General Terms and Conditions
KJER Technology ApS
CVR No. / EU VAT No. DK 29 94 06 30
(the USER and KJER hereinafter collectively the “Parties” or individually “Party”)
Welcome to KJER’s services. By signing up to and by using KJER’s services (the USER signs the Agreement by clicking the “Accept” button), you agree – on the day of signing up (the “Effective Date”) – to these General Terms and Conditions located at http://www.kjer.com/terms (hereinafter the “Agreement”) on i) distribution of music, films and related content, owned or licensed by the USER, via the internet and/or on ii) marketing of promotional audio or video tracks, made available as digital service packages to the USER and/or various promotional partners, also via the internet.
KJER company policy states ALL SALES ARE FINAL. No refunds are allowed.
EAN13 barcodes issued by KJER are for the USER only. There are penalties for reselling and to discourage this the USER will have to pay a EUR 25.00 fee plus all the revenue received from the sale of the EAN13 barcode, and KJER can take this money from the proceeds of music sales.
KJER reserves the right to update and change, from time to time, this Agreement and all documents incorporated by reference. You can always find the most recent version of this Agreement at the URL indicated above.
1. BACKGROUND AND PURPOSE
KJER is in the business of representing rights holders’ catalogs of entertainment content and ancillary digital assets for the purpose of licensing the digital rights for digital distribution representation primarily via, but not limited to, its business relation, The Orchard, USA (hereinafter “ORCHARD”). KJER is further, through its cooperation with ORCHARD, in the business of providing comprehensive management services for rights holders’ entire digital portfolio, including catalog encoding and metadata management; online retail promotion; and royalty collection, administration, distribution, and reporting services.
KJER is capable of distributing works in terms of inter alia LP’s (full length CD albums), EP’s (extended play, typical 3-5 tracks), singles (CD singles), box sets, multi discs or vinyl. The USER delivers the actual musical works (Red Book audio CD format) to KJER including information on rightful claimants, ISRC codes, additional musicians, photo materials etc. for upload, registration and marketing in digital or physical format according to KJER’s instructions, cf. the Metadata Worksheet. A current list of online music services cooperating with KJER (via, but not limited to, ORCHARD) is displayed on KJER’s website http://www.kjer.com.
The USER is in the business of recording, producing and/or marketing musical sound recordings, musical compositions and other intellectual properties (“recording company”). More specifically, this Agreement covers digital distribution rights for the catalog of the USER’s entertainment content, which includes all current and future audio-only master recordings (“Recordings”) and audio-visual programs (“Videos”) that the USER has the right to license to KJER during the Term. For clarification, no Recording may be disembodied from its corresponding Video and distributed as an audio-only product unless the USER has expressly designated it a Recording and expressly authorized it in writing for such distribution. This Agreement also covers all musical compositions embodied in the Recordings and Videos that the USER has the right to license (the “Compositions”), as the USER designates in the Metadata Worksheet. This Agreement also covers all other digital assets (including without limitation, album covers and other artwork, image files, marketing materials, trade names, trademarks, logos, booklets etc. (collectively referred to hereunder as the “Other Digital Assets”)) that the USER has the right to license for promotional and/or commercial use as authorized by the USER as the USER designates in the Metadata Worksheet. Collectively, all such Recordings, Videos, Compositions and Other Digital Assets referred to herein above are referred to as the “Catalog”.
2. GRANT OF AUTHORITY TO KJER
(a) By this Agreement, the USER grants to KJER a worldwide (but subject to the particular territorial limitations applicable to each master sound recording, as designated by the USER in the Metadata Worksheet) right on behalf and under the authority of the USER to: (i) represent the USER for the purpose of licensing the Catalog via its cooperation with ORCHARD to third party Digital Entertainment Services (as defined below) collectively with other independent content owners; and (ii) collect, administer, and distribute proceeds from ORCHARD and/or Digital Entertainment Services for uses of the Catalog as authorized by KJER under this Agreement;
(b) As used herein, “Digital Entertainment Services” shall refer to Internet sites, on-line services and all other entities distributing entertainment products in a digital format that are legally authorized to sell, broadcast or otherwise distribute music-related content, for a fee and/or for free (with such free distribution expressly subject to the terms contained in the agreement between KJER and ORCHARD respectively ORCHARD and such Digital Entertainment Service to which the USER has not exercised its opt-out rights pursuant to Section 8(a) and/or Section 3(d)(ii) herein below), in digital form via downloading, streaming or other existing and future digital delivery methods, including but not limited to, any and all on-line services, service over telephone lines, microwave signals, radio waves, satellite, wireless, cable, electricity power lines, or any other lawfully authorized method now known or hereinafter invented which allow distribution of the Catalog to consumers to, e.g., their personal computers, personal devices, and via kiosks. Without limiting the generality of the foregoing, KJER shall specifically have the right to authorize ORCHARD and others to distribute the Catalog (subject to the USER’s opt-out rights in each instance, as specified herein below) for the following digital delivery methods, and to collect, administer and distribute royalties and other earning derived from such uses:
(i) Unrestricted downloads;
(ii) Compact Disc burns;
(iii) Restricted/tethered downloads;
(iv) On-demand interactive streams;
(v) Interactive radio;
(vi) Non-interactive radio (DMCA-compliant, compulsory license).
