DISTRIBUTION AGREEMENT

This Distribution Agreement (this “Agreement”) is a binding legal agreement between you (“Client”, “you”, “your”) and IndieMassive B.V. (“IndieMassive”, “our”, “we”, or “us”) (hereinafter jointly also referred to as the “Parties”) regarding your use of our IndieMassive service to distribute your musical recordings to selected digital services and stores (our “Service”). If you are entering into this Agreement on behalf of one or more other people, a group, or a company or other entity, then by accepting this Agreement you represent and warrant to us that you are duly authorized to do so on behalf of all such person(s)/entity(ies) and to bind them to this Agreement and that IndieMassive is fully entitled to rely on that fact (in which case, the term “you” includes all such people and entities) in our performance under this Agreement.

By clicking to agree to this Agreement, you are accepting the terms and conditions below, so please read and understand them completely before doing so. This Agreement will automatically become effective on the date you click to agree to this Agreement (the “Effective Date ”).

Whereas:

Client is a composer/lyricist, producer, performing artist, label representative, artist manager and/or agency representative;
IndieMassive intends to provide distribution services to your choice of Digital Stores, streaming services, and other digital services within its distribution network (“Digital Stores”, which shall include UGC Services (including but not limited to YouTube, SoundCloud, Facebook, etc)), who may make your Recordings available to their customers and end users (“Customers”).  These distribution services shall be provided under its distribution brand ‘IndieMassive’ pertaining to the master recordings and the performances embodied therein of Client set forth (the “Master Recordings”) below, and Client intends to rely on IndieMassive for this;
For the avoidance of doubt, “Digital Stores” includes any entity, individual, or service that provides payments to IndieMassive for the exploitation of the Master Recordings discussed herein.
Client and IndieMassive shall cooperate on a non-exclusive and worldwide basis according to the following terms and conditions.

Hereby agree as follows:

The following terms and conditions shall apply to the distribution (worldwide or otherwise) of the Master Recordings of Client by, or on behalf of, IndieMassive.

Master Recordings: to be uploaded to IndieMassive Platform(s), including artwork and metadata, all mixes, edits and versions including remixes.

Distributor: IndieMassive

Effective Date: Date of distribution subscription purchase

For clarity, the stipulations herein will have retroactive effect from the Effective Date onwards.

Territory: World (Universe).

Grant of rights:

Client hereby irrevocably grants to IndieMassive, for the purpose of distribution of the Master Recordings in the Territory by or on behalf of IndieMassive, the non-exclusive, unrestricted and worldwide right to distribute the Master Recordings, by any and all formats and distribution methods, now known and hereafter known, for the Exploitation Period. IndieMassive hereby accepts such distribution license. Client is aware that distributing the same content with another distribution service may result in complications and/or problems on Digital Stores/platforms to which the Master Recording has already been delivered. IndieMassive is not liable for any such complications and/or problems nor any costs/fees associated with resolution(s). Said costs/fees shall be borne solely by Client.

IndieMassive shall be entitled, within the Territory and during the Exploitation Period, to exploit, use, manufacture, sell, offer, deliver, distribute, reproduce, compile, promote, market, broadcast, rebroadcast, or make available to individual members of the public, disseminate through the internet, offer through the internet or any other network (including mobile), streaming, synchronization, sampling of, premium exploitation or otherwise introducing to the market and/or playing and/or publicizing (reproductions of) the Master Recordings in the broadest sense of the words and/or to assign or (sub)licensing any of the rights assigned or granted above, including all existing and/or in the future devised means of exploitation of music whether or not together with images and/or information.

Upon prior written (email will suffice (to admin@indiemassive.com)) approval by Client in each instance, Client hereby grants to IndieMassive the right to conclude synchronization and sample use license agreements with third-parties including, without limitation, licenses for a term that exceeds the Exploitation Period.

Upon prior written (email will suffice) approval by Client in each instance, IndieMassive will have the right to sub-license or otherwise grant to third-parties any and all exploitation rights granted by Client to IndieMassive hereunder.

Where appropriate, upon first request of IndieMassive Client shall unconditionally cooperate in all formalities necessary for the completion of the assignment and/or grant of rights hereunder, e.g. by signing another deed of assignment, transfer and/or grant of rights.

IndieMassive reserves the right, at our sole discretion,  to deny service to users, products, master recordings or other content forms that do not comply with the styles guides of the Digital Stores.

