Ever Music™ (W-W-W-Music™)

Legal

Below you will find the general Terms of Service for all registered users, the Artist Agreement and the Sponsor Agreement

 

TERMS OF SERVICE (TOS)

ARTIST AGREEMENT

SPONSOR AGREEMENT

 

MUSIC-LOVER, ARTIST AND SPONSOR TERMS OF SERVICE (TOS):

 

This agreement was most recently updated on 12/5/2014.

Welcome to the Ever Music™ Site, referred to here as W-W-W-Music™, which is located at http://w-w-w-music.com and http://www.ever-entertainment.com (the "Site"). Ever Music™ (W-W-W-Music™) is a Channel of Ever Entertainment™.  More Channels coming soon.  The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Site and W-W-W-Music™ Service (as defined below).  Registration on the Site constitutes your agreement to and acceptance of all the TOS.

W-W-W-Music™ (a Channel on Ever Entertainment™, division of Paradunai™LLC., along with our licensees and assignees referred in this Agreement as “us” and “we” and “W-W-W-Music™”) reserves the right to add to, delete or change these TOS because of frequent changes in Internet technology and applicable law. As such, you should check these TOS from time to time for such changes.

1. The W-W-W-Music™ Service. W-W-W-Music™ provides a number of Internet-based services and products through the Site (all such services, collectively, the "W-W-W-Music Service" and “Products”). W-W-W-Music™ users may create personal playlists, listen to on-demand music and purchase individual Products through W-W-W-Music’s™ Buy Link Service for their own use or sell Sponsorships and Products through the Site. Users who are Artists and who would like to sell Products for digital download through a link to their retail store must also enter into the Digital Rights Agreement, found below in the Artist Agreement and Users who are Artists who would like to sell Sponsorships through the Site must also enter into the Artist Sponosrship Agreement, found below in the Artist Agreement. W-W-W-Music™ allows all Users to browse the Site and purchase Products from the Site via the Buy Link Service and approved Sponsors to browse the Site and purchase Sponsorships from the Site via W-W-W-Music™ Sponsorships automated service. W-W-W-Music™ may offer a number of other services and products on its Site, which may change from time to time.

2. Use of the Site and W-W-W-Music™ Service.

(a) Eligibility. W-W-W-Music™ will only knowingly provide the W-W-W-Music™ Service 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 W-W-W-Music™ Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The W-W-W-Music™ Service is not intended for children under the age of 13.

(b) Compliance With TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the W-W-W-Music™ Service and the Site.

(c) Your License to Use the Site and the W-W-W-Music™ Service.

(1) W-W-W-Music™ and its licensors solely and exclusively owns all intellectual property and other right, title and interest in and to the W-W-W-Music™ Service and Site, except as expressly provided for in these TOS. You will not acquire any right, title or interest therein under these TOS or otherwise.

(2) W-W-W-Music™ grants you a limited revocable license to access and use the Site and the W-W-W-Music™ Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Site for purposes prohibited by W-W-W-Music™; create derivative works based on the Products or any third party content available via the Site; or download or copy the Site (other than page caching). If you use the Site in a manner that exceeds the scope of this license or breach this TOS, W-W-W-Music™ may revoke the license granted to you.

(3) This Section 2(c) does not pertain to your intellectual property rights. Any rights relating to materials that you as an Artist upload to the Site are covered by the Digital Rights Agreement below in the Artists/Label Agreement.

(d) Third-Party Services. W-W-W-Music™ may use third parties to provide certain services accessible through the Site. W-W-W-Music™ does not control those third parties or their services, and you agree that W-W-W-Music™ will not be liable to you in any way for your use of such services. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as these TOS when you use these services. If any such terms or policies conflict with W-W-W-Music’s™ TOS, agreements or policies, you must comply with W-W-W-Music's™ TOS, agreements or policies, as applicable.

3. Rules For Use Of the Site.

(a) Prohibited Use. Except as may be expressly permitted by W-W-W-Music™, you may not: (i) interfere with the W-W-W-Music™ Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the W-W-W-Music™ Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the W-W-W-Music™ Service; (v) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain W-W-W-Music's™ name or trademarks; (viii) engage in any activity that interferes with another user's ability to use or enjoy the W-W-W-Music™ Service; or (ix) assist or encourage any third party in engaging in any activity prohibited by these TOS.

(b) Privacy Policy. By entering into these TOS, you agree to W-W-W-Music's™ collection, use and disclosure of your personal information in accordance with the W-W-W-Music™ Privacy Policy, found here: Privacy Policy.

(c) Ordering Products, Sponsorships. If you purchase Products through the Site’s Buy Link Service, you agree to do so in accordance with W-W-W-Music's™ Customer Bill of Rights below. Title to Products that you buy will pass to you upon delivery of the Products to the common carrier.  If you purchase Sponsorships through the Site, you agree to do so in accordance with W-W-W-Music’s™ Sponsor Terms and Conditions found below in the Sponsor Agreement.

* If you need to cancel your Products order, you will have to do so at the link address where you purchased.  W-W-W-Music™ provides the Buy Link Service but has no control over destination link policies or procedures.  If you need to cancel your Sponsorship order, contact Customer Service by email. Please include your name and the campaign name associated with your order that you would like to cancel. If you’ve already completed an order and wish to add a new campaign to that order, you’ll need to cancel that order and place a new order. Please note that if your order has already been processed, you may not be able to cancel it or modify it immediately.

(d) Monitoring. W-W-W-Music™ reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Site. If W-W-W-Music™ determines, in its sole and absolute discretion, that you or another W-W-W-Music™ user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, W-W-W-Music™ may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.

(e) Modification of the Service. W-W-W-Music™ may modify the W-W-W-Music™ Service at any time with or without notice to you, and will incur no liability for doing so.

4. Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant W-W-W-Music™ permission to use such submissions for marketing and other promotional purposes. You agree that W-W-W-Music™ will have no obligation to keep any Submissions confidential and you will not bring a claim against W-W-W-Music™ based on "moral rights" or the like arising from W-W-W-Music's™ use of a Submission.

5. Representations and Warranties.

(a) Mutual Representations and Warranties. You represent and warrant to W-W-W-Music™ and W-W-W-Music™ represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.

(b) By You. You represent and warrant to W-W-W-Music™ that, in your use of the W-W-W-Music™ Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to W-W-W-Music™ that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions; (ii) W-W-W-Music™ will not be required to make any payments to any third party in connection with its use of your Submissions, except for the expenses that W-W-W-Music™ incurs in providing the W-W-W-Music™ Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Submissions will not cause injury to any third party; and (iv) your Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.

6. Disclaimers, Exclusions, and Limitations.

(a) DISCLAIMER OF WARRANTIES. W-W-W-Music™ PROVIDES THE SITE AND W-W-W-Music™ SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. W-W-W-Music™ DOES NOT REPRESENT OR WARRANT THAT THE SITE, W-W-W-Music™ SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. W-W-W-Music™ MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.

