Invincible Recording Artist Online Music Sales Agreement
Setup Fee: Invincible Recording charges a one-time, non-refundable fee for new albums.
1 Album $20
2 Albums $35
3 Albums $50
4 Albums $60
5 Albums $70
6 Albums $78
7 Albums $84
8 Albums $88
$10 per album for 9 or more.
For more than 10 albums you will be contacted after submitting all your information for bulk pricing and delivery options.
INVINCIBLE RECORDING ONLINE MUSIC SALES AGREEMENT:
Between G.R.D. Publications & Recordings dba Invincible Recording, located at 834 E. Cambridge Ave Phoenix AZ 85006 | (602) 277-2999 and "Artist" as named below (entered into form by Artist).
Territory: United States based website.
Artist's Compensation: Artist receives 50% of Gross Income from Electronic Distribution.
TERMS AND CONDITIONS
In consideration of the following promises, covenants and agreements, the parties agree as follows:
(a) The term "Artist’s Controlled Compositions" shall mean any and all musical works embodied in the Masters which are written or co-written and/or owned or controlled, directly or indirectly, by Artist, collectively or individually.
(b) The term "Authorized Contributor" shall mean any accredited yoga instructor, DJ, or other individual that obtains prior authorization of Invincible Recording, who may use the Masters for the purpose of creating a Playlist, as herein defined, which will be available for preview streaming and full song download by users of the Service. Playlists are created at teacher's discretion and there is no formal approval process for a teacher playlist to be created.
(c) The term "Digital Audio Transmission" shall mean a transmission that embodies a sound recording including the performance thereof.
(d) The term "Digital Phonorecord Delivery" shall mean each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.
(e) The term “Masters” shall mean those sound recordings identified on Exhibit “A” attached hereto and incorporated by reference.
(f) The term “Playlist” shall mean a customized compilation of audio recordings, consisting of any number of Masters, in any combination, coupled with recordings other than Masters, created by Authorized Contributors.
(g) The term “Song Clip” shall mean full-fidelity, clear-text (no DRM) excerpts of the Licensed Master(s) which are made available for streaming by users of the Service.
(h) The term “Service” shall refer to the Uniform Resource Locator (URL) www.invinciblemusic.com or any URL owned and controlled by Invincible Recording.
(i) The term “Album” shall mean a combination of Masters which is identical in content, sequence and all other respects to a “Record” (as such term in commonly understood in the Recorded Music Industry) and sold as a package and under ninety (90) minutes, “Multi-Album” meaning a package of more than one (1) Album.
2. Term. The initial term of this Agreement (“Term”) shall consist of a period of one (1) year, commencing on the Effective Date the agreement was agreed to by "Artist" via the web. The Term shall be automatically extended for consecutive one (1) year periods, unless terminated by Artist by written notice to Invincible Recording at least thirty (30) days prior to the expiration of the Term or the then current one year extension of the Term.
3. Grant of Rights.
(a) Artist’s Grant of Rights. During the Term, as defined herein, or any extension thereof, Artist hereby grants to Invincible Recording, for the Term of this Agreement, the following rights:
(i) Electronic Distribution Rights. The non-exclusive, assignable right to electronically distribute in the Territory and during the Term, without any limitation not specifically set forth herein or hereinafter, in and to the Masters and all electronic copies thereof and in and to the performances embodied thereon including but not limited to the right to make, cause or otherwise effect Digital Audio Transmissions and Digital Phonorecord Deliveries of the Masters, on the Invincible Music Website or the website of Invincible Recordings' licensees or assignees; (Invincible Recording currently does not have any licensees or assignees but requests this permission for possible diversification in the future) including, without limitation, the right to (A) couple any of the Masters with recordings other than the Masters, including without limitation in Playlists created by Authorized Contributors; (B) abbreviate the Masters for the purpose of offering Song Clips; (C) employ audio-compression technology to encode the Masters into digital audio files for purposes of facilitating the exercise of the rights granted hereunder.
