Artist Agreement
BRITE.FM DISTRIBUTOR AGREEMENT
This Distributor Agreement (“Agreement”) is made as of the date of sign-up at artists.brite.fm (the “Effective Date”), by and between Fourth Row Collective, LLC d/b/a Brite.fm, a Tennessee limited liability company (“Brite”), and the artist or entity named in the sign-up process located at artists.brite.fm. (“Distributor”).
WHEREAS, Brite offers a synergistic group of curated music and brand discovery services, including branded websites, content, services and applications (the “Services”) through which artists are able to promote their music.
WHEREAS, Distributor desires to license to Brite its rights in various Assets (as defined below) that Distributor owns or controls pursuant to its own agreements with artists and/or musicians for distribution to end users.
THEREFORE, in consideration of the mutual promise and covenants, and upon the terms and conditions contained herein, the parties agree as follows:
1. License. Distributor hereby grants to Brite, and Brite hereby accepts, the limited, non-exclusive, non-transferable and non-assignable license during the Term of this Agreement (as defined in Paragraph 7 below) to distribute, reproduce, copy, convert, publicly perform, display and otherwise make use of certain intellectual property owned or otherwise controlled by Distributor, including, without limitation, the name, image, likeness, biographical information, musical compositions, sound recordings, photographs, graphics and videos of recording artists and/or musicians with which Distributor has a contractual relationship regarding the same (the “Assets”) in connection with Distributor’s use of Brite’s Services, Brite’s promotion of Distributor’s affiliation with the Services, and generally for the promotion of Brite. All Assets provided to Brite by Distributor shall be provided in a form acceptable by Brite, in its sole discretion, as may be articulated by Brite from time to time.
2. Data Sharing. In connection with its provision of the Services to fans, consumers and other users, Brite may collect certain identifying information. Brite will share with Distributor the email addresses of such users of the Services who access, download or otherwise make use of Distributor’s Assets. Such user information will be shared in conformity with Brite’s Privacy Policy, which is incorporated herein by reference, and is made available on Brite’s website (http://brite.fm).
3. Copyright Infringement. Upon notice to or reasonable belief by Brite of copyright infringement concerning or relating to Distributor’s Assets or use of the Services, Brite may, in its sole discretion and without any form of process or prior notification to Distributor, resolve the alleged infringement by any means it deems appropriate, including, but not limited to, the removal of any allegedly infringing Assets or other content, or the termination of this Agreement. Brite shall be under no duty or obligation to review or otherwise investigate the claim of infringement.
4. Representations and Warranties.
(a) Distributor represents and warrants that:
i. Distributor is familiar with the purpose and functionality of the Services;
ii. Distributor owns, controls or has secured all necessary rights to publish, reproduce, distribute, display, perform publicly, transmit, sell, promote or otherwise exploit the Assets and otherwise make full use of the Services;
iii. Distributor owns, controls or has secured all necessary rights to allow Brite to perform its obligations and provide the Services as contemplated by this Agreement;
iv. Distributor assumes all responsibility, obligation and liability concerning the administration of any rights necessary at law to make full use of the Services, including without limitation, the payment and accounting of royalties and the obtaining of necessary permissions and licenses to effectively participate in the Services;
v. Distributor’s entering into this Agreement, and its performance under this Agreement, will not in any way violate or infringe upon the rights of any third party, including without limitation copyrights, trademarks, patents, rights of publicity, or rights of privacy, nor do the Assets contain any libelous, slanderous, defamatory, offensive, obscene, pornographic or otherwise unlawful content; and
vi. Distributor has all necessary rights, power and authority to enter into this Agreement and perform the obligations contained herein.
(b) Distributor agrees and acknowledges that Brite is authorized to make use of the Assets in the Services in any manner Brite deems appropriate to sell, promote and otherwise exploit the Assets, but that Brite is under no obligation, legal or otherwise, to affirmatively generate revenue on behalf of the Distributor in the Services. By offering the Services and entering into this Agreement, Brite makes no representations, warranties, promises or guarantees, expressly or impliedly, as to the likelihood of generating revenue on behalf of the Distributor. In the event of Distributor’s dissatisfaction with the Services in this regard, Distributor’s sole remedy will be to terminate this Agreement in accordance with Paragraph 8 below.
