrict access to or the availability
of any material that may be considered to be objectionable, without
any liability to you or any third party.
charges certain fees for specific types of Product-fulfillment services
that Inhance Media provides. Should you choose to use certain
Product-fulfillment services, you agree to pay the fees designated by
Inhance Media for such services. Please see Section 2 of the TOS
for additional details on your payment responsibilities.
Your Content to Inhance Media.
any of your Content to the Web Site, you grant to Inhance Media a royalty-free,
worldwide, transferable, nonexclusive, right and license in such Content,
in all media existing now or created in the future: (i) to permit you
to use the Artist Services to design, produce, market and sell Products
through the Artist Services, and (ii) to permit Inhance Media to promote,
advertise and distribute your Products, your Artist Page, or the Inhance
Media Service generally. Without limitation, this promotion, marketing,
or advertising may consist of:
promotional "streams" of audio or video Content and making
portions of your Content (in the form of clips) available to the public;
order fulfillment services for Products, including, without limitation,
payment processing and shipping and handling;
selling, distributing, and/or delivering audio Content, as individual
tracks or entire albums, to purchasers who may use such Content under
sublicense from Inhance Media;
and selling Content as alert sounds, ringtones and/or ringback tones;
5. Using kiosks
to distribute, market and promote Content, including without limitation,
by allowing the burning of compact disc copies of the Content or by
allowing a copy of Content to be transferred to personal devices;
copies of Content to be distributed as so-called “conditional” downloads,
whether tethered to a device, time limited, play limited or otherwise
(including embedding data right management tools in Content);
commercial “streams” of Content and authorizing others to “stream”
and electronically delivering artwork used in connection with your Content;
9. Placing Content
in magazines, television shows, movies and other media;
10. Using Content
(including artwork) and metadata as may be reasonably necessary or desirable
for us to exercise our rights under Agreement;
others to perform any one of the activities above.
only licenses Inhance Media the right to use your Content for the purposes
stated above, and does not give Inhance Media ownership of any of your
and Likenesses; Promotional Use and Opportunities
We may use
and authorize others to use the names and approved likenesses of, and
biographical material concerning, any artists, bands, producers, and/or
songwriters, in any marketing materials for the sale, promotion and
advertising of the applicable Content which is offered for sale or other
use (e.g., an artist or band name and likeness may be used in
an informational fashion, such as by textual displays or other informational
passages, to identify and represent authorship, production credits and
performances of the applicable artist or band in connection with the
sale or licensing of Content). Inhance Media has the right, but
not the obligation, to market, promote and advertise the Content and
makes no guarantees whatsoever about there being any minimum sales or
uses of any Content. You represent that you have obtained written
privacy and publicity rights releases from each and every person who
is depicted or featured as a performer in any of your Content, and you
have been granted the right to use and exploit such likenesses, images
and voices in any way you desire and authorized to license those rights
to others, and you have licensed those rights to us in the Agreement.
You will upload
or ship to Inhance Media all Content that you want to use with the Artist
Services in accordance with the applicable instructions on the Web Site.
You must also upload or ship all other Content required to package and
market any of your Products, such as cover artwork, titles, and complete
and accurate credits. Inhance Media may, in its sole and exclusive discretion,
determine whether any Content complies with such instructions and is
satisfactory for use with the Artist Services.
You must have
all necessary approvals and consents to use all Content and you must
deliver copies of those approvals and consents to Inhance Media, if
Inhance Media requests them.
You will be
solely responsible for the creation of the electronic and digital Content
that you upload or ship to Inhance Media, and will pay all costs associated
with its creation and copies thereof, including, without limitation:
(i) compensation due to artists, authors, co-authors, copyright owners
and co-owners, producers and any other record royalty participants from
sales or other uses the Content; (ii) payments required by any agreement
between you and any labor organization (such as unions or guilds); (iii)
all studio, tape, editing, mixing, re-mixing, mastering and engineering
costs; and (iv) all costs of travel, per diems, facilities and equipment,
and the like.
You must pay
all royalties or similar payments that are or may become due to any
third party, such as all payments under licenses for third-party material
in your Content. For example, you must pay all mechanical copyright
royalties due to the owners of any musical composition used in your
that Inhance Media is not currently a party to any collective bargaining
agreement with any union or guild and that you are solely responsible
for complying with any applicable union or guild rules, including without
limitation, those relating to payments.
and Advertising Your Artist Page.
reserves the right, but has no obligation, to promote your Artist Page
or Products by, for example, featuring them in Inhance Media newsletters
or on the Web Site, referring users to your Artist Page, or describing
your Products or Artist Page in communications with third parties.