(ii) Name and Likeness, Artwork, Marks. The non-exclusive right during the Term, throughout the Territory, to use, reproduce, display, perform, distribute, transmit, publicly and privately, by any and all means and in any and all media now known or hereafter devised: (a) the names, approved likenesses and biographical information (including professional, group, and other assumed or fictitious names) of Artist and any and all other persons performing on or rendering services in connection with the creation of Masters, (collectively, “Name and Likeness”); (b) any artwork, drawings, photographs, and/or other graphical materials furnished or identified by Artist for Invincible Recordings' use hereunder (collectively, “Artwork”); and (c) any trademarks, service marks or trade names embodied in the foregoing (collectively “Marks”).
4. Warranties and Indemnification.
(a) Artist warrants and represents that:
(i) Artist has the right and authority to enter into this agreement and to grant to Invincible Recordings all rights specified;
(ii) Artist is the sole owner or licensor of the Masters and of all the performances embodied thereon;
(iii) none of the Masters licensed under this Agreement, their contents, Name and Likeness, Artwork, Marks, metadata, videos, any other materials furnished by Artist to Invincible Recording or relating to the Masters, or Invincible Recordings distribution of the Masters during the Term shall interfere or infringe under common law or statutory law with the rights of any other party, including without limitation, contract rights, copyrights and rights of privacy, and Artist has obtained all necessary clearances and permissions;
(iv) Artist has the right to grant Electronic Distribution rights and licenses and to make each and all of the grants herein made to Invincible Recording;
(v) no other person, firm or corporation has any right title or interest in or to the Masters or any copies or duplicates thereof, inconsistent with the terms of this Agreement, except as specified and duly stated herein;
(vi) Artist has not heretofore done or permitted to be done, nor will he/she hereafter do or permit to be done, any act or thing which is or may be inconsistent with Invincible Recordings’ Electronic Distribution of said Masters and said performances or which may impair and/or curtail any of the rights given or grants made in this Agreement; and
(vii) there are no liens, encumbrances and/or obligations upon or in connection with the Masters or with the performance not specifically set forth herein and Invincible Recording shall have the right to exploit all of the foregoing in all manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any Artist, or to any other person or entity, other than the Artist’s Royalty due to Artist hereunder.
(b) Invincible Recording represents and warrants that it has the right and authority to enter into this Agreement and to perform all of its obligations described hereunder in a timely manner, and that the conduct of its Electronic Distribution activities complies with all applicable laws.
(c) Each party shall defend and indemnify the other party (including its directors, members, officers, employees and other representatives) against any third party claims or expenses and losses resulting from breach, or a claim which if true would constitute a breach, of the respective warranty, including reasonable attorneys’ fees and litigation expenses. The indemnified party shall give the indemnifying party prompt notice of any claim. The indemnifying party shall defend the other party at the indemnifying party’s expense with counsel approved by such other party (which approval shall not be unreasonably withheld).
(d) If any claim shall be lodged with Invincible Recording or any action commenced having as its basis a claim which, if proved, would constitute a breach by Artist of any of Artist's representations, warranties, or agreements contained herein, Invincible Recording shall immediately notify Artist of such claim and the anticipated settlement amount to be withheld as described below; and, in addition to any other right or remedy, shall have the right to withhold from any payments otherwise due to Artist an amount equivalent to that claimed or sued for plus reasonably anticipated attorney's fees and costs relating thereto. Any amount so withheld shall be credited to Artist's account (after deduction of any amounts Invincible Recording may retain under this Section 4) when Invincible Recording shall have received reasonable assurances that the claim or action has been finally settled or fully adjudicated and the judgment satisfied, or that the statute of limitations on such claim has run, or when reasonable and adequate security for the claim has been provided by Artist to Invincible Recording whichever shall occur first..
(e) EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.
(f) NO WARRANTY OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE Invincible Recording SERVICE, OR ANY ELEMENTS OF THE FOREGOING IS GIVEN TO, OR SHOULD BE ASSUMED BY, ARTIST, AND ANY SUCH WARRANTIES AND TERMS ARE HEREBY EXCLUDED.
(g) Invincible Recording shall not be liable or deemed to be in default for any delays or failures in performance or interruption of services resulting directly or indirectly from any cause or circumstance beyond its reasonable control, including, without limitation acts or omissions of third party providers of hardware, software or connectivity. “REASONABLE CONTROL” SHALL MEAN WITHIN THE DIRECT MANAGEMENT OR COMMAND OF Invincible Recording OR ITS AUTHORIZED AGENTS.
