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AGREEMENT
BETWEEN ART ON EARTH™ AS AND ARTIST
The terms below, in addition to any subsequent updates and/or revisions to these terms, constitute a legally binding agreement between you (“the Artist”) and Art on Earth™ AS.
Please take your time to carefully review this document.
1 Background
Art on Earth™ is the owner of the website www.artonearth.com, and the owner and provider of the Art on Earth™ Internet Music Store. The Art on Earth™ Music Store will inter alia enable customers/consumers to purchase digital content, hereunder and particularly sound recordings, which have been made available (uploaded) by artists who have entered into an agreement with Art on Earth™.
Whereas the Artist whishes to acquire such a right to upload digital content on www.artonearth.com / the Art on Earth™ Internet Music Store for sale, the Artist and Art on Earth™ have entered into the following Agreement which governs the mutual rights and obligations of the Artist and Art on Earth™.
2 The service provided by Art on Earth™
2.1 Geographic scope and availability of the service
The Art on Earth™ Internet Music Store will be made available to consumers/customers throughout the world.
All consumers/customers will be requested to state their country of residence when purchasing digital content.
The Artist acknowledges that Art on Earth™, for legal or other justifiable reasons, may find it necessary to cease to provide the service in one or more countries/territories during the course of this agreement. Furthermore, Art on Earth™ reserves its right to expand the geographic scope of this agreement, and thus make the Art on Earth™ Internet Music Store available to consumers in additional countries, without prior notice.
2.2 The availability and functionality of the Art on Earth™ Internet Music Store
Art on Earth™ will strive to accomplish that:
1. the Artist at all times shall be able to upload digital content to the Art on Earth™ Internet Music Store, provided that the digital content is in compliance with the terms set out in this Agreement, and provided that the Artist has a functioning internet connection and access to a computer which meets the applicable system requirements and has all necessary software installed,
2. consumers/customers at all times will be able to download/purchase uploaded digital content from Art on Earth™ Internet Music Store pursuant to compliance with the applicable “terms of purchase”, provided that the consumer/customer has a functioning internet connection and access to a computer which meets the applicable system requirements and has all necessary software installed.
The Art on Earth™ Internet Music Store is currently undergoing beta testing.
Notwithstanding the above, the Artist acknowledges that Art on Earth™ cannot guarantee that the service at all times will be uninterrupted or error-free, and further acknowledges that the Art on Earth™ Internet Music Store without prior notice may be cancelled or made unavailable for indefinite periods of time.
3 The content uploaded/made available by the artist on www.artonearth.com
3.1 Ownership
The Artist warrants that the Artist either has:
1. sole and unencumbered ownership to all digital content uploaded and made available by the Artist on the Art on Earth™ Internet Music Store, or
2. by agreement(s) with the legitimate owner(s) of the content, as well as with owners of any intellectual property rights related to the content, acquired necessary and adequate permission(s) to upload and make the content available on the Art on Earth™ Internet Music Store pursuant to the terms set forth in this Agreement, and
agrees to indemnify Art on Earth™ for any and all claims made by any third party stating that digital content, hereunder the names/titles of artists, albums or singles/tracks, uploaded and made available on the Art on Earth™ Internet Music Store by the Artist, constitutes an infringement of intellectual property rights held by a third party.
Art on Earth™ reserves the right to remove any digital content from the Art on Earth™ Internet Music Store without prior notice to the Artist in the event that Art on Earth™ should find this necessary as inter alia a response to claims made by a third party that the continued marketing and/or selling of the content in question from the Art on Earth™ Internet Music Store constitutes an infringement of intellectual property rights.
Art on Earth™ further reserves its right to remove any digital content from the Art on Earth™ Internet Music Store, without prior notice to the Artist, in the event that Art on Earth™ should consider it likely that the content in question could be illegal or of a clearly offensive nature.
By uploading digital content to the Art on Earth™ Internet Music Store, the Artist acknowledges and agrees that the Art on Earth™ may use the content in the marketing of the Art on Earth™ Internet Music Store and its content.
3.2 Content format
The Art on Earth™ Internet Music Store currently supports the following formats for uploading of digital content:
Sound recordings / tracks
Encoding format Bit rate MPEG-1 Audio Layer 3 (MP3)Max 320 KBPS
VBR is supported
Pictures / cover art
File format .JPG
Art on Earth™ reserves its right to change/adjust the size/resolution of pictures uploaded
The Artist acknowledges that only digital content in the supported encoded formats may be uploaded to The Art on Earth™ Internet Music Store.