(vii) Semi-interactive radio (voluntary license); and
(viii) The servicing of any and all other existing and to be developed digital delivery methods.
(ix) Physical retail-ready releases (cd and vinyl).
(c) At the USER’s option, such option to be exercised via the procedure set out at Section 8 herein below, KJER shall also – via ORCHARD – collect, administer and distribute proceeds due to the USER from all third party digital sound recording licenses, including without limitation non-interactive radio webcasting, satellite radio, and cable subscription royalties from Sound Exchange (and any other authorized organization or successor thereto) and Audio Home Recording Act royalties from the AARC (and any other authorized organization or successor thereto).
(d) If any of the above rights are currently licensed to a third party by the USER, KJER, during the Term of this Agreement, may at the USER’s election, be appointed the USER’s authorized representative in connection with such current licenses.
(e) KJER shall have the right to prepare and encode the master sound recordings that comprise the Catalog in any format now known or hereafter devised for purposes of facilitating the intent of this Agreement and the exercise of the rights granted to KJER in this Agreement.
(f) All other rights in and to the Catalog are expressly reserved by the USER. Without limiting the generality of the foregoing, the USER shall have the right (so long as the USER has not entered into any other agreement with KJER) to continue any presently-existing and/or to issue new digital licenses for the Catalog directly to any Digital Entertainment Service (but not to other aggregators, digital distributors, and/or sub licensing entities) so long as the USER notifies KJER in writing of each such direct digital license. The USER also maintains all rights to enter into or to continue any presently-existing relationship with YouTube and similar online video services.
3. KJER SERVICES; PROMOTIONS
KJER will – for 12 month subscription based fees (all as such current fees are available on http://www.kjer.com or upon request) – provide the USER with the following services:
(a) Encode USER’s Catalog and store lossless digital masters and metadata on KJER’s computers and ORCHARD’S servers for the purpose of automated delivery to Digital Entertainment Service licensees;
(b) Negotiate (through, but not limited to, ORCHARD) terms and draft agreements for uses of the Catalog as contemplated hereunder, and administer such agreements.
(c) Deliver to ORCHARD encodings and metadata to be delivered to Digital Entertainment Services.
(d) KJER will make reasonable endeavors to offer to the USER the ability to avail itself of the following promotional endeavors:
(i) KJER shall have the right to prepare and stream extracts from the Recordings and Videos of up to ninety seconds (0:90) in duration (“Clips”) i) from the password-protected ORCHARD website for sampling by prospective ORCHARD business affiliates, and/or ii) from the KJER website for streaming and/or download by KJER business affiliates, promotional partners and/or DJs. The USER hereby waives any right to collect any proceeds or other remuneration whatsoever for the distribution of Clips as afore stated. Further, to the extent applicable, the USER shall be responsible for all clearances and payments of any kind whatsoever in respect of such use, including without limitation, for use of the musical compositions embodied in the Clips.
(ii) The USER may designate certain of its Recordings, Videos and/or other digital assets in the Catalog to be used as promotional items (the “PromoTracks”), to be offered via i) the ORCHARD website and/or ii) the KJER website for streaming and/or download by KJER business affiliates and/or DJs.
(iii) KJER shall have the right to – via, but not limited to, ORCHARD – offer full-length downloads and/or streams of PromoTracks from i) the ORCHARD website for evaluation by prospective business affiliates, promotional partners and/or DJ’s for possible Promotions, and/or ii) the KJER website for streaming and/or download by KJER business affiliates and/or DJs. ORCHARD shall – in accordance with its agreement with KJER – use commercially reasonable efforts to negotiate promotional agreements (“Promotions”) to allow particular websites and other entities to offer free downloads, streams or other uses of the designated PromoTracks. Such Promotions may occur with, without limitation, commercial download stores, free download websites, web casters, podcasters, bloggers, community websites, and the like.
(iv) The USER hereby waives any right to collect any proceeds or other remuneration whatsoever for the use and distribution of PromoTracks as afore stated via the ORCHARD website and vis-à-vis any other Promotion performed by KJER. The USER hereby waives any right to collect any proceeds or other remuneration for the distribution of PromoTrack(s) vis-à-vis a particular Promotion. For avoidance of doubt, to the extent applicable, the USER shall be responsible for all payments of any kind, including without limitation, record royalty participants, mechanical and synchronization royalties payable to publishers for songs embodied in the PromoTrack(s), payments to photographers, payments to music video directors or other participants, or any other royalties, fees and/or sums payable with respect to the use of a PromoTrack(s) in any authorized Promotion.
(v) All of the foregoing of subsections (i)–(iv) above notwithstanding, the USER acknowledges that KJER is not guaranteeing that any Promotions will actually occur, nor does the USER’s act of designating an item as a PromoTrack guarantee utilization as such; all decisions whether to use any particular PromoTrack(s) lie solely with the particular website or other entity hosting the Promotion.
(e) Throughout the Term, the USER shall furnish to KJER all pertinent publishing data in regards Third Party Compositions. “Third Party Compositions” are musical compositions embodied in the Recordings which are not Compositions (i.e., are not owned or controlled by the USER) but which are owned or controlled by third party music publishers or their authorized agents (referred to herein as “Publishers”). KJER shall assist the USER in securing licenses from the Publishers to make and authorize others to make digital phono record deliveries of the Third Party Compositions, and in obtaining other licenses for uses of the Third Party Compositions in connection with various uses and exploitations of the Recordings in the United States (collectively referred to as the “Publishing Licenses”) as authorized hereunder. KJER may secure Publishing Licenses for Third Party Compositions on standard terms and conditions, and such Publishing Licenses shall be executed by ORCHARD as agent for the USER. In such regard, the USER hereby grants to KJER the right and authority to execute Publishing Licenses on the USER’s behalf, which power of attorney is coupled with an interest and irrevocable during the Term hereof. KJER is authorized on behalf of the USER, and at the USER’s expense, to remit payments due to the Publishers under the Publishing Licenses obtained by KJER. KJER shall have the right to deduct payments made to ORCHARD and to Publishers from Royalties otherwise payable to the USER. All of the foregoing notwithstanding, other than in the case of 17 USC §115 compulsory-type mechanical licenses to be obtained from known Publishers (including through the Harry Fox Agency), KJER does not guarantee that all such Publishing Licenses will be obtainable. Consideration for KJER’s efforts in regards each Publishing License so obtained is included in the Compensation specified in Section 5 herein below. In addition to the foregoing, should the USER not provide all pertinent publishing data required in regards a particular Third Party Composition(s) and KJER is required to research the appropriate Publisher(s) in such regard, then KJER shall be entitled to additional compensation over and above the Compensation described herein, in an amount subject to the agreement of the parties.
(f) The USER agrees and understands that KJER’s services and products are proprietary to either KJER and/or ORCHARD, including without limitation encoding and transcoding services, negotiations with and delivery to Digital Entertainment Services, and the ORCHARD website. The USER agrees that such services and products may not be offered (whether for a fee or for gratis) and/or otherwise connoted by the USER that the USER is supplying these services to its artists instead of KJER and/or ORCHARD.
(g) KJER may, at KJER’s sole discretion, provide all or any part of the services under this Agreement through its cooperation partner ORCHARD, and may further authorize ORCHARD to administer any right or perform any action on behalf of KJER that the USER has authorized KJER to do herein. Notwithstanding the foregoing, KJER shall not be liable for any actions or omissions of ORCHARD or any Digital Entertainment Service.