5. Delivery of Masters. Within a reasonable time after the execution of this Agreement, Artist shall deliver digital files of the Masters in AIFF, WAV, FLAC or CD format, together with accurate metadata and the highest resolution cover art available, to Invincible Recording.
6. Distribution Notice. Masters shall be electronically distributed under the name of the Artist. All electronic copies may indicate that Electronic Distribution rights are licensed to Invincible Recording and a statement to that effect may be electronically fixed/attached to Masters for all purposes of Electronic Distribution.
(a) Invincible Recording shall pay Artist an amount equal to 50% percent of gross Income from Electronic Distribution ("Artist Electronic Royalty"). At no time will the royalty due to the Artist be less than $0.45 per individual Master or $4.50 per Album.
(b) No fees shall be payable hereunder to Artist for:
(i) Digital Phonorecord Deliveries or Digital Audio Transmissions made available with Artist’s prior written approval on a “no charge” basis for the purpose of promoting the Masters and Controlled Compositions (including, without limitation, non-downloadable streams on Invincible Recordings’ and Invincible Recordings’ partners’ web sites and other mutually agreed marketing initiatives);
(ii) incomplete, aborted or nonfunctional Digital Phonorecord Deliveries; and
(iii) more than one Digital Phonorecord Delivery of the same Masters to a given end user.
(c) Artist shall be responsible for obtaining and shall bear the cost of all clearances, permissions and consents in connection with the digital and physical exploitation of the Masters contemplated hereunder, including without limitation:
(i) all record royalties due to musicians, producers and other persons who performed in the making of the Masters and other royalty participants, and
(ii) all payments that may be required under collective bargaining agreements applicable to the Artists.
Without limitation of Invincible Recordings’ rights, if Artist fails to make any of the payments described herein, Invincible Recording shall have the right, but not the obligation, to do so on Artist’s behalf and deduct all amounts from any payments otherwise due to Artist.
(e) Invincible Recording shall have full freedom and flexibility in its decisions concerning marketing of the Masters. Nothing in this Agreement shall be construed as an obligation, guarantee or commitment by Invincible Recording that any of its marketing efforts will be productive on any level of net revenues, royalties or other payments hereunder.
(f) Artist agrees that Invincible Music has absolute discretion in setting retail prices. The foregoing notwithstanding, at no times shall the retail price for individual Masters fall below $0.99 or $9.99 USD for Albums, nor shall Artist's royalties fall below the minimum rates set out in paragraph 7(a) above without Artist's prior written approval.
Current Retail Prices are as follows:
Up to 10 min long = $1.29
10.1 min to 15 min = $2.60
15.1 min to 20 min = $3.60
20.1 min to 25 min = $4.50
25.1 min to 30 min = $5.40
30.1 min to 35 min = $6.30
35.1 min to 40 min = $7.20
40.1 min to 45 min = $8.10
45.1 min to 50 min = $9.00
50.1 min or more = $9.98
(g) Invincible Musics’ payment of any sums hereunder is conditioned upon Artist’s fulfillment of all delivery obligations described above and receipt of Artist’s completed U.S. Federal Tax form W-9 or W-8BEN (foreign), as applicable.
8. Deleted Masters & Takedowns. In the event that Artist ceases to control the rights granted herein to a specific Master or Masters, Artist shall promptly notify company in writing and company shall cease to make said Master(s) available for purchase within seven (7) business days.
9. Payment. All payments which shall be made to Artist may be made by depositing a check, postage prepaid, in any box, chute or other receptacle authorized by the United States Post Office for mail, addressed to Artist at the address specified herein; or made via direct deposit to bank account, or via PayPal, minus any associated Paypal or direct deposit transaction fees, if Artist so desires. Statements of account shall be submitted and Royalties shall be payable quarterly within forty-five (45) days after the last day of each 6 month period (December 31st and June 30th). The Artist Electronic Royalty payable to Artist hereunder shall be based upon the currency in which the gross receipts are received by Invincible Recording. Any gross receipts received by Invincible Recording in a foreign currency, including but not limited to Canadian currency, shall first be converted into U.S. currency at the applicable currency exchange rate listed at www.xe.com (the "rate") for purchase of U.S. Dollars at the date of conversion for purposes of calculating Artist's Electronic Royalty. The rate shall be the rate listed on www.xe.com at the time the transaction is processed by Invincible Recording minus any applicable service fees, or other charges that may be associated with the currency exchange transaction. Notwithstanding anything to the contrary provided for herein, no Artist Electronic Royalty shall be paid until the amount payable to Artist is $ $50 or more.