You may not
use "spam," "blast-faxes" or recorded telephone
messages to market or sell Products. You may not spam or attempt to
deliberately subvert the results of the Inhance Media directory or search
engine with false, misleading, or unnecessarily repetitive information.
in its sole discretion, may prohibit you from "linking" your
Artist Page to any web sites that contain content that, if used on the
Inhance Media Web Site, would violate any of Inhance Media's agreements
may assign a UPC code to your Products.
We have certain
minimum prices that we set for the various Products which are sold through
the Artist Services (the “Minimum Price”). You will
be able to select the price for each Product you sell through the Artist
Services, provided that the price you select is at least as much as
the Minimum Price. To see a detailed explanation of the types
of Products that you may sell, and the Minimum Price for those Products,
please see our pricing information at [Make Active Link].
for each valid purchase of a Product by an end user that is not returned,
we retain the Minimum Price as a fee for the Artist Services and we
pay you the difference between the price you set for that Product the
Minimum Price. You will not be charged directly for the Minimum
Price of Products. Please note that for certain Products, the
charges and fees may be different (for example, the charges and fees
with ringtones) than as described in this paragraph. Please see
the pricing information guide for Products here for details:
[Make Active Link].
You and agree
that the amount payable to you, if any, is inclusive of any so-called
“artist royalties” that might otherwise be required to be paid for
sales or exploitation of the Content pursuant to the applicable laws
of any jurisdiction You have the right to affiliate with a performance
rights society or other entity to collect monies that may be payable
to you for use of your Content.
You must provide
your taxpayer information to Inhance Media as required by the IRS. If
Inhance Media does not have current taxpayer information for you on
file for a particular year, payments due to you under this Agreement
will not be made to you until December 31st of such year, and all of
such payments will be subject to a 30% backup withholding which will
be submitted to the IRS.
If you earn
less than the dollar amount selected as the payment threshold ("Payment
Threshold") in the "Cash Out" Section of your account
management screen, then the amount of such compensation will not be
paid, but will accrue to your Account until such time as it becomes
equal to or greater than the Payment Threshold. Inhance Media will make
a payment to you to your Paypal account or such other payment method
that we may utilize in our discretion from time to time, for the amount
of such compensation no later than 60 days after the end of the month
in which the total amount of accrued compensation may reach or exceed
the Payment Threshold. Inhance Media may, in its discretion, send you
a payment before your accrued compensation reaches or exceeds the Payment
Threshold. Inhance Media may apply a payment processing charge which
shall not exceed $1.00, if you elect to cash out amounts equal to or
greater than the Payment Threshold.
we only compensate Artists through payments to Paypal accounts.
In order for you to receive payments from us, if any, you must have
a valid Paypal account.
Media owes you accrued compensation that is less than the Payment Threshold
for at least 365 days, then Inhance Media may send you payment of such
accrued compensation minus a $5 processing fee. If the amount of accrued
compensation is under $5 for at least 365 days, such amount will be
used to cover Inhance Media's administrative costs and no payment will
be made to you.
If you or Inhance
Media terminate your Account, and you have less than $20in accrued but
unpaid compensation then outstanding, Inhance Media may charge you a
$5 processing fee when sending you your final payment to cover its administrative
may offer a referral program, under which you may earn compensation
for referring others to the Artist Services, subject to the terms of
this Agreement and the Referral Program Rules.
and agree that the music merchandise and distribution business is speculative
and nothing under these T&C acts as a guaranty by us that our exploitation
of your Content shall generate compensation to you, if any.
YOUR USE OF
THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS
IS" AND "AS AVAILABLE" BASIS. INHANCE MEDIA EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS,
(ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
(iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES
WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH
THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE
WEB SITE AND/OR SERVICES WILL BE CORRECTED.
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS
DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS
FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INHANCE MEDIA
OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY
STATED IN THESE T&C AND/OR THE TOS.
states or jurisdictions do not allow the disclaimer of implied warranties,
the foregoing disclaimer may not apply to you.
You agree to
indemnify and hold Inhance Media, and its subsidiaries, affiliates,
officers, employees, directors, agents, co-branders and other partners
(collectively, the “Related Parties”), harmless from any
claim or demand, including reasonable attorneys' fees, made by any third
party due to or arising out of Content you submit, post to or transmit
through the Services, your use of the Services, your connection to the
Services your violation of these T&C and/or the TOS, or your violation
of any rights of another.
may withhold any amounts that it owes you if you have to indemnify Inhance
UNDERSTAND AND AGREE THAT INHANCE MEDIA AND THE RELATED PARTIES SHALL
NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS
OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF
INHANCE MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii)
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM
ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES
RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v)
ANY OTHER MATTER RELATING TO THE SERVICE.
IN NO CASE
SHALL THE LIABILITY OF INHANCE MEDIA OR ANY OF THE RELATED PARTIES EXCEED
THE AMOUNT OF PAYMENTS OWED TO YOU DURING THE SIX (6) MONTHS PRIOR TO
THE TIME YOUR CAUSE OF ACTION AROSE.
states or jurisdictions do not allow the exclusion or the limitation
of liability for consequential or incidental damages, in such states
or jurisdictions, the liability of Inhance Media and its affiliates
shall be limited to the fullest extent permitted by law.
