Terms & Conditions

DOWNLOAD SALES AGREEMENT FOR MERCHANTS

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ARTICLE I.

GENERAL

ARTICLE II.

SCOPE OF SERVICE

ARTICLE III.

GRANT OF LICENSES; REPRESENTATIONS AND WARRANTIES

ARTICLE IV.

TERMS AND CONDITIONS

ARTICLE V.

FEES; TECHNICAL REQUIREMENTS

DOWNLOAD SALES AGREEMENT FOR MERCHANTS

BY CHOOSING "I ACCEPT" OR SIMILAR LANGUAGE ON THE GIGAHITZ DOWNLOADS STORE SIGNUP FORM, YOU CONFIRM THAT YOU WILL BECOME A PARTY TO THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALL REFERENCED POLICIES AND ALL OTHER AGREEMENTS THAT ARE INCORPORATED HEREIN. WE MAY MODIFY THIS AGREEMENT FROM TIME TO TIME AS FURTHER DESCRIBED IN ARTICLE II BELOW. IF YOU DO NOT AGREE TO THESE TERMS OR ANY SUBSEQUENT MODIFICATION, CLICK THE "I DO NOT ACCEPT" BUTTON OR OTHERWISE DO NOT REGISTER FOR OR USE THE GIGAHITZ DOWNLOADS STORE. THE "EFFECTIVE DATE" OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE "I ACCEPT" BUTTON. GIGAHITZ RESERVES THE RIGHT TO REJECT YOUR OFFER TO REGISTER FOR OR USE THE GIGAHITZ DOWNLOADS STORE IN ITS SOLE DISCRETION.

ARTICLE I.

GENERAL

Section 1.01

This is an agreement between Gigahitz, Limited. ("we", "us" or "Gigahitz") and you and any band, group, association or entity for whom you are acting as an agent (“you” or “Merchant”).

Section 1.02

This Agreement specifies the terms and conditions that govern your use of the Gigahitz Downloads Store (the “GDS”). When we refer to "use" of the GDS in this Agreement, we mean any actual or attempted access or use of the GDS, including, without limitation, any transmission, exchange of information or communication associated with the GDS.

Section 1.03

This Agreement incorporates by reference the Gigahitz User & Subscription Agreement (hereinafter the “USA,” found at www.Gigahitz.com) and you agree to its terms. This Agreement is intended to be read with the USA and not to limit it. Any conflicts or inconsistencies between this Agreement and the USA shall be resolved on a case-by-case basis.

ARTICLE II.

SCOPE OF SERVICE

Section 2.01

The GDS permits individuals or entities who maintain a Gigahitz membership account ("Buyers") to purchase songs that other Gigahitz members (“Merchants”) have chosen to make available for sale in the GDS. Gigahitz may sell these songs via permanent digital download, streams or burns, as individual tracks or as whole albums.

Section 2.02

To enroll as a Merchant, you must first complete the Gigahitz subscription process located on our web site at http://www.Gigahitz.com (the "Site") or such other registration process as we may require.

Section 2.03

We have sole discretion as to the operation, availability and scope of the GDS. We reserve the right to modify, expand, update, discontinue or otherwise change the GDS (or component thereof) and the terms of this Agreement. We will notify you of any material changes to this Agreement by posting the revised terms to the Site. YOU SHOULD REFER TO THE SITE FREQUENTLY TO ENSURE THAT YOU HAVE REVIEWED AND ARE FAMILIAR WITH THE MOST RECENT VERSION. Unless we state otherwise, the change, addition or deletion will apply to your future use of the GDS. You are deemed to accept all changes, additions or deletions if you use the GDS after they have been posted. If you do not agree to any such change, your sole remedy is to terminate this Agreement pursuant to Article IV.

ARTICLE III.

