This is an agreement between GearDemo Inc. (“GearDemo”) and you (“You”) concerning your uploading of sound recordings (the “Music”) to the GearDemo Web site (“the Web site”) for sale by GearDemo to the public. By clicking “I agree” in the box provided below, You are entering into a binding contract with GearDemo, all the terms of which are set forth below in this Music Upload and Licensing Agreement (the “Agreement”). If You do not wish to enter into a binding contract with GearDemo, or disagree with the terms of the Agreement, You should not click “I agree” below and You should not upload your Music.
1. Music Content. The primary purpose of the Web site is for musicians and gear enthusiasts to be able to see and hear demonstrations, reviews, and critiques of musical gear. However, we have realized that many of our customers may enjoy particular reviewers and their style of music and quality of play as well as original music played by the reviewer as part of their gear review to the point that they may want to buy that reviewer’s original music. Therefore, GearDemo is giving You the opportunity to upload your original music (that is, songs You have written or have the legal right to perform, make copies of and sell) to the GearDemo Web site, and GearDemo will provide a venue for You to sell downloads of that music to the public with You and GearDemo splitting the revenues of those sales. Regarding the Music that You upload to the GearDemo Web Site for sale to the public, You agree and represent that:
a. You are the creator or co-creator of each and every song/sound recording (that is, You wrote the songs and/or own the copyright in the sound recording) that You upload to the Web Site for sale to the public or You are certain and You warrant that You have the full legal right to publicly perform, make copies of and sell the song/sound recording;
b. You still have all copyright rights in the Music and have not transferred the copyright or given an exclusive license to the song/sound recording to another entity;
c. You are responsible for obtaining any and all necessary licenses to copy, publicly perform and sell the Music and, to the extent You do not own the full copyright in the Music, You have obtained all such necessary licenses;
d. The Music does not contain any obscene or pornographic content, or any content that is racially or ethnically offensive; and,
e. You have the right to upload the Music to the Web site and sell the Music on behalf of yourself and any other persons performing the Music.
2. GearDemo’s Rights to The Music. You agree to grant GearDemo a non-exclusive license to make the Music available to the public and sell the Music for download to the public. You agree that GearDemo can sell the Music either by song or by album and can set the prices for purchase of the Music in GearDemo’s sole discretion. You also grant GearDemo a license to publicly perform or stream to the public clips of the Music, up to 30 seconds of any song, that You upload, for free. This will enable GearDemo to offer samples to the public so that a potential customer can listen to a portion of the song and decide if he wants to purchase the song or the album containing the song. GearDemo may also need to make various copies of the Music, server copies and otherwise, to maintain the business model of selling the Music to the public. You agree that GearDemo can make as many copies of the Music as it needs to at GearDemo’s sole discretion. Finally, You agree that in advertising and marketing the sale of the Music as well as the GearDemo Web site in general, GearDemo may use: (a) your name and likeness; (b) the name and likeness of Your band and the members of Your band; and, (c) (to the extent GearDemo has the capability for this and chooses to allow it) any cover art You upload—You also agree that GearDemo can make as many copies of such cover art as it needs to at GearDemo’s sole discretion.
3. GearDemo’s Right to Reject and Remove the Music. GearDemo is not in the business of deciding whether your music is good or not. However, there may be many reasons why GearDemo may need to reject your Music or remove the Music from the Web Site. Those reasons may include, but are not limited to: Your violation of any of the representations You made in Paragraph 1 above; GearDemo’s determination or complaints by the public that there is something wrong with the sound quality of the Music You have uploaded; GearDemo’s determination or complaints by the public that the Music is offensive; and, certainly, GearDemo’s determination or complaints by an alleged intellectual property holder that the Music infringes the rights of others. Accordingly, You agree that GearDemo has the right to reject or remove the Music if it does not meet our technical or quality standards (such standards being established and enforced by GearDemo and the question of whether the Music meets those standards is determined in GearDemo’s sole discretion), it does not meet our content standards (see paragraph 1 above), or if GearDemo believes for any reason that the Music is not appropriate for the Web site. In addition, You agree that GearDemo has the right to remove the Music for any of the same reasons it may reject the Music. You should be aware and You agree that GearDemo will comply with the terms of the Digital Millennium Copyright Act (“DMCA”), which allows copyright owners to provide notices to us if they believe that the Music You have uploaded infringes their rights and requires us to take down such infringing music. Should GearDemo take the Music down because it has received a notice of infringement from an alleged copyright holder, we will notify You of that allegation and the take-down. You may then decide whether or not to file what is known as a counter-notice under the DMCA alleging that You do indeed have the proper rights to perform and sell the Music. You agree, however, that in no case shall GearDemo be liable to You for any damages that You allegedly incur from GearDemo’s take down of the Music or failure to (or decision not to) put the Music back on the GearDemo Web site. You further agree that even if GearDemo removes the Music from the Web site or makes it no longer available for sale on the GearDemo Web site, your obligations under this Agreement, such as the indemnification provisions of Paragraph 6, remain in full force and effect.
4. Your Own Rights in the Music. Unlike GearDemo’s Video Upload Agreement, You retain full copyrights in your Music. This Agreement is non-exclusive in nature, meaning that You can also sell the Music on your own Web site as well as through other Web Sites. You can also sell physical copies in stores or anywhere else. And, of course, You can link your own personal Web site to a Web page on the GearDemo Web site containing the Music or a link to the Music. Despite your retention of all copyrights in the Music, You agree that You will not sue GearDemo or its affiliates, employees, or agents for copyright infringement for any reason concerning the Music. You agree that an action for the breach of this contract is your only remedy for any claim by You that GearDemo used your copyrighted material in a manner not contemplated or not allowed by this contract.