Upon expiry of the Exploitation Period, Client will continue to comply with agreements concluded by, or on behalf of, IndieMassive with third-parties, such as licenses, that were agreed to during the Exploitation Period, and the parties will fully fulfill obligations ensuing therefrom. Upon expiration of the Exploitation Period, Client non-exclusively licenses the distribution rights to the Master Recordings to IndieMassive to the extent these rights are required to keep all uploads of the Master Recordings to distribution platforms and/or distribution portals available for consumers. Upon Client’s first request thereto, IndieMassive shall undertake reasonable efforts, either directly or indirectly, to take any upload to such distribution platform and/or portal offline.

Client will receive artist royalties, as stipulated hereunder, on any income from distribution platforms and/or portals that are actually received by IndieMassive in connection with the exploitation of the Master Recordings, including (pipeline) income received after the Exploitation Period. In certain cases, an active subscription with IndieMassive will be required.

IndieMassive shall do its utmost to execute and enforce the rights pertaining to the Master Recordings granted by Client hereunder.

Exploitation Period:

Unless otherwise agreed in writing (email will suffice) between the Parties and subject to IndieMassive’s standard right to opt-out one or more Master Recordings from its services hereunder, the term of this Agreement takes effect on the Effective Date and remains in full force and effect for at least 1 (one) month or 1 (one) year depending on Client’s chosen subscription duration (‘Initial Term’) and cannot be terminated prematurely by Client during this Initial Term. This Agreement will be tacitly extended for consecutive periods of  1 (one) month or 1 (one) year depending on Client’s chosen subscription duration (‘Additional Term’), unless either Party gives notice of termination of this Agreement to the other Party in writing (email will suffice) or via cancelation of any active subscription, subject to a notice period of at least 1 (one) month prior to the date of expiry of the relevant contractual term, against the final day of the relevant calendar month.

Client Royalties:

100% (one hundred percent) of the Net Received Revenues from (i) digital income (including but not limited to downloads, streaming and YouTube), (ii) income from exclusive and non-exclusive licensing and non-exclusive third-party compilations, synchronization, DVD, sampling, and other income, as well as, (iii) the so-called phonogram producer’s share from neighboring rights income to be received via the relevant neighboring rights societies.

For the purpose of this Agreement, ‘Net Received Revenue’ shall mean the amount actually received by IndieMassive from a third-party for the actual sale, use and/or exploitation of the Master Recordings and reproductions thereof, including video content, and including any advance payments received from third-parties, of which IndieMassive will pay for each form of exploitation Client Royalties to Client set forth in this Agreement. For clarity, Client acknowledges and agrees that IndieMassive’s Net Received Revenue is the amount after deduction of any technical distribution expenses directly attributable to the distribution of the Master Recording(s).

In the event that any Digital Store orders IndieMassive to pay a fine resulting from your nonadherence to the Digital Store’s rules, including but not limited to, regulations, user guidelines, terms and conditions, etc., IndieMassive reserves the right to recuperate any such fines paid against the royalties due to you, our client.

The above royalties are considered “all-in” – i.e., inclusive of all producers, artists, singers, session musicians, samples and any other third-parties, and are based on IndieMassive’s Net Received Revenue. Client is responsible for all payments to such third-parties, unless otherwise agreed hereunder. Client will have the ability to split payouts from directly within the IndieMassive platform, though any additional payees will be required to have some form of subscription or agreement with IndieMassive.

To the extent Client is obliged to pay an annual subscription fee to IndieMassive, it shall be entitled to settle, either directly or indirectly, such subscription fee due with any and all amounts due to Client hereunder.

Once payment has been credited to your account, you will be able to withdraw money from your account at your discretion. You will be responsible for any bank fees or other charges related to such withdrawals. Any sums that we receive in foreign currency will be converted to U.S. Dollars at either the same rate received by us, or current spot exchange rate at the time of transaction to us, or from us to you. For the avoidance of doubt, your payment is an “all-in” pay-through payment, from which you are solely responsible for paying and accounting to all applicable taxes, tariffs, licensors, songwriters, publishers, artists, producers, mixers and other third-parties. We shall not offer any legal, tax, accounting and other advice; Client shall be responsible to consult your own advisors regarding such matters.

