Melody Management LLC SUBSCRIBER AGREEMENT
Version 5 as of October 20, 2009
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 Melody Management, LLC. (collectively with our licensees and assignees referred to in this Agreement as “we” or “us”) the owner and operator of web pages at or linked to the root URL “www.melodymanagement.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 both your previously and newly uploaded Materials (as such term is defined herein) 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 4.11 below.
This Agreement addresses the services available on the Website (individually, a “Program,” collectively, the “Programs”or "Services"). Under our Melody Music Desk Artist Program, you supply audio and/or other content to us and allow us to include your Material (as defined in paragraph 4.2 below) in our database, which we can use and make available over the World Wide Web and through various other means of transmission and distribution and which we may also make available as digital downloads. Via our Melody Widget Program, we will sell electronic copies of your Material on your behalf via digital downloads. The legal terms that apply to these Programs are described below.
If you click “I AGREE” below, we will give you a URL to access your “Melody Music Desk area” located within the Website. The Melody Music Desk area provides access to create your free “Artist Profile Page” (described in Section 1.4 below) to which you will post your audio content and other materials and will provide you tools to upload your Material. By clicking “I AGREE,” you certify that you have read and agree to be bound by the terms and conditions of this Website and the privacy policy of this Website.
Section 1
Melody Music Desk Artist Program
1.1 ARTIST CONTENT AND MATERIAL. In order to participate in this 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 (collectively, “Artist Content”). You will also provide us with other material related to your Artist Content, such as pictures, videos, song lyrics, press reviews, etc., for our use in connection with the Melody Music Desk Artist Program (collectively, “Artist Material”). Subject to the conditions of this Agreement, Artist Content and Artist Material will be listed and/or posted on your Artist Profile Page, and from time to time, may be listed on the Website’s homepage, as well as websites or other media channels owned by us, and may be freely listened to and viewed by visitors to our Website or other websites or media channels to which we list your Artist Content and/or Artist Material. Unless otherwise designated by you, all Artist Content and Artist Material you provide to us may be enrolled in and used in all of our current and future promotions for Melody Management L.L.C and/or any properties owned thereby (collectively, the “Promotion(s)”). However, nothing herein shall require us to use any of your Artist Content or Artist Material in any of our Promotions.
1.2 LICENSE FOR ARTIST CONTENT AND ARTIST MATERIAL. By the act of delivering Artist Content and/or Artist Material to us, you grant us, our licensees and any entity affiliated with or website operated by us, a non-exclusive, royalty-free, worldwide license to: (a) publicly perform, publicly display, broadcast, encode, reproduce, transmit, manufacture, distribute and synchronize with visual images the Artist Content or Artist 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; (b) make your Artist Content accessible on the Website and other websites or media channels owned by us, including as audio streams or through other methods now known or hereafter developed; and (c) use any trademarks, service marks or trade names incorporated in the Artist Content or Artist Material and use the name and likeness of any individual whose performance or image is contained in the Artist Content or Artist Material in connection with the foregoing. Audio content and corresponding materials enrolled in a Promotion (whether or not listed on your Artist Profile Page) shall be considered Artist Content and Artist Material, only to the extent that the operating of such Promotion reasonably shall require us to exercise the rights licensed in this Section.
1.3 DOWNLOAD OF ARTIST CONTENT. You grant us a non-exclusive, worldwide license to make your Artist Content available to Members as digital downloads for purchase pursuant to the terms and conditions of any future Program which we make available to the Members which allow Members to digitally download your Artist Content from our database. You will be paid a royalty for any Artist Content downloaded by our Members pursuant to the terms and conditions of any Program that allows Members to download your Artist Content.
1.4 CO-BRANDED WEBSITE ON GOMELODY.COM. During the term of this Agreement, we will host on the Website an HTML-formatted page (the “Artist Profile Page”) featuring the Artist Content and Artist Material you may upload, as well as other information, including, but not limited to, Member Feedback, provided by us or our Consumers. For further information concerning the Artist Profile Page, including terms and conditions governing their use, see: artists terms and conditions. You acknowledge that you have no entitlement to any revenue, income or compensation from us (from the Website, Promotions, or any other source) for your participation in the Artist Program or Member Program.