4. MATERIALS TO BE SUPPLIED BY THE USER
To facilitate KJER providing the described services, the USER will provide KJER with the materials described in the Metadata Worksheet (the “Deliverables”) in regards each title in the Catalog for the purposes of digital encoding and back-up protection. The USER shall also provide a list of titles in the USER’s Catalog and such other information as KJER shall reasonably request from time to time in connection with the implementation of licenses, including the identity of, and contact information for, those entities or individuals owning copyrights in compositions on the masters to the extent such compositions are not owned or controlled by the USER or its affiliates. The USER shall also, upon request, furnish to KJER the following banking information for use of royalty transfer procedures:
Account Holder’s Name
In compensation for the services of KJER described in this Agreement, the USER agrees that KJER shall retain twenty percent (20%) of all Royalties received by KJER from ORCHARD on behalf of the USER’s Catalog. For purposes of this Agreement, “Royalties” are defined as any payment, royalties, proceeds or other monies or remuneration received by or credited to KJER’s account from ORCHARD for the use of the Catalog or any portion thereof. As to KJER’s physical distribution services, as performed via relevant business partners, USER shall retain minimum EUR 6 per physical copy sold.
KJER’s compensation is exclusive of any value added (or like) tax which may be payable on it.
If ORCHARD or KJER is required to withhold or deduct taxes of any kind on behalf of the USER in respect of the payments made to the USER, KJER may deduct such taxes from the payment due and furnish the USER within a reasonable time with tax certificates or tax returns from the applicable government entity, such certificates and other evidence of deduction and payment, as the USER may reasonably require. KJER and the USER will then in good faith reasonably cooperate to: 1) seek an exemption or reduction of withholding taxes under the appropriate laws, 2) agree on possible changes of the then current set up that will allow such withholding tax relief or deduction and at the same time still reasonably satisfy the Parties’ interests. If: (a) neither KJER nor the USER are able to obtain exemption or reduction of or offset the withholding taxes under the appropriate laws; or (b) such changes and/or alternative arrangements are not found and agreed, then the USER shall – to the extent permitted by applicable law – be liable for the payment of such taxes, except in that KJER’s payment shall be based on the net income (exclusive of taxes) received by KJER from ORCHARD.
Notwithstanding the above, KJER is currently exempted from US withholding taxes (otherwise amounting to thirty percent (30%) of the revenue payable by ORCHARD.
6. ACCOUNTING, STATEMENTS AND PAYMENTS
Royalties are collected by ORCHARD on behalf of KJER. KJER will collect and distribute to the USER statements of aggregate Royalties received from all Digital Entertainment Services no later than the 52 (52) weeks after the end of each calendar quarter. Each statement issued by KJER to the USER will contain a statement number and the amount due, less KJER’s agreed commission and less ten Dollars (US$ 15) which amount constitutes a exchange rate related handling fee payable from the USER to KJER. Such statement is due upon 30 (30) days of its receipt by USER. A form statement is attached as Appendix 2. If the aggregate Royalties payable to the USER are less than Two Hundred Dollars (US$ 200), the Royalty balance will be rolled over until the calendar quarter period in which an aggregate of at least Two Hundred Dollars (US$ 200) is payable to the USER. The foregoing notwithstanding, the USER may set a higher threshold amount and/or designate a semi-annually or annually payment schedule. Also not notwithstanding the foregoing, KJER is entitled to issue at least one yearly statement regarding the payment of royalties. KJER shall issue statements and make payments based solely upon information provided by ORCHARD and Digital Entertainment Service licensees under licenses negotiated by ORCHARD, and KJER shall not be responsible for representations made by ORCHARD or within the Digital Entertainment Services’ accounting to ORCHARD. No monies shall be payable to the USER until payment has been actually received by KJER or credited to its account.
In the event of late payment by KJER, interest is due in accordance with the Danish Act on interest. All statements made by KJER to the USER are made in Danish Kroner (DKK).
At any time within one (1) year after a Royalty statement is submitted to the USER by KJER, the USER shall have the right to audit KJER’s books and records, at USER’s sole cost and expense, but only with respect to such statements and payments related to the Catalog. Such audit shall be conducted by a certified public accounting firm (in Danish “Statsautoriseret revisor”) who is not being compensated on a contingent fee basis. As a condition of such audit, all persons participating in such audit must agree to KJER’s then-standard non-disclosure and confidentiality agreement. Audits shall occur at times mutually agreed to between KJER and the USER during regular business hours and at KJER’s regular business address. The USER shall conduct an audit no more frequently than twelve (12) months intervening each audit. Any failure to give written Legal Notice or objection within the one (1) year period from the date of the statements to the USER shall bar any further objections by the USER. The USER, in that situation, shall be foreclosed from maintaining any action, claim, or proceeding against KJER on those statements.
Notwithstanding Section 15 (b) hereof, KJER may in accordance with the general principles of Danish Law withhold payments in dispute.
Subject to the termination rights specified in this Section 7, this [membership based] Agreement commences on the date it is signed by the USER (the USER signs the Agreement by clicking the “Accept” button), and continues for twelve (12) months. During this 12 month period the USER is enabled to upload an unlimited number of music releases to KJER for distribution. At the conclusion of the initial period, the Agreement will renew for additional twelve (12) month periods only if the USER chooses to renew the Agreement by paying the associated subscription fees. In general, any release submitted by the USER to KJER needs to be live on any of the stores for at least six months before KJER can initiate a takedown free of charge; as to releases that have not been live for at least six months an early takedown fee of USD $500 applies per release. The initial period and all renewal periods are collectively referred to as the “Term” of this Agreement. The foregoing notwithstanding, if the USER should no longer desire to utilize KJER’s services the USER may terminate this Agreement for convenience upon fifteen (15) days notice and the terms in this Agreement for each release submitted by the USER to KJER has a minimum and at the same time a maximum duration of 6 months. Hereafter the terms listed in this Agreement are no longer valid and all rights and authority granted by the USER to KJER return to the USER. Thereafter, KJER will initiate a global takedown of the USER’s full catalog with fastest possible effect and KJER shall not be allowed to license the Catalog to ORCHARD and/or any Digital Entertainment Service. All of the foregoing notwithstanding, KJER may terminate this Agreement for convenience upon fifteen (15) days notice.
The foregoing provisions of this Section notwithstanding, either party may terminate this Agreement immediately (subject to the cure period stated herein) prior to the expiration of the Term in the event that the other party (i) files in any court or agency a petition in bankruptcy or insolvency, (ii) is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition is not dismissed within fifty (50) days respectively seventy (70) days (if KJER) after the filing thereof, (iii) makes an assignment for the benefit of creditors, or (iv) breaches any material representation, obligation or covenant contained herein, unless such breach is cured no later than twenty (20) days (if the USER) respectively forty (40) days (if KJER) from the date of receipt of notice of such breach, or if not able to be so cured, resolved to the non-breaching party’s satisfaction.
(a) As to new deals between KJER and ORCHARD and/or the Digital Entertainment Services and/or material changes to any existing agreement with a Digital Entertainment Service which arise after the Effective Date hereof, and subject to the USER’s acceptance hereof, cf. the Metadata Worksheet, KJER will send an email notification to the USER (to the email address stated in the Metadata Worksheet) indicating the material licensing terms and conditions to which KJER and ORCHARD has agreed (e.g., Usage, Territory Term, License Fees, Mechanical Royalty and other publishing obligations) along with information about such Digital Entertainment Service deemed relevant by KJER. Within seven (7) days of the USER’s receipt of the aforesaid email notification from KJER, the USER shall have the right to opt-out of such license by sending notice to KJER of such election via e-mail. Unless the USER opts out in the manner and within the time frame provided above, the USER shall be deemed to have consented to participate in such third party Digital Entertainment Service license. The USER accepts this procedure for forming future agreements as it acknowledges, that this is in the best interest of both Parties, as the administration of this Agreement and forming of new agreements would otherwise be impeded. When accepting this clause 8 (a) in the Metadata Worksheet, the USER expressly waives any rights to claim that an agreement formed in accordance with the above procedure is non-binding for the USER. The USER further accepts all risks of such agreements (in Danish “egen skyld”) and cannot make any claims against KJER in this respect. As to deals between KJER and ORCHARD and/or Digital Entertainment Services existing prior to the Effective Date hereof, these deals shall continue on existing terms.
(b) KJER cannot guarantee that a Digital Entertainment Service will utilize the Catalog or any of the individual musical compositions or master sound recordings that comprise the Catalog. The method, manner and extent of advertising, distribution, promotion and exploitation of the Catalog with third party Digital Entertainment Services shall be within the sole discretion of KJER.
9. DELETED WORKS; DISPUTED WORKS; PARENTAL ADVISORY WORKS; UNAPPROVED RELEASES
(a) Deleted Works. In the event the USER no longer has the necessary rights to an individual Recording or other item in the Catalog (the “Deleted Work”), the USER shall promptly send a Legal Notice to KJER to remove the Deleted Work from any subsequent use in a third party Digital Entertainment Service. In such event, KJER will use commercially reasonable efforts to direct ORCHARD and/or a licensed Digital Entertainment Service company to remove the Deleted Work(s) after the date of such notice. However, the USER acknowledges and agrees that the Deleted Work may remain available for a period under a pre-existing license or arrangement with a third party issued by the licensed Digital Entertainment Service company. For the avoidance of doubt, the USER shall not be able to delete any Recordings or Videos from its Catalog for convenience, but shall only be deleted from the USER’s Catalog in the event the Deleted Work: (i) is a Disputed Work (as specified herein below) and such continued distribution is likely to expose the USER and/or KJER to continued third party claims, or (ii) is deleted from the USER’s Catalog pursuant to an agreement licensing such Deleted Work(s) from a third party to the USER and expiring of its own accord; purported sales or other licenses of such Recordings to a third party occurring after the Effective Date shall be specifically subject to the terms of this Agreement for the full Term hereof (inclusive of any applicable Collection Period) and any such Recordings shall not be deemed to be Deleted Works hereunder unless expressly agreed by KJER.
