REVIEW AND APPROVE THE CONTRACT BELOW. COMPLETING REGISTRATION INDICATES AGREEMENT TO TERMS OF CONTRACT. ONCE REGISTERED, YOU CAN IMMEDIATELY BEGIN SUBMITTING MUSIC FOR DIGITAL DISTRIBUTION.
GESTALT DIGITAL DISTRIBUTION AGREEMENT
This Digital Distribution Agreement (“Agreement”) is made by and between Gestalt Artforms incorporated doing business as Gestalt Digital (collectively with our licensees and assignees referred to in this Agreement as "Gestalt Digital") the owner and operator of the web pages at www.GestaltDigital.com (the "Website"), a Colorado corporation with offices at 3071 W 107th Pl, Westminster, CO., and the individual registering on this Website, (an individual, representing yourself, or if applicable, acting as legal representative for a band, group, company or corporation), (“you”), whose address is collected in the registration information.
If you do not agree with any of the terms and conditions of this Agreement, complete registration. Agreement may be modified from time to time as further described in Section 8 below. The "Effective Date" of this Agreement is the date on which you register with the Website.
1. Definitions.
The following terms shall have the following meanings for purposes of this Agreement:
a. "Digital Master" or "Digital Masters" means copies of Your Content in digital form, which Gestalt Digital may sell or authorize Distributors to sell via permanent digital download, streams or burns, as individual tracks or as a whole album, pursuant to the terms and conditions of this Agreement.
b. "Distributor" means any third party that Gestalt Digital may authorize to carry out the marketing, distribution and sale or other use of the Digital Masters pursuant to the terms of this Agreement.
c. "Term" means the period beginning on the Effective Date of this Agreement and ending on the first day of the second calendar quarter following the anniversary of the Effective Date, after which such Term shall automatically renew for successive one-year periods. You may terminate this Agreement at any time by providing Gestalt Digital with thirty (30) days' written notice of your intention to terminate.
d. "Territory" means the Universe.
e. "Your Content" means sound recordings and underlying musical compositions that you have made available to Gestalt Digital designated for digital distribution in accordance with this Agreement. Any sound recordings and the underlying musical compositions that are provided by you or on your behalf to Gestalt Digital must be owned or controlled by you and/or have been cleared by you.
f. "Artwork" means album cover artwork and any other artwork relating to Your Content that you provide to Gestalt Digital. Any artwork that is provided by you or on your behalf to Gestalt Digital before or during the Term will be deemed to have been cleared by you unless you promptly notify Gestalt Digital in writing to the contrary.
2. Authorization.
Subject to the terms of this Agreement, you hereby appoint Gestalt Digital as your exclusive authorized representative for the sale and other distribution of Digital Masters. Accordingly, you hereby grant an exclusive right to Gestalt Digital, during the Term, to:
(i) reproduce and convert Your Content delivered by you into Digital Masters;
(ii) perform and make thirty (30) second clips of your Content available by streaming ("Clips") to promote the sale and distribution of applicable Digital Masters;
(iii) promote, sell, distribute, and electronically fulfill and deliver Digital Masters, as individual tracks or entire albums, and associated metadata to purchasers who may use such Digital Masters in accordance with usage rules similar to those set forth by the music services.
(iv) display and electronically fulfill and deliver Artwork for personal use solely in conjunction with the applicable purchased Digital Master;
(v) use Your Content, Artwork and metadata as may be reasonably necessary or desirable for Gestalt Digital to exercise its rights under the terms of this Agreement; and
(vi) authorize or appoint any Distributors to perform the activities in (i)-(v)above.
Gestalt Digital shall also be authorized, if required by a Distributor, to provide one compact disc of Your Content to Distributors free of charge, and no payment to you shall be required for such free-of-charge records. Gestalt Digital and its Distributors shall not be authorized to exploit Your Content or Artwork in any manner or form not expressly authorized herein. Nothing herein shall obligate Gestalt Digital or any Distributor to exercise any rights granted under this Agreement.
3. Your Obligations.
You shall obtain and pay for any necessary clearances and licenses in the Territory for all Your Content and Artwork. Specifically, you shall be responsible for and timely pay (i) any record royalties, mechanical and other income due to artists, authors, co-authors, copyright owners, co-copyright owners, producers and other record royalty participants from sales or other uses of Digital Masters, (ii) all mechanical royalties payable to publishers and/or authors or co-authors of copyrighted musical compositions embodied in Digital Masters from sales or other uses of Digital Masters, (iii) all payments that may be required under collective bargaining agreements applicable to your or third parties other than Gestalt Digital, and (iv) any other royalties, fees and/or sums payable with respect to the Your Content, Artwork, metadata and other materials provided by you to Gestalt Digital. If there is a change of circumstance during the Term as a result of which you reasonably believe that you do not have, or no longer has, the rights necessary to authorize Gestalt Digital and any Distributors to use any Your Content or Artwork as provided for herein, or You reasonably believe that Gestalt Digital's or its Distributors’ continued sale or use of any Your Content or Artwork will substantially harm your relations, or violates the terms of any of your agreements, with any applicable copyright owner, artist, producer or distributor, then you shall have the right to withdraw, upon written notice to Gestalt Digital, authorization for the sale or use of such Your Content or Artwork. Following such withdrawal, Gestalt Digital shall cease to offer Your Content or Artwork for sale or use or cause such cessation as soon as is commercially feasible after Gestalt Digital's receipt of such notice of withdrawal, and you shall use commercially reasonable efforts to clear Your Content or Artwork and shall promptly notify Gestalt Digital if and when Your Content has been cleared and is again authorized for use or sale by Gestalt Digital and its Distributors.
You shall pay a one-time setup fee for each title of $24 and also provide an electronic copy of the ‘Album Submit Form.’ This sheet will tell us all necessary information to include in your title profile that gets delivered to various distribution points.
4. Payment.
Gestalt Digital shall pay you ninety-five percent (95%) of the amount that Gestalt Digital receives from Distributors for the sale or other use of your Digital Masters. Gestalt Digital will compute amounts payable to you after the end of each calendar month during the Term, unless Gestalt Digital is delayed or prevented from doing so because of an event beyond Gestalt Digital’s control, i.e., a force majeure event, in which case Gestalt Digital will do so as soon as it is able after such event. Gestalt Digital shall make payment to you only at such times that amounts owed to you exceed $20. Such payment shall constitute full consideration for all rights granted and obligations undertaken by you hereunder. Payment delivery method shall be via Paypal, or if unreasonably unavailable, via postal mail.
5. Names and Likenesses; Promotional Use and Opportunities.
Gestalt Digital may use and authorize its Distributors to use the names and likenesses of, and biographical material concerning, any Digital Master, artists, bands, producers and/or songwriters, as well as track and/or album name, and Artwork, in any marketing materials for the sale, promotion and advertising of the applicable Digital Master which is offered for sale or other use under the terms of this Agreement.
Gestalt Digital and any of its Distributors shall have the unrestricted right to market, promote and advertise the Digital Masters available for purchase as it determines in its discretion.
6. Ownership.
As between the Parties, all right, title and interest in and to (i) the Content, (ii) the Digital Masters, (iii) the Clips, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you, except as to any rights of Gestalt Digital (whether pre-existing or under this Agreement), shall remain your property.
7. Modification, Termination and Effect of Termination.
Gestalt Digital reserves the right, in its sole discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be sent to you by email or postal mail prior to their effective date. In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate this Agreement.
Either party shall have the right to terminate this Agreement prior to the expiration of the Term in the event that the other party breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of written notice of such breach, or if not able to be so cured, then resolved to the other party's satisfaction, not to be unreasonably withheld.
Paragraphs 1, 3, 6, 7, 8, 9 and 10 shall remain in full force and effect following the expiration or earlier termination of this Agreement. The expiration or earlier termination of this Agreement shall not relieve you or Gestalt Digital of their respective obligations to make any payments with respect to the sale or other use of Digital Masters in the periods prior to such expiration or termination (and the associated accounting) in accordance with this Agreement.
8. Indemnification and Limitation of Liability.
You indemnify and hold harmless, and upon Gestalt Digital’s request, defend Gestalt Digital and its Distributors and affiliates from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees and costs) arising out of a claim by a third party by reason of: (i) a breach of any warranty, representation, covenant or obligation of you under this Agreement; or (ii) any claim that any Digital Master, sound recording or Your Content, Artwork, metadata or any other materials provided or authorized by you or on your behalf hereunder or Gestalt Digital’s or its Distributors" use thereof violates or infringes the rights of another party. You will reimburse Gestalt Digital and its Distributors and affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Paragraph 10, provided that Gestalt Digital obtains your written consent prior to making such payments, such consent not to be unreasonably withheld. Gestalt Digital shall promptly notify you of any such claim, and you may assume control of the defense of such claim.
EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS OR PUNITIVE
DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.
9. Additional Representations and Warranties of the Parties.
You warrant and represent that you have the full authority to act on behalf of any and all owners of any right, title and interest in and to the Your Content.
Each party represents and warrants that it has full authority to enter into this Agreement and to fully perform its obligations hereunder and has obtained all necessary third-party consents, licenses and permissions necessary to enter into and fully perform its obligations herein.
10. General Provisions.
The parties agree and acknowledge that the relationship between the parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, employee, or representative.
This Agreement, including any annexes, schedules and exhibits hereto, contains the entire understanding of the parties relating to the subject matter hereof, and supersedes all previous agreements or arrangements between the parties relating to the subject matter hereof. This Agreement cannot be changed or modified except by a writing signed by the parties. A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
This Agreement shall be binding on the assigns, heirs, executors, administrators, and successors (whether through merger, operation of law, or otherwise) of the parties.
Any notice, approval, request, authorization, direction or other communication under this 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 upon registration of your Gestalt Digital registration form online at www.gestaltdigital.com, via email or via postal mail, or as properly updated.
This Agreement shall be governed and interpreted in accordance with the internal laws of the State of Colorado applicable to agreements entered into and wholly to be performed therein, without regard to principles of conflict of laws.
This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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