This Agreement describes the legal relationship between you (an individual, representing yourself, or if applicable, acting as legal representative for a group, company or corporation) and Zuzula.com, (collectively with our licensees and assignees referred to in this Agreement as "we or "us") the owner and operator of the web pages at or linked to the root URL "www.Zuzula.com," which may expand or change from time to time (the "Website"). Please read this document carefully. By clicking on the "I AGREE" button below, you will become a party to, and will be bound by this Agreement with respect to your uploaded materials to the Website. If you do not agree with any of the terms and conditions of this Agreement, click on the "NO THANKS" button below. We may modify this Agreement from time to time as further described in Section 13 below.
By clicking on the "I AGREE" button below, you supply audio and/or other content to us and allow us to include your material in our database, which we can sell on your behalf in the form of audio files for digital download on a per-song basis available over the World Wide Web.
If you click "I AGREE" below, we will give you a URL to access your "Artist Tools" located within the Website. Artist Tools contains several useful functions. It provides access to create your free "Artist Page" (described in Section 5 [Co-Branded Website] below) to which you will post your songs and other materials and gives you tools to upload your material.
1. Content and Supporting Material. In order to participate in the Zuzula.com program (the "Program"), you must provide us with one or more sound recording(s) of musical composition(s) or other audio and/or audio-visual content to be used by us as described in this Section ("Content"). You will also provide us with other material related to your Content (such as pictures, videos, song lyrics, press reviews, etc.) for our use in connection with the Program (collectively "Supporting Material"). Subject to the conditions of this Agreement, unless otherwise designated by you, Content and Supporting Material will be listed on your Artist Page.
2. License for Content and Supporting Material. By the act of delivering Content and/or Supporting Material to us, you grant to us a non-exclusive, royalty-free, worldwide license to: (a) publicly perform, publicly display, broadcast, encode, edit, alter, modify, reproduce, transmit, manufacture, distribute and synchronize with visual images the Content or Supporting Material, in whole or in part, alone or in compilation with content provided by third parties, through any medium now known or hereafter devised for the purpose of demonstrating, promoting or distributing your or our products or services, and in connection with the sale and promotion of your Supporting Material; (b) make copies of Content employing any compression technologies selected by us in order to create a database of your Content; (c) make your Content accessible from the Website to purchasers with your permission; and (d) use your name and any trademarks, service marks or trade names incorporated in the Content or Supporting Material and use the name and likeness of any individual whose performance or image is contained in the Content or Supporting Material in connection with the foregoing.
3. Termination of License. Subject to the provisions contained in Section 9 (Term and Termination) below, you may terminate your license with us with respect to some or all of your Content and Supporting Material, at any time. The license will terminate upon our actual receipt of your notice of termination to us by e-mail sent to accounts@zuzula.com.
4. Selling Price; Gross Revenue. You will set the selling price for each of your songs according to our pricing guidelines. We will pay you fifty percent (50%) of the "Gross Revenue" (as defined below) we receive from sales of your Content. For the purpose of this Agreement, "Gross Revenue" shall mean all income we actually receive from such sales, less only sales, use, value-added, or similar taxes, customs duties, import or export taxes or levies, shipping or freight, and returns.
5. Co-Branded Website on www.zuzula.com. During the term of this Agreement, we will host on the Website an HTML-formatted page (the "Artist Page") featuring such graphics, photographs and other information as you may upload. For further information concerning Artist Pages, including terms and conditions governing their use, see: http://www.zuzula.com/legaltou.php
6. Ownership of Copyrights. As between you and us, you retain ownership of the copyrights and all other rights in the intellectual property furnished by you for our use hereunder, subject only to the non-exclusive rights granted to us under this Agreement. You are free to grant similar rights to others during and after the term of this Agreement.
7. Accounting. We will account to you for your share of Gross Revenues semi-annually, on June 30 and December 31 of each year during the term of this agreement. Within sixty (60) days of the close of each 6-month period during which we have received any Gross Revenues with respect to your Content, we will send you a check, except if the amount we owe you is less than fifty dollars ($50.00), in which case we will hold the money until either (a) the total cumulative amount we owe you at the end of any particular period is greater than fifty dollars ($50.00), or (b) we settle such accounts from time to time. We may deduct from any amount payable hereunder such portion thereof as may be required to be deducted under any applicable statute, regulation, treaty or other law in connection with taxation or otherwise, and you shall promptly execute and deliver to us such forms or other documents as may be required in connection therewith. If at the time we make payments, you have not provided us with all information reasonably requested, including but not limited to legal name, tax identification information and complete mailing address, then we shall hold any sums due to you until the end of first period during which you have provided us with all such missing information. We agree to keep accurate books and records covering all transactions related to this Agreement. During the one-year (1-year) period following your receipt of payment, you may, at your expense and upon reasonable notice, inspect our records related to that payment at our offices or at a location specified by us, provided that your inspection must not unreasonably interfere with our business. If your inspection reveals that we have underpaid you, we will promptly correct the deficiency. It is understood that we include certain advertising on multiple pages and sections of the Website (including Artist Pages, pages within the Artist Tools, pages used by purchasers); no portion of the sums received by us from the sale of such advertising shall be included in the calculation of any sums payable to you hereunder.
