AUDIO STREAMING AGREEMENT FOR MEMBERS OF OWL EYE RECORDS ONLINE INCLUDING SONGWRITERS AND COMPOSERS EITHER REGISTERING USERS AND REGISTERED USERS OF OWL EYE RECORDS.
right, without any additional payment to Member, Artist and/or any third party, to stream on all OER owned or operated websites and applications (the "OER Services") the Recording(s) listed on Schedule 'A' (the "Promotion Period"), subject to the following terms:
1. OER shall have the right to make the Recording(s) available solely through a digital media player on the OER Services that may be accessible through any media or medium via any distribution method now known or hereafter developed or discovered (including, but not limited to, wired delivery systems and/or wireless delivery systems (whether using a connection using TCP/IP protocol, a WIFI wireless LAN technology standard or short range Bluetooth wireless transceiver chip access (2.45 GHz/IEEE 802 standard, wireless protocols, etc.)), and which can be accessed via any technology or devices now known or hereafter developed (including, but not limited to, so-called "smart phones", tablet devices, etc.). The Recording(s), shall be distributed by OER, if at all, via streaming media (i.e. the "streaming" technology and any other technology utilized for purposes of transmitting the Recording(s) shall not be designed in a manner which enables end-users to download and save a "hard copy" of, or otherwise capture, record or store, the Recording(s) or any portion thereof). As between OER and Member, Member shall retain all rights in and to the Recording(s).
2. In connection with the Promotion, Member shall be responsible, at its sole cost and expense, for the following:
(a) providing Artist and Album-related content to OER, including, but not limited to
(i) a "clean" CD, MP3 or WAV file of the Recording(s),
(ii) artwork from the album on which the Recording(s) is embodied,
(iii) a press release, and
(iv) a minimum of two promotional photos (the foregoing, collectively, the "Promotional Materials") for use solely in connection with the rights granted to OER hereunder (including, without limitation, under Paragraph 1 above). As between Member and OER, Member shall retain all rights in and to the Promotional Materials that are supplied to OER by Member hereunder;
(b) subject to Section 3(b) below, obtaining any and all rights for OER to promote and/or otherwise exploit the Promotional Materials and the recording(s) as contemplated under this Agreement; and
3. (a) Each party represents and warrants that:
(i) it possesses the full right, power and authority to enter into and fully perform its obligations under Agreement and to grant the rights herein granted to the other party;
(ii) it is free of any contractual obligation that would prevent it from entering into or performing its obligations under this Agreement;
(iii) the execution, delivery and performance of this Agreement has been duly authorized by all necessary respective corporate action;
(iv) it shall not act in a manner or enter into any oral or written agreements inconsistent with this Agreement;
(v) the exercise by OER of the rights granted to it under this Agreement shall not infringe upon the rights of any third party; and
(vi) the Recording(s), and the musical compositions embodied therein, are original works created by Artist, and no elements thereof infringe the rights of any third party. (b) (i) Without limiting the generality of anything contained in subparagraph 2(b) hereof, Member further represents and warrants that (1) it has obtained or will obtain in a timely manner, the right to grant to OER all of the rights granted herein, including, but not limited to, any master recording rights, music publishing-related rights (other than public performance rights which, as between Member and OER, shall be OER's responsibility, if any), digital performing rights with respect to the Recordings and ephemeral recording rights, (2) Member shall make all necessary payments in connection with all of the rights (other than the public performance rights referred to in subparagraph (b)(i)(1) and (3) all elements of each Recording are original, and OER's use of the Recordings hereunder will not infringe upon the rights of any third party.
4. Each party will at all times indemnify and hold the other, its officers, directors and employees harmless from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable outside counsel fees, arising out of or relating to any breach or alleged breach of its any representations, warranties or undertakings made herein. In connection with the hosting and administration of the Promotion on the OER Services, OER shall not be responsible or liable for any problems or technical malfunctions with respect to computer online systems, servers or providers, computer equipment, software, failure of email or problems arising out of or relating to traffic congestion on the Internet or at any website, computer viruses, bugs, tampering, unauthorized intervention or fraud, or any combination thereof, or any other problems which are beyond the control of OER. The OER Services and all materials contained on the same are distributed and transmitted on an "as is" and "as available" basis, without warranties of any kind, either express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose.
6. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
7. This Agreement and all matters or issues collateral thereto shall be governed by and construed in accordance with the laws of the State of California without giving effect to the principles thereof relating to conflicts of law. Any legal proceeding of any nature brought by either party against the other party to enforce any right or obligation under this Agreement shall be submitted for trial before any court of competent jurisdiction in Walnut Creek, California. The parties hereto consent and submit to the jurisdiction of any such court and agree to accept service of process outside the State of California in any matter to be submitted to any such court pursuant hereto.
8. The parties acknowledge that no money will change hands as a result of this Agreement and in full consideration of the rights granted herein, both parties shall receive promotional benefit for each of its respective businesses, products and/or services. This concludes the entire Agreement.