(b) Disputed Works. Without limiting the USER’s indemnification of KJER as provided in Section 11 herein below, in the event that, within two hundred (200) days of the Initial Catalog Approval Date (or 200 days after the respective Approval Date therefor if the subject work is delivered after the Initial Catalog Approval Date), KJER is notified by a third party claiming rights to a Recording or other item ostensibly in the Catalog (a “Disputed Work(s)”), and the USER cannot substantiate a good faith claim to rights in such Disputed Work(s), then the USER agrees that it shall pay the amount of six hundred Dollars (US$ 600) to KJER for each such event. Such fee is contemplated to cover the approximate costs theretofore incurred by KJER in distributing and administering such Disputed Work. For clarification, such fee shall not be applicable in the event of a bona fide rights dispute in regards to the Disputed Work, nor shall it be applicable in the case of theretofore legitimate rights in the Disputed Work simply expiring during the afore stated period.
(c) Parental Advisory Works. When approving items in the Catalog and/or when designating Recordings for use in any Promotion, the USER agrees to identify any releases in the Catalog which contain explicit, offensive or otherwise objectionable lyrics which should carry a Parental Advisory warning (such identified releases referred to herein as “Parental Advisory Works”), as same are described on the RIAA website at http://www.riaa.com. The USER agrees to indemnify and hold KJER harmless in regards all such Parental Advisory Works in the Catalog. Without limiting the USER’s indemnification of KJER as provided in this Section and at Section 11 herein below, in the event that a particular agreement between KJER and ORCHARD and/or a Digital Entertainment Service requires all Parental Advisory Works to be so labeled, but the USER neglects to identify that same is a Parental Advisory Work, then the USER agrees that it shall pay a penalty in the amount of six hundred Dollars (US$ 600) to KJER for each such event should a complaint be waged by said Digital Entertainment Service to KJER in such regard.
(d) Missing information. Once a release is delivered by the USER to KJER, KJER will encode it and then notify the USER if any information pertaining to that said release is missing. The USER must provide such missing information in the manner prescribed by KJER within thirty (30) days thereafter. If the required information is not delivered to KJER within that timeframe, a one-time fee – payable by the USER to KJER – of six hundred Dollars (US$ 600) will apply.
10. REPRESENTATIONS AND WARRANTIES
(a) The USER represents and warrants that:
(i) The USER has the right and power to enter into and fully perform all of its obligations under this Agreement;
(ii) The USER has the authority and right to provide KJER with the right to utilize the USER’s Catalog throughout the Term of this Agreement provided that the USER’s Catalog is utilized by KJER – or those authorised by KJER – solely in such a manner and for such purposes as are expressly provided in this Agreement;
(iii) KJER’s – or those authorised by KJER – use of the USER’s Catalog as provided herein will not infringe upon any third party copyright, trademark, patent, trade secret, or other third party proprietary, intellectual property, or contractual or other right; and,
(iv) No agreement of any kind previously entered into by the USER or entered into by the USER after the date of this Agreement will interfere in any manner with the complete performance by the USER of this Agreement; or interfere with the rights granted by the USER to KJER herein including, but not limited to, the representation rights to the Catalog, or any agreement entered into by KJER with ORCHARD and/or a third party concerning the licensing and/or representation of the Catalog.