1.5 USE OF PASSWORD. When you access your Melody Music Desk Artist Admin. Area, you will be asked to select a unique password for access to your Artist Profile Page. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under the password. By logging your Artist Profile Page, you represent and warrant that: (i) you are the Artist who registered for the Artist Profile Page; (ii) that you are using the Artist Profile Page and the Website only for permitted purposes; (iii) you are not a competitor of Melody Management L.L.C, or agent thereof; (iv) you will immediately notify us of any unauthorized use of the password or account or any other breach of security; and (v) you will ensure that you exit from your Melody Music Desk at the end of each session. Please notify info@melodymangagement.com of any potential unauthorized use(s) of your Melody Music Desk/Artist Profile Page, or breach of security.
1.6 CHOICE OF ARTIST NAME. When you access your Melody Music Desk, you will be asked to select a name for your customer URL (Artist Profile Page). You represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; and (iii) you will not select or utilize a user name that we in our sole discretion deem offensive.
1.7 APPOINTED AGENT RELATIONSHIP BETWEEN YOU AND MELODY MANAGEMENT LLC. The Programs are offered through the agency relationship between our insured financial institution partner Preferred PayCard LLC ("Bank") and corresponding debit Card Processor ("Processor") collectively referred to as "Financial Agents", and Us. We acts as the Financial Agent's agent based upon its direction and requests to help you accept monetary deposits from third parties (the Programs). The Programs enable you to (1) open a debit card account (an "Account" or Subscriber Account) through the online enrollment with the Melody Management website and (2) fund Account with funds received by your commerce transaction(s) and (3) request that funds in your Account be loaded on your debit card. The Programs are offered through this website. Financial Agents hold your Account and any funds that you place in the Account. By initiating a transaction through the Programs, you are instructing Financial Agents, through Melody Management LLC, to load funds on your debit card. Melody Management LLC is not a bank, but acts as an authorized representative of Financial Agents to market and process your Account. You are not required to keep funds in the Melody Management system (i.e. carry a balance in your Account) in order to use the Programs. If you do carry a Dollar balance in your Account, Bank will at all times, keep your, funds in accounts in accordance with the terms and conditions of a cardholder agreement between you and the Bank. By receiving funds through the Program you authorize the Bank to obtain and hold the funds on your behalf and to further transfer the funds to the debit card, subject to the terms and restrictions of this Agreement. When you receive money, the funds will then be credited to and held in one of a series of master pooled accounts maintained and controlled solely by the Bank for the benefit of Account holders. Bank then issues to you a Melody MasterCard to allow to withdraw funds from an ATM or other authorized points of sale. Your use of Melody MasterCard is further conditioned upon your agreeing to the terms and conditions of this Agreement as well as the terms and conditions of a cardholder agreement between you and Bank.
1.8 FINANCIAL SERVICES PROVIDED BY MELODY MANAGEMENT LLC AND PREFERRED PAYCARD LLC.
The Melody Management site acts as an Internet service provider by creating, hosting, maintaining and providing access to the Programs via the Internet. As the agent of the Financial Agents, We also provide customer service and other supporting services as authorized or delegated by the Financial Agents, such as delivering an Melody MasterCard to you. The Melody Card is a MasterCard Card or Discover Card issued by the Bank named on the back of the card which is funded by your payers and sent to you at the address provided by you on the Melody Management website. Melody Management's responsibility is strictly limited to the maintenance and operation of the website access system, and the mailing of the Melody MasterCard. All transactions are final and by selecting Accept on the web site page to send money you acknowledge that you understand the account is for receipt and subsequent access to funds sent to you via Automated Clearing House ("ACH") each processed ACH transaction is final.
