Following, is a copy of the Music Testing Agreement, which must be "Accepted" before songs or video links can be uploaded and surveys initiated (launched) through Artist Intelligence (AI). The Agreement sets forth the terms under which the "Owner's" original "Works" (and "covers" of others' songs) can be accepted for AI, and the rights and services to be granted by Owner and performed on behalf of the accepted songs. Artist Intellligence is owned and operated by Music Research Consultants, Inc. (MRC).
Please read the Agreement carefully and address any questions to: larry@ArtistIntell.com
Music Research Consultants, Inc.
Carlsbad, California 90046
Email: lheller@MusicResearch.com • www.MusicResearch.com
MUSIC TESTING AGREEMENT
THIS MUSIC TESTING AGREEMENT (this “Agreement”) is made by and between you ("Owner" or “you”) and Music Research Consultants, Inc., a California corporation ("MRC"), pursuant to Owner's use of MRC's Artist Intelligence service at ArtistIntell.com (“AI”).
Recitals of the Parties
Owner owns, or has the right to license hereunder, all right, title and interest, including without limitation the copyright in and to, the musical compositions and the sound recordings (“Work(s)) submitted by you for posting at www.ArtistIntell.com (“AI”) and/or www.musicresearch.com (“MRx”) (collectively the “Sites”) and its distribution affiliates.
Owner desires to engage MRC’s market research services through AI in connection with the Work(s), as more specifically described below, in the “Services” paragraph, and MRC will provide the Services, on the following terms and conditions:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Services. In consideration of the license granted herein by Owner, MRC agrees to perform the following Services:
Make the Work(s) available on MRC’s Sites and affiliated Internet distribution channels (i.e., third party sites which may have links back to MRC, such as Facebook or YouTube, as well as other sites which MRC may own or with which MRC may enter into affiliate/distribution agreements) in streaming audio format, and provide surveys (“Surveys”) as may be ordered and paid for by Owner. A detailed description of the Surveys, including the specific services provided with each and fees payable, is set forth on the Pricing and Reports & Results pages of the AI site. Owner shall have the option without obligation to purchase additional interviews above the original number of interviews, paid for in accordance with the fees set forth in the AI Pricing page;
At MRC’s sole discretion (and without further obligation on the part of either party), Owner's Work(s), which are certified MusicLovers ® Gold or Platinum, may continue to receive exposure and interviews beyond those offered in the purchased Surveys, as applicable, at no additional cost to Owner. Requirements and opportunities for Gold and Platinum certification are set forth in the AI Reports & Results page;
(a) At Owner's election, display up to two (2) photographs of the artist, (“Photographs”) and album artwork (“Artwork”) as may be uploaded by Owner per this Agreement on the Sites, subject to paragraphs 1(i) and 8 below;
(b) At MRC’s election, display one or more Photographs on other sub- pages of the Sites, to appear randomly as part of a selection of photographs of artists;
(c) Provide a link on the Sites to Owner’s own web site or a web site designated by Owner for such purpose (“Owner Websites”), subject to paragraphs 1(i) and 8 below;
(d) Provide a link on the Sites to Owner’s music videos (“Owner Videos”) subject to paragraphs 1(i) and 8 below;
(e) Provide Owner with a copy of visitors’ opinions regarding the Work(s), as detailed in the descriptions of deliverable results for the Surveys, as applicable, on the AI Pricing, Reports & Results and report pages on the Sites; and;
(f) Provide Owner with limited access to MRC’s and AI's song ranking charts for the purpose of displaying the visitors’ opinions regarding the Work(s), as further described in the AI Pricing, Reports & Results and AI report pages.
(g) All material supplied by Owner or on Owner’s behalf to AI or MRC, including without limitation the Work(s), Photographs, Artwork, links to Owner Websites, and Owner Videos shall be referred to collectively as the “Owner Material” hereunder. Notwithstanding anything to the contrary herein, MRC shall have the right to refuse to display or use in any manner any or all Owner Material (and may remove such Owner Material at any time without prior notice) if MRC determines in MRC’s sole discretion that such Owner Material contains infringing, obscene, illegal, inappropriate or otherwise objectionable content. If any such Owner Material is removed, MRC shall use best efforts to notify Owner promptly and will, in MRC’s discretion, re-post such material if Owner removes the objectionable content to MRC’s satisfaction.
(h) In MRC’s sole discretion, but subject to Owner’s prior written consent, MRC may display or otherwise present the Owner Material and opinions regarding the Owner Material to music and entertainment industry professionals (AI Mentors) for the purpose of promoting the Works to such parties and for their review and consideration. In the event any such music and entertainment industry professionals are interested in contacting Owner directly, in MRC’s sole discretion, MRC may notify Owner of such interest, or, request Owner’s prior written consent via email to provide Owner’s name, email address and phone number to such party directly. Notwithstanding the foregoing, MRC shall have no obligation to perform any of the services set forth in this paragraph 1(h).