(b) EXCLUSION OF DAMAGES. W-W-W-Music™ WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE W-W-W-Music™ SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(c) LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID OR PAYABLE BY W-W-W-Music™ TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.

7. Indemnification. You will indemnify and hold W-W-W-Music™ and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS. If you have to indemnify W-W-W-Music™ under this Section, W-W-W-Music™ will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without W-W-W-Music's express written permission.

8. Termination.

(a) Termination. W-W-W-Music™ may suspend or terminate your use of the Site or W-W-W-Music™ Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.

(b) Survival. These TOS will survive indefinitely unless and until W-W-W-Music™ chooses to terminate them.

(c) Effect of Termination. If you or W-W-W-Music™ terminates your use of the Site or the W-W-W-Music™ Service, W-W-W-Music™ may delete any Submissions or other materials relating to your use of the W-W-W-Music™ Service on W-W-W-Music's™ servers or otherwise in its possession and W-W-W-Music™ will have no liability to you or any third party for doing so.

All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to W-W-W-Music™, you must use the following addresses: W-W-W-Music™, 477 Peace Portal Drive, Suite 107-420 Blaine, WA 98230 or admin If W-W-W-Music™ provides notice to you, W-W-W-Music™ will use the contact information provided by you to W-W-W-Music™. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non- delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.

10. Dispute Resolution.

(a) Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND W-W-W-Music™ AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.

(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to W-W-W-Music™, to you via any other method available to W-W-W-Music™, including via e-mail. The Notice to W-W-W-Music™ should be addressed to: [W-W-W-Music™ / ATTN: C. de Troyes / 477 Peace Portal Drive, Suite 107-420, Blaine, WA  98230] (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and W-W-W-Muisc™ do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or W-W-W-Music™ may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address.  You are solely responsible for the payment of any filing fee.

(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and W-W-W-Music™ agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(d) No Class Actions. YOU AND W-W-W-Music™ AGREE THAT YOU AND W-W-W-Music™ MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.

(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that this Agreement and your use of the Services and the Website evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.

(f) Applicable Law. This Agreement and your use of the Services and the Website shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and W-W-W-Music™ under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Whatcom County, Washington, and you and W-W-W-Music™ hereby submit to the personal jurisdiction and venue of these courts.

(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which W-W-W-Music™ seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by W-W-W-Music™ or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against W-W-W-Music™, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.

(h) Claims. You and W-W-W-Music™ agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the Services or the use of the Website, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

(i) Improperly Filed Claims. All claims you bring against W-W-W-Music™ must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, W-W-W-Music™ may recover attorneys’ fees and costs up to $5,000, provided that W-W-W-Music™ has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

11. Miscellaneous. These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of W-W-W-Music™. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and W-W-W-Music™ are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.

 

W-W-W-Music™

ARTIST AGREEMENT: 

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Digital Music Promotion and Broadcast Agreement between you and W-W-W-Music (the “Agreement”).

Effective Date December 30, 2011.  Last updated on December 30, 2011.

SUMMARY:

1) W-W-W-Music™ is a global internet site containing an on-demand Media Player with Artist Channels.  As the 100% worldwide copyright owner, or that owner’s contracted representative, you upload your copyrighted, fit-for-public-consumption, professional quality music, images and text content, and receive 100% of the sponsor revenue   generated by your Artist Channel. There is no charge to you for your Artist Channel or the promotion of your music in exchange for your music being played in the House Channel via the Media Player as audio/video content.  All sponsor revenues achieved in the House Channel pay the bills, with any profits beyond overhead being retained by W-W-W-Music™.

2) You are free to take down your music and Artist Channel at any time, after you have: a) met your current sponsor obligations, b) notice is provided to W-W-W-Music™ and c) you have followed “take down” instructions and received confirmation that your Artist Channel is discontinued.

AGREEMENT:

Welcome to the W-W-W-Music™ Artist Agreement (together with any and all applicable Addenda the “Agreement”), between you and W-W-W-Music™ (a division of Paradunai™ LLC., along with our licensees and assignees collectively referred to in this Agreement as “us,” “we,” and “W-W-W-Music™”). This Agreement contains the general terms and conditions under which W-W-W-Music™ offers the “Services” (as defined  below). Use of the Services, including through the submission of image, text content for your Artist Channel and audio/video recordings (and the musical works embodied therein) for play in W-W-W-Music’s™ Media Player by upload to the W-W-W-Music™ website [http://w-w-w-music.com] (the “Website”), constitutes your agreement to and acceptance of this Agreement and the applicable Addendum.

 

THIS AGREEMENT, WHEN ACCEPTED BY YOU AFTER YOU ENTER YOUR FULL LEGAL NAME AND CLICK “I AGREE” WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, BAND, GROUP OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, BAND, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING “I AGREE.” THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “I AGREE” BUTTON BELOW.

 

We reserve the right to add, delete and/or modify any of the terms and conditions contained in this Agreement pursuant to the provisions of Section 9 below. Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and W-W-W-Music™ that arose prior to the date of such modification. In the event of substantive changes to the terms of this Agreement, you will be notified by email. If any modification is unacceptable to you, your only recourse is to discontinue use of the Services. Your continued use of the Services following posting of a change notice or new agreement on the Site or notice to you via e-mail, will constitute your binding acceptance of the changes.

 

YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH W-W-W-MUSIC™ FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.

 

1. Terms of Service:

This Agreement is incorporated into and subject to the Terms of Service (TOS) provided above.  All initially-capitalized terms not defined in this Agreement are defined in the TOS.

 

2. Authorization:

You hereby appoint us as your authorized representative for the sale of sponsorships of “Your Content” (as defined below) on W-W-W-Music™.  Accordingly, you hereby grant to us and our “Licensees” (as defined below) the non-exclusive right, during the Term (as defined below) and throughout the “Authorized Territory” (as defined below), to:

 

(a) Reproduce and create derivative works of Your Content by converting Your Content into Digital Masters, including less than full-length versions of sound/video recordings (“Clips”) that can be used for play in W-W-W-Music’s™ House Channel Media Player and promotional purposes as authorized herein;

(b) Publicly perform, publicly display, communicate to the public, and otherwise make available Your Content, and portions thereof as embodied in Clips, by means of digital audio/video transmissions (on an interactive or non-interactive basis) through the Website, a Licensee website, or via a W-W-W-Music™ Widget you or any person authorized by you or any W-W-W-Music™ registered user may place on any website, to identify the availability of Your Content for sponsorship, license, sale or distribution and to promote Your Content, on a through-to-the-listener basis, without the payment of any fees or royalties to (i) the songwriters, composers, or music publishers owning any rights in and to Your Content; (ii) any performing artist(s) (including non-featured vocalists and musicians) on Your Content; (iii) any other person involved in the creation of or owning any portion of Your Content, including, but not limited to a record label, and (iv) any agents for any of the foregoing, including, without limitation, performing rights organizations (“PROs”) and unions or guilds, whether U.S.-based (such as ASCAP, BMI, SESAC, SoundExchange, AFTRA and AFM) or foreign (e.g., PRS for Music, PPL, CMRRA, CSI, GEMA, etc.);

 

(c) Distribute Your Content in accordance with any applicable Addendum;

 

(d) Place or embed Your Content in magazines, web sites, W-W-W-Music™ advertisements, and any and all other media, whether now known or hereafter developed to promote the W-W-W-Music™ Service;

 

(e) Use and distribute Copyright Management Information as embodied in a Digital Master of Your Content;

 

(f) Use Your Content and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;

 

(g) Reproduce, distribute, and publicly perform and communicate to the public Your Content (including Clips) as part of a downloaded program that may include multiple sound/video recordings and other content, commonly known as a “podcast;” and

 

(h) Authorize our Licensees to perform any one or more of the activities specified above or in an applicable Addendum.