(v) The USER shall be solely responsible for the payment of any and all of the following: (i) all fees, income, monies, royalties or any other compensation due artists, producers, master recording copyright owners, and all other third persons whose performance is embodied in a master sound recording or is otherwise involved in the creation of the master sound recording that is included in the Catalog; (ii) all publishing royalties payable to publishers, publishing administrators, writers and co-writers of Compositions that are included in the Catalog; (iii) all mechanical royalties payable for using musical compositions embodied in the Recordings: (A) in connection with the sale of permanent downloads in the United States and Canada, as applicable, (B) as expressly required of ORCHARD under any agreement between ORCHARD and a Digital Entertainment Service in which the USER participates, and/or (C) as other expressly stated herein; (iv) all payments that may be required under any collective bargaining agreements applicable to the master sound recordings and musical compositions that comprise the Catalog; and (v) any other fees, compensation, royalties or other monies due and or payable with respect to the artwork, metadata, trademarks and logos in the Catalog or materials provided by the USER to KJER. In no event shall KJER be responsible for any such payments and the USER shall indemnify and hold KJER harmless from any and all claims, demands, causes of action, debts or liabilities, including reasonable attorney’s fees, paid or incurred by reason of the USER’s breach of the representations and warranties made by USER in this Section 10 (a)(v).
(b) KJER represents and warrants that:
(i) KJER has the right and power to enter into and – through its agreement with, but not limited to, ORCHARD – fully perform all of its obligations under this Agreement;
(ii) KJER will use commercially reasonable efforts to ensure that KJER’s service will comply at all times during the Term with the descriptions provided in this Agreement; and
(iii) Notwithstanding any other provision hereof, KJER does not warrant or guarantee that KJER’s service will be uninterrupted or error-free. KJER DISCLAIMS ANY WARRANTY NOT EXPRESSLY SET FORTH HEREIN, AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, KJER MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF ORCHARD’S SERVICES, SOFTWARE AND TECHNOLOGY OR UPDATES AND UPGRADES THEREOF.
(a) Mutual Indemnification. Each party (an “Indemnifying Party”) will indemnify, defend, and hold harmless the other party, its parents, subsidiaries, affiliates, and their respective directors, officers, employees, and agents (an “Indemnified Party”), with respect to any claim, demand, cause of action, or debt or liability brought by or claimed by any third party, including reasonable outside attorneys’ fees (collectively “Claims”), to the extent that any such Claim is based upon or arises out of a breach of any of the Indemnifying Party’s representations, warranties, covenants, or obligations hereunder.
(b) Indemnification Notice. In claiming any indemnification hereunder, the Indemnified Party will promptly provide the Indemnifying Party with written Legal Notice of any Claim which the then Indemnified Party believes falls within the scope of this Section 11; provided, that the failure to promptly notify the Indemnifying Party will not affect the Indemnified Party’s right to indemnification if such delay did not materially prejudice the defense of such Claim. The Indemnified Party may, at its own expense, assist and participate in the defense if it so chooses, provided that the Indemnifying Party will control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Indemnified Party may not be entered into without the Indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed.
(c) Limitation of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, INCLUDING UNDER THIS SECTION 11, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF ANTICIPATED PROFITS, LOSS OF REVENUE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF SERVICE, DOWNTIME COSTS, LOSS OF USE OF EQUIPMENT, FACILITIES OR SERVICES, LOST PRODUCTION, LOST DATA OR USE, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF THE PARTY WILL HAVE BEEN INFORMED OR ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
(d) Further limitation of damages. The generality of the above notwithstanding, KJER shall under no circumstances be held liable for any acts or any non-performance by ORCHARD and/or ORCHARD’s sub-contractors, including any Digital Entertainment Service. Moreover, KJER’s liability for any loss or damage shall be limited to the Royalties payable by the USER to KJER for the service (or absence thereof) on which the claim is based. Regardless of the level of such payment and the degree of negligence, KJER’s aggregate liability for damages shall not exceed the lowest of the following amounts: 1) the subscription fee actually received by KJER from the USER during the twelve month period preceding the damage or 2) DKK 5,000.
Neither the USER nor KJER (nor any affiliates of the foregoing) will disclose or reveal to any person or entity the terms and conditions of this Agreement or any Confidential Information (as defined below), except as required by governmental proceeding, applicable law or court order. Either party hereto may disclose Confidential Information to its advisors, attorneys under privilege, and its employees or agents on a “need to know” basis and subject to recipients’ agreements to hold same as confidential. Upon termination or expiration of this Agreement, each party will promptly return all Confidential Information of the other party and all copies thereof, if any. The parties’ obligations set forth in this Section 12 will survive any expiration or termination of the Term. In the event that either party or its affiliates is required by law to disclose any such Confidential Information, such party will notify the other party in writing so that the other party may seek a protective order and/or other motion to prevent or limit the production or disclosure of such information.