5. Indemnification. Distributor hereby agrees to indemnify and hold harmless Brite and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning Distributor’s breach of this Agreement, including without limitation, licenses and payments related to copyright, patent, trademark and other intellectual property rights associated with the sale, distribution, reproduction, promotion or other use of the Assets through the Services. Under no circumstances will Brite be liable to Distributor for consequential, exemplary, special, incidental or punitive damages for any damages or losses sustained, directly or indirectly, by Distributor in connection with Distributor’s use of the Services, including without limitation, damages or losses incurred as the result of a third party’s accessing a secured portion of the Services and third-party claims of infringement of intellectual property rights.
6. Term. This Agreement shall be effective as of the Effective Date and shall remain in force until terminated in accordance with the provisions of Paragraph 7 below.
7. Termination.
(a) By Distributor. Distributor may, at any time, choose to terminate this Agreement by providing written notice to Brite, such termination to become effective thirty (30) days after receipt of such notice. Any then-outstanding balance of accrued revenues derived from Paid Transactions and Streaming Audio will be due and payable by Brite upon the next Payment Cycle pursuant to Paragraph 2 above. Beyond making this final remittance, under no circumstances will Brite have any further obligation to Distributor beyond the termination of this Agreement.
(b) By Brite. Notwithstanding any provision of this Agreement, Brite reserves the right to, at any time, for any reason, and in its sole discretion, restrict, block and/or terminate Distributor’s access to or use of the Services, or any portion thereof, with or without notice to Distributor and without liability to Distributor or any third party. Brite may also change, suspend or discontinue any section or aspect of the Services at any time, for any reason, and without notice to Distributor, without liability to Distributor or any third party.
8. Survival. All provisions of this Agreement related to Distributor's warranties, proprietary rights, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
9. Notice. All notices required or permitted hereunder must be in writing and will be deemed effective: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, otherwise, then on the next business day; (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one day after deposit with a nationally recognized overnight courier. All communications shall be sent to the following addresses:
If to Distributor: the email address used at signup
If to Brite: notices@brite.fm
10. Modification. Brite reserves the right to modify this Agreement at any time, in its sole discretion, by providing notice to the Distributor. Unless otherwise specified, such notice shall be effective immediately. Brite’s failure to provide notice of any modification shall not be deemed a breach of this Agreement.
11. Remedies. Distributor agrees and acknowledges that any unauthorized use of the Services and any related software or materials would result in irreparable injury to Brite and/or its affiliates or licensors, for which money damages would be inadequate, and in such event Brite, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against Distributor. Nothing contained in this Agreements shall be construed to limit remedies available pursuant to statutory or other claims that Brite, its affiliates and/or licensors may have under separate legal authority.
12. Entire Agreement. This Agreement, with the Privacy Policy and Copyright Policy made available on the website hosted at the http://brite.fm and artists.brite.fm domains, which are incorporated by reference, represent the entire agreement between Distributor and Brite with respect to Distributor’s use of the Services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Brite’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
13. Choice of Law and Venue. The laws of the State of Tennessee, excluding its conflicts of law rules, govern this Agreement. Distributor expressly agrees that the courts in the State of Tennessee, Davidson County, have exclusive jurisdiction over any claim or dispute with Brite arising out of this Agreement. Distributor further agrees and expressly consents to personal jurisdiction in the federal and state courts in Davidson County in connection with any such dispute, including any claim involving Brite or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers. Distributor agrees that any claims arising in connection with this Agreement shall be resolved in binding arbitration with a duly authorized representative of the American Arbitration Association (“AAA”) in accordance with the provisions hereof and thereof. Either party to this Agreement may submit the matter to binding arbitration before the AAA in Davidson County, Tennessee, which arbitration shall be final and binding on the parties and the exclusive method, absent agreement between Distributor and Brite, for purposes of determining the ability of Distributor or Brite to satisfy such claim. All claims shall be settled by a single arbitrator appointed in accordance with the Commercial Arbitration Rules then in effect of the AAA (the “AAA Rules”). The arbitrator shall render a final decision pursuant to the AAA Rules within thirty (30) days after filing of the claim. The final decision of the arbitrator shall be furnished to Distributor and Brite in writing and shall constitute the conclusive determination of the issue in question binding upon Distributor and Brite, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator’s decision. The prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief that such party may be entitled. For purposes of this Agreement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment.