Sample Agreement
If your submission is accepted, this is our basic Distribution Agreement.
Distribution Agreement
THIS AGREEMENT is made this _______ day of __________________ 2007, by and between NETunes.com, Inc., a California corporation, (hereinafter referred to as "NETunes"); and
_____________________________________________________________________(hereinafter referred to as "Artist").
IN CONSIDERATION of the mutual covenants contained herein; the mutual reliance of the parties thereon; and the mutual benefits to be derived therefrom; the parties agree as follows.
(1) Pursuant to the terms and conditions prescribed herein, Artist hereby grants unto NETunes (in all markets both national and international) the non-exclusive right to distribute via electronic means all recordings made or offered for sale by Artist during the term hereof.
(2) The non-exclusive rights granted to NETunes pursuant to paragraph (1) herein shall extend for a period of twelve (12) months from the date hereof and thereafter automatically renew for additional twelve (12) month periods unless terminated by Artist upon thirty (30) days written notice.
(3) Artist shall retain ownership and control of all master recordings, all publishing rights and all photographs, artwork, videos, outer jacket designs, inner sleeve designs and other packaging and/or promotional materials provided unto NETunes hereunder. NETunes warrants never to manufacture or reproduce such items except as provided for in paragraph (6) herein. Artist hereby grants unto NETunes a non-exclusive license to use any and all copyrighted material provided hereunder for the sole purpose of providing potential customers with thirty (30) second mp3 samples to the musical material contained on any of the compact discs or other recordings to be sold hereunder. Artist grants unto NETunes the non-exclusive right to offer on its website, without charge to either customer or NETunes, an MP3 version of Artist's original composition entitled:
____________________________________________________________________.
(4) NETunes shall create, post and thereafter for the term hereof maintain on NETunes's Internet web site (located at http://www.NETUNES.com) an Artist sub-site located in the
_____________________________________________________________________
section of the NETunes.com electronic commerce site from which NETunes may offer for sale and sell any and all such compact discs and/or other product which the Artist may provide and NETunes accept for sale hereunder.
(5) Artist shall manufacture, or cause to be manufactured, all compact discs (CDs) to be sold pursuant to this Agreement. Artist may chose for NETunes to handle fulfillment of orders or handle order fulfillment themselves. Artist may change order fulfillment methodology upon thirty (30) days written notice to NETunes. For all CDs sold wherein NETunes is responsible for fulfillment, NETunes shall pay Artist the net of the sales price of such CD less $4.99. For all CDs sold where Artist is responsible for fulfillment, NETunes shall pay Artist the net of the sales price of such CD less $3.99. Within forty-five (45) days of its receipt of payment for such recordings, NETunes shall make the payment prescribed herein above directly unto Artist and provide Artist with a true, correct and accurate accounting of all such sales of Artist's product.
(6) Artist grants unto NETunes the non-exclusive right to market and sell each individual track of said CD recordings as a separate downloadable file in MP3 format and/or as a separate track on a compilation disc of titles selected by any end user or by NETunes. For any and all such sales, Artist shall receive a payment of fifty cents ($0.50) per individual track with all manufacturing, collection, delivery and shipping costs to be borne by the NETunes.
(7) Artist shall have the right, upon reasonable notice, to examine the books and records of NETunes during normal business hours, and to appoint an attorney, accountant or other agent to do same, to ensure compliance with the terms of this Agreement.
(8) In the event that Artist shall elect for NETunes to handle fulfillment, Artist shall herewith supply NETunes with an initial consignment inventory of not less than twenty (20) compact discs (CDs) for each release to be sold hereunder.
(9) Artist hereby warrants that he/she: (i) owns, controls and administers all right, title and interest in and to the musical compositions embodied on all master recordings delivered to NETunes hereunder throughout the world, including the copyrights thereto; or (ii) that he/she has valid mechanical licenses with regard to the compositions; or (iii) that the compositions are available for compulsory mechanical license pursuant to 17 USC 115 which provides that a musical composition shall be available for mechanical licensing if records embodying the said composition have been previously distributed with the authority of the copyright owner in the United States. For all compositions not available for compulsory mechanical license, Artist has attached hereto and made a part hereof as Exhibit A either (a) copies of written agreements between Artist and all song writers and composers of such compositions or (b) copies of the applicable mechanical licenses from the owners of such compositions. The parties agree that any and all compulsory mechanical license fees and/or other fees or royalties, if any, due with respect to the recordings to be sold hereunder shall be paid by the Artist.
(10) Artist hereby represents, covenants and warrants that he/she is free to enter into and perform this Agreement and is under no restrictions or obligations which would impair the full performance and NETunes's full enjoyment of its rights hereunder. Without limitation of the foregoing, Artist specifically warrants and represents that no selections embodied on the master recording delivered unto NETunes hereunder are subject to any recording restrictions under any contract to which Artist is or may have been a party and that neither Artist nor any other person under Artist's control rendering services in connection with said master recording is a party to any contract which would in any way impair the rights granted to NETunes hereunder.
(11) Artist represents and warrants that the content of all artwork delivered unto NETunes hereunder will not infringe upon the rights of any parties not signatories hereto.
(12) Artist agrees to indemnify and hold NETunes harmless against any liabilities, damages, costs or expenses (including reasonable attorney fees and costs) occasioned by or arising from any claim, demand or action inconsistent with any agreement, representation, grant or warranty made by Artist in paragraphs (9), (10) and/or (11) hereof.
(13) NETunes may assign this Agreement or any portion hereof, or any rights hereunder to: (a) any parent, subsidiary, sister corporation or other affiliate; (b) any person or business entity acquiring all or substantially all of NETunes's assets; or (c) any entity into which NETunes may merge. The foregoing shall not prohibit or in any way restrict NETunes from assigning or licensing any of its rights hereunder in the ordinary course of business.
(14) This agreement is complete and all negotiations and understandings are merged herein. This agreement cannot be modified except by an instrument in writing executed by the parties. A waiver or breach by any party in any one instance shall not constitute a waiver of any subsequent breach, whether or not similar. Nothing herein contained shall constitute a partnership between or joint venture by the parties hereto or designate any party the agent or employee of any other.
(15) No party shall be deemed to be in default or breach of this Agreement unless such party is given written notice of such breach and subsequently fails to cure same within thirty (30) days thereafter. Nothing in this Agreement shall be construed so as to require the commission of any act contrary to law and, wherever there is any conflict between any provision of this Agreement and any present or future statute, law, ordinance or regulation, the later shall prevail, but in such event, the provision of this Agreement affected shall be curtailed and limited only to the extent necessary to comply with the law.
(16) All notices required, or which any party desires to serve upon the other, shall be in writing and shall be deemed to have been given when addressed as set forth herein below and: (i) delivered personally with a receipt signed by a principal or officer or the deliveree; or (ii) deposited, postage prepaid, in the United States Mail; or (iii) deposited, toll prepaid, in any telegraph office in the United States. All such notices other than royalty statements deposited in the United States Mail shall be sent via Certified or Registered Mail, Return Receipt Requested.
(17) Notices to NETunes shall be addressed as follows: Alan W. Curtis, J.D., President and Chief Operating Officer, NETunes.com, Inc., 3183 Airway Avenue, Building E, Costa Mesa, CA 92626.
(18) Notices to Artist shall be addressed as follows:
_____________________________________________________________________
(19) In the event that litigation is commenced between the parties hereto relative to this Agreement or the rights and duties of the parties under same the prevailing party therein shall be entitled, in addition to such relief as may be granted, to the actual sum expended for attorney's fees and court costs as determined by the court in such action.
(20) The parties hereto agree that this Agreement shall be construed and interpreted and the rights of the parties determined in accordance with the laws of the State of California. In the event that any provision of this Agreement is declared by a court of competent jurisdiction to be void, invalid or unenforceable, such provision shall thus be deemed severed from the Agreement and the remaining portions and provisions thereof shall remain in full force and effect. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have hereunto executed their signatures on the date first herein above written in the City of Newport Beach, Orange County, California.
________________________________________ Date: _____________________
NETUNES.COM, INC.
by Alan W. Curtis, J.D.
President and Chief Operating Officer
________________________________________ Date: _____________________[Artist]