 

3. Term:

The term of this Agreement will commence on the Effective Date and will continue, unless and until terminated and confirmation received by either you or us, upon twenty-four (24) hours written notice (the “Term”), which notice, if sent by (a) W-W-W-Music™, may be sent to you at the last e-mail address you provided to W-W-W-Music™ and (b)you to W-W-W-Music™, must be sent only to the following e‑mail address: artist at w-w-w-music.com with the following information: (a)your username; (b)the e‑mail address associated with your Account; (c)all album and/or song titles and Artist Channel for which you are requesting termination.  Any termination notice provided by you pursuant to this section shall be permanent and irreversible.  Notwithstanding anything to the contrary herein, W-W-W-Music™ may at any time in its sole discretion, with or without notice to you: (i)suspend or limit your access to or your use of the Services and/or (ii)suspend or limit your access to your Account (as defined in Section11(a)).

 

4. Payments to You:

(a) Pricing the Sale of Sponsorship of Your Content.  Except as otherwise set forth in an Addendum, W-W-W-Music™ will have the discretion to set the pricing of sponsorship of Your Content on the Website. Notwithstanding the foregoing, W-W-W-Music™ and its distributors and partners may set pricing differently for third-party websites than for the Website, including, by way of example and not limitation, to cover additional costs or to provide discounts for promotions.

(b) Licensee Records. W-W-W-Music™, may, but need not, audit the books and records of Licensees and may accept any representations made in a Licensee accounting statement delivered to W-W-W-Music™ as true and complete. W-W-W-Music™ shall have no liability to you for failure to audit or investigate any accountings rendered to it by any Licensees.

(c) Offsets. You hereby authorize W-W-W-Music™ to offset against any amounts owed to you pursuant to this Agreement any amounts that you may owe to W-W-W-Music™, whether under an indemnification provision or for costs of refunding unfulfilled sponsorship fees, and/or expenses due to any breach causing specific monetary harm of this Agreement or Terms of Service by you.

 

(d) Recordkeeping; Audits. All transaction records are maintained on the Website in W-W-W-Music™ Sponsorships, which report the sale of sponsorship of Your Content. You may, but not more than once a year, at your own expense, engage a Certified Public Accountant (“CPA”) to examine those books and records directly related to the sale of sponsorship of Your Content, as provided in this Section4(d), only. You may have your CPA make those examinations only for the purpose of verifying the accuracy of the statements sent to you. All such examinations will be in accordance with generally accepted accounting principles (“GAAP”) procedures and regulations. Your CPA may make such an examination for a particular statement only once, and only within one (1) year after the date we send you that statement. Your CPA may make such an examination only during our usual business hours, and only at the place where such books and records are maintained in the ordinary course of business. You must provide us with thirty (30)-days written notice prior to commencing an audit and must identify the name, address, telephone number, and email address of the CPA conducting the audit on your behalf. You may not engage the CPA on a contingent fee basis (i.e., your CPA must be paid on a flat fee or time-based basis). We may postpone the commencement of your CPA’s examination by notice given to you not later than five (5) days before the commencement date specified in your notice. In the event of any postponement initiated by us, the running of the time within which the examination may be made will be suspended during the postponement. If your CPA’s examination has not been completed within three (3) months from the time commenced, then we may require you to terminate the audit upon seven (7) days’ notice, which notice may be given at any time. We will not be required to permit the CPA to continue any examination after the end of that seven (7)‑day period. Your CPA will not be entitled to examine any other records that do not specifically report sales of sponsorship of Your Content for which W-W-W-Music™ has actually received payment. Your CPA may act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination on your behalf will not be knowingly released, divulged, published or shared with any other person, firm or corporation, other than to you or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Your CPA may not share the results of the examination conducted on your behalf with any third party without our express written permission.

 

(e) Objections to Accountings. If you have any objections to a W-W-W-Music™ accounting statement made available to you, you agree that you shall give us specific notice of that objection, including a copy of your CPA’s analysis of the accounting statement, and your reasons for it within eighteen (18) months after the date we send or make that statement available to you. Each statement shall become conclusively binding on you at the end of that eighteen (18)‑month period, and you will no longer have any right to make any other objections to it notwithstanding any audit rights you may otherwise have under any applicable law or regulation. Any payments determined to be owed you following an audit shall be paid within forty-five (45) days of the delivery of your CPA’s audit report, unless objected to in writing by W-W-W-Music™, in which case any payments due shall be postponed pending the resolution of the audit dispute. A late fee of one-half percent (0.5%) shall be due for underpaid amounts. Unless otherwise prohibited by law, you will not have the right to sue us in connection with any statement, or to sue us for unpaid sponsorship revenue for the period a statement covers, unless you commence the suit within that eighteen (18)-month period. If you commence suit on any controversy or claim concerning statements rendered to you under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to a determination of the amount of sponsorship revenue due for the accounting periods concerned, and the court shall have no authority to consider any other issues or award any relief except recovery of any sponsorship revenue found owing, plus interest at the rate of one-half percent (0.5%) per month. Your recovery of any such sponsorship revenue plus interest shall be the sole remedy available to you by reason of any claim related to our statements.

 

(f) Affiliation with Other Performing Rights Organizations for Royalties. Nothing contained in this Agreement shall prohibit you from affiliating with any PRO for the receipt of royalty payments for the public performance or communication to the public of your sound recordings or musical works made by a third party, excluding only public performances or communications to the public of sound/video recordings or musical works made by W-W-W-Music™ pursuant to the Authorizations set forth in Section 2 of this Agreement.

 

(g) Tax Information. In all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax owed in connection with the sale or distribution of Your Content pursuant to this Agreement, and you hereby indemnify W-W-W-Music™ for any Sales Tax that may be owed.

 

5. Your Obligations:

(a) You, or a licensee acting on your behalf (e.g., a company such as Rightsflow), will be responsible for obtaining and paying for any and all clearances or licenses required in the Authorized Territory (or any portion thereof) for the use of any musical works embodied in Your Content. Without limiting the generality of the foregoing, you (either directly or through a third party acting on your behalf) shall be responsible for and shall pay (i)any royalties and other sums due to artists (featured and non-featured), authors, co‑authors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Your Content, (ii)all mechanical royalties or other sums payable to music publishers and/or authors or co-authors of musical compositions embodied in Your Content from sales or other uses of Your Content [you may not upload “covers,” songs written by others, without contacting the publisher/copyright owner of that song and purchasing a mechanical license to do so.], (iii)all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or AFTRA), and (iv)any other royalties, fees and/or sums payable with respect to Your Content or other materials provided by you to us. You agree that the amount payable to you is inclusive of any so‑called “artist royalties” that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays or communications to the public of the sound recordings and musical works constituting Your Content.