You understand and acknowledge that Digital Stores may retain for themselves a portion of income that they receive from Customers and may deduct or withhold sums from the amount that are paid to IndieMassive through Digital Stores. Sums retained or withheld by Digital Stores may include, without limitation, taxes and tariffs, administration fees, royalties or fees paid to third-parties, wire transfer fees, and credit card processing fees and chargebacks. IndieMassive shall be entitled to rely upon payments and accountings received from Digital Stores. Any objection relating to any accounting statement, or any lawsuit arising therefrom, must be made (and/or lawsuit commenced) no later than 3 (three) months after the date the statement is rendered, and you waive any longer statute of limitation that may be permitted by law. You shall have no right to inspect or audit our books and records, or those of Digital Stores.

IndieMassive makes payments via PayPal and various other methods through Tipalti and may deduct fees incurred by IndieMassive in remitting payment. Unless you use PayPal, you MUST BE APPROVED BY INDIEMASSIVE FOR ALL OTHER PAYMENT METHODS BEFORE RECEIVING PAYMENT FROM INDIEMASSIVE. IT IS YOUR RESPONSIBILITY TO MAKE SURE YOUR PAYMENT METHOD IS FUNCTIONAL. During the Term, we may change or add additional payment methods. IndieMassive also communicates with you via email so YOU MUST ALSO PROVIDE INDIEMASSIVE WITH AN ACTIVE EMAIL ACCOUNT TO RECEIVE IMPORTANT NOTICES FROM INDIEMASSIVE, and you are responsible for making sure the email account is active, able to receive emails from IndieMassive, and that your email address on file with IndieMassive is up-to-date.

After we receive a payment for you from a Digital Store, we will notify you via your IndieMassive account dashboard. You must then affirmatively accept and withdraw the payment from your IndieMassive account in order for us to transmit the royalties to you. If your account is maintained on behalf of a group, company, partnership, or anything other than you alone, then you shall be responsible for any and all payment distribution(s). We will only make payments to the individual account holder, or any paid account holders you’ve specified in your royalties dashboard.

If required by applicable law, we may withhold payments to you, in whole or in part, pending receipt of your correctly completed Form W-9 (if you are a US resident, for tax purposes), Form W-8 (if you are a non-US resident, for tax purposes), updated [annually / at our request], or any other applicable tax-related forms evidencing that no withholding is required. If any information provided on such tax forms is incomplete, incorrect or misrepresented, we reserve the right to withhold sums due to you until all appropriate and correct information is submitted to and received by us that relieve withholding. We also reserve the right to withhold sums due to you if, based on appropriate and correct information that is timely submitted to and received by us, withholding is required under applicable law. You agree to indemnify us and you will be responsible for any costs, expenses and liabilities we may pay or incur as a result of any incorrect, inaccurate or misrepresented tax or financial information provided by you.

If we receive a claim or notice, or otherwise reasonably suspect that any of your Recordings or Materials or your use of our Site or Service, breaches any agreement, infringes any third-party rights, violates this Agreement or any law, rule or regulation, that there is a dispute regarding the Recordings or Materials (including without limitation as to ownership or payment of monies), or that your activities involve misrepresentation, misconduct, deception, fraud, or other inappropriate conduct, then in addition to any other available rights and remedies, we may suspend or terminate the distribution of your Recordings and/or the Term of this Agreement and/or withhold payment of monies to you in an amount reasonably attributable in our discretion to such Recording(s), Material and activity until and unless any and all claims or other conduct are favorably resolved to our reasonable satisfaction, and we may deduct from your payments our related attorneys’ fees and legal costs in connection. You will forfeit any monies that are attributable to your fraud, infringement or other illegal activity.

Accounting and payment: IndieMassive sends to Client monthly, either directly or indirectly (e.g. via your IndieMassive account dashboard, Letter of Direction, accounting services) an overview of the Net Received Revenue, actually received by IndieMassive from the exploitation of the Master Recordings hereunder.

Delivery of Master Recordings:

IndieMassive hereby confirms delivery of the Master Recordings, video, and all other assets pertaining to these Master Recordings hereunder.

Mechanicals: N/A

Remixes: N/A

Mastering: N/A

Artwork: N/A

Videos: N/A

Promotion costs:

Subject to the prior written (email will suffice) approval of Client, not to be unreasonably withheld or delayed and deemed granted in the event Client does not respond within the lapse of five (5) business days from the day an approval request is sent, IndieMassive shall be entitled to use third-parties for promotion, (online) marketing and public relations (PR) for the Master Recordings and/or Client, such incurred costs (provided that such costs are fair and reasonable) shall be deductible and recoupable from Client Royalties due to Client hereunder.