1.9 RELEASE.
In the event that you have a dispute with one or more consumers or payers, you release Melody Management (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. If you are a California resident you waive California Civil Code 1542 which says: "Agreed release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor." 1.10 TERMINATION OF ARTIST PROGRAM LICENSE. Subject to the provisions contained in Section 4.4, “Term and Termination” below, you may terminate your license to us with respect to some or all of your Artist Content and Artist Material, at any time by utilizing tools provided in the Artist Admin Area. We may also terminate this agreement ourselves pursuant to paragraph 4.4.
Section 2
Sound Recording Distribution Program
2.1 SOUND RECORDING DISTRIBUTION PROGRAM. Although not permissible via the Website today, under our future Sound Recording Distribution Program, we may manufacture, distribute and sell mechanical copies of your Artist Content or Artist Material in any medium now known or hereafter created, including, but not limited to, compact discs, audio tapes, digital audio tapes and digital files (“Artist Reproductions”).
2.2 LICENSE FOR ARTIST REPRODUCTIONS. By the act of delivering Artist Content and/or Artist Material to us, you grant us a non-exclusive worldwide license to: (a) publicly perform, reproduce, market, advertise and/or promote the musical compositions and recordings embodied in the Artist Content and/or Artist Material in connection with the sale and promotion of your Artist CDs; (b) use the recordings embodied and musical compositions embodied in the Artist Content in the recording, making and distribution of the Artist CDs; and (c) use any trademarks, service marks or trade names incorporated in the Artist Content and/or Artist Material and use the name and likeness of any individual whose performance is contained in the Artist Content or whose image or likeness is portrayed on the Artist Material in connection with the promotion, distribution, reproduction and performance of the Artist CDs, provided, however, that at the time of delivery of the Artist Content, you shall notify us of any limitations or restrictions related to our exercise of these rights and we shall use our reasonable best efforts to abide by any such limitation or restriction.
2.3 ROYALTIES. In exchange for the license granted as part of this Sound Recording Distribution Program, we will pay you the mechanical royalty associated for each work of Artist Content we reproduce, distribute and/or sell pursuant to paragraph 2.1 above. We shall pay the Statutory royalty rate for use on sound recordings, as of the date of this Agreement. We will provide you with royalty payments on a periodic basis, but no more frequently than once each quarter.
Section 4
GENERAL TERMS
Melodymanagement.com (the "Site"). This Site is fully controlled and operated by Melody Management, LLC (referred to as "Company", “us”, “we or “our”). By accessing and using this Site, you (“you”) are hereby agreeing to be legally bound by the terms and conditions of this agreement (the "Agreement"). Please note that this Site and the Services offered (as defined below) are only open to users 18 years of age or older. If you do not agree with all of the following terms and conditions, you may not use the Site. Company reserves the right, at Company's sole discretion, to change, modify or otherwise alter these terms and conditions at any time. Such changes and/or modifications shall become effective immediately upon the posting thereof. Without limiting the foregoing, Company may occasionally notify you by email about changes to the Site or provide notices of changes by displaying notices or links to notices on the Site. Please review the terms and conditions periodically. Your continued use of the Site following the posting of changes and/or modifications will constitute your acceptance of the revised terms and conditions.
4.1 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 the terms of this Agreement. We retain ownership of the copyrights and all other rights in and to the contributions we make to your Artist Content and/or Artist Material.
4.2 REPRESENTATIONS. The term “Material” means anything that you submit to us or post on the Website, including, but not limited to, Artist Content and Artist Material. You represent and warrant that: (a) we, our customers, our Members and our licensees shall not be required to make any payments in respect to 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 the 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, including, but not limited to, any laws or regulations related to export control; (e) the Material is not and will not be illegal, harmful, violent, abusive, defamatory, trade libelous, tortious, 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) the Material does not invade the privacy of any other person and does not encourage or solicit others to engage in illegal activity, contain discriminatory statements and does not harm minors in any way; (h) the Material does not violate our intellectual property rights; (i) you will not use the Programs to transmit, upload, post or otherwise disseminate any unsolicited or unauthorized advertising or promotional materials including, but not limited to, “spam” or “junk mail”; (j) you will not use our the Programs to gain inappropriate or unauthorized access to us, our servers or accounts, or to disturb or interrupt our services; (k) you will not utilize the Programs to archive or backup software, or as a “warez” website; (l) you will not gain access to the Programs to create a competing service or product; (m) all factual assertions that you have made and will make to us are true and complete; and (n) 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 customers, our Members and 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 Agreement. You agree to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this Agreement.