 

(b) Parental Advisory Labeling. You will be responsible for complying with the Recording Industry Association of America’s (“RIAA”) Parental Advisory Logo (“PAL”) Standards, as applicable, for so long as you use the Services. Information about the RIAA PAL Program is available here: http://www.riaa.com/resources-learning/pal-standards/

 

6. Right to Withdraw Material; Termination of Authorizations to Licensees

You have the right, at any time during the Term, to withdraw the authorizations set forth in Section 2 above and the applicable Addenda, for the sale or other uses of all or any portion of Your Content, upon written notice to us (a “Withdrawal Notice”) or to terminate this Agreement pursuant to Section 3 of this Agreement (a “Termination Notice”). Upon receipt of a Withdrawal Notice with respect to any of Your Content or a Termination Notice with respect to all of Your Content, we will promptly remove those elements of Your Content covered by such Withdrawal Notice or Termination Notice, as the case may be, from the Website (and in no event more than five (5) business days following receipt of a Withdrawal Notice or Termination Notice), and shall, within five (5) business days following our receipt of a Withdrawal Notice or Termination Notice, advise our Licensees via a “Takedown Notice” that they are no longer authorized to sell or offer for any other use those elements of Your Content covered by such Takedown Notice. Your submission of a Withdrawal Notice or Termination Notice shall not in any way limit the authorizations granted to us or any Licensees prior to the implementation of your Withdrawal Notice or Termination Notice, and will not limit in any way the rights of end users who have acquired Your Content.

 

W-W-W-Music™ is not responsible for, and has no liability for, any delays of our Licensees in removing Your Content from any websites or services owned or operated by such Licensees. You shall remain solely responsible for enforcing the removal of Your Content from our Licensees’ websites and services in the event such Licensees fail to remove Your Content following receipt of a Takedown Notice or following the termination of any rights granted to such Licensees by W-W-W-Music™; provided, however, that W-W-W-Music™ may, in its sole and absolute discretion, continue to assist you to effectuate the removal of Your Content from Licensees’ websites and services. W-W-W-Music™ may, but need not, provide you with notice in the event W-W-W-Music™ terminates or allows to expire any authorizations previously granted to a Licensee for the distribution of Your Content. Nothing in this Agreement shall limit any remedies you may have at law or in equity against any Licensee that is using Your Content in violation of the terms of any license granted to such Licensee by you or W-W-W-Music™.

 

7. Names and Likenesses; Promotional Use and Opportunities:

(a) Name and Likeness of Artists and Songwriters. You hereby grant to W-W-W-Music™ during the Term the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning, any artists, bands, producers and/or songwriters, as well as track and/or album name, and all artwork related to your sound recordings or audiovisual works, in any marketing materials for the sale, promotion, and advertising of Your Content, which is offered for sale or other use under the terms of this Agreement (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 exploitation of Your Content).

 

(b) Promotion.You hereby grant to us and our Licensees the right to market, promote, and advertise Your Content as available for sponsorship or purchase or license, in any and all media, whether now known or hereafter developed, as we and they determine in our and their discretion.

 

(c) Customer Information. W-W-W-Music™ may, from time to time, provide you with information relating to customers that purchase Your Content, subject to our privacy policy and the preferences of our customers. You may only use, and disclose this information to a third party, for your internal record keeping purposes. You may not disclose any of this information to a third party or use it for any other purpose. In all events, you will comply with the terms of W-W-W-Music’s privacy policy in connection with the customer data provided under this Agreement.

 

8. Ownership:

(a) Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, all right, title, and interest in and to (a)Your Content, (b)the Digital Masters, (c)the Clips, (d)your Artist Channel Content, (e)all copyrights and equivalent rights embodied therein, and (f)all materials furnished by you, will be yours.

 

9. Modification, Termination and Effect of Termination:

(a) Modification of Agreement. We reserve the right to change, modify, add to, or remove all or part of this Agreement, in our sole discretion, at any time and from time to time. Notice of any material change will be sent to you by electronic mail at least fifteen (15) days prior to its effective date. If the e-mail you have provided to us is no longer functioning, then, in addition to any other remedies we may have with respect to your Account and use of the Services, we shall be authorized to communicate with you via any other reasonable manner we may choose in our sole discretion, including through notice on the web page through which you access your Account information or via any accounting statement. The most recent date of this Agreement shall be identified on the first page hereof. In the event that you do not consent to any such proposed changes in the Agreement, your sole recourse shall be to terminate this Agreement by notice to us, and your failure to submit a Termination Notice within fifteen (15) days of the date of our notice to you shall constitute your acceptance of such changes to the extent Your Content is still available through the Services. To terminate your Agreement, you must send a Termination Notice to This email address is being protected from spambots. You need JavaScript enabled to view it. and include in the subject line of your e-mail “Termination of Artist Agreement.”

 

(b) Consequences of Termination. The expiration or termination of the Agreement will not relieve either you or us from our respective obligations incurred prior to the effective date of your termination of the Agreement. In addition, provisions of this Agreement intended to survive the termination of this Agreement shall survive termination, including, but not limited to, the Indemnification, Disclaimers, Limitation of Liability; Basis of the Bargain, and General Provisions.

 

10. Monitoring of Your Content; Removal of Content from Website:

(a) Monitoring. W-W-W-Music™ does not control Your Content and does not have any obligation to monitor Your Content for any purpose. W-W-W-Music™ may choose, in its sole discretion, to monitor, review or otherwise access some or all of Your Content, but by doing so W-W-W-Music™ assumes no responsibility for Your Content, no obligation to modify or remove any inappropriate elements of Your Content, or to monitor, review or otherwise access any other artist’s content or artwork.

 

(b) Right of Removal. W-W-W-Music™ reserves the right, in its sole and absolute discretion, to remove any of Your Content from the Website if such content: (i)is patently offensive, pornographic or defamatory; (ii)is the subject of a dispute between you or us and a third party; (iii)is content to which you cannot document your rights therein upon W-W-W-Music’s™ request; (iv)violates the intellectual property rights or other protected interests of a third party; (v)is the subject of a takedown notice by a party claiming to own the rights therein, or (vi)is the subject of any fraudulent activity, or for any other reason in W-W-W-Music’s™ sole and absolute judgment is necessary to protect the business interests of W-W-W-Music™ and any of its business partners or Licensees. W-W-W-Music™ may also remove Your Content from the Website if you are abusive or rude or provide false or intentionally misleading information to any W-W-W-Music™ employees or agents. W-W-W-Music™ shall have no liability to you for the removal of any of Your Content from the Website or any Licensee website or service. The removal of any of Your Content shall not relieve W-W-W-Music™ of the obligation to pay you any sponsorship revenue that may have accrued prior to the removal of Your Content.

