Acceptance of the terms and conditions of distribution
Please carefully read and accept the terms and conditions stated below to proceed with your application.
Terms & Conditions
1. PREAMBLE
WHEREAS the Distributor operates a business that distributes musical and multimedia works;
WHEREAS the Signatory holds all copyright rights of the works to be distributed (hereinafter the "Works");
WHEREAS the Signatory wishes to grant the Distributor exclusive digital distribution rights of the Works;
WHEREAS the Parties have the capacity and qualification to exercise all rights required for the conclusion and execution of the agreement recorded in this digital distribution convention (the "Agreement");
WHEREAS the Parties desire to record and confirm, by a private agreement, through this Agreement, the terms, conditions, and modalities of their agreement.
IN CONSIDERATION OF THE AGREEMENTS AND CONDITIONS HEREAFTER STIPULATED AND FOR GOOD, VALID AND SUFFICIENT CONSIDERATION RECOGNIZED BY THE PARTIES HEREIN, THE PARTIES AGREE AS FOLLOWS:
2. DEFINITIONS
2.1. "Direct distribution costs" means all reasonable and verifiable expenses incurred in the promotion, distribution, exploitation, licensing, or sale of the Works by the Technical Provider of the Technical Platform. These expenses include long-distance charges, photocopying fees, fax charges, shipping and courier fees, customs clearance and brokerage fees, storage and handling charges, insurance, transcoding, prorated market fees. These fees also include wire transfer fees, promotion and duplication of promotional materials, any direct advertising or promotion fees (e.g., the cost of creating advertising materials, paid advertising), taxes and duties, including withholding taxes, copyright registrations, legal fees and research fees (if necessary), and any payment for duplication or manufacturing of materials.
2.2. "Digital Distribution" means any activity of distributing the Works on digital platforms (including the Digital Platform) or online, including but not limited to streaming sites, online music purchase stores, mobile applications, satellite radios and any other listening or purchasing platform for musical or multimedia works online, known (stipulated in Annex "A") and forthcoming.
2.3. "Technical Provider" means distribution provider allowing audio releases to reach Digital Service Providers such as streaming sites, online music purchase stores, mobile applications, satellite radios and any other listening or purchasing platform for musical or multimedia works online.
2.4. "Technical Platform" refers to the digital distribution portal operated in the background by the Technical Provider for which the Distributor has obtained the license to operate as the main administrator. The Distributor, being the main administrator of this portal, has full discretion over the users for whom access is provided for the digital distribution of works to streaming sites, online music purchase stores, mobile applications, satellite radios, and any other listening or purchasing platform for musical or multimedia works online, known (stipulated in Annex "A") and forthcoming.
2.5. "Net Revenues" means, other than Direct Distribution Costs and related taxes (e.g., sales tax and goods and services tax, GST-QST) which are specifically excluded from this definition, all sums received by the Distributor or its sub-distributors or by any third party acting in place of the Distributor for purposes of Digital Distribution under this agreement, including, without limiting the generality of the foregoing, the sale of the Works, streaming royalties, etc.
3. RIGHTS
3.1. The Signatory grants the Distributor an exclusive license for Digital Distribution of the Works, according to the terms determined in article 3.2 and excluding all other formats of distribution. For purposes of clarification, without limiting the generality of the foregoing, this license authorizes the Distributor to use, reproduce, copy, communicate to the public on digital platforms only, and sublicense the Works, when these activities are carried out in the context of Digital Distribution.
3.2. This license does not include the right nor the obligation for the Distributor to perform sales of the Works or to grant licenses not directly related to Digital Distribution (including synchronization licenses, the production of phonograms, etc.).
3.3. Terms of the Digital Distribution rights:
a. Territories : World
b. Markets : All
c. Languages : All
d. Media : All digital platforms or online, including without limiting the generality of the foregoing, streaming sites, online music purchase stores, mobile applications, satellite radios and any other listening or purchasing platform for musical or multimedia works online, known (stipulated in Annex "A") and forthcoming.
e. Initial Duration : 5 years, beginning on the date of execution of this Agreement, and ending on the last day of the month during which occurs the 5th anniversary of the Initial Duration (the "End Date of the Initial Duration")
3.4. With the consent of the Distributor, the Signatory is free to grant the right of physical distribution of the Works (CDs, Vinyl, and other analog formats) to a third party, provided that the agreements agreed with third parties do not infringe upon, diminish, or otherwise adversely affect the rights granted to the Distributor herein.