GRANT OF LICENSES; REPRESENTATIONS AND WARRANTIES

Section 3.01

By accepting this Agreement and/or by the act of uploading Material (as that term is defined in the UNITED KINGDOM) to the GDS (hereinafter your “GDS Material”), you hereby grant Gigahitz the nonexclusive right, for the Term and throughout the Territory, to promote, sell, distribute, electronically fulfill and deliver your GDS Material via permanent digital download, streams or burns, as individual tracks or as whole albums, pursuant to the terms of this Agreement. To effectuate this intent you hereby grant Gigahitz a nonexclusive, royalty-free license to:

(a) reproduce, convert, publicly perform, publicly display, digitally perform, and electronically distribute your GDS Material;

(b) use any trademarks, service marks or trade names as well as any trademarks, service marks or trade names appearing in your GDS Material, for purposes of promoting and advertising Gigahitz products and services; and

(c) use your name and likeness as well as the names and likenesses of any individuals depicted in or having ownership interests in your GDS Material, for purposes of promoting and advertising Gigahitz products and services.

Section 3.02

For purposes of clarification, and without limitation, the term “GDS Material” includes, but is not limited to, both the musical composition and the sound recording in which any musical composition is embodied; along with associated metadata, artwork, photographs, text and lyrics.

Section 3.03

All licenses you grant to Gigahitz under this Agreement are in addition to those you have granted to Gigahitz pursuant to the USA (the “USA Licenses”), and nothing herein is intended to limit the USA Licenses.

Section 3.04

If we make an error in good faith, and consequently exceed our license rights, your sole and exclusive remedy will be for us to take all reasonable steps to promptly correct the error as soon as you notify us of the error.

Section 3.05

Nothing herein shall obligate Gigahitz to exercise any rights granted to us under this Agreement or the USA.

Section 3.06

By accepting this Agreement and/or submitting your GDS Material to Gigahitz, you expressly warrant and represent the following to Gigahitz and acknowledge that Gigahitz is relying upon such warranties and representations:

(a) That you have reached the age of majority and are otherwise competent to enter into contracts in your jurisdiction; and that in any event you are at least 18 years of age.

(b) That you have obtained and hold all rights, approvals, consents, licenses and/or permissions, in proper legal form, necessary to submit your GDS Material on the terms provided herein and to grant Gigahitz the licenses set forth herein.

(c) That no other rights, approvals, consents, licenses and/or permissions are required from any other person or entity to submit your GDS Material on the terms provided herein or to grant Gigahitz the licenses set forth herein.

(d) That your GDS Material is original; that your GDS Material was either created solely by you or, by written assignment, you have acquired all worldwide intellectual property rights in and to your GDS Material or that, if your GDS Material contains any "samples" or other copyrightable work the rights to which are owned in whole or in part by any person or entity other than you, that you have obtained and hold all rights, approvals, consents, licenses and/or permissions, in proper legal form, necessary to use and include such work in your GDS Material; and that your GDS Material does not otherwise infringe on the intellectual property rights of any person or entity.

(e) That your GDS Material does not violate any common law or statutory patent, copyright, privacy, publicity, trademark or trade secret rights of any person or entity and is not libelous, defamatory, obscene or otherwise actionable at law or equity.

(f) That your GDS Material does not contain and will not produce any viruses or other harmful code or other information that could damage or otherwise interfere with our computer systems or data and/or that of our customers.

(g) That all factual assertions you have made and will make to us are true and complete.

Section 3.07

You agree to sign and deliver to Gigahitz any additional documents that Gigahitz may request to confirm Gigahitz’s rights and your warranties and representations under this Agreement.

Section 3.08

You acknowledge that Gigahitz is relying upon the representations, warranties and covenants you have made herein. You agree to and hereby do indemnify Gigahitz, its licensees, assigns and customers against, and hold them harmless from, any loss, expense (including reasonable legal fees and expenses), or damage occasioned by any claim, demand, suit, recovery, or settlement arising out of any breach or alleged breach of any of the representations, warranties or covenants made herein or arising out of any failure by you to fulfill any of the representations, warranties, or covenants you have made herein.

Section 3.09

This Article III shall survive termination of this Agreement.

ARTICLE IV.

TERMS AND CONDITIONS

Section 4.01

The following terms shall have the following meanings for purposes of this Agreement:

(a) "Term" means the period beginning on the Effective Date of this Agreement and extending conterminously with your uninterrupted status as a Gigahitz Subscriber, regardless of whether your subscription is paid or complimentary. If your Gigahitz subscription terminates for any reason and you later re-subscribe, this Agreement will not automatically revive.