 

(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by W-W-W-Music’s removal of Your Content from the Website or Licensee’s websites or services. In order for you to terminate this Agreement following the removal of any of Your Content, you must send W-W-W-Music™ a Termination Notice.

 

11. Account Information; Disclosures:

(a) Your Account Information. In order to access some features of the Website, including your account information, and receive periodic statements, you will have to create an online account (“Account”). You hereby represent and warrant that the information you provide to W-W-W-Music™ upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up‑to-date at all times during the Term of this Agreement.

 

(b) Password. As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify W-W-W-Music™ by e-mail to artist at w-w-w-music.com. You will be solely responsible for the losses incurred by W-W-W-Music™ and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying W-W-W-Music™ that your Account has been compromised.

 

(c) Disclosure of Information. You acknowledge, consent, and agree that W-W-W-Music™ may access, preserve, and disclose your Account information and Your Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i)comply with legal process; (ii)enforce this Agreement; (iii)respond to a claim that any of Your Content violates the rights of third parties; (iv)to respond to your requests for customer service; or (v)to protect the rights, business interests, property or personal safety of W-W-W-Music™ and its employees and users, and the public.

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12. Prohibited Use of the Website and Licensee Websites and Services:

(a) You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage W-W-W-Music™, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or Your Content, do or attempt any of the following:

 

(b) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended;

 

(c) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload Your Content to the Website;

 

(d) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;

 

(e) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties;

 

(f) Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;

 

(g) Create a false identity or impersonate another for the purpose of misleading others as to your identify, including, but not limited to, providing misleading information to any feedback system employed by W-W-W-Music™;

 

(h) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;

 

(i) Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;

 

(j) Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in Your Content; or

 

(k) Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

 

13. Availability of Services:

W-W-W-Music™ may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and W-W-W-Music™ makes no commitment to update any aspect of the Website. W-W-W-Music™ makes no representations and warranties with respect to availability of the Website and may discontinue the Service at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of Your Content uploaded to the Website or otherwise delivered to W-W-W-Music™.

14. Additional Representations and Warranties:

(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:

 

(i) is authorized to enter into this Agreement on the terms and conditions set forth herein.

 

(ii) will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.

 

(iii) shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.

 

(b) Representations and Warranties by You. You represent and warrant to W-W-W-Music™ that:

 

(i) you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to Your Content, including, but not limited to, all musical works embodied in Your Content, and that you are authorized to provide Your Content to us for the uses specified in this Agreement. For the avoidance of doubt, if you are acting on behalf of an artist, band, group or corporation, you hereby represent and warrant to W-W-W-Music™ that you are fully authorized to enter into this Agreement on behalf of such artist, band, group or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.

 

(ii) you own or control all of the necessary worldwide rights in Your Content in order to make the grant of rights, licenses, and permissions herein, and that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Your Content, and to use such individual's identifying or personal information (to the extent such information is used or contained in Your Content) as contemplated by this Agreement.

 

(iii) the use or other exploitation of Your Content, including, but not limited to, any musical works embodied in your sound/video recordings, by us and our Licensees as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.

 

(iv) to the extent you are the songwriter of any or all of the musical works embodied in Your Content, whether in whole or in part (e.g., as a co‑writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any PRO, whether based in the United States or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty-free license to us and our Licensees for the public performance and communication to the public of Your Content, including as on-demand media streams and as clips, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the use of the musical works in Your Content when publicly performed, communicated or otherwise transmitted by W-W-W-Music™ or its Licensees.  

(v) you have not assigned any of the rights in and to the sound/video recordings embodied in Your Content to any third party (e.g., a record label) that obtained exclusive rights in and to such sound/video recordings, who is not a party to this Agreement.

 

15. No Representations and Warranties With Respect to Sales and Distributions:

W-W-W-Music™ makes no guarantees regarding the minimum amount of sponsorship sales for your Artist Channel and no guarantees regarding the minimum number of unit sales or uses of Your Content realized via links to buy Your Content on the Website. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with W-W-W-Music™ for the sponsorship, sale, distribution or licensed use of Your Content, including by paying the royalties they owe you for the distribution of Your Content. If a Licensee refuses to pay you for the use of Your Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sponsorship, sale, distribution or licensed use of Your Content if such third party fails or refuses to pay such amounts to you upon your request.

 

16. Indemnification:

(a) Indemnification. You hereby agree to indemnify, defend, and hold W-W-W-Music™ harmless from and against any and all damages, claims, liabilities, costs, losses, and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims”) arising out of any breach or alleged breach of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, any Claims made by a PRO or music publisher with respect to any public performances or communications to the public of any musical works embodied in Your Content, any contributor to any sound recording included within Your Content, including claims from any unions, guilds, background musicians or vocalists, engineers, etc., or any other party for any use or misuse of any other forms of intellectual property or proprietary rights in Your Content, including, but not limited to, trademark rights and invasions of the right of privacy or publicity. You agree to reimburse us, on demand, for any payment made by us at any time with respect to any Claims to which the foregoing indemnity applies. Pending the resolution of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this Section.

 

(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by W-W-W-Music™ or imposes any conditions or obligations on W-W-W-Music™ other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe W-W-W-Music™ an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.

 

17. Disclaimers:

(a) THE WEBSITE AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

 

(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, W-W-W-MUSIC™ AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM W-W-W-MUSIC™ OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. W-W-W-MUSIC™ AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY W-W-W-MUSIC™, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER YOUR CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

 

18. Limitation of Liability; Basis of the Bargain:

(a) W-W-W-MUSIC™ SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. W-W-W-MUSIC™ SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF YOUR CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH W-W-W-MUSIC™ OR OTHERWISE. W-W-W-MUSIC’S™ TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY W-W-W-MUSIC™ FOR THE SALE OF SPONSORSHIP OF YOUR CONTENT ON YOUR ARTIST CHANNEL DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST W-W-W-MUSIC™.

 

(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND W-W-W-MUSIC™, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND W-W-W-MUSIC™, W-W-W-MUSIC'S™ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT W-W-W-MUSIC™ WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.

 

19. General Provisions:

(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture between you and W-W-W-Music™, and W-W-W-Music™ shall not have a fiduciary obligation to you as a result of your entering into this Agreement.

 

(b) Entire Agreement. This Agreement together with the TOS contains the entire understanding of the parties relating to the subject matter hereof. This Agreement (including all Addenda) supersedes all previous agreements or arrangements between you and W-W-W-Music™ pertaining to the Services. This Agreement cannot be changed or modified except as provided herein.

 

(c) Waiver; Severability. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, 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.

 

(d) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, recording labels, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.

 

(e) Notice. 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 with W-W-W-Music™, or as properly updated, or, in the absence of a valid electronic mail address, via any other method W-W-W-Music™ may elect in its sole discretion, including, but not limited to, via posting on the Website.