“Confidential Information” means: (i) all non-public information of a party and its affiliates, including information relating to KJER’s service and pertaining to such party’s business strategy, activities, and operations (whether as then being conducted or proposed to be conducted), reports, ideas, concepts, know-how, techniques, technology, designs, specifications, drawings, diagrams, data, code, marketing plans, strategies and data, usage data, customer lists, suppliers, sources of materials, financial information, pricing information, business relationships, employees, trade secrets, and other technical or business information and any information, data or reports prepared or compiled under this Agreement; (ii) the terms of this Agreement; and (iii) the terms of agreements entered into between KJER and ORCHARD and/or the Digital Entertainment Services. Confidential Information will not be deemed to include any information which: (A) is publicly known at the time of the disclosure; (B) becomes publicly known other than by breach of the terms of this Section 12; (C) becomes known to the receiving party, without restriction, from a source free of any obligation of confidentiality and without breach of this Section 12; or (D) is independently developed by the receiving party.
13. DEMOGRAPHIC INFORMATION
The USER agrees that KJER and/or ORCHARD shall be permitted to collect and use for its business purposes any demographic, identifying or other statistical information it receives or obtains from a Digital Entertainment Service regarding the Catalog so long as the end user (defined herein as an individual who accesses a third party’s Digital Entertainment Service that includes the Catalog solely for consumer use) has consented to the collection and use of such information. It is understood that KJER and/or ORCHARD will not utilize such information in a form that personally identifies the end user or recording artist or songwriter affiliated with the USER other than relative chart placement based upon usage.
Neither KJER nor the USER shall issue any press releases or otherwise publish any publicity, marketing or advertisements referring to the other party without the prior written consent of said other party, which consent shall not be unreasonably withheld. The foregoing notwithstanding, KJER and/or ORCHARD shall be able to mention the USER’s name and/or incorporate the USER’s approved logo into KJER’s web-site and/or any general listings of ORCHARD’s members so long as such name and logo appears in the same general size and placement of other listed members.
15. GENERAL PROVISIONS INCLUDING ARBITRATION
(a) Either party may assign its respective rights and responsibilities under this Agreement to an entity that acquires substantially all of its assets or to a subsidiary or other entity controlled or under the common control of said party. Except as aforementioned, neither party may assign this Agreement or its rights and responsibilities without the prior written consent of the other party.
(b) Unless as explicitly stated below, this Agreement will be construed in accordance with the laws of the State of California, except that State’s choice of law provisions. If any provision of this Agreement is deemed unenforceable or void, the balance of this Agreement shall remain in full force and effect. Any and all unresolved disputes arising under this Agreement shall be submitted to arbitration in San Francisco, CA, USA. The arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the aforesaid, KJER may at its sole discretion decide, that this Agreement shall instead be construed in accordance with the laws of the Kingdom of Denmark, except the choice of law provisions hereof, and that any and all unresolved disputes arising under this Agreement involving KJER and the USER shall be submitted to the Danish Courts, with the Court of Copenhagen as the first instance.
(c) The USER warrants that The USER has not been induced to execute this Agreement by any agreements or statements made by KJER or its representatives as to the nature or extent of KJER’s proposed exercise of any of the rights, licenses, or privileges granted to KJER by this Agreement. This Agreement constitutes the entire agreement between KJER and the USER relating to its subject matter, and supersedes all prior agreements between KJER and the USER, whether oral or written, relating to its subject matter, and may not be modified except in a writing signed by both parties.
(d) A waiver by either party of any term or condition of this Agreement in any instance will not be deemed or construed as a waiver of such term or condition for the future or any subsequent breach thereof.
(e) All remedies, rights, undertakings, obligations or agreements contained in this Agreement will be cumulative and none of them will limit any other remedy, right, undertaking, obligation or agreement of either party.
(f) If any action or proceeding, including without limitation, arbitration, is commenced under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs.
(g) Legal Notice may be given by any of the following methods and shall be deemed to have been received: upon personal delivery; if sent by fax, upon confirmation of receipt; if by email or other electronic transmission, upon successful transmission to the email address as follows: if to the USER: the USER’s e-mail address as registered in the online log in area at http://www.kjer.com; and if to KJER: firstname.lastname@example.org.
(h) Business notifications (such as those regarding Digital Entertainment Service agreements as specified in Section 8(a)), shall be sent via email to the USER at the USER’s e-mail address as registered in the online log in area at http://www.kjer.com; and to KJER at email@example.com.
Metadata Worksheet: Information schedule and upload instructions inside separate online dashboard(s).