4.2 WARRANTIES. WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Bank and Melody Management will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and ACH issuances are processed in a timely manner, but we make no representations or warranties regarding the amount of time needed to complete processing because our Programs is largely dependant upon many factors outside of our control, such as delays in the banking system or the U.S. or international mail service. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
4.3 TERM AND TERMINATION. Upon termination of this Agreement, all of our license rights terminate, except that we retain those rights necessary for us to fulfill the terms and conditions of any Promotion in which you are participating. Subject to the foregoing, we shall use reasonable efforts to discontinue public access to your Material promptly upon termination; however, due to your participation in certain Promotions, your Material may remain accessible to the public for up to ninety (90) days following termination. We may terminate this Agreement with respect to any or all Programs, at any time by so notifying you; the Agreement will terminate upon your actual receipt of such notice or three (3) business days after we have sent a notice of termination to the email address you supply to us, whichever is sooner. Sections titled “Term and Termination,” “Representations and Warranties,” “Disclaimer,” “Waiver of Certain Damages” and “Miscellaneous” shall survive termination.
4.4 DETERMINING TYPE OF CONTENT. We will implement and maintain reasonable business practices, which enable us to accurately categorize content that you deliver to us. However, if we make an error in good faith, and consequently exceed our license rights, your sole and exclusive remedy will be to notify us and we will promptly take all reasonable steps to correct the error.
4.5 NOTIFICATIONS OF INFRINGEMENT. Upon receipt of notice by any third-party, 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 move 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 or in our “Privacy Policy,” you expressly consent to our disclosure of your personally identifiable information in the event that you or your Material is the subject matter of any such infringement claim.
4.6 DISCLAIMER. THE MELODY MUSIC DESK ARTIST PROGRAM AND THE MEMBER PROGRAM ARE PROVIDED ON AN “AS IS” 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 ARTIST PROGRAM AND MEMBER PROGRAM. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, THAT THE ARTIST PROGRAM AND MEMBER 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.
4.7 LIMITATION OF LIABILITY
Company is not liable for failure to monitor or edit messages sent over our Services. We do not endorse the content of users' communications and do not assume liability for any threatening, libelous, obscene, harassing or offensive material contained therein, User is responsible for maintaining the confidentiality of user's passwords and for all activities which occur under user's account.
4.8 INDEMNIFICATION. You agree to indemnify and hold PP, its subsidiaries, affiliates, officers, directors and employees harmless from any claim or demand (including attorneys' fees) made or incurred by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party relating to your use of the Service.
4.9 WAIVER OF CERTAIN DAMAGES. EXCEPT FOR DAMAGES RELATED TO A BREACH OF THE SECTION TITLED “REPRESENTATIONS AND WARRANTIES,” NEITHER YOU NOR US WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT.
4.10 MODIFICATION OR AMENDMENT OF AGREEMENT. We reserve the right, in our sole and absolute discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be posted in your Melody Music Desk Artist Admin Area at least five (5) 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 with respect to any or all Programs, as provided above. A copy of the most current version of this Agreement may be found at: http://www.gomelody.com/stub/terms
4.11 MISCELLANEOUS. 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. You agree not to resell, assign, otherwise transfer or delegate your rights or obligations under this Agreement without our prior express written authorization. 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 address: (a) if to us, such notices shall be addressed to info@melodymangagement.com and (b) if to you, such notices shall be addressed to the electronic or mailing address specified when you register for the Program. 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 Programs shall be determined by the laws of the State of Ohio without regard to that State’s conflict-of-law provisions. The State and Federal courts of Ohio 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 Programs. You consent to personal jurisdiction and venue in the United States District Court for the State of Ohio. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. All headings in this Agreement are for convenience only and shall have no legal or contractual effect. 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. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 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.
