DIGITAL DISTRIBUTION AGREEMENT
BETWEEN THE UNDERSIGNED :
ZAPLOOP
A simplified French limited company incorporated as a société par actions simplifiée, having a share capital of 337,000 euros, whose registered office is located at 45, Avenue Victor Hugo - 93300 Aubervilliers, registered with the Trade and Companies Registry of Bobigny under no. B 499 119 717, represented by Anthony de Anfrasio, in his capacity as Chairman, duly authorised for the purposes hereof.
Hereinafter referred to as Zaploop
PARTY OF THE FIRST PART, AND :
Born on , to
Residing at , ()
Telephone:
Member of the following collective management company:
Hereinafter referred to as 'the Assign'
PARTY OF THE SECOND PART.
Hereinafter jointly referred to as 'the Parties'.
RECITALS:
- Zaploop publishes and operates and online service that can be accessed at URL
http://www.zaploop.com (hereinafter the
Site). The Site includes a music file distribution platform, allowing Fans to
insert their favourite artists' music on their personal webpages, for direct
listening (in the form of excerpts) on the said personal webpages, and for
Downloading for a fee via the Site.
The Site thus allows, on the Assign's request, the sale of his Recordings with the
assistance of his Fans for a price set by him.
- The Assign holds all digital exploitation rights to the Recordings comprised in
his Catalogue, as defined hereinbelow.
- The purpose of this agreement is to lay down the terms and conditions of
digital distribution of the Assign's Recordings in accordance with the provisions
hereof.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS
Assign's Catalogue:
Means all Recordings of the Assign.
Zaploop Catalogue:
Means all music files available on the Site, in view of the promotion thereof by the
Fans and/or the Downloading thereof by the Users, whether they have been Uploaded by
the Assign or by third parties to this agreement.
Ancillary Items:
Means all text, graphic or photographic items and elements that the Assign sends
Zaploop, whether electronically or otherwise, with a view to presenting and
illustrating the Recordings and the Samples, including any photograph, alias, last
name, sleeve, artwork, band name, title of a work, biography, etc.
Recording(s):
Means all digital files, the exploitation rights to which are held by the Assign,
which fully reproduce a Phonogram, and which are Uploaded by the Assign within the
framework of this agreement.
Sample:
Means an excerpt from a Recording, having a maximum duration of 30 (thirty) seconds,
intended for listening by the User exclusively in streaming mode (without
Downloading).
Fan:
Means any Internet user registered with a service provided by Zaploop for the
purpose of creating one or more Playlists intended for inclusion into his own Online
Services (personal web pages, blogs, etc.), with a view to the soundscaping thereof
and to promote his favourite artists, and who is thus likely to take part in the
digital distribution of the Recordings.
Partner:
Means any professional third party to this agreement, and in particular, Online
Service publishers, with which Zaploop enters into a cooperation agreement of any
type whatsoever (white label, hyperlink, affiliation etc.), with a view to the direct
or indirect promotion of its services and/or the Recordings.
Phonogram(s):
Means any Phonogram, y including the sound sequence and performance contained
therein, the exploitation rights to which are held by the Assign.
Player:
Means the software interface provided to Fans by Zaploop, allowing the Samples
selected by the Fans to be listened to, without any Downloading right, and which may
be incorporated [by] the Fans to all or part of the Online Services that they
publish, such as for example, personal web pages or blogs, all with a view to
promoting the Recordings as well as the Zaploop Catalogue in general.
Playlist:
Means the selection of Recordings made by the Fan, under his sole responsibility,
allowing the corresponding Samples to be listened to via the Online Service to which
the Playlist is incorporated, and the Downloading of the Recordings via all or part
of the Online Services edited by or on behalf of Zaploop, including the Site.
Online Services:
Mean any online public communication service allowing Users to listen to the Samples
of one or more Recordings, and/or purchase one or more Recordings by Downloading, by
any electronic communication process whatsoever, whether by means of an emission,
transmission, radio transmission or cable distribution. This definition shall
inter alia encompass online public communication service that are accessible
via the Internet (irrespective of the mode of access used, such as RTC, ADSL, WIFI,
WIMAX, Edge, 3G, 3G+, etc.), as well as mobile or fixed telephone and/or
videotelephony services, as well as interactive or on-demand television services.
Download(ing):
Means the action allowing a User, on request and from a remote location, via all or
part of the Online Services edited by or on behalf of Zaploop – including the
Site –, to view and copy on a writable or rewritable medium, a computer file
containing an entire Recording, using any equipment and any electronic communication
network.
Upload:
Means the action allowing the Assign to transfer of the information and the digital
files towards Zaploop's servers.
User:
Means any internet user who, in the capacity of end consumer, can subscribe for a
Downloading offer.
ARTICLE 2. PURPOSE
The Assign grants Zaploop the non-exclusive right of digital distribution of the
Recordings that it Uploads, for such Recordings to be included in the Zaploop
Catalogue, made available to the public on the Fans' personal Online
Services Fans any Downloading rights, and made available to the Users for
Downloading.
In that regard, the Assign grants Zaploop, within the territory and for term set
forth in Article 3 hereinbelow:
- the reproduction rights to the Recordings, the Samples and the Ancillary Items,
on its computer equipment or those of any of its service providers, with a view to
ensuring the distribution thereof in whole or as Samples, via any of its Online
Services, including the Site, and via the Online Service currently or subsequently
edited by the Partners and/or the Fans;
- the right, if necessary, to re-encode, compress and convert the Recordings and
the Ancillary Items into any known or future digital format, not secured by a DRM
(Digital Right Management) system, as Zaploop may deem appropriate;
- the right to communicate all or part of the Samples to the public via any of
its Online Services, including the Site, or cause the Fans and/or the Partners to
communicate same on their Online Services, where applicable within a Playlist, with
a view to allowing Users to listen to or even to Download same via any Online
Service edited by Zaploop;
- the right to communicate all or part of the Ancillary Items to the public via
any of its Online Services, including the Site, or cause the Fans and/or the
Partners to communicate same on their Online Services, for information purposes or
to illustrate the Recordings and/or the Samples;
- the right to make the Recordings available to the Users by means of a Download,
against payment of the price set by the Assign;
- the right to reproduce, display, perform, communicate or cause any third party
to communicate, by any means whatsoever, the Samples and all or part of the
Ancillary Items for the purposes of the direct or indirect promotion of the Zaploop
Online Services via any Online Service, on television, radio, at cinemas, in the
press or by any public display.
All rights granted hereinabove may be freely assigned or granted by Zaploop to any
third party of its choice with a view to the performance of this agreement.
ARTICLE 3. TERM AND TERRITORY
For each Recording, the rights listed in Article 2 hereinabove shall be granted to
Zaploop on a worldwide basis and for a term of 5 (five) years as of the Upload
thereof to Zaploop's servers.
ARTICLE 4. UPLOAD OF RECORDINGS AND ANCILLARY ITEMS
4.1. In order to ensure the most efficient distribution of the
Recordings, the Assign shall perform at least the following obligations for each
Recording:
- Providing the Recordings to Zaploop by means of an Upload, free of any
technical protection measure (DRM), encoded in one of the following formats:
-
- Provide the following Ancillary Items to Zaploop by means of an Upload:
-
- Title;
- Year of recording;
- Name of band, or first and last name(s) of the artist(s)-singer(s);
- First and last names of the songwriter;
- First and last name of the composer;
- First and last name of the arranger;
- Where applicable, the name of the publisher;
- Duration of the Recording;
- Code ISRC, where applicable.
- Setting the sale price, excluding VAT, of the Recording by Downloading, within
a range of 50 (fifty) eurocents to 1.50 euros (one euro and fifty eurocents). In
that regard, the Assign is hereby informed that this sale price shall, as
appropriate, be increased by VAT at the rate in force as at the date of each
sale.
4.2. In order to better illustrate the Recordings, and to better
inform the Fans and Users, the Assign is encouraged to provide additional Ancillary
Items such as: short biography, drawings, logos, photographs, sleeve artwork, etc.
The Assign is informed that the Ancillary Items may be grouped by Zaploop to
illustrate the Recordings and/or the Assign's Catalogue.
ARTICLE 5. PROMOTION AND DISTRIBUTION OF THE RECORDINGS
5.1. Throughout the term of the agreement, Zaploop shall make
available to the Fans and, as the case may be, its Partners, software or other tools
allowing them (i) to create Playlists incorporating the Samples selected from the
Assign's Catalogue, and (ii) to embed the Playerinto Online Services edited by them,
so as to thereby promote the Recordings and, as the case may be, the sale of the said
Recordings by Downloading via all or part of the Online Services edited by or on
behalf of Zaploop, including the Site.
5.2. Although Zaploop may, in certain cases, promote the
Recordings via its Online Services, this shall not entail any obligation incumbent on
it pursuant to this agreement, as the promotion of the Recordings vis-à-vis the
public shall be carried out mainly by the Fans.
