Ad-Revenue Agreement ("Agreement")
[NB this Agreement shall not be deemed effective or in force until the website is deemed by us to have completed its Beta Stage testing. We shall notify you by email of this event in due course]
Digital download and streaming revenue agreement between independent Artists and Kerchoonz Limited. Version 1 date [ 20th November 2008].
This Agreement shall be between Kerchoonz Limited (a company registered in Scotland, registered number 342160) with our registered office care of Henderson Loggie Sinclair Wood & Co, Gordon Chambers, 90 Mitchell Street, Glasgow, G1 3NQ ("Kerchoonz Limited" / "us" / "we"); and you the Artist.
By 'accepting' this agreement below, you are signing up to receive payment (on the terms and conditions set out below) for the streaming and download of your music on the Kerchoonz website.
In consideration of the mutual promises contained herein, the parties agree as follows:
1. Rights granted by Artist to Kerchoonz Limited:
By signing up for an account with us, you have granted us specific rights to the music you upload onto the website www.kerchoonz.com by accepting the website's Terms of Use, and namely you have granted us a non-exclusive licence to:
- Offer your music for stream and / or download (In the case where you wish to make your songs available for download by selecting 'Yes this song can be downloaded' in the song upload / edit pages)
- Throughout the world (excluding any territorial restrictions which you notify us of in writing)
- To reproduce, encode or digitise music delivered by you to us so that it is possible for us to offer streams or downloads of your music
2. Revenue Share
Kerchoonz Limited shall pay the Artist the following Download Fee and Streaming Fees in respect of each download or stream from the Kerchoonz website:
Download Fee: 50% of Net Advertising Revenue up to our projected aim of 10p per download
Streaming Fee: 50% of Net Advertising Revenue up to our projected aim of 0.5p per stream
The Net Advertising Revenue shall be calculated as follows:
The gross advertising revenue received from:
- the advertising displayed on the (in respect of calculating the Download fee) the music 'download page' when each download of your music by a user takes place; or
- the advertising displayed on the (in respect of calculating the Streaming Fee) the music 'Streaming page' when each stream of your music by a user takes place.
Less:
- VAT/Sales tax (calculated at applicable local rates)
- Advertising agency commissions
- The Mechanical and Performance royalties payable in respect of the composition in the tracks (calculated at applicable local rates)
- Applicable credit card/debit card/ PayPal charges
- Any other expenses incurred in respect of making the tracks available on the website (e.g. reasonable bandwidth charges)
3. Term
This Agreement shall be in force until terminated by either of us in writing (or immediately in the event that you remove your tracks from the website, save that you will still be entitled to receive any outstanding Revenue Share which has accrued to you).
4. Accounting
We shall pay you the Revenue Share ninety (90) days after each quarter. Payments can only be made to a PayPal account which you must have during the term of this Agreement. With each payment we shall also deliver a royalty accounting report highlight the number of streams and downloads of your music [and calculation of the Net Advertising Receipts]. We shall not be under any obligation to pay you in respect of Revenue Shares payable to you below £15 per quarter. In such instances, any Revenue Share which is owing to you shall 'roll over' into the next applicable quarter until this minimum payment threshold is received.
5. Third party payments
We shall be responsible for paying applicable mechanical and performance royalties that may be due directly to the collection societies. We shall not be responsible for payments to any other third parties and it shall solely be your responsibility to pay any other third parties (e.g. performers, producers) in respect of the use of the music on the website and rights granted to us.
6. Warranties and indemnities
You warrant to us that:
You own or control all rights, title and interest in and to the music that you upload onto the website and make available for downloads and streams.
You shall be solely responsible for the payment of any performers, producers or writers (who are not registered with any national collection society)
You have waived all 'moral rights' (or such similar rights) in the music.
You shall indemnify Kerchoonz limited in respect of any claim, liability or loss which arises out of a breach of these warranties (in addition to the warranties made you in the terms of use).
7. Limitation of Liability
We shall not be liable (whether in tort, contract or otherwise) or any indirect, special, incidental, consequential or punitive damages.
8. Assignment and Novation
We may assign or novate this Agreement at any time with notice to you. As the rights you are granting us are owned by you (as you are warranting that you are not infringing any third parties' rights) you cannot assign or novate this agreement.
9. Boilerplate
This Agreement contains the entire understanding between you and us in respect of our obligation to pay you for the downloads and streams of your music on the website. Nothing in this Agreement shall be deemed to constitute a partnership between Kerchoonz Limited and you. This Agreement shall be governed exclusively by the laws of England and whose courts shall have exclusive jurisdiction.
We reserve the right to amend this Agreement from time to time. In such instances we shall notify you of the 'Amended Agreement' either to the email address you supplied to us when you opened your Kerchoonz account or on your internal on-site Kerchoonz user mail address. You shall have 28 days to reject the amended terms. If during such period you do not notify us of any rejection to the amended terms, then such Amended Agreement shall be deemed accepted, and shall supersede and replace this Agreement with effect from its notice to you (i.e. the date you were provided with a copy of the Amended Agreement).