Version 5 as of October 20, 2009
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 Melody Management, LLC. (collectively with our licensees and assignees referred to in this Agreement as “we” or “us”) the owner and operator of web pages at or linked to the root URL “www.melodymanagement.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 both your previously and newly uploaded Materials (as such term is defined herein) 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 4.11 below.
This Agreement addresses the services available on the Website (individually, a “Program,” collectively, the “Programs”or "Services"). Under our Melody Music Desk Artist Program, you supply audio and/or other content to us and allow us to include your Material (as defined in paragraph 4.2 below) in our database, which we can use and make available over the World Wide Web and through various other means of transmission and distribution and which we may also make available as digital downloads. Via our Melody Widget Program, we will sell electronic copies of your Material on your behalf via digital downloads. The legal terms that apply to these Programs are described below.
If you click “I AGREE” below, we will give you a URL to access your “Melody Music Desk area” located within the Website. The Melody Music Desk area provides access to create your free “Artist Profile Page” (described in Section 1.4 below) to which you will post your audio content and other materials and will provide you tools to upload your Material. By clicking “I AGREE,” you certify that you have read and agree to be bound by the terms and conditions of this Website and the privacy policy of this Website.
Section 1
Melody Music Desk Artist Program
1.1 ARTIST CONTENT AND MATERIAL. In order to participate in this 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 (collectively, “Artist Content”). You will also provide us with other material related to your Artist Content, such as pictures, videos, song lyrics, press reviews, etc., for our use in connection with the Melody Music Desk Artist Program (collectively, “Artist Material”). Subject to the conditions of this Agreement, Artist Content and Artist Material will be listed and/or posted on your Artist Profile Page, and from time to time, may be listed on the Website’s homepage, as well as websites or other media channels owned by us, and may be freely listened to and viewed by visitors to our Website or other websites or media channels to which we list your Artist Content and/or Artist Material. Unless otherwise designated by you, all Artist Content and Artist Material you provide to us may be enrolled in and used in all of our current and future promotions for Melody Management L.L.C and/or any properties owned thereby (collectively, the “Promotion(s)”). However, nothing herein shall require us to use any of your Artist Content or Artist Material in any of our Promotions.
1.2 LICENSE FOR ARTIST CONTENT AND ARTIST MATERIAL. By the act of delivering Artist Content and/or Artist Material to us, you grant us, our licensees and any entity affiliated with or website operated by us, a non-exclusive, royalty-free, worldwide license to: (a) publicly perform, publicly display, broadcast, encode, reproduce, transmit, manufacture, distribute and synchronize with visual images the Artist Content or Artist 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; (b) make your Artist Content accessible on the Website and other websites or media channels owned by us, including as audio streams or through other methods now known or hereafter developed; and (c) use any trademarks, service marks or trade names incorporated in the Artist Content or Artist Material and use the name and likeness of any individual whose performance or image is contained in the Artist Content or Artist Material in connection with the foregoing. Audio content and corresponding materials enrolled in a Promotion (whether or not listed on your Artist Profile Page) shall be considered Artist Content and Artist Material, only to the extent that the operating of such Promotion reasonably shall require us to exercise the rights licensed in this Section.
1.3 DOWNLOAD OF ARTIST CONTENT. You grant us a non-exclusive, worldwide license to make your Artist Content available to Members as digital downloads for purchase pursuant to the terms and conditions of any future Program which we make available to the Members which allow Members to digitally download your Artist Content from our database. You will be paid a royalty for any Artist Content downloaded by our Members pursuant to the terms and conditions of any Program that allows Members to download your Artist Content.
1.4 CO-BRANDED WEBSITE ON GOMELODY.COM. During the term of this Agreement, we will host on the Website an HTML-formatted page (the “Artist Profile Page”) featuring the Artist Content and Artist Material you may upload, as well as other information, including, but not limited to, Member Feedback, provided by us or our Consumers. For further information concerning the Artist Profile Page, including terms and conditions governing their use, see: artists terms and conditions. You acknowledge that you have no entitlement to any revenue, income or compensation from us (from the Website, Promotions, or any other source) for your participation in the Artist Program or Member Program.