(b) "Territory" means the Universe.

Section 4.02

You may terminate this Agreement at any time by providing Gigahitz with thirty (30) days' written notice of your intention to terminate. Gigahitz may terminate this Agreement at any time, without notice and in its sole discretion.

Section 4.03

You retain full ownership of any and all GDS Material you submit to Gigahitz, at all times, subject only to the rights and licenses you grant to us pursuant to this or any other applicable agreement; it being understood that under no circumstances shall Gigahitz have any lesser rights than it would have as a member of the public. You are free to grant similar rights to others during and after the Term of this Agreement. If you believe that GDS Material in which you hold an ownership interest has been submitted to the GDS without your permission, you must, and hereby agree to notify Gigahitz’s designated Copyright Agent immediately.

Section 4.04

If you provide a parental advisory warning about a particular sound recording in your GDS Material, Gigahitz shall make such parental advisory information available to Buyers. You shall be solely responsible for determining the necessity for and content of parental advisory warnings.

Section 4.05

Gigahitz will make reasonable efforts to keep the GDS operational. However, certain technical difficulties, routine site maintenance, upgrades and any other events outside the control of Gigahitz may, from time to time, result in temporary GDS interruptions. Gigahitz also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the GDS with or without notice. You agree that Gigahitz shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the GDS.

ARTICLE V.

FEES; TECHNICAL REQUIREMENTS

Section 5.01

The fee, if applicable, for uploading your GDS Material and making such Material available for sale at the GDS shall be as disclosed in the Gigahitz subscription charges schedule.

Section 5.02

Audio files you upload to the GDS must be in the following format: mp3 not lower than 128 kbps. Files not formatted accordingly will not be accepted into the GDS.

Section 5.03

Uploading Material to the GDS is not secure. You upload your GDS Material entirely at your own risk, and with the express understanding that Gigahitz does not employ technical protection measures.

Section 5.04

You agree that you have read and you accept Sections 1.10 and 1.11 of the USA which, along with each and every other provision of the USA, are fully incorporated herein. YOUR USE OF THE GDS IS ENTIRELY AT YOUR OWN RISK.

ARTICLE VI.

PAYMENTS

Section 6.01

The GDS will offer individual songs for sale to Buyers at the price you chose during the upload process unless nominated as FREE tracks exchangeable against survey credits – see section 6.02. You have the right to choose which price is appropriate for your music. GIGAHITZ RESERVES THE RIGHT TO MODIFY PRICES IN THE GDS FROM TIME TO TIME, IN GIGAHITZ’S SOLE DISCRETION. Gigahitz will notify you of any change in price. If you disagree with a price change, your sole remedy is to terminate this Agreement in accordance with Section 4.02.

Section 6.02

You agree to nominate at least one music track to be exchangeable, free of charge, for a survey credit. When you have uploaded 6 or more tracks to the GDS, the free tracks must be nominated on a ratio of 1 to 5 free tracks, rounded up to the next unit of 5 e.g. if you have uploaded up to 5 tracks, then 1 track should be nominated as the ‘free’ track, if you have uploaded 6, 7, 8 ,9 or 10 then 2 tracks must be nominated, between 11 and 15, 3 free tracks and so on.

Section 6.03

If you are using only Gigahitz free services and no subscription services, Gigahitz will pay you 50% of the actual gross sales revenue resulting from the sale of your tracks.

This figure will be net of VAT where VAT is applicable.

If you are using a Gigahitz payment subscription service, Gigahitz will pay you in the following manner depending upon your level of subscription:

Level 1		60% of actual gross sales value
Level2		70% of actual gross sales value
Level 3		80% of actual gross sales value

This figure will be net of VAT where VAT is applicable.

