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TO THE ARTIST DISTRIBUTING MUSIC ON DigStation:
By electing to have your music uploaded and made available for purchase, you are agreeing to all the terms and conditions set forth in "Artist Terms of Use forDigStation.com" below. Therefore, you should read this Document in full before electing to have your music placed onto the DigStationSM website.
PLEASE READ THIS AGREEMENT COMPLETELY. This is a legal agreement between AUDIO AND VIDEO LABS, INC. ("Audio" or "DigStation") , which owns and operates the DigStation music download service, and any musician or group of musicians who elect to offer their music for distribution on the DigStationSM website in connection with replication services provided by an authorized DigStation replication partner. This Agreement, together with all updates, additional terms, software licenses, and all of Audio’s rules and policies, collectively constitute the Agreement between Audio and the musician(s).
ARTIST TERMS OF USE FOR DigStation.com
This Agreement, together with the Intellectual Property Rights (IPR) form submitted by the Artist, sets forth the terms of agreement between DigStation, a division of Audio and Video Labs, Inc. (hereinafter "DigStation"), a New Jersey corporation, which owns and operates the DigStation SM website to users, and any musician or group of musicians named on the IPR form (hereinafter individually and collectively "Artist") who provides music to DigStation to post on the DigStation SM website. The parties hereto, intending to be legally bound, agree as follows:
1. Services Provided by DigStation and Storage Fees. DigStation agrees to make music created and/or recorded by Artist (hereinafter "Music") available on the DigStation SM website for browsing and for downloading by users ("Users"), and to make any artwork related to the Music (hereinafter "CD Artwork") available for viewing and downloading by Users. The proceeds from each sale of Artist’s Music or CD Artwork shall be collected by DigStation, and turned over to the Artist as set forth herein. DigStation will make limited selections and/or excerpts of the Artist’s Music available for Users to sample without charge. This service is offered only for Music and CD Artwork that the Artist has submitted to a DigStation partner for replication.
To provide continuing service after one year (365 days), the Artist agrees to pay DigStation an annual Storage Fee to maintain this agreement. This fee includes storing and prolonging the availability of the Artist’s Music and CD Artwork on the DigStation SM website after one year on a year-to-year basis at the then applicable published fee as of such annual renewal date. DigStation shall undertake to notify Artist of all prospective changes to fees, by publishing or giving notice of those changes on the Artist’s "MyAccount" webpage.
2. Grant of Non-Exclusive License. Artist hereby grants to DigStation a royalty-free, non-exclusive license to post the Music on the DigStationSM website, and make entire selections or portions thereof available for previewing by the public and for downloading for a fee described in Section 3 hereof. Artist also grants to DigStationSM a royalty-free, non-exclusive license to display Artist’s CD artwork for previewing and downloading along with any associated song(s) downloaded by the User.
DigStation, being a division of Audio and Video Labs, Inc. resources, is an archive of audio recordings with a convenient file search and download system. Users who visit the site and register are charged for downloading audio materials in accordance with the tariffs and rules set by DigStation. All Users must register in order to obtain full access to the DigStation SM website. Non-registered users have limited access to the DigStationSM website: they can only browse the catalogue, and play limited samples of music. DigStation will make reasonable efforts to monitor the use of the DigStationSM website to prohibit Users from downloading music without payment, to prevent contamination of website content, and to prevent or minimize any interruption of accessibility to Users, but DigStation shall not be liable to Artist for any such prohibited usage or conduct, contamination, interruption in accessibility, or any archiving problems.
3. Payments to Artist. From the collected proceeds of sales, DigStation will pay to Artist the money generated from the sales of their music less all applicable withholding required by law (such as sales taxes, if applicable). DigStation will automatically make a payment to Artist (a) within thirty (30) days of the end of each month in which the amount due to Artist reaches $20.00 or more.
4. Artist’s Representation as to Intellectual Property Rights. In conjunction with submitting the IPR Form to DigStation which is required with this Agreement, the Artist represents and warrants to DigStation as follows:
(a) that Artist is the true and rightful owner of, or is licensed or otherwise possesses legally enforceable rights to use, the registered and unregistered rights, titles, and interests in and to any United States or foreign trademarks, service marks, trade names, copyrights or other intellectual property rights relating to the Music and CD Artwork provided to DigStation by Artist under this Agreement, including but not limited to the right to post on the internet, reproduce, manufacture and otherwise use the Music and CD Artwork;
(b) that Artist has conducted a thorough investigation as to the Music and CD Artwork concerning copyright infringement or other property rights of third parties;
(c) that the execution and delivery of this Agreement or the performance by DigStation of the obligations hereunder will not violate any intellectual property rights of third parties; and
(d) that no claims with respect to the Artist’s intellectual property rights or third party intellectual property rights in the Music and CD Artwork are currently pending, nor to the knowledge of the Artist, are threatened by any person, nor, to the Artist’s knowledge, do any grounds for any claims exist.
Artist acknowledges that these representations and warranties are material to this Agreement, and that DigStation is relying on these representations and warranties as consideration for agreeing to make the Music and CD Artwork available for on-line sale. DigStation reserves the right, at its sole discretion, to investigate the ownership of and rights to any and all Music and CD Artwork provided hereunder. By reserving these rights, DigStation does not in any way assume an obligation to investigate or verify ownership of or rights to any Music and CD Artwork provided by Artist, and DigStation may rely on Artist’s representations and warranties provided herein and provided under DigStation’s IPR form submitted by the Artist, even if DigStation investigates such ownership. In addition to DigStation’s other rights to termination or otherwise hereunder, if DigStation determines, or has reason to believe, that the Artist does not have the authority to produce the Music and CD Artwork, DigStation will have no further obligations to the Artist to provide any work or services with respect to such Music and CD Artwork.