1.5 USE OF PASSWORD. When you access your Melody Music Desk Artist Admin. Area, you will be asked to select a unique password for access to your Artist Profile Page. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under the password. By logging your Artist Profile Page, you represent and warrant that: (i) you are the Artist who registered for the Artist Profile Page; (ii) that you are using the Artist Profile Page and the Website only for permitted purposes; (iii) you are not a competitor of Melody Management L.L.C, or agent thereof; (iv) you will immediately notify us of any unauthorized use of the password or account or any other breach of security; and (v) you will ensure that you exit from your Melody Music Desk at the end of each session. Please notify info@melodymangagement.com of any potential unauthorized use(s) of your Melody Music Desk/Artist Profile Page, or breach of security.
1.6 CHOICE OF ARTIST NAME. When you access your Melody Music Desk, you will be asked to select a name for your customer URL (Artist Profile Page). You represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; and (iii) you will not select or utilize a user name that we in our sole discretion deem offensive.
1.7 APPOINTED AGENT RELATIONSHIP BETWEEN YOU AND MELODY MANAGEMENT LLC. The Programs are offered through the agency relationship between our insured financial institution partner Preferred PayCard LLC ("Bank") and corresponding debit Card Processor ("Processor") collectively referred to as "Financial Agents", and Us. We acts as the Financial Agent's agent based upon its direction and requests to help you accept monetary deposits from third parties (the Programs). The Programs enable you to (1) open a debit card account (an "Account" or Subscriber Account) through the online enrollment with the Melody Management website and (2) fund Account with funds received by your commerce transaction(s) and (3) request that funds in your Account be loaded on your debit card. The Programs are offered through this website. Financial Agents hold your Account and any funds that you place in the Account. By initiating a transaction through the Programs, you are instructing Financial Agents, through Melody Management LLC, to load funds on your debit card. Melody Management LLC is not a bank, but acts as an authorized representative of Financial Agents to market and process your Account. You are not required to keep funds in the Melody Management system (i.e. carry a balance in your Account) in order to use the Programs. If you do carry a Dollar balance in your Account, Bank will at all times, keep your, funds in accounts in accordance with the terms and conditions of a cardholder agreement between you and the Bank. By receiving funds through the Program you authorize the Bank to obtain and hold the funds on your behalf and to further transfer the funds to the debit card, subject to the terms and restrictions of this Agreement. When you receive money, the funds will then be credited to and held in one of a series of master pooled accounts maintained and controlled solely by the Bank for the benefit of Account holders. Bank then issues to you a Melody MasterCard to allow to withdraw funds from an ATM or other authorized points of sale. Your use of Melody MasterCard is further conditioned upon your agreeing to the terms and conditions of this Agreement as well as the terms and conditions of a cardholder agreement between you and Bank.
1.8 FINANCIAL SERVICES PROVIDED BY MELODY MANAGEMENT LLC AND PREFERRED PAYCARD LLC.
The Melody Management site acts as an Internet service provider by creating, hosting, maintaining and providing access to the Programs via the Internet. As the agent of the Financial Agents, We also provide customer service and other supporting services as authorized or delegated by the Financial Agents, such as delivering an Melody MasterCard to you. The Melody Card is a MasterCard Card or Discover Card issued by the Bank named on the back of the card which is funded by your payers and sent to you at the address provided by you on the Melody Management website. Melody Management's responsibility is strictly limited to the maintenance and operation of the website access system, and the mailing of the Melody MasterCard. All transactions are final and by selecting Accept on the web site page to send money you acknowledge that you understand the account is for receipt and subsequent access to funds sent to you via Automated Clearing House ("ACH") each processed ACH transaction is final.