GigaHitz Ltd make payment to you within 14 working days when your share of the gross sales value has reached a multiple of £20.00

Section 6.04

In the event a Buyer reports to Gigahitz that digital delivery of a validly purchased item of your GDS Material failed in whole or in part, you authorize Gigahitz to deliver a “Replacement Download” of such GDS Material to such Buyer. Gigahitz will not charge Buyers for Replacement Downloads, and accordingly will not owe or pay anything to you for Replacement Downloads.

Section 6.05

If a Buyer purchases an item of GDS Material and is unable to download it for any reason, you authorize Gigahitz in its sole discretion to provide the Buyer with one of the following remedies:
(a) Gigahitz may refund the Buyer's payment for the purchased item, and deduct the amount refunded to the Buyer from any amounts due to you hereunder; or

(b) Gigahitz may provide the Buyer with a comparable item of your GDS Material.

Section 6.06

(a) You must request payment of amounts due and payable to you, in accordance with procedures specified by Gigahitz. Gigahitz will not remit payment automatically.

(b) You may request payment once per calendar quarter but only at such times as the total amount owed to you equals or exceeds twenty pounds sterling (£20.00).

(c) All checks issued by Gigahitz are subject to the stale checks policy set forth in Section 4.06 of the USA.

(d) You must request payment for your GDS earnings within two (2) calendar years after such earnings have posted to your GDS Merchant account. Upon the expiration of such two (2)-year period, all such earnings shall be converted to Download Purchase Credits in accordance with Section 4.05 of the USA and Gigahitz shall have no further obligation to remit cash or any other type of payment.

(e) The provisions of this Article VI shall constitute full consideration for all rights granted and obligations undertaken by you hereunder.

Section 6.07

If this Agreement terminates, Gigahitz will remit payment of any amounts due and owing to you at the time of termination, within 30 days of termination. This Section 6.06 is not meant in any way to limit any other provisions of this Article VI.

Section 6.08

If you are acting on behalf of another Artist (as such term is defined in the USA), distributing payment to such Artist is your sole responsibility.

ARTICLE VVI.

MISCELLANEOUS

Section 7.01

All notices required to be sent to Gigahitz under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage paid, or by overnight delivery service, to Gigahitz Limited

Section 7.02

Your rights under this Agreement are not assignable and any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Gigahitz’s option.

Section 7.03

This Agreement is binding on the Parties and their respective heirs, legatees, executors, successors and assigns. Except for Policies and other agreements incorporated by reference herein (including but not limited to the UNITED KINGDOM), this Agreement is the entire agreement between the Parties and supersedes all prior written or oral agreements between the Parties relating to the subject matter hereof. If any portion of this Agreement is found to be void or unenforceable, the remaining portion shall be enforceable with the invalid portion removed, giving all reasonable construction to permit the essential purposes of the Agreement to be achieved. The Parties’ various rights and remedies hereunder shall be construed to be cumulative.

Section 7.04

This Agreement shall be deemed to have been made in the United Kingdom, and it shall be governed by the substantive laws of the United Kingdom without regard to any applicable conflict of laws provisions.

Section 7.05

Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law. Nothing in this Agreement shall be construed or deemed to create any partnership, agency, joint venture, employment or franchise relationship between the Parties.

Section 7.06

Each Party hereto agrees to execute all further and additional documents as may be necessary or desirable to effectuate and carry out the provisions of this Agreement.

Section 7.07

Captions and headings used in this Agreement are for purposes of convenience only and shall not be deemed to limit, affect the scope, meaning or intent of this Agreement, nor shall they otherwise be given any legal effect.

Section 7.08

No breach of this Agreement by Gigahitz shall be deemed material unless the Party alleging such breach shall have given Gigahitz written notice of such breach, and Gigahitz shall fail to cure such breach within thirty (30) days after its receipt of such notice.

Section 7.09

All duties, liabilities, obligations, warranties, representations, covenants, authorizations, agreements and restrictions undertaken by and/or imposed upon you in connection with this Agreement shall be deemed to apply jointly and severally to all members collectively and each member individually of any group at any time comprising the Artist (as that term is defined in the UNITED KINGDOM) whose recordings or other Materials you upload or otherwise make available to the GDS.

Section 7.10

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the GDS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Last Updated: 01/08/2007