5.3. The Recordings shall not be made available on all or part of
Zaploop's Online Services, including the Site, to the Fans for the purposes of
generating the Playlists and/or to the Users for Downloading, until Zaploop has
received the Recordings and the corresponding Ancillary Items referred to in Article
4.1, and where applicable, following the re-encoding and conversion of digital format
of the said Recordings and Ancillary Items by or on behalf of Zaploop.
Zaploop does not make any representation or undertaking as to the time period
required to make the Recordings available online or regarding the Upload thereof by
the Assign.
5.4. Zaploop reserves the right not to upload a Recording and/or
an Ancillary Item or to cease to make same available to the public, if it has reason
to believe or is informed that the content thereof infringes the rights of a third
party, violates the right to privacy of any person, constitutes an incitement to the
commission of crimes or offences, or an incitement to discrimination, hatred or
violence on grounds of race, ethnic background or nationality, denies the existence
of crimes against humanity, broadcasts false news, is abusive, pornographic or
indecent, or generally contravenes applicable statutes and regulations and breaches
public peace.
ARTICLE 6. ASSIGN'S WARRANTIES
6.1. General warranties granted by the Assign
The Assign warrants to Zaploop peaceful possession of the Recordings, the Samples
and the Ancillary Items for the purposes of the exploitation rights referred to
herein.
The Assign represents and warrants to Zaploop that he has completed or will
complete, under his sole liability and at his sole expense, all administrative and
tax formalities and measures applicable to him and which may be required for the
execution of this agreement.
6.2. Warranties of ownership of connected rights
The Assign, in his capacity as producer of the Recordings, represents and warrants
to Zaploop that it he the sole holder of the exclusive exploitation rights (connected
rights) pertaining to the Recordings, including the Phonograms and the performances
comprised therein, and that he has full capacity to dispose thereof pursuant to this
agreement. The Assign warrants to Zaploop that the performers, groups or bands of
performers, or supporting artists whose performance is included in the Recordings are
free of any exclusivity undertaking vis-à-vis any third party to this agreement, and
that he has obtained all written authorisations and licences required for the
exploitation that is the subject-matter hereof from them and from their
representative collective management companies where applicable.
The Assign shall be solely liable for the remuneration to be paid to any performer
having interpreted or taken part in the performance of the works included in the
Recordings and/or, where applicable, to any company entrusted with the collective
management of the rights of the said performers, in consideration the exploitation
that is the subject-matter hereof, whether in the form of the Samples on the Online
Services of the Fans, of Zaploop or of the Partners, or through the sale of
Recordings by Downloading via Zaploop's Online Services.
In this regard, the Assign irrevocably undertakes to hold Zaploop harmless in
respect of any claim, proceedings or adverse court order initiated by any third party
whatsoever, pertaining to the exploitation of the Recordings, of the Samples and of
the Ancillary Items in accordance with the provisions of this agreement, and resting
on an infringement of a right related to copyright (Phonogram producer, videogram
producer, audiovisual communication company).
Notwithstanding the foregoing warranties, Zaploop shall be responsible for making
any requisite declaration or payment with any collective management company
representing the holders of connected rights that is expressly indicated by the
Assign to Zaploop, in connection with the exploitation of the Samples via Zaploop's
Online Services.
The Assign expressly waives the possibility of asserting his rights vis-à-vis the
Fans in respect of the provisions of the Samples to the public via Online Services,
and warrants that any company entrusted with the collective management of connected
rights, as well as the performers, groups or bands of performers, or supporting
artists whose performance in included in the Recordings shall waive same.
6.3. Copyright warranties
The Assign represents and warrants to Zaploop that he is the sole author of the
musical works, of the arrangements and of the lyrics to the musical works the
performance of which in included in the Recordings.
In the event that the Assign is not the author or the sole author of the musical
works, of the arrangements and of the lyrics to the musical works the performance of
which is included in the Recordings, he warrants that the authors or joint authors
(songwriter, composer, arranger) are members of the collective rights management
company whose name it has indicated to Zaploop beforehand (hereinafter the
'Management Company').
In the event that the author or joint authors of the musical compositions, of the
arrangements and of the lyrics of the musical works the performance of which is
included in the Recordings, have assigned their rights to a publisher, the Assign
warrants that the said publisher is a member of the Management Company.
The Assign shall hold Zaploop harmless against any claim, action or adverse court
order resting on an infringement of its moral rights by reason of the creation of the
Playlist by the Fans, and of the creation by Zaploop of Sample(s) using the
Recordings, selected under his sole responsibility.