 

(f) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of California applicable to agreements entered into and to be wholly performed in California, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the TOS.

 

(g) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.

 

(h) Headings. The titles and headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

 

(i) No Third Party Beneficiaries. 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.

 

(j) Assignment. W-W-W-Music™ may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining W-W-W-Music’s™ prior written consent.

 

20. Certain Definitions:

(a) The following capitalized terms shall have the following meanings for purposes of this Agreement:

 

(b) “Authorized Territory” means the universe.

 

(c) “W-W-W-Music™ Widget” means a (i) software application available on the Website that you or someone authorized to act on your behalf or any registered user may embed on third-party websites, (ii) link, code, script or any other software or instruction that you or someone authorized to act on your behalf or any registered user may embed or place on a third-party website, including, but not limited to, social media websites such as Facebook, that permits a user of such third-party website to access content hosted and/or streamed from servers owned or controlled by or on behalf of W-W-W-Muisc™, including Your Content, or (iii) standalone software available for use on mobile devices, smartphones (e.g., iPhones, Android phones), tablet computers (e.g., iPads), set-top boxes, and other hardware now known or hereafter developed (collectively, "Hardware"), that facilitates or enables the public performance, communication to the public or other transmission of Your Content via the Internet or any other transmission medium through such third-party websites or on or through any Hardware. The W-W-W-Music™ Widget may provide access to all of Your Content or give you the ability to control which of Your Content is available through third-party websites, as W-W-W-Music™ may choose in its sole discretion.

 

(d) “Buy Link Service” means the service that enables you to market and sell Physical Products and/or Digital Downloads via links on the Website to your preferred store URL with W-W-W-Music™ reserving the right, in its sole discretion, to discontinue this service at any time with or without notice, and reserving the right to replace this service with an alternative of W-W-W-Music’s™ choosing.

(e) “Copyright Management Information” means the digital information conveying information regarding a Digital Master, including, by way of example and not limitation, the title of the applicable album, the name of the song, the ISRC code, the marketing label, and the record company name.

(f) “Sponsorship Sales Service” means the online services operated by W-W-W-Music™ for the sale of sponsorships of Your Content on your Artist Channel and other content through the Website or through websites and services operated by or on behalf of Licensees.

(g) “Digital Master” or “Digital Masters” means a copy or copies of Your Content in digital form, whether created by you or W-W-W-Music™.

(h) “Licensee” means any third party licensee that we may authorize to carry out the marketing, distribution, licensing, and sale of sponsorship or other use of Your Content on your Artist Channel pursuant to the terms of this Agreement that W-W-W-Music™ may choose in its sole and absolute discretion.

 

(i) “Physical Product” means Your Content as fixed in physical product such as CDs, DVDs, LPs, etc.

 

(j) “Services” means either or both of the “Buy Link Service” and “Sponsorship Sales Service.”

 

(k) “Threshold Amount” means the minimum sponsorship sales that must accrue for your Artist Channel to initiate payment to you from W-W-W-Music™ Sponsorships.

 

(l) “Your 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, text, metadata and other material related to your sound recordings and video content that you have provided to W-W-W-Music™, by digital upload to the Website, either directly or via a third party acting on your behalf. Any such sound recordings and video content (and the musical works embodied therein), artwork, photos, liner notes, text, metadata, or other material provided by you to W-W-W-Music™, must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized under this Agreement. For the avoidance of doubt, Your Content encompasses each sound recording and the musical work (i.e., the notes and lyrics) embodied in each sound recording.

 

SPONSORSHIP SALES SERVICES ADDENDUM

Welcome to the W-W-W-Music™ Sponsorship Sales Addendum between you and W-W-W-Music™. This Sponsorship Sales Addendum is part of and incorporates the terms of the W-W-W-Music™ Artist Agreement, and contains additional terms and conditions under which W-W-W-Music offers the Sponsorship Sales Service.

 

1. Additional Authorization:

 

While selling sponsorship of Your Content on the Website is non-exclusive (meaning you have the right to sell sponsorship of yourself as an artist and of Your Content directly), the rights granted by you to us under this Sponsorship Sales Addendum are exclusive with respect to serving as your authorized representative for selling sponsorship of Your Content on the Website.  Any potential sponsor interested in sponsoring Your Content on the Website must do so through W-W-W-Music™ Sponsorships.  Any sponsorship opportunities we are made aware of to your benefit beyond the current offerings of the Website will be instructed to contact you directly, with the acknowledgement by you that W-W-W-Music™ may or may not decide, at its sole discretion, to expand its sponsorship sales services to include said opportunities in the future and provide this additional service to you.

 

2. Additional Grant:

In addition to the rights granted in the W-W-W-Music™ Artist Agreement, You hereby grant to us the exclusive right (as explained below), and to our Licensees the non-exclusive right, during the Term and throughout the Authorized Territory, to:

(a) “Stream” and authorize others to “stream” Your Content on-demand, royalty-free in exchange for providing you with a comparable Artist Channel Sponsorship Sales Service as part of an Internet radio service, on a multi-channel video programming distribution service, or via any other interactive distribution platform or technology, whether now known or hereafter developed, or as part of a non-interactive service; and

(b) Reproduce, distribute, and publicly display visual elements of Your Content (e.g., album cover artwork, images, etc.) in connection with the promotion, advertisement, sale, and distribution of sponsorship of Your Content.

 

3. Payments to You:

 

(a) Wholesale rates. For sponsorships of Your Content on your Artist Channel resold through our Licensees we will pay you an amount equal to the remainder, after any direct costs of sale or overhead incurred by W-W-W-Music™, of the net wholesale price actually received by us from our Licensees for the sale or other licensed uses of sponsorship of Your Content (the “License Fee”) net of Sales Tax. Distribution fees owed to W-W-W-Music™ by any entity with whom W-W-W-Music™ has entered into a contractual relationship that are not received or collected by W-W-W-Music™ (e.g., as a result of the other party’s failure to perform under a contract) are not included within the calculation set forth in this Section3(a).

 

(b) Retail Sponsorship Sales Rates. For sponsorships of Your Content on your Artist Channel sold directly through our Website we will pay you an amount equal to 100% of the retail price actually received from a sponsor for the usual sale or other usual licensed use of sponsorship of Your Content net of any Sales Tax that may be due; provided, however, that in no event shall W-W-W-Music™ incur more than usual expenses per sponsorship transaction and you hereby authorize W-W-W-Music’s™ retention of such amounts over usual expenses from your proceeds prior to paying you. For a listing of all current sponsorship package fees, visit Sponsor Overview.  Sponsorship sales fees owed to W-W-W-Music™ by any entity with whom W-W-W-Music™ has entered into a contractual relationship that are not received or collected (e.g., as a result of charge backs, breach of contract, failure to pay, etc.) are not included within the calculation set forth in this Section3(b).