3.5. From the End Date of the Initial Duration, this Agreement shall be automatically renewable for additional periods of one (1) year (each a "Renewal Period"), unless a written notice to the contrary is given by either Party, no later than three (3) months before the End Date of the Initial Duration or the last Renewal Period, as applicable.
3.6. If the Signatory terminates this Agreement other than in compliance with the terms herein (including, without limitation, as provided in article 3.5 above), the Distributor shall be entitled to a compensation equivalent to ten percent (10%) of the net revenues of the last reported quarter multiplied by the number of quarters remaining in this agreement (the "Compensation"), all payable immediately at the date of termination/rescission of the Agreement by the Signatory, and subject to all other rights and remedies that may exist under this Agreement or law. To this effect, the Signatory declares (i) that the aforementioned Compensation is reasonable for all legal purposes, (ii) that the Distributor shall not have the obligation to mitigate its damages in order to benefit from the Compensation provided herein, and (iii) that it irrevocably waives its right to allege otherwise.
3.7. The Signatory undertakes to provide the Distributor with all the material, information, and authorizations necessary to give full force and effect to this Agreement and to enable the Distributor to exercise the rights granted by this Agreement.
4. OBLIGATIONS OF THE DISTRIBUTOR
4.1. The Distributor undertakes to employ commercially reasonable efforts to ensure the Digital Distribution of the Works for purchase or listening online.
4.2. The Distributor undertakes to inform the Signatory, as soon as possible and on a daily basis, of its marketing and distribution plan and the budget it intends to devote to it.
4.3. The Distributor undertakes to market the Works in accordance with industry standards.
4.4. The Distributor undertakes to provide the Signatory with access to the platform, including a user code and a temporary password, so that the latter may access the Technical Platform at its own discretion. It is agreed that the Signatory has the responsibility to use its temporary password only for its first access to the Technical Platform, after which it must change its temporary password to a permanent password, which password shall remain strictly confidential.
4.5. The Distributor undertakes to provide the Signatory with all the knowledge and resources necessary to ensure the autonomous success of the distribution of the Works on the Technical Platform.
5. SUB-DISTRIBUTOR AND AGENT
5.1. The Distributor may, at its sole discretion, enter into agreements with sub-distributors and/or agents for purposes of Digital Distribution of the Works in international markets.
5.2. The Signatory has the freedom to act as a sub-distributor with the written consent of the Distributor, such consent not to be unreasonably withheld, delayed, or conditioned. In the event a new user code is needed, the Signatory must involve the Distributor in the creation of it, and a new agreement must be signed between the Distributor and the user of the new user code.
5.3. The Signatory is responsible for the protection of its data, including its user code and password. The Signatory may not share these with users who are not part of this agreement, without the written consent of the Distributor.
5.4. In the event that the Signatory decides to act as a sub-distributor, the Signatory is responsible for producing, signing, and listing its own agreements linking it to the artists it wishes to represent, all in accordance with industry practices and in a manner deemed acceptable by the Distributor, acting reasonably.
5.5. For the sake of clarity, the terms stipulated in Section 3 of this Agreement shall remain in effect, thereby binding the Signatory to the Distributor, whether the Signatory acts as a sub-distributor or as an artist.
6. EXPENSES AND FEES
6.1. The Distributor shall assume all Direct Distribution Costs.
6.2. In consideration for the digital distribution services rendered by the Distributor under this Agreement, the Distributor shall have the right to retain twenty-five percent (25%) of the Net Revenues received by the Signatory resulting from the Digital Distribution of Works and other services on the Technical Platform (the "Distribution Fee"). For clarity, the Distribution Fee includes commissions paid to agents and/or sub-distributors, as well as any other fee or commission payable to a third party in the course of the distribution mandate of the Distributor provided herein.
7. ACCOUNTING
7.1. The Distributor undertakes to keep the Signatory regularly informed (i) of the steps taken to distribute the Works in the various markets and (ii) of the sales that will be made.
7.2. For each quarterly period, the Distributor shall send the Signatory a detailed report of the Net Revenues received (the "Report"). This report will be sent to the Signatory between three (3) and six (6) months following the end of the reported quarterly period.
a. As an example, for the fourth quarterly period of a given year (Q4), which consists of the months of October, November, and December, the Report will be sent to the Signatory between March and June of the following year.
b. The Signatory irrevocably accepts that the deadlines concerning the Reports, as provided in this Section 7, cannot, under any circumstances, be derogated or negotiated, due to the limitations imposed by the Technical Platform.