The Assign warrants that he is the sole holder of the copyright in any work
forming part of the Ancillary Items and, in this regard, shall hold Zaploop harmless
in respect of any claim, proceedings or adverse court order initiated by any third
party whatsoever, pertaining to the exploitation of the Ancillary Items in accordance
with the provisions of this agreement, on grounds of infringement of any right
whatsoever (in particular photographic rights).
It is hereby expressly agreed that if the author, the joint authors and/or any
publisher of the musical compositions, of the arrangements and of the lyrics of the
musical works the performance of which is included in the Recordings are not members
of the Management Company, the Assign shall be solely liable for their remuneration
and shall hold Zaploop harmless against any claim, action or adverse court order in
this regard.
The Assign shall hold Zaploop harmless against any action or claim on his part or
on the part of any third party whatsoever in the event that, as the case may be, the
Assign has failed to properly notify it of the name of the Management Company.
6.4. Warranties as to personality rights
The Assign warrants that he holds the requisite authorisations necessary from all
persons whose personality rights (right to the name, right to personal image, right
to voice, etc.) are exploited as part of the Ancillary Items pursuant hereto. As a
result, the Assign shall hold Zaploop harmless harmless in respect of any claim,
proceedings or adverse court order initiated by any third party whatsoever,
pertaining to the exploitation of the Ancillary Items pursuant to this agreement, on
grounds of any infringement whatsoever of a personality right.
6.5. Warranty of lawfulness of Recordings and Ancillary
Items
The Assign hereby undertakes to verify that the sung or written lyrics reproduced in
the Recordings, as well as the Ancillary Items provided to Zaploop within the
framework of this agreement, do not infringe any third-party rights, do not violate
any person’s right to privacy; do not infringe any third-party’s
trademarks, do not constitute an incitement to the commission of crimes or offences,
or an incitement to discrimination, hatred or violence on grounds of race, ethnic
background or nationality, do not glorify Nazism, deny the existence of crimes
against humanity, broadcast false news, and are not defamatory, abusive, obscene and
vulgar, pornographic or indecent, or generally do not contravene applicable statutes
and regulations and breach public peace
ARTICLE 7. ZAPLOOP’S WARRANTIES
7.1. Warranty of availability of Recordings on the Site
During the 12 (twelve) months following the signature of this agreement, Zaploop
warrants that the Recordings shall be available at all times via all or part of its
Online Services, including at least via the Site, for the Fans with a view to
allowing them to generate the Playlists, and for the Users with a view the
Downloading thereof, subject to:
- on the one hand, the uncertainties and constraints inherent in the
telecommunication means used to put the Online Services of Zaploop on line and to
allow Samples to be listened to or the Downloading of the Recordings, including the
technical uncertainties inherent in the internet and the need to suspend access to
Online Services for the purposes of remedial maintenance or upgrades;
- on the other hand, compliance by the Assign with his own obligations and the
lawfulness of the content of the Recordings.
At the end of the said 12 (twelve)-month period, Zaploop shall, subject to the
same qualifications, warrant the availability of the Recordings.
7.2. Warranty with respect to the Management Company
In the event that the Assign specifies a Management Company to Zaploop, Zaploop
warrants to the Assign that it shall file all declarations and make all payments as
may be required with the said Management Company, or with any affiliate Management
Company, in respect of the exploitation of the Recordings and of the Samples referred
to in this agreement, where such exploitation takes place via its own Online
Services.
ARTICLE 8. FINANCIAL TERMS AND CONDITIONS
8.1. In consideration of the distribution of the Recordings and
of the grant of the rights required to that end, Zaploop shall pay the Assign, in
accordance with the provisions of Article 9 hereof, a proportional fee equal to 50%
(fifty per cent) of the net receipts, excluding VAT, collected by Zaploop, it being
specified that the sale price excluding VAT per Download shall be set by the
Assign.
Net receipts shall refer to all amounts collected by Zaploop in connection with
the Download of a Recording, after deduction of any distribution commission granted
to any Partner, minus any applicable taxes as well as amounts paid or payable, as
applicable, to the Management Company or any other affiliate copyright management
company.
The Assign shall be solely responsible, where applicable, for payment of the
French CSG and CRDS social security contributions to the relevant
authorities.
ARTICLE 9. PROVISION OF ACCOUNTS, INVOICING AND PAYMENT
9.1. Zaploop shall make available to the Assign, on a gratuitous
basis, a private and secure management interface on the Site, labelled "My
sales', allowing in particular real time access – subject to updates
executed every 48 (forty-eight) hours – to its fee accounts.