10. Audit Rights. At any time within two (2) years after a royalty statement is submitted to Artist by Invincible Recording, a certified public accountant on Artist's behalf shall have the right to audit Invincible Recordings’ books and records, but only with respect to such statements and payments. Audits shall occur at times mutually agreed to between Invincible Recording and Artist during regular business hours and at Invincible Recordings regular business address. Artist shall conduct an audit no more than once during any calendar year, and no more frequently than twelve (12) months intervening each audit. Any failure to give written notice or objection within the two (2) year period from the date of the statements and payments to Artist shall bar any further objections by Artist. Artist, in that situation, shall be foreclosed from maintaining any action, claim, or proceeding against Invincible Recording on those statements and payments.
(a) In the event that:
(i) either party breaches any of its material warranties hereunder, or fails, refuses or neglects to comply with any of material obligations hereunder; or
(ii) Invincible Recording commences procedures for dissolution, assignment for the benefit of creditors, or any proceeding under any bankruptcy or insolvency law by or against the Debtor; insolvency or business failure, then, and in addition to any other rights or remedies that the party not in breach or default ("non-defaulting party") may have at law, in equity, or under this Agreement, the non-defaulting party may elect to terminate this Agreement by notice in writing, and thereby all rights granted under this Agreement shall immediately revert to the Artist and the non-defaulting party shall be relieved of any further duty of future performance hereunder, provided that in any such event, Invincible Recording shall immediately make payment due to the Artist of all sums due and owing under this Agreement. Nothing herein shall limit, reduce or cancel Invincible Recordings' duties to make any payments called for under this Agreement, and these obligations shall survive any termination.
12. Physical CD sales:
(a) Artist will sell CDs to Invincible Recording at 55% off of suggested retail for re-sale sales.
(b) Invincible Recording may ask Artist to drop-ship the order in which case Artist may bill Invincible Recording for postage and a reasonable handling fee.
(a) The waiver, amendment or modification of any provision of this Agreement or of any right, power or remedy hereunder shall not be effective unless in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. No failure or delay by any party in exercising its respective right, power or remedy with respect to any of the provisions of this Agreement shall operate as a waiver.
(b) This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written of the parties, and there are no warranties, representations and/or agreements among the parties in connection with the subject matter except as specifically set forth and referred to in this Agreement.
(c) All the terms and provisions of this Agreement shall be binding upon and for the benefit of the parties and their successors and assigns and legal representatives.
(d) The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, excluding that body of law applicable to choice of law. In the event any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
(e) This Agreement shall not be construed as creating a partnership between the parties nor to create any other form of legal association that would impose liability upon one party for the act or failure to act of another party.
(f) A party (the “Breaching Party”) will only be in breach of this Agreement if the other party gives the Breaching Party notice of the breach and the Breaching Party does not cure the breach within thirty (30) days after the date of the notice.
(g) Invincible Recording my elect of offer a coupon discount that can be used by Artist at check out to reduce Artist's cost for the Setup Fee: (Invincible Recording charge for a one-time, non-refundable fee for new albums). This does not change the terms or validity of this agreement.
(h) All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing and sent to the party’s address as set forth on the signature page below. Notices will be deemed given when required if (i) delivered personally with written confirmation of receipt, (ii) sent by confirmed facsimile, (iii) sent by commercial overnight courier with written verification of receipt, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid. Notices will be treated as having been received upon the earlier of actual receipt or five (5) business days after posting. Either party may, by properly written notice, to the other party, change the address to which notices shall thereafter be sent.
(i) If the performance of Invincible Recordings’ or Artist’s obligations under this Agreement is delayed, or becomes impossible or impracticable by reason of any act of God, fire, earthquake, strike, labor disturbance, delays in the delivery of materials and supplies, or other causes beyond their respective control, then either party may suspend its obligations under this Agreement for the duration of such event. With respect to any provisions of this Agreement that include time provisions, the duration of any such suspension shall be added to the period of those time provisions, provided, however, that If any such period of suspension exceeds two (2) months, either party may terminate this Agreement upon giving fifteen (15) days' prior written notice to the other party.