(i) Owner shall have the right to view, download, print and promote Owner’s own survey results and display the Owner Materials on the Sites throughout the Term of this Agreement. Notwithstanding the foregoing, MRC shall own all right, title and interest, including without limitation all intellectual property rights in and to the Survey data, results and reports, and shall have the right to display and use such data, results and reports for any business purpose, in MRC’s sole discretion, in perpetuity, including without limitation, to promote MRC, or the Owner, and the Owner’s Works (either along with or separate from the data, results and reports from other owners’ songs).
2. Term. The term of this Agreement shall commence on the date all of the following conditions are completed:
(a) All terms and conditions of this Agreement are accepted by Owner as indicated by Owner’s selection of the “Accept” button attached to this Agreement;
(b) Owner’s Works and other Owner Materials are submitted and uploaded to MRC’s Sites pursuant to the instructions on the Sites and MRC accepts such Works and other Owner Material (provided Owner understands and agrees that any or all Work(s) and other Owner Material may be rejected by MRC in MRC’s discretion); and,
(c) MRC acknowledges acceptance of Owner's “Accept” button activation (or written authorization to “Accept”), the Work(s) and other Owner Material, and receipt of payment, by MRC’s notice via email to Owner of same.
(hereinafter, the “Effective Date”)
The term shall be for two (2) years commencing on the Effective Date. Owner may request renewal of this Agreement for successive one-year terms by written notice to MRC within 30 days prior to expiration of the then current Term, at MRC’s then current renewal rates which will be posted on the Sites.
Upon the “Effective Date”, all Works submitted to AI or MRC will be “launched” for Survey within twenty-four (24) hours (although Owner’s credit card will be charged immediately upon completion of the initial ordering process).
MRC will use its best efforts to complete all Surveys in a timely manner (typically, within two-four days from the Effective Date), subject to the timely availability of qualified respondents. If Survey completion requires additional time, MRC will provide Owner with an estimate of time required for completion. In such event, Owner shall not be charged, nor shall Owner be entitled obtain a refund, price reduction, stop payment, or other remedy. MRC will continue to fill the Survey sample requirements until the specified total audience quota for that Survey is reached.
3. Payment by Owner. In consideration of receiving MRC’s Artist Intelligence music research services with respect to the Work(s), Owner shall pay to MRC the amount charged for the requested Survey, pursuant to the rates set forth in AI Pricing, After commencement of the Term, additional Works and visitors may be ordered by Owner under the terms agreed between the parties hereto at the current rates posted on the Sites.
(a) Owner will provide MRC with the Owner Materials including a copy of the Work(s) in mp3 and other supported formats, Photographs, Artwork (album cover or related artwork) in .jpg format, and a web address (URL) to link interested respondents to the Owner Website and Owner Videos, if any, after respondents’ completion of the Survey.
(b) Owner will upload the Works, Photographs, Artwork and all other Owner Materials, and order and launch Surveys, through the digital platform provided by MRC on the Sites. Owner may also request assistance from MRC pursuant to the instructions set forth on the AI or Mrx Sites.
4. Grant of License. Subject to the terms and conditions set forth below, Owner hereby grants MRC the non-exclusive, non-transferable right and license to broadcast, perform, modify, display and reproduce the Work(s) and all Owner Material via the Sites, by means of online streaming audio, limited free downloads (as described below), and by such other means as the MRC may determine in its sole discretion solely in connection with the Services and the promotion or display of the Work(s) authorized hereunder. The license granted herein shall terminate upon the expiration or termination of this Agreement and any extensions thereof. Nothing herein shall be construed to grant the MRC the right to sublicense or sell the Work(s) without Owner's prior written authorization.
5. Downloads. Owner hereby grants MRC the non-exclusive, non-transferable right and license to allow free downloads of tested Works solely for purposes of rewards to Survey respondents; for the avoidance of doubt, such free downloads will be available only to Survey respondents. Owner may elect to exclude this provision by selecting “Exclude” in Clause 5. of The Agreement (or written authorization to MRC, if off-line) before accepting The Agreement and uploading the Work(s).
6. Covers. In the event Owner submits a so-called “cover” to MRC for Survey purposes, Owner represents and warrants it owns or controls all right, title and interest in and to the sound recording, and that it has obtained any and all rights and has paid, and will continue to pay, all fees payable to any third party owners of the musical composition(s) embodied therein.