This private area shall allow access to the statistical date pertaining to the
exploitation of the Recordings and, in general, of the Assign's Catalogue on the
Site, and shall more specifically, specify the following information in respect of
each Recording:
- the title of the Recording;
- the name of the performer, subject to of the Ancillary Items provided by the
Assign;
- the number of Downloads made against payment;
- the date or the period of each Download.
It is specified that access to this private area shall require the Assign to enter
his login name and password, which he shall have registered with the Site beforehand,
and which he shall be solely responsible for safeguarding.
9.2. The 'My sales' private interface shall include an
invoice generation tool using the information provided by the Assign under its sole
responsibility. The Assign shall himself indicate the time when he wishes to send
Zaploop his invoice electronically, subject to the provisions of article 9.3
hereof.
The Assign shall generate his invoices under his sole responsibility and hereby
undertakes to meet his invoicing obligations and related VAT obligations.
As Zaploop shall not provide archiving services for the Assign's invoices, the
latter shall be solely responsible for keeping same by his own means and at his own
expense.
In this regard, each of the Assign's invoices shall bear the information required
by all statutes and regulations in force in France.
In the event that the Assign benefits from the VAT "base exemption" regime,
(article 293 B of the French General Tax Code), his invoices shall bear the phrase
'VAT exemption – article 293 B of the French General Tax Code'.
9.3. The minimum amount chargeable in respect of the proportional
fee shall be 25 (twenty five) euros, excluding VAT, per month.
If the Assign's monthly account fails to reach the said threshold of 25 (twenty
five) euros including VAT, the said amount shall be carried over to the following
month on the Assign's account, until the said threshold of 25 (twenty five) euros,
excluding VAT, is attained.
Notwithstanding the foregoing, at the end of each one-year period following
signature of this agreement, the Assign may send Zaploop an invoice corresponding to
outstanding amounts owed to him, including where such amounts are lower than 25
(twenty five) euros, excluding VAT.
In any event, the Assign shall be sent an e-mailed invoice request by Zaploop. As
of receipt of such e-mail, the Assign may print electronically send his invoice to
Zaploop via his management interface.
9.4. Subject to of the provisions of article 7.3 hereinabove,
payment of the Assign's fees shall take place in euros 30 days end of month following
the date of receipt of the Assign's invoice directly into his PAYPAL® account.
Zaploop shall send an e-mail to the address stated in the Zaploop account of the
Assign, and he shall immediately receive the funds on his PAYPAL® account (if he
holds a PAYPAL® account with the said e-mail address) or a message informing him of
the procedure for opening a PAYPAL® account and receive the funds.
9.5. The fees listed in article 8.1 of this agreement shall not
be paid until receipt by Zaploop of two originals of this agreement initialled (at
the bottom of each page) and signed by the Assign, accompanied with a copy of the
Assign's identification. These items shall be sent to Zaploop by registered mail with
advice of receipt as soon as possible.
ARTICLE 10. NEW AGREEMENT
Depending on the degree of success encountered by the Artist as a consequence of
Zaploop's services and the promotion performed by the Fans, and in light of any other
criterion that Zaploop may define, Zaploop may, without being required to, offer
Artist a new distribution agreement, an exclusive recording contract, or even a
contract allowing Zaploop to represent it vis-à-vis Phonogram producers with a view
to promoting the Artist's career.
ARTICLE 11. CHANGE OF LEGAL FORM OR LEGAL PERSONALITY
This agreement shall remain binding and effective, notwithstanding changes to
Zaploop's legal form and/or legal personality that may take place during the
performance hereof. Thus, inter alia in the event of assignment, merger by
absorption or merger, the legal entity acting as successor to the rights of Zaploop
shall be subrogated to all of the rights and obligations arising under this
agreement.
ARTICLE 12. TERMINATION
In the event that either party breaches any whatsoever of its obligations under
this agreement, the other party may ipso jure terminate same, following the expiry of
a period of 30 (thirty) days following service of a letter of formal notice sent to
the defaulting Party by registered mail with advice of receipt that remains without
effect.
ARTICLE 13. GOVERNING LAW AND JURISDICTION
This agreement shall be exclusively governed by French law.
Any dispute pertaining to the interpretation, the conclusion and/or the
performance hereof shall be referred to the courts of Paris having jurisdiction.
Executed in Paris, on
In two (2) originals, one (1) of which for each party
For Zaploop For the Assign
"Read and approved" (First and last names/ Position)
"Read and approved"