5. Your Compensation for Sales of the Music. GearDemo is happy to share the money generated by the Music with You and to encourage You to continue to make and upload quality content to the Web site. Currently, GearDemo expects to make the Music available for paid downloads by Internet users. To the extent that GearDemo has other opportunities to sell the Music in other ways in the future, GearDemo also expects to share those revenues with you. Accordingly, GearDemo agrees that:
a. GearDemo will pay You 70% of the revenues generated for GearDemo by (that is, the fees we earn as a direct result of)
downloads of the Music; and,
b. GearDemo will pay You a percentage of all other revenues directly generated for GearDemo by the Music. At this time,
GearDemo is still exploring all the different ways we might be able to sell the Music. When we do generate new revenues,
we will share them with You according to a percentage that we will make known on the GearDemo Web site. If the Music
is combined in some way with anyone else’s music and sold in a compilation or combination and that compilation or
combination is then sold to the public or a third-party, GearDemo will pay You your pro rata share of that percentage of the
revenues directly generated for GearDemo by that compilation or combination.
5.1 GearDemo will pay You your share of the revenues generated by the Music according to a regular schedule established by
GearDemo and only when GearDemo has all information necessary to make such payment to you. GearDemo reserves
the right to make payments to You only when your unpaid share of the revenues generated by the Video exceed a minimum
level of $50.
5.2 If and when GearDemo generates general advertising revenue or other revenue from the Web site or revenues from activities
other than through the Web site, that revenue will not be considered revenue generated by the Music and will not be shared.
For example, GearDemo will not pay You a share of the revenues from banner ads that happen to appear on a Web page
from which the public can download or stream the Music.
5.3 GearDemo may, in the future, either change its business model or be acquired by another company. In the course of such a
change in GearDemo’s business, it may be necessary to change the basis under which it will share revenues with you.
Should such a change occur, GearDemo will make the new revenue sharing arrangements known on the GearDemo Web
site.
6. Indemnification. GearDemo is relying on your agreement and representation that the Music You upload does NOT infringe on the copyrights (or other rights) of others, as well as your representation that the Music is not harassing, offensive or pornographic in any way. If someone sues or otherwise makes a legal claim against GearDemo, its employees, its affiliates, or its agents because of the Music, You agree that You will indemnify GearDemo (and its employees, affiliates, or agents) against such claims. In this context, that means that You will reimburse GearDemo (and its employees, affiliates, or agents) for any damages, sanctions or legal fees it has to pay third parties as a result of the Music’s availability on or performance, sale, or distribution through the Web site, as a result of any copies made by GearDemo of the Music, or as a result of any downloads or physical copies of the Music sold or licensed by GearDemo or its agents. In addition, You agree to pay the reasonable attorney’s fees incurred by GearDemo for defending against claims brought against GearDemo (or its employees, affiliates, or agents) as a result of the Music’s availability on or performance, sale, or distribution through the Web site, as a result of any copies made by GearDemo of the Music, or as a result of any downloads or physical copies of the Music sold or licensed by GearDemo or its agents. You agree that there is no wiggle room in this paragraph and that You will pay GearDemo’s liability and legal fees and costs regarding any claim against GearDemo concerning the Music.
7. Limitation of Liability. You agree that GearDemo (and its employees, affiliates, and agents) will not be liable to You for any direct, indirect, or consequential damages resulting from your use of the Web site, your uploading of the Music to the Web site, GearDemo’s use of the Music, or any use of the Music by third parties using the Web site or purchasing the Music. This limitation of liability will be effective against any claim You might bring against GearDemo, including any contract, personal injury or any other tort or legal claim.
8. Your Ability to Pull Music from the GearDemo Web Site. Should You decide that You no longer want to sell the Music through the GearDemo Web site, You may do so. Upon written notification (or through an official notification method that GearDemo may set up in the future on its Web site) by You of your intention to pull the Music from the Web site, GearDemo will make its best efforts to remove the Music from the Web site or disable the public’s ability to listen to or purchase the Music from the GearDemo Web site within seven (7) days. You agree that there is no monetary damages that You can recoup if GearDemo does not meet this seven (7) day requirement. You also agree that neither Your request to pull the Music nor GearDemo’s pulling of the Music terminates any of Your obligations under this Agreement. By way of example, if a claim is made by a third-party against GearDemo concerning the Music after the Music is no longer on the GearDemo Web site or no longer available for sale on the GearDemo Web site, Your obligations to indemnify GearDemo under Paragraph 6 are still in full force and effect.
9. General Terms. This Agreement is the entire contract between You and GearDemo. No oral statements by You or GearDemo, its employees, affiliates, or agents will have any effect on the terms of this Agreement (whether made before of after your acceptance of this Agreement), and no other prior agreement between You and GearDemo concerning the upload, streaming, and/or sale of the Music will be effective. GearDemo may, after giving You notice, change any of the terms of this Agreement. Your continued usage of the Web site or acceptance of payments under the amended terms will demonstrate your acceptance of the revised terms. Any court reviewing this Agreement shall construe it under the laws of the Commonwealth of Virginia. You agree that any lawsuit against GearDemo will be brought in the state or federal courts in the Commonwealth of Virginia. A waiver of any of the terms of this Agreement will not be considered a waiver of any other term of this Agreement. Should any particular term of this Agreement be held unenforceable, void, or voidable by a court of competent jurisdiction, the remaining terms will not be affected and shall be enforced as if the unenforceable terms had never been included in the Agreement.