 

(c) Payment for Sponsorship Sales of Your Content on your Artist Channel. We will attempt to provide you with accounting details by email at the same time a payment is due to you, but we shall not be deemed in breach of this Addendum for failure to provide you with such information. We will use commercially reasonable efforts to provide you with payments for sponsorship sales (via the Pay Pal account email you provided to us upon being approved as an Artist) within thirty (30) business days from the date that your Account balance exceeds the Threshold Amount of $100. Such payment shall constitute full and adequate consideration for all rights granted, and all obligations undertaken, by you in this Agreement.

 

(d) The Golden Rule.  Since we are also Artists, with the production of music our primary priority, and the operation of W-W-W-Music™ a secondary priority, and since you are incurring no expense to participate in the Sponsorship Sales Services provided to you by W-W-W-Music™, concurring that our Agreement constitutes an exchange between you and W-W-W-Music™, ie. you receive 100% of the sponsorship sales of Your Content on your Artist Channel as set forth in Section 3(b) above in exchange for the royalty-free use, like us, of Your Content in the House Channel of W-W-W-Music™, to generate sponsorship sales in order to pay the costs incurred to operate W-W-W-Music™, you acknowledge that W-W-W-Music™ can only benefit all of us if we work together and appreciate one another, exercising patience and understanding in resolving any challenges we may face in this endeavor.  We will always aim for win-win outcomes and adherence to the Golden Rule, which resides at the core of W-W-W-Music™, and expect the same from you.

 

W-W-W-Music™

Sponsorship Agreement

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This agreement, which Sponsors agree to once registered and accepted as a W-W-W-Music™ Sponsor, is to accompany Sponsors' and/or their Agencies' (collectively referred to as "Sponsor" for the remainder of this agreement) purchases of W-W-W-Music™ automated sponsorship packages[url]. This agreement does not cover customized sponsorships, which will each have a personalized, comprehensive agreement negotiated between each Sponsor and W-W-W-Music™.

 

I. SPONSORSHIP PACKAGE ORDERS

 

a. Through W-W-W-Music's™ automated sponsorship package system, Sponsors may create their own sponsor banners [according to the technical specifications provided], campaigns, and package purchases at their convenience.  A sponsorship package order will be binding once W-W-W-Music™ has confirmed the order.  Delivery is automatically activated once an order is confirmed.  Confirmed orders are non-refundable.  Each automated sponsorship package shall specify: (a) the type(s) and amount(s) of sponsor banner inventory included in each sponsorship package to be delivered (the “Deliverables”); (b) the price(s) for such Deliverables; (c) auto-renewal instructions (if applicable), (d) the start and end dates of the campaign, and (e) sponsor banner placement information.

 

b. W-W-W-Music™ will make commercially reasonable efforts to confirm with Sponsor via Sponsor account email within one business day of receipt of a sponsorship package order.  Once the order is confirmed, the sponsorship package will activate immediately on W-W-W-Music's™ site as specified in the sponsorship package. 

 

c.  Revisions to confirmed sponsorship package orders are not possible as sponsor banner delivery begins automatically, and runs until the stated end date, immediately upon order confirmation.  No refunds will be provided for confirmed orders.

 

II. SPONSOR BANNER PLACEMENT AND POSITIONING

 

a.  W-W-W-Music's™ automated sponsorship package system complies with the stated specifications, including all sponsor banner placement, creates a balanced delivery schedule, and provides, within the scope of the sponsorship package, a sponsor banner to the zone placement specified in the sponsorship package when such zone is called up by a W-W-W-Music™ user, utilizing an automated program which Sponsors self-activate through the Sponsor Control Panel.  W-W-W-Music's™ participation is limited to banner and campaign approval in accordance with the W-W-W-Music™ Terms of Service and the Terms contained herein, and order confirmation.  If an order has been confirmed, but the reports in the Sponsor Control Panel are not functioning or state delivery has not begun, email sponsor at w-w-w-music.com for resolution.

 

III. PAYMENT AND PAYMENT LIABILITY

 

a.  Payment

 

Payment in full for each automated sponsorship package is made at the time of purchase via PayPal.  Orders are not confirmed, and sponsorship package delivery does not begin, until payment in full is received.  Rates listed are net and confirmed orders are non-refundable.  Sponsorship package orders are non-transferable.  If the particular sponsorship package is designated as a "Charter Sponsor Membership" package, (a limited number of non-transferable Charter sponsor membership packages were initially offered as an incentive to early Sponsors) then a "Charter Rate Freeze" applies, and the initial rate can be retained as long as the package is renewed each term.  All other sponsorship packages are non-renewable.  New sponsorship packages must be purchased when each package term expires at current rates listed, though uploaded sponsor banners can be retained in Sponsor's Control Panel and attached to future campaigns for use in future orders.

 

b.  Payment Liability

 

Full payment of sponsorship package order is received prior to order confirmation and commencement of order delivery.  W-W-W-Music™ will not refund any monies received from any agency or any other entity or person on Sponsor(s) behalf, even if the relationship and contract between the agency or entity or person and the named Sponsor dissolves or is not as represented by agency or entity or person, regardless of the sponsorship package order term.  Sponsor(s) interests will continue to be represented through delivery of the sponsorship package order as specified at purchase.  W-W-W-Music™ trusts that agency or entity or person has been given authority by Sponsor to make sponsorship package orders on Sponsor's behalf, as represented by agency's/entity's/person's agreement to this contract through registration and purchase executed in Sponsor's name.  An agency's/entity's/person's sole remedy lies in mediation with Sponsor regarding purchases made during the two parties' contracted representation period. W-W-W-Music™ provided services as contracted and incurs no liability.

 

IV. REPORTING

 

a. W-W-W-Music™ will make commercially reasonable efforts, within one business day of each request, to provide to Sponsor via Sponsor's account email account approval, sponsor banner approval, and campaign approval.  W-W-W-Music™ will make commercially reasonable efforts, within one business day of each request, to provide order confirmation to Sponsor, via Sponsor account email, thereby immediately activating delivery.

 

b.  While it is acknowledged that sponsorships seek to engage their target audience in a different manner than advertising, and therefore, overall sponsorship measurement must be different than for advertising, as a courtesy, W-W-W-Music™ provides traditional, on-demand reports for sponsor banner delivery located in Sponsor Control Panel.  If report system is not functioning, or report states delivery has not begun, email sponsor at w-w-w-music.com for resolution.

 

c. W-W-W-Music™ may occasionally, as a courtesy, also provide traditional reports to Sponsor's account email.

 

d. Upon expiration of Sponsor's sponsorship package order, W-W-W-Music™ will contact Sponsor via Sponsor's account email with a courtesy traditional Campaign Summary Report, and instructions to place new sponsorship package orders.

 

V. CANCELLATION AND TERMINATION

 

a. Once W-W-W-Music™ confirms an order, sponsorship package delivery immediately begins. Once delivery begins, the sponsorship package order cannot be cancelled or terminated, and no refunds will be given.

 

VI. MAKEGOODS

 

a. Sponsor may monitor activation and delivery of the sponsorship package order via the automated reporting system in Sponsor Control Panel, and may notify W-W-W-Music™ at sponsor at w-w-w-music.com as soon as possible if Sponsor believes that delivery has not begun.  In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms and Conditions.