7. No Royalty. With respect to any and all broadcast, performance, reproduction, or other use of the Work(s) or Owner Materials by MRC in the course of its performance of the Services, Owner hereby agrees that such broadcast, performance, reproduction, or similar use shall be royalty free, and Owner hereby waives any and all moral rights and any and all royalties, statutory or otherwise, to which Owner would otherwise be entitled whether under the Copyright Act of 1976, as amended or otherwise (such as, but without limitation, public performance royalties for both the musical compositions and the sound recordings, mechanical royalties, synchronization and master use fees, and the like).
8. Clearances. Owner shall be solely responsible for and shall obtain and pay for all necessary third-party rights, clearances, consents and permissions for MRC’s use of any and all Owner Material (as defined in paragraph 1(i)) including without limitation from any record labels, publishing companies, photographers, videographers, graphic designers, and any other third-party contributor to the Owner Materials.
9. Copyright Notices. Owner shall provide MRC with the proper copyright notice information (year of first publication and copyright owner) for the Work(s) and other Owner Material, as applicable, and MRC agrees to use best efforts to insert a copyright notice in the following format: “© [year] [Owner] or (p)[year][Owner]. Used by permission.” which notice shall appear as close as reasonably practicable on the same screen, as the online streaming audio. Owner shall provide MRC with such copyright notice information (including year and copyright owner) on a voluntary basis in the song-upload process, as instructed on the Sites, prior to commencement of the MRC services. Owner is hereby advised that copyright notice is suggested in that it informs the public that the Work is copyright protected and will assist in establishing willful infringement in the event the Work is used without authorization. Furthermore, for Work(s) first published prior to March 1, 1989, copyright notice was mandatory and the omission of notice on any work first published before that date could have resulted in loss of copyright protection if corrective steps were not taken in the proper time period. Accordingly, in the event Owner’s Work(s) were first published prior to March 1,1989, MRC strongly suggests providing MRC with appropriate copyright notice. Owner shall be solely responsible for, and MRC shall have no liability for, any consequences (including without limitation loss of copyright rights, financial losses, etc.) related to Owner’s failure to provide proper copyright notice in association with Owner’s Work(s).
10. Modification of Works.
(a) The parties intend that MRC shall be permitted to edit or modify the Work(s) to the extent necessary for MRC to perform the Work(s) in online streaming audio and downloadable format on the Sites (only as authorized hereunder), and to excerpt the Work(s) for promotional purposes. MRC acknowledges Owner's ownership or control of the copyrights in the Work(s) and Owner Materials, as described in Paragraph 11, and acknowledges that any reproductions or derivations thereof created by MRC shall be the property of the Owner. The parties agree that the definition of “Work(s)” hereunder shall include any and all MRC-created modifications described above.
(b) If any ownership rights of any derivatives of the Work(s) created by MRC hereunder are deemed by law or otherwise to vest in MRC, MRC hereby agrees to and does assign to Owner its interest in the copyrights of such derivatives of the Work(s). MRC agrees to execute such further documents evidencing the intent of this Agreement, including individual assignments, as may be requested by Owner.
11. Representations and Warranties. Owner represents and warrants that (a) it has the right to grant the license conveyed herein; (b) it owns or otherwise has the authority of all owners of any copyrights in the Work(s) and all Owner Materials to enter into this Agreement and grant the license to MRC as set forth herein; (c) it has obtained and has paid and will continue to pay any third-party royalties or fees necessary for MRC’s exercise of the rights granted herein and (d) Owner shall be solely responsible for taking such actions as it deems appropriate to obtain copyright registration for the Owner Materials, including without limitation the Work(s) and any derivative works thereof. All rights with respect to the Work(s) and other Owner Materials not specifically granted in this Agreement shall be and are hereby reserved to the Owner, including, without limitation, rights in derivative works.
12. Infringement. If MRC acquires knowledge, or receives notification, of a claim by any third party that MRC's use of the Owner Materials or any of them constitutes unauthorized use or infringement, or otherwise violates any law or regulation or the rights of any third parties, MRC may take down or block access to the Owner Materials in its sole discretion and without prior notice to Owner, provided MRC provides notice to Owner as soon as practicable. Owner agrees to cooperate with MRC in connection with any such third-party claims (of infringement or otherwise), including without limitation, by providing any necessary information or materials as MRC may request. In this event, there shall be no refund of the monies paid by Owner to MRC hereunder, and Owner shall indemnify MRC as set forth in paragraph 18 below.
13. Third-Party Challenges. Owner shall defend MRC's right to use, reproduce, distribute and display the Work(s) in the event such use is challenged by a third party. In the event such defense is unsuccessful, without limiting any of MRCs rights or remedies, MRC may terminate this Agreement without prior notice to Owner, provided MRC provides notice to Owner as soon as practicable. There shall be no refund of monies paid by Owner to MRC hereunder, and Owner shall indemnify MRC as set forth in paragraph 18 below.
14. Events of Default. Any of the following shall constitute an Event of Default:
15. MRC or Owner defaulting in the performance of any material covenant, agreement, term or provision under this Agreement, and such default continuing for a period of thirty (30) days after notice thereof from the non-defaulting party;
(a) Either party filing a voluntary petition for bankruptcy, reorganization or an arrangement under any bankruptcy or insolvency law, or an involuntary petition under any such law being filed against either party and not dismissed within ninety (90) days; or
(b) Either party making an assignment for the benefit of its creditors.
(c) Owner uploads infringing or objectionable (in MRC’s sole discretion) material (which shall be in addition to any other rights and remedies set forth herein or otherwise available to MRC).
16. Remedies. Upon the occurrence of an Event of Default either party may terminate this Agreement immediately upon written notice to the defaulting party. Such termination shall not terminate or abridge Owner's indemnification obligations towards MRC, as specified in Paragraph 18 of this Agreement, which shall remain in full force and effect.
17. Termination at Will. MRC may terminate this Agreement at any time upon thirty
(30) days’ notice to Owner at the email address identified below, provided however that if Owner has not materially breached this agreement, MRC shall reimburse Owner the monies paid to MRC hereunder, less the pro rata amount for the number of completed interviews delivered to Owner by MRC hereunder. Notwithstanding the foregoing, in the event Owner uploads infringing or objectionable (in MRC’s sole discretion) material, and MRC chooses to terminate this agreement, there shall be no reimbursement to Owner for monies paid to MRC hereunder (in addition to any other rights and remedies set forth herein or otherwise available to MRC).
18. Effect of Termination. Upon any termination, MRC shall remove the Work(s), links (if any) and any Photographs, Artwork, Owner Videos, and all other Owner Materials from the Sites.
19. Indemnification. Owner shall defend, indemnify and hold harmless MRC, its officers, directors, agents and employees from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including settlement costs), and expenses associated therewith (including the payment of reasonable attorney fees and disbursements), arising out of any breach by Owner of its representations, warranties or agreements hereunder, or otherwise arising out of MRC’s use, reproduction, distribution and/or display of the Owner Materials as authorized by this Agreement.
20. Limitation of Liability. In no event shall MRC, or its officers, directors, affiliates, agents, employees, contractors, or assigns be liable to Owner for any CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES OR LOST PROFITS as a result of the breach or claimed breach of this Agreement, or any warranty, representation, covenant or obligation contained herein. In the event of a breach of this agreement by MRC, MRC’s total liability shall be limited to repaying to Owner the financial consideration theretofore paid by Owner under this Agreement to the extent of such breach.
21. Notices. All notices, demands and requests under this Agreement shall be in writing and delivered to the email addresses set forth below.
If to Owner: At the email or postal address supplied by Owner to MRC during survey setup. If to MRC: email@example.com
22. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California, without resort to the conflicts of laws rules thereof. All disputes regarding this Agreement shall be resolved in the applicable state or federal courts of Los Angeles County or San Diego County, California. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
23. Assignment. MRC may assign this Agreement by providing notice to Owner by posting such information prominently on the Site(s). Owner may not assign this Agreement without the prior written consent of MRC.
24. No Waiver. The failure of either party to insist upon strict performance of any of the terms or provisions of this Agreement, or the exercise of any option, right or remedy contained herein, shall not be construed as a waiver of any future application of such term, provision, option, right or remedy, and such term, provision, option, right or remedy shall continue and remain in full force and effect.
25. Entire Agreement. The terms and provisions of this Agreement constitute the entire agreement between the parties with respect to the matters described herein and supersede all previous communications, negotiations, proposals, representations, conditions or agreements, whether written or oral, relating thereto. This Agreement may not be modified or amended except in a writing signed by a duly authorized officer or representative of each party. Notwithstanding the foregoing, the terms set forth in the AI Pricing page (document) and qualifications for Gold and Platinum certification may be changed from time to time, in MRC’s sole discretion. In the event the terms in the AI Pricing page (document) are so changed, and such changes are not acceptable to Owner, Owner shall have the right to terminate this agreement upon written notice to MRC. For the avoidance of doubt, any changes to the financial terms and the substance of the services offered (as opposed to procedural or administrative changes) shall not affect Surveys that are already ordered, partially completed, or completed Surveys or Services, all of which shall not be subject to change and will continue in full effect under the terms of the Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date of Owner's acceptance of this Agreement, evidenced by Owner's selection of the “Accept” button attached to this Agreement.
Music Research Consultants, Inc.
By: Lawrence S. Heller