1.9 RELEASE.
In the event that you have a dispute with one or more consumers or payers, you release Melody Management (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. If you are a California resident you waive California Civil Code 1542 which says: "Agreed release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor." 1.10 TERMINATION OF ARTIST PROGRAM LICENSE. Subject to the provisions contained in Section 4.4, “Term and Termination” below, you may terminate your license to us with respect to some or all of your Artist Content and Artist Material, at any time by utilizing tools provided in the Artist Admin Area. We may also terminate this agreement ourselves pursuant to paragraph 4.4.
Section 2
Sound Recording Distribution Program
2.1 SOUND RECORDING DISTRIBUTION PROGRAM. Although not permissible via the Website today, under our future Sound Recording Distribution Program, we may manufacture, distribute and sell mechanical copies of your Artist Content or Artist Material in any medium now known or hereafter created, including, but not limited to, compact discs, audio tapes, digital audio tapes and digital files (“Artist Reproductions”).
2.2 LICENSE FOR ARTIST REPRODUCTIONS. By the act of delivering Artist Content and/or Artist Material to us, you grant us a non-exclusive worldwide license to: (a) publicly perform, reproduce, market, advertise and/or promote the musical compositions and recordings embodied in the Artist Content and/or Artist Material in connection with the sale and promotion of your Artist CDs; (b) use the recordings embodied and musical compositions embodied in the Artist Content in the recording, making and distribution of the Artist CDs; and (c) use any trademarks, service marks or trade names incorporated in the Artist Content and/or Artist Material and use the name and likeness of any individual whose performance is contained in the Artist Content or whose image or likeness is portrayed on the Artist Material in connection with the promotion, distribution, reproduction and performance of the Artist CDs, provided, however, that at the time of delivery of the Artist Content, you shall notify us of any limitations or restrictions related to our exercise of these rights and we shall use our reasonable best efforts to abide by any such limitation or restriction.
2.3 ROYALTIES. In exchange for the license granted as part of this Sound Recording Distribution Program, we will pay you the mechanical royalty associated for each work of Artist Content we reproduce, distribute and/or sell pursuant to paragraph 2.1 above. We shall pay the Statutory royalty rate for use on sound recordings, as of the date of this Agreement. We will provide you with royalty payments on a periodic basis, but no more frequently than once each quarter.
Section 4
GENERAL TERMS
Melodymanagement.com (the "Site"). This Site is fully controlled and operated by Melody Management, LLC (referred to as "Company", “us”, “we or “our”). By accessing and using this Site, you (“you”) are hereby agreeing to be legally bound by the terms and conditions of this agreement (the "Agreement"). Please note that this Site and the Services offered (as defined below) are only open to users 18 years of age or older. If you do not agree with all of the following terms and conditions, you may not use the Site. Company reserves the right, at Company's sole discretion, to change, modify or otherwise alter these terms and conditions at any time. Such changes and/or modifications shall become effective immediately upon the posting thereof. Without limiting the foregoing, Company may occasionally notify you by email about changes to the Site or provide notices of changes by displaying notices or links to notices on the Site. Please review the terms and conditions periodically. Your continued use of the Site following the posting of changes and/or modifications will constitute your acceptance of the revised terms and conditions.
4.1 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 the terms of this Agreement. We retain ownership of the copyrights and all other rights in and to the contributions we make to your Artist Content and/or Artist Material.
4.2 REPRESENTATIONS. The term “Material” means anything that you submit to us or post on the Website, including, but not limited to, Artist Content and Artist Material. You represent and warrant that: (a) we, our customers, our Members and our licensees shall not be required to make any payments in respect to 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 the 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, including, but not limited to, any laws or regulations related to export control; (e) the Material is not and will not be illegal, harmful, violent, abusive, defamatory, trade libelous, tortious, 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) the Material does not invade the privacy of any other person and does not encourage or solicit others to engage in illegal activity, contain discriminatory statements and does not harm minors in any way; (h) the Material does not violate our intellectual property rights; (i) you will not use the Programs to transmit, upload, post or otherwise disseminate any unsolicited or unauthorized advertising or promotional materials including, but not limited to, “spam” or “junk mail”; (j) you will not use our the Programs to gain inappropriate or unauthorized access to us, our servers or accounts, or to disturb or interrupt our services; (k) you will not utilize the Programs to archive or backup software, or as a “warez” website; (l) you will not gain access to the Programs to create a competing service or product; (m) all factual assertions that you have made and will make to us are true and complete; and (n) 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 customers, our Members and 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 Agreement. You agree to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this Agreement.