 

b.  In the event that W-W-W-Music™ confirms actual delivery for any campaign did not begin, as set forth in the sponsorship package order, Sponsor and W-W-W-Music™ will make an effort to agree upon the conditions of a makegood flight. If no makegood can be agreed upon, Sponsor may execute a credit equal to the value of the un-delivered sponsorship package order for which it was charged. In no event shall W-W-W-music™ provide a makegood or extend any sponsorship package beyond the period set forth in the order without prior written consent of Sponsor. 

 

VII. FORCE MAJEURE

 

a. W-W-W-Music™ will not be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.  In the event that W-W-W-Music™ suffers such a delay or default, W-W-W-Music™ shall make reasonable efforts within five business days to recommend a substitute transmission time period for the sponsorship package order.  If no such substitute time period or makegood is reasonably acceptable to Sponsor, W-W-W-Music™ shall credit Sponsor a pro rata amount for the un-used time for the sponsorship package order.

 

b.  To the extent that a force majeure has continued for 5 business days, W-W-W-Music™ or Sponsor has the right to cancel the remainder of the sponsorship package order without penalty.  If such cancellation option is activated, W-W-W-Music™ shall credit Sponsor a pro rata amount for the un-used time for the sponsorship package order.

 

VIII. SPONSOR BANNER MATERIALS

 

a.  It is Sponsor's obligation to upload sponsor banner materials in accordance with W-W-W-Music's™ sponsor banner criteria and/or specifications (including content limitations, technical specifications, W-W-W-Music's™ Terms of Service (TOS) Sponsor agreed to upon registration and acceptance, privacy policies, user experience policies, policies regarding consistency with W-W-W-Music's™ public image, community standards regarding obscenity or indecency, other editorial or sponsorship policies) (collectively "Policies"). 

 

b. W-W-W-Music™, on one hand, and Sponsor, on the other, will not use the other’s trade name, trademarks, logos or marketing communications in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or a sponsorship package order without the other’s prior written approval.

 

IX. INDEMNIFICATION

 

a.   Sponsor agrees to defend, indemnify and hold harmless W-W-W-Music™, their Affiliates (as defined below) and their respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of Sponsor's breach of Section XII, Sponsor's display or delivery of any sponsorship package order in breach of these Terms and Conditions or the terms of a sponsorship package order, or that materials provided by Sponsor for a sponsor banner violate the right of a Third Party, are defamatory or obscene, or violate any  law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling W-W-W-Music's™ specifications provided that Sponsor did not know or should not have reasonably known that such specifications would give rise to the Loss or (2) that such materials are provided and uploaded by Sponsor and Sponsor knew or should have reasonably known from the visual or sonic expression of the sponsor banner, while W-W-W-Music™ did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A "Third Party" means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.

 

b.  Sponsor agrees to defend, indemnify and hold harmless W-W-W-Music™ its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Sponsor's breach of Section XII, violation of Policies provided to Sponsor upon registration and acceptance, or the content or subject matter of any Sponsor Banner or Sponsor Banner Materials to the extent used by W-W-W-Music™ in accordance with these Terms and Conditions or a sponsorship package order, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.

 

c. Sponsor, or any claimed representative, represents and warrants that it has the authority to bind Sponsor to these Terms and Conditions and each sponsorship package order.  Sponsor agrees to defend, indemnify and hold harmless W-W-W-Music™ its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Sponsor’s, or any claimed representative of Sponsor, alleged breach of the foregoing sentence.

 

d.   If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.  If W-W-W-Music™, in its reasonable and good faith judgment conclude that Sponsor is not capable of defending Sponsor's or W-W-W-Music's™ interests against any Claims, then W-W-W-Music™ shall have the option to control the defense in any matter or litigation through counsel of its own choosing to defend against any such Claim for which Sponsor owes W-W-W-Music™ an indemnification, and the costs of such counsel, as well as any court costs, shall be at Sponsor's expense.

 

e.   Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section X, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable.  A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.

 

X. LIMITATION OF LIABILITY

 

a. Excluding the parties obligations under Section X or damages that result from a breach of Section XII or intentional misconduct by the parties, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages.

 

XI. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS

 

a.  Any marked confidential information and proprietary data provided by one party set forth in the sponsorship package order, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.

 

b. For purposes of this Section, Sponsor, and any claimed representative, shall be considered one party. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.

 

c.  All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of Sponsor pursuant to the Sponsor ’s posted privacy policy is the property of Sponsor, is subject to the Sponsor's posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the sponsorship package order signed by both parties.

 

d. W-W-W-Music™, and Sponsor shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws.

 

e. Sponsor and W-W-W-Music™ will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.

 

XII. MISCELLANEOUS

 

a.   W-W-W-Music™ represents and warrants that W-W-W-Music™ has all necessary permits, licenses, and clearances to sell the inventory represented in the sponsorship package order subject to the terms and conditions of this agreement, including any applicable Policies. Sponsor represents and warrants that Sponsor has all necessary licenses and clearances to use the content contained in their Sponsor Banners and Sponsor Banner Materials.

 

b. Sponsor may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without W-W-W-Music's™ prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each sponsorship package order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.

 

c. These Terms and Conditions, W-W-W-Music's™ Terms of Service, and the related sponsorship package orders constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the sponsorship package order.

 

d. In the event of any inconsistency between the terms of a sponsorship package order and these Terms and Conditions, or the Terms of Service, these Terms and Conditions, and W-W-W-Music™ Terms of Service shall prevail.  The laws of the State of California shall govern all sponsorship package orders.  W-W-W-Music™ and Sponsor or any claimed representative agree that any claims, legal proceeding or litigation arising in connection with the sponsorship package order (including these Terms and Conditions, & W-W-W-Music™ Terms of Service) will be brought solely in California, and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions, W-W-W-Music™ Terms of Service, or any sponsorship package order shall be binding unless in writing and signed by both parties.  If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect.  All rights and remedies hereunder are cumulative.

 

e.  Any notice required to be delivered hereunder shall be considered delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax.  All notices to W-W-W-Music™ shall be sent electronically to sponsor at w-w-w-music.com or if required by law, by US mail to address listed on Site.  All notices to Sponsor shall be sent electronically to Sponsor's account email, or, if required by law, by US mail to address listed in Sponsor's account.

 

f. Sections III, VI, IX, X, and XII shall survive termination or expiration of this Agreement.  In addition, each party shall return or destroy the other party’s Confidential Information and remove Sponsor Banner Materials.

 

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Ever Music ™ is showcasing the music of Eliyora Entertainment™.  Ever Music™ is a Channel on Ever Entertainment™.  More Channels coming soon!  ©Paradunai™ LLC.  All international rights reserved.  Trademarks property of Paradunai™LLC.  W-W-W-Music™ House Channel.  All personas, concepts and original songs created and performed by Sherese Chrétien.