Artist agrees to provide DigStation, upon request, all necessary documentation of ownership or other legal rights, including without limitation all pertinent trademark, copyright and licensing information. DigStation participates in the International Recording Media Association’s (IRMA) Anti-Piracy Compliance Program, which protects property owners from the unauthorized distribution of the content of their property.
5. Artist’s Representations as to Content. In conjunction with submitting the IPR form to DigStation, and selecting to have music uploaded onto the DigStationSM website, Artist represents and warrants to DigStation that Artist has fully and accurately disclosed to DigStation the existence of any content that would require labeling under the RIAA Parental Advisory Program. Notwithstanding Artist’s representations herein, DigStation reserves the right to decline to post any audio content and/or CD Artwork that it deems to be offensive or explicit, or to discontinue posting of such material without prior notice to Artist. Artist further represents and warrants that the content supplied to DigStation is free from contamination, viruses, or metadata that could damage or infect the DigStationSM website users who download music from DigStationSM website.
6. Limitation of Liability and Indemnification. DigStation shall not be liable for any consequential, indirect, incidental, special or punitive damages or losses of any nature (including, without limitation, lost revenues, profits or goodwill or damage to reputation) (collectively, "Consequential Damages") suffered by Artist or anyone else, under any theory, whether foreseeable or unforeseeable, in connection with DigStation’s performance hereunder for any reason whatsoever, including without limitation, for any defects or errors in material or workmanship.
Artist agrees to fully indemnify, defend, protect, and hold harmless DigStation and its subsidiaries and their respective officers, directors, agents, affiliates, distributors, franchisees, and employees (collectively, "Indemnified Parties") against any liabilities, losses, claims, damages of any type or nature (including without limitation any consequential damages), causes of action, lawsuits, administrative proceedings (including interest from the date of such damages), and costs and expenses (including without limitation reasonable attorneys’ fees and disbursements of every kind, nature, and description related to litigation, arbitration or otherwise) (collectively, "Damages") suffered, sustained, incurred or paid by the Indemnified Parties in connection with, resulting from, or arising out of, directly or indirectly (i) any claim, demand, proceeding, or lawsuit by a third party for any reason whatsoever arising from the Music and CD Artwork provided by the Artist under this Agreement, including without limitation any alleged negligence of DigStation and any alleged violation of patent, copyright, trademark, trade secret, or other proprietary right of any third party, (ii) any breach of any representation or warranty of the Artist set forth in this Agreement or the Intellectual Property Rights (IPR) form, or in any other form or document in connection herewith, and (iii) any damage, virus or infection originating from Artist’s Music that contaminates the DigStationSM website.
7. Internet Interruption and Website Contamination. DigStation is not responsible to Artist for any interruption of access to the DigStationSM website for any reason, or for any contamination, virus, or infection that causes damage to Artist’s content uploaded onto the DigStationSM website. DigStation is not responsible for any loss of revenue or goodwill to Artist due to any such interruption or contamination or due to any other reason, including but not limited to any damage to Artist’s reputation that may result.
8. Amendment and Termination. DigStation reserves the right to change, amend, and supplement this Agreement at any time, at its sole discretion. DigStation shall undertake to notify Artist of all prospective changes to the Agreement, by publishing or giving notice of those changes on Artist’s "MyAccount" webpage. In the event that Artist disagrees with any such changes to the Agreement, Artist should notify DigStation at info@digstation.com immediately to terminate this Agreement. Notwithstanding anything herein to the contrary, DigStation shall have the right, with or without any cause or reason, at any time, to terminate this Agreement or to decline to post, or to discontinue posting, of any or all of the Music and/or CD Artwork of the Artist, without prior notice to the Artist. The Artist reserves the right to terminate this Agreement at any time by notifying DigStation as provided herein.
9. Notice. Whenever notice to Artist is required by this Agreement, publication on the Artist’s "MyAccount" webpage shall be sufficient. Whenever Notice to DigStation is required by this Agreement, the Artist agrees that Notice will be made in writing via e-mail to DigStation at info@digstation.com that is acknowledged by an authorized representative of DigStation, by certified mail returned receipt requested, or by nationally recognized overnight carrier service as follows:
Audio and Video Labs, Inc.
7905 N. Route 130
Pennsauken, NJ 08110-1402
Attention: DigStation Management
10. Arbitration; Jurisdiction. Any dispute, controversy or claim between Artist and DigStation arising out of or related to this Agreement or the breach, termination, or validity thereof shall be resolved by arbitration in Camden County, New Jersey in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association ("AAA") including, without limitation, all rules providing for interim measures (injunctive relief) if interim measures are required, and judgment upon the final and binding award rendered by the Arbitrator(s) may be entered and enforced as a common law award by any court having jurisdiction over the parties. Artist agrees that Artist will be subject to the exclusive jurisdiction of the State of New Jersey, and that any venue or forum outside of the State of New Jersey shall be deemed improper and non-convenient for any dispute between DigStation and Artist. All disputes will be heard by a single arbitrator. In any case where AAA or its successors are not in existence, the arbitration shall proceed with statutory arbitration under the Uniform Arbitration Act, as adopted in the State of New Jersey. DigStation and Artist hereby consent to such venue and jurisdiction for dispute resolution hereunder. Artist hereby waives personal service of any and all process upon it, and consents that all such service of process may be made by mail or messenger directed to it at Artist’s "MyAccount" webpage.
11. Governing Law. This Agreement, and any controversy or claim arising out of or related to the IPR form or this Agreement, or the breach thereof, shall be governed by and construed according to the domestic laws of the State of New Jersey, without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction, including any jurisdiction outside of the United States of America) that would cause the application of the laws of any jurisdiction other than the State of New Jersey.
Updated January 25, 2008
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