4 Uploading of sound recordings / track
4.1 Obligation to submit information about the track
Each time the Artist uploads a sound recording/track to the Art on Earth™ Internet Music Store, the Artist will be required to submit information about the composer of the track, and whether the composer is a member of a collecting society, cf. item 5.2.2 below.
The Artist will also be required to submit information about the lyricist, arranger and publisher of the track, where applicable.
It is the Artist’s sole responsibility that the information submitted is factually correct and in accordance with the information registered with the relevant collecting society.
4.2 ISRC (International Standard Registration Code) – Optional
The following described function (allocation of ISRC-code) is at present time not available in the service. 4.2 will enter into force upon the availability of the described function in the service.
4.2.1 Uploading of a track which does not have an ISRC-number
ISRC (International Standard Registration Code) is a code which is used to identify sound recordings/tracks. The code is developed by ISO (“International Standard Organization”). The IFPI (“International Federation of the Phonographic Industry”) is the international registration authority responsible for ISRC, and appoints the national registration authorities. In Norway, Gramo is the national registration authority.
Gramo has granted Art on Earth™ a code (registrant-code), which enables Art on Earth™ to grant ISRC-numbers to individual tracks.
Each time the Artist uploads a sound recording/track to the Art on Earth™ Internet Music Store, the Artist will be asked whether the Artist want an ISRC-number to be allocated to the track. If the Artist chooses this option, an ISRC-number will be added to the track’s ID3-tag upon uploading. Since the basis of the allocated ISRC-number is the registration code granted to Art on Earth™ by Gramo, Art on Earth™ will – formally – be identified by Gramo as the “owner” of the track. However, this does not mean that the Artist’s de facto rights as owner of the track are in any way altered or limited. When a track has been granted an ISRC-number, the Artist will be entitled to receive remuneration from Gramo, for instance for each time the track is played on a radio station, pursuant to the applicable terms regarding such remuneration.
As Art on Earth™ will – formally – be identified by Gramo as the “owner” of all tracks which are granted an ISRC-number by Art on Earth™, any remuneration earned will be paid from Gramo to Art on Earth™, which in turn will forward the remuneration to the Artist. If the Artist chooses to let Art on Earth™ assign an ISRC-number to a track, the Artist acknowledges and agrees that Art on Earth™ will be entitled to an administration fee of 5 % of any remuneration received regarding that track.
In the event of the termination of this agreement, and/or the termination of the Artist’s user profile on the Art on Earth™ Internet Music Store, the Artist acknowledges that the Artist will be solely responsible for any reclassification of tracks uploaded to the Art on Earth™ Internet Music Store, hereunder assignment of a new ISRC-number, which may be necessary or desirable to the Artist.
4.2.2 Uploading of a track which already has an ISRC-number
If a track has already been assigned an ISRC-number (prior to the uploading of the track to the Art on Earth™ Internet Music Store), the Artist will be requested to enter this number upon uploading of the track.
Item 4.2.1 of this Agreement will not apply to tracks which have already been assigned an ISRC-number prior to uploading.
5 Financial terms
5.1 Subscription fee / server capacity
The Artist agrees to pay a yearly subscription fee to Art on Earth™ of either € 10 - which gives the Artist a right to upload until 500 MB of music to the Art on Earth™ Internet Music Store – or € 17 which gives the Artist the right to upload 2 GB of music. The subscription may be upgraded any time during the course of this agreement for an additional payment.
The Artist acknowledges that the Artist will be required to submit the credit card information necessary to facilitate payment of the subscription fee in accordance with the system of payment implemented by Art on Earth™, and agrees that Art on Earth™ may charge the Artist’s credit card for this subscription fee, including applicable taxes and credit card fees.
5.2 Sales revenue
5.2.1 General provisions
Each sound recording/”track” uploaded to the Art on Earth™ Internet Music Store shall be offered to the customers/consumers for a retail price to be decided and set by the Artist for each “track” uploaded, with the reservation that the retail price of a “track” cannot be set any lower than € 0,50. In addition, the customer will automatically be charged with applicable taxes (VAT) and a transaction / credit card fee for each individual order placed by the customer (whether this order constitutes of one or more sound recordings / tracks), which is currently in the amount of € 0,033 + 2,5 % of the cost of the order.