8. Representations and Warranties. The term "Material" means anything that you submit to us or post on the Website including, but not limited to, Content and Supporting Material. You represent and warrant that: (a) except as provided in Section 4 (Selling Price; Gross Revenue) above with respect to your share of Gross Revenues, we, our customers and licensees shall not be required to make any payments in respect of the authorized use of your Material, including, without limitation, payments to you, third parties claiming through you or otherwise, music publishers, mechanical rights agents, performance rights societies, persons who contributed to or appear in your Material, your licensors, unions or guilds; (b) you have the full right and power to enter into and perform this Agreement, and have secured all third-party consents, licenses and permissions necessary to enter into and perform this Agreement; (c) the Material does not contain "samples" of any third party's sound recording or musical composition and will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, or moral rights; (d) the Material does not and will not violate any law, statute, ordinance or regulation; (e) the Material is not and will not be defamatory, trade libelous, pornographic or obscene; (f) the Material does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data; (g) all factual assertions that you have made and will make to us are true and complete; and (h) you are of legal age of consent in all applicable jurisdictions and, in any event, are at least eighteen (18) years of age. You agree to indemnify and hold us, our licensees and customers harmless from any and all damages and costs, including reasonable attorney's fees, arising out of or related to your breach or alleged breach of the representations and warranties described in this Section. Pending the resolution of a claim arising out of or related to such a breach, we shall have the right to withhold sums due you in an amount consistent with our reasonably anticipated damages and costs. You agree to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this Agreement.
9. Term and Termination. Upon termination of this Agreement, all of our license rights terminate. We shall use reasonable efforts to discontinue public access to your Material promptly upon termination. We may terminate this Agreement at any time by so notifying you; the Agreement will terminate upon your actual receipt of such notice or three (3) days after we have sent a notice of termination to the email address you supply to us, whichever is sooner. Our obligation to pay sums due you hereunder described in Section 7 (Accounting) shall survive termination. Also, this Section 9 (Term and Termination), Section 8 (Representations and Warranties), Section 11 (Disclaimer), Section 12 (Waiver of Certain Damages) and Section 14 (Miscellaneous) shall survive termination.
10. Notifications of Infringement. Upon our receipt of notice, we will act expeditiously to remove or disable access to any Material claimed to be infringing or claimed to be the subject of infringing activity, and we will act expeditiously to remove or disable access to any reference or link to Material or activity that is claimed to be infringing. Notwithstanding anything contained in this Agreement, you expressly consent to our disclosure of your personally identifiable and all other personal information in the event that you or your Material is the subject matter of any such infringement claim.
11. Disclaimer. THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHERWISE. WITHOUT LIMITATION, WE DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE PROGRAM. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, THAT THE PROGRAM WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
12. Waiver of Certain Damages. EXCEPT FOR DAMAGES RELATED TO A BREACH OF SECTION 8 (REPRESENTATIONS AND WARRANTIES) NEITHER YOU NOR US WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, STATUTORY OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT.
13. Modification or Amendment of Agreement. We reserve the right, in our sole discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be sent to the e-mail address you supply to us at least three (3) days prior to their effective date. In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate this Agreement, as provided above.
14. Miscellaneous. (a) This Agreement sets forth the entire understanding and agreement of the parties as to this Agreement's subject matter and supersedes all prior proposals, discussions or agreements with respect to such subject matter. (b) You agree not to resell, assign, otherwise transfer, or delegate your rights or obligations under the Agreement without our prior express written authorization. (c) Notices or communications under this Agreement shall be sent by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the following addresses: (i) if to us, such notices shall be addressed to Zuzula.com, accounts@zuzula.com, Zuzula, P.O. Box 513, Hoboken, NJ 07030, and (ii) if to you, such notices shall be addressed to the electronic or mailing address specified when you register for the Program. (d) This Agreement shall be governed by and construed in accordance with, and all legal issues arising from or related to your use of, or participation in the Program shall be determined by the laws of the State of New York without regard to that State's conflict-of-law provisions. The State and Federal courts of New York shall be the exclusive forum and venue to resolve any and all disputes arising out of or relating to the Agreement or to your use of, or participation in, the Program. You consent to personal jurisdiction and venue in the appropriate state court in New York County, State of New York or the United States District Court for the Southern District of New York. (e) Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. (f) All headings in the Agreement are for convenience only and shall have no legal or contractual effect. (g) You agree that we and you are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship. (h) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. (i) Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