4.2 WARRANTIES. WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Bank and Melody Management will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and ACH issuances are processed in a timely manner, but we make no representations or warranties regarding the amount of time needed to complete processing because our Programs is largely dependant upon many factors outside of our control, such as delays in the banking system or the U.S. or international mail service. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
4.3 TERM AND TERMINATION. Upon termination of this Agreement, all of our license rights terminate, except that we retain those rights necessary for us to fulfill the terms and conditions of any Promotion in which you are participating. Subject to the foregoing, we shall use reasonable efforts to discontinue public access to your Material promptly upon termination; however, due to your participation in certain Promotions, your Material may remain accessible to the public for up to ninety (90) days following termination. We may terminate this Agreement with respect to any or all Programs, at any time by so notifying you; the Agreement will terminate upon your actual receipt of such notice or three (3) business days after we have sent a notice of termination to the email address you supply to us, whichever is sooner. Sections titled “Term and Termination,” “Representations and Warranties,” “Disclaimer,” “Waiver of Certain Damages” and “Miscellaneous” shall survive termination.
4.4 DETERMINING TYPE OF CONTENT. We will implement and maintain reasonable business practices, which enable us to accurately categorize content that you deliver to us. However, if we make an error in good faith, and consequently exceed our license rights, your sole and exclusive remedy will be to notify us and we will promptly take all reasonable steps to correct the error.
4.5 NOTIFICATIONS OF INFRINGEMENT. Upon receipt of notice by any third-party, 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 move 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 or in our “Privacy Policy,” you expressly consent to our disclosure of your personally identifiable information in the event that you or your Material is the subject matter of any such infringement claim.
4.6 DISCLAIMER. THE MELODY MUSIC DESK ARTIST PROGRAM AND THE MEMBER PROGRAM ARE PROVIDED ON AN “AS IS” 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 ARTIST PROGRAM AND MEMBER PROGRAM. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, THAT THE ARTIST PROGRAM AND MEMBER 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.
4.7 LIMITATION OF LIABILITY
Company is not liable for failure to monitor or edit messages sent over our Services. We do not endorse the content of users' communications and do not assume liability for any threatening, libelous, obscene, harassing or offensive material contained therein, User is responsible for maintaining the confidentiality of user's passwords and for all activities which occur under user's account.
4.8 INDEMNIFICATION. You agree to indemnify and hold PP, its subsidiaries, affiliates, officers, directors and employees harmless from any claim or demand (including attorneys' fees) made or incurred by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party relating to your use of the Service.
4.9 WAIVER OF CERTAIN DAMAGES. EXCEPT FOR DAMAGES RELATED TO A BREACH OF THE SECTION TITLED “REPRESENTATIONS AND WARRANTIES,” NEITHER YOU NOR US WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT.
4.10 MODIFICATION OR AMENDMENT OF AGREEMENT. We reserve the right, in our sole and absolute discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be posted in your Melody Music Desk Artist Admin Area at least five (5) 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 with respect to any or all Programs, as provided above. A copy of the most current version of this Agreement may be found at: http://www.gomelody.com/stub/terms
4.11 MISCELLANEOUS. 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. You agree not to resell, assign, otherwise transfer or delegate your rights or obligations under this Agreement without our prior express written authorization. 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 address: (a) if to us, such notices shall be addressed to info@melodymangagement.com and (b) if to you, such notices shall be addressed to the electronic or mailing address specified when you register for the Program. 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 Programs shall be determined by the laws of the State of Ohio without regard to that State’s conflict-of-law provisions. The State and Federal courts of Ohio 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 Programs. You consent to personal jurisdiction and venue in the United States District Court for the State of Ohio. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. All headings in this Agreement are for convenience only and shall have no legal or contractual effect. 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. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 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.