For each sound recording/”track” sold from the Art on Earth™ Internet Music Store, the Artist shall receive 80 % of gross retail price minus:
(1) any fees/royalties the composer (and/or arranger, lyricist or publisher) of the track is entitled to due to collecting society membership (cf. item 5.3.2 below), and
(2) the relevant transaction costs (bank charges) of Art on Earth™ related to the disbursement of the Artist’s share of sales revenue.
The Artist’s share of sales revenue generated by content uploaded by the Artist shall be transferred to the Artist’s banking account on a calendar quarterly basis on the first business day of each quarter. The amount due each quarter shall be calculated on the basis of the amount actually credited Art on Earth™ in the preceding period. Notwithstanding the above, disbursement to the Artist will not be effectuated until the net turnover generated by content uploaded by the Artist has reached € 20.
It is the Artist’s sole responsibility that the banking account number and related information provided by the Artist is factually correct, and Art on Earth™ cannot in any way be held responsible for losses incurred due to incorrect or incomplete information provided by the Artist in this regard.
5.2.2 Mark-up / fee in the event that the composer of an uploaded track is a collecting society -member
In the event that the composer of a track is a collecting society -member, cf. item 4.1 above, the applicable mark-up / fee requested by the collecting society (in the country where the track is downloaded by a customer/consumer) will be forwarded by Art on Earth™ to the collecting society. The amount will be deducted from the Artist’s share of sales revenue.
The composer (and/or arranger, lyricist or publisher) of an uploaded track will receive his royalties related to the mark-up / fee directly from the collecting society in question.
5.3 VAT
All amounts / prices in this Agreement are given excluding VAT, which will be added where applicable.
6 User account
In order to upload digital content to the Art on Earth™ Internet Music Store, the Artist may be required to establish, or get assigned, a user account.
It is the Artist’s responsibility to keep secure confidential information related to the account, hereunder any usernames and/or passwords required to operate the account, and the Artist acknowledges that Art on Earth™ cannot be held liable for losses incurred as a result of unauthorized use of the Artist’s account.
7 Intellectual property rights
The Artist acknowledges that the Art on Earth™ Internet Music Store, including but not limited to the software involved, all Art on Earth™ trademarks, logos and the graphic layout of the Art on Earth™ Internet Music Store, is the property of Art on Earth™, and that any use of the software or trademarks otherwise than explicitly permitted in this Agreement is strictly prohibited. Any infringement of intellectual property rights held by Art on Earth™ may result in civil or criminal proceedings being initiated against the Artist, including possible claims for damages.
8 Disclaimer
The Artist acknowledges that the Art on Earth™ Internet Music Store is provided “as is”, without any warranties or guarantees, and that the Artists use of the service is carried out at the Artists sole risk.
Art on Earth™, including its directors, officers, employees and affiliates, may not be held liable for any losses or damages incurred by the Artist related to the use of the services provided by Art on Earth™, to the extent such a limitation of liability is in accordance with applicable compulsory legislation.
Art on Earth™ will endeavour to protect all confidential information submitted by the Artist in connection with the use of the Art on Earth™ Internet Music Store, but the Artist acknowledges and agrees that Art on Earth cannot be held liable for any losses incurred in connection with information submitted.
Digital content made available for download/purchase on the Art on Earth™ Internet Music Store will not be copy protected by a DRM-system or other copy protection system, and the Artist acknowledges that Art on Earth™ may not be held liable for any losses or damages incurred by the Artist due to lack of copy protection.
9 Duration
This agreement will remain in effect for a period of 1 – one – year, unless renewed or upgraded by the Artist pursuant to item 5.1 of this agreement.
10 Removal / deletion of uploaded content
As long as this agreement is in effect, sound recordings / tracks uploaded by the Artist may not be removed/deleted from the Art on Earth™ Internet Music Store.
11 Termination of agreement
In the event that the Artist should fail to comply with any provisions of this Agreement, including but not limited to the obligations to make payments of applicable fees or provide Art on Earth™ with valid credit card information, Art on Earth™ may at its sole discretion, and without prior notice, terminate this Agreement and/or prevent the Artist from accessing the Art on Earth™ Internet Music Store.
12 Governing law
This agreement shall be governed by and construed in accordance with Norwegian law.
13 Legal venue
Any dispute arising out of or in connection with this Agreement shall be settled by ordinary courts of law. Each of the parties hereby submits to the exclusive jurisdiction of Bergen District Court.
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Copyright © 2009 Art on Earth A/S. All Rights Reserved. Organization number: 992 149 000