Options: N/A

Release Restriction: N/A

Warranties:

– Client warrants and represents that Client is authorized to enter into this Agreement and that all warranties, grants of rights and materials furnished to IndieMassive herein are original and do not materially infringe upon the rights of any other entity or rights owner. Client represents and warrants the unencumbered use of, inter alia, copyrights, the so-called “sound recording copyrights”, neighboring rights, trademark rights, design rights, stage/artist name(s), portrait and image rights, biographical information, the so-called “persona” rights and all other materials (including artwork) made available by Client to IndieMassive hereunder. Client represents and warrants that the Master Recordings contributed or still to be contributed hereunder, including any fragments or samples that may have been used and the performances embodied therein, are original and not in violation of public order or good morals and/or are not unlawful in any other way vis-à-vis third-parties and/or do not infringe any rights of third-parties in any way.

– In the event of (alleged) infringement and/or unlawful use of the Master Recordings otherwise and/or the use and exploitation thereof may be deemed illegal, fraudulent, infringing and/or otherwise unlawful, whether or not upon written notice and/or take down request of the (alleged) right owners, IndieMassive shall be entitled to withdraw, either directly or indirectly, with immediate effect any and all Master Recordings of Client hereunder, without being liable towards Client and/or third-parties. Client shall indemnify and hold harmless IndieMassive in full in this respect.

– In the event of a breach of any of the warranties herein, Client shall indemnify and hold IndieMassive and its (sub)licensees harmless from any and all attributable damages incurred by IndieMassive and/or its (sub)licensees, including reasonable attorney and other reasonable legal fees, that result from attributable claims by third-parties in connection with the Master Recordings and/or breached warranties, established in either court room or a settlement agreement.

– Client hereby warrants and represents that Client is not subject to any arrangement, agreement or contract in respect of Client’s recording services and/or performances which would prevent the provision of distribution services and/or grant of rights as set out herein.

– The parties may acquire certain confidential information (the “Confidential Information”), including, without limitation, the terms of this Agreement, concerning IndieMassive and its (sub)licensees, partners, business, projects, or customers. Except for on the basis of a court order and/or the compliance with a statutory obligation and Client’s business advisors (such as lawyers, accountants, tax lawyers and managers who will have to be informed on a need-to-know basis), Client shall not disclose such Confidential Information to any third-party without the prior written consent of IndieMassive, not to be withheld or delayed unreasonably. Confidential Information shall mean the terms and existence of this Agreement and all confidential or proprietary information, knowledge, trade secrets, documents and/or materials owned, developed or possessed by IndieMassive or its partners, whether in tangible or intangible form, which IndieMassive or its partners makes reasonable efforts to keep confidential.

– IndieMassive, at its sole discretion but upon prior written (email will suffice) notice to Client, may assign, transfer or grant its rights and obligations hereunder to a third-party, provided that IndieMassive shall warrant and represent the full compliance with such rights and obligations hereunder by its assign, successor and/or (sub)licensee.

General:

The Parties agree that in case of a (alleged) breach of contract of one of the Parties, before there is question of default, the (alleged) breaching party shall first be informed of the (alleged) breach of contract in writing and in an adequate manner in the course of which a reasonable period must also be given to yet comply properly with the relevant obligation(s) pursuant to this Agreement.

In case of non-payment of any subscription fee to which IndieMassive is entitled hereunder, IndieMassive shall be entitled to either settle, either directly or indirectly, such amounts with any and all amounts due to Client hereunder or to terminate this Agreement and/or to withdraw and/or take down from its platform(s) the Master Recording(s) with immediate effect and without being liable to Client and/or third-parties engaged by Client.

The Parties agree that in case of potential invalidity of a part of this Agreement the other parts of this Agreement shall remain in full force and effect. The Parties shall in this respect reasonably agree on a new arrangement to replace the invalid part of this Agreement. Such changes shall be incorporated into the Agreement and the revised Agreement signed by both parties

IndieMassive identifies to Client the importance of the reliance on external legal assistance when assessing and negotiating this Agreement. It is the responsibility of Client whether or not to rely upon external legal assistance.

In case of disputes the Parties shall reasonably refrain from making any statements, through anyone or any medium whatsoever, that may prejudice the other Party.

This Agreement shall be exclusively governed by the laws of The Netherlands. Any dispute that may arise out of this Agreement and that cannot be initially resolved between the parties, shall exclusively be brought to the cognizance or jurisdiction of the competent District Court in Amsterdam, the Netherlands. Any costs associated with dispute resolution shall be borne by the respective Parties. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one document.