In its sole
discretion, with or without notice to you, Inhance Media may: (i) suspend
or terminate your use of the Artist Services, (ii) terminate your Account,
(iii) remove your Artist Pages from Inhance Media's servers and directories
and (iv) prohibit you from opening a new Artist Pages.
You may terminate
your Account for any reason at any time by completing the online account
If you or Inhance
Media suspend or terminate your Account, Inhance Media may: (i) delete
any Content or other materials relating to your use of the Artist Services,
and Inhance Media will have no liability to you or any third party for
doing so and (ii) not allow you to access your Artist Page or create,
produce, market, or sell Products. If you or Inhance Media terminate
your Account, you must immediately remove all links to the Web Site
from any web sites you operate and cease representing yourself as an
of this Agreement which, by their nature, should survive the termination
of this Agreement will survive termination of your Account.
1. This Agreement
shall not be deemed to create a partnership or joint venture, and neither
party is the other’s agent, partner, or employee.
2. A waiver
by either party of any term or condition of the Agreement in any instance
shall not be deemed or construed as a waiver of such term or condition
in the future, or of any subsequent breach thereof.
3. If any provision
in the Agreement is determined by a court of competent jurisdiction
to be unenforceable or invalid, such determination shall not affect
any other provision of the Agreement, and the unenforceable provision
shall be replaced by an enforceable provision that most closely meets
the commercial intent of the parties.
4. This Agreement
is binding on the assigns, heirs, executors, personal representatives,
administrators, and successors (whether through merger, operation of
law, or otherwise) of each of the parties.
5. Any notice,
approval, request, authorization, direction or other communication under
the Agreement shall be given in writing and shall be deemed to have
been delivered and given for all purposes on the delivery date, if sent
by electronic mail to the addresses provided to and by you when you
registered for your Artist Account, or as subsequently updated.
6. These T&C
shall be governed by and construed in accordance with the laws of the
State of California, United States of America without regard to its
conflict of law rules. Any legal proceeding arising out or relating
to this Agreement will be subject to the exclusive jurisdiction of the
State and Federal courts of Los Angeles County, California and you irrevocably
consent to the jurisdiction of such courts. You further agree not to
bring claims on a representative, class member basis, or as a private
attorney general. The UN Convention on Contracts for the International
Sale of Goods is expressly disclaimed.
7. To the extent
permitted by applicable law, the rights and remedies of the parties
provided under the Agreement are cumulative and are in addition to any
other rights and remedies of the parties at law or equity.
8. This Agreement
is for the sole benefit of the parties to the Agreement and their authorized
successors and permitted assigns. Nothing in the Agreement, express
or implied, is intended to or shall confer upon any person or entity,
other than the parties to the Agreement and their authorized successors
and permitted assigns, any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of the Agreement.
9. You hereby
agree that we would be irreparably damaged if the terms of these T&C
were not specifically enforced, and therefore you agree that we shall
be entitled, without bond, other security, or proof of damages, to appropriate
equitable remedies with respect to breaches of these T&C, in addition
to such other remedies as we may otherwise have available to it under
applicable laws. In the event any litigation is brought by either party
in connection with these T&C, the prevailing party in such litigation
shall be entitled to recover from the other party all the costs, attorneys'
fees and other expenses incurred by such prevailing party in the litigation.
10. Our performance
of this Agreement is subject to existing laws and legal process, and
nothing contained in this Agreement is in derogation of our right to
comply with governmental, court and law enforcement requests or requirements
relating to your use of the service or information provided to or gathered
by us with respect to such use.
11. No failure
or delay in enforcing any provision, exercising any option or requiring
performance, shall be construed to be a waiver of that or any other
right in connection with this Agreement.
12. You may
not assign your rights under this Agreement without our prior written
permission and any attempt by you to do so shall be void from inception.
13. Any provision
which must survive in order to allow us to enforce its meaning shall
survive the termination of this Agreement; provided, however, no action
arising out of this Agreement or your use of the service, regardless
of form or the basis of the claim, may be brought by you more than one
(1) year after the cause of action has arisen (or if multiple causes,
from the date the first such cause arose) (subject to any shorter limitation)
and you hereby waive any longer statute of limitations that may be permitted
14. To the extent
it may be applicable, you agree with us to opt out from and expressly
exclude any applicability of the Uniform Computer Information Transactions
15. A printed
version of this Agreement and of any notice given in electronic form
shall be admissible in judicial or administrative proceedings based
upon or relating to this Agreement to the same extent and subject to
the same conditions as other business documents and records originally
generated and maintained in printed form.