8. REPRESENTATIONS AND WARRANTIES
8.1. The Signatory represents and warrants to the Distributor that:
a. it has the capacity and quality to exercise all rights required for the conclusion and execution of this Agreement.
b. it holds all rights, titles, and interests in the Works including, where applicable, the necessary rights obtained from third parties.
c. the Works do not violate any intellectual property rights, property rights, or any other rights of third parties, are not contrary to law and contain no defamatory material.
d. it has not entered into any agreement that is contrary or incompatible with any of the provisions of this Agreement and that there are no ongoing or threatened lawsuits, claims, or disputes that could affect the rights or titles of the Distributor with respect to the Works.
8.2. As a result of the foregoing, the Signatory undertakes to take up the cause and indemnify the Distributor for all damages, expenses, reasonable costs and fees incurred or suffered by it as a result of any lawsuit brought by a third party due to non-compliance with any of the representations and warranties foregoing.
9. TERMINATION AND DEFAULT
9.1. In the event of a failure or omission by one of the Parties to comply with any of its obligations under this Agreement, the other party may terminate this Agreement by written notice to that effect (the "Termination Notice"), provided that in all cases, a default notice (the "Default Notice"), including a remedy period of at least fifteen (15) business days has been sent to the defaulting party, and that this party has not remedied the breach/default within the remedy period provided in the Default Notice. This Agreement shall be deemed terminated from the receipt of the Termination Notice by the defaulting party.
9.2. The bankruptcy, insolvency, and assignment of assets by either Party constitute a default terminating this Agreement by right, without the need for a Default Notice or a Termination Notice.
9.3. For the sake of clarity, the fact that one or the other of the Parties exercises their right of termination provided herein does not affect the Distributor's right to claim its Distribution Fee for services rendered up to the date of termination, and to recover from the Signatory damages and costs incurred by the Distributor as a result of the Signatory's breach, including all legal fees and disbursements incurred by the Distributor to terminate the Agreement and defend the Distributor's interests, as applicable, as well as all costs and expenses (including commissions and professional fees) incurred by the Distributor in connection with the Agreement and the termination thereof.
10. SPECIAL PROVISIONS
10.1. The Parties agree that the scope of territories and platforms included in Annex "A" may change at any time to comply with the technological, regulatory, political, and/or other governance limitations and requirements of the Technical Platform.
10.2. Furthermore, the Parties agree that the territories and platforms included in Annex "A" may exercise their own decision-making power regarding the works they host and found on the Technical Platform, in order to comply with their respective legal, technical, cultural, technological, or political requirements.
11. ASSIGNMENT AND SCOPE OF THIS AGREEMENT
11.1. A party may, at any time, assign or otherwise transfer to a person "member of the same group," as defined in the Canadian Business Corporations Act, all or part of its rights under this Agreement, but must notify the other party in writing and without delay. However, this assignment shall not release the assigning party from its obligations under this Agreement.
11.2. A party may not assign its rights under this Agreement to a person who is not a "member of the same group," as defined in the Canadian Business Corporations Act, unless prior written authorization is obtained from the other party, acting reasonably.
11.3. This Agreement binds and benefits the Parties as well as their successors, heirs, legatees, administrators, assigns, and other legal representatives.
12. GENERAL PROVISIONS
12.1. The Parties agree to negotiate and sign, in good faith, the specific agreements, contracts, or other documents necessary to give full effect to this Agreement.
12.2. This Agreement supersedes any previous contract, agreement, or representation, if any, prior to this Agreement, relating, in whole or in part, to the subject matter of this Agreement, and may only be amended or supplemented by a writing signed by all Parties hereto.
12.3. The potential illegality or nullity of an article, paragraph, or provision (or part of an article, paragraph, or provision) shall not affect in any way the legality of the other articles, paragraphs, or provisions of this Agreement, nor the remainder of that article, paragraph, or provision, unless an opposite intention is clearly evident from the text.
12.4. This Agreement shall not be deemed to constitute a partnership, joint venture, or co-venture between the Parties. Accordingly, the Distributor may not incur debts or obligations on behalf of the Signatory and vice versa.
12.5. This Agreement is governed by and shall be interpreted in accordance with the laws of the province of Quebec and the applicable federal laws of Canada.
12.6. The Parties hereby declare that it is their express wish that this Agreement, as well as all documents contemplated herein or relating thereto, or signed in connection with this Agreement, be drawn up exclusively in the English language; The parties hereby declare that it is their express wish that this agreement, and all documents contemplated in or relating to this agreement, or executed under or in connection this agreement, be drawn up exclusively in the English language.