Activist Music Terms & Conditions of Use and Activist Music Digital Distribution Agreement

1. Activist Music Summary:

Welcome to Activist Music Create.Connect a business unit of the Activist Media Group Pty Ltd. We offer you global digital distribution services through the Activist Music Create.Connect Portal Website and the Activist Music Services via our online and mobile retail partners. We offer to distribute your singles, EPs, albums and related material to various Digital Distribution Outlets and to manage the net income received from the exploitation and sale of that material in accordance with the terms and conditions below. We charge a setup fee per release for each of your releases and then charge an annual renewal fee. In return, we pay to you 100% of the net funds received from the digital sales of Your Recordings under this Agreement.

1.1 Summary of this Agreement:

Please read this Agreement carefully. It describes the way you may and may not use Activist Music, the way we may use and distribute Your Recordings, collect and administer your royalties and the promises we make to you and you make to us about Activist Music and its use. This Agreement also describes, the Activist Music Website and the Activist Music Services and the rules relating to the ownership of any material used in or in association with Activist Music.  Among other things, this Agreement also sets out our limitations of liability, the way you or we can terminate this Agreement and the way we will handle complaints and disputes.

1.2 Acceptance of this Agreement:

By clicking “I Agree” or by signing this agreement, using the Activist Music Website or the Activist Music Services, you (in your personal capacity and/or on behalf of any entity of which you are an officer, employee or agent and which you warrant you are authorised to represent) agree that you have read and understood this Agreement and have entered a legally binding agreement with Activist Media Group Pty Ltd (ACN 150 321 341) (referred to in this Agreement as “we”, “our” or “us”) for the use of Activist Music. If you do not agree to the terms of this Agreement, please click “I Do Not Agree” and do not use Activist Music.

1.3 Your Age:

If you are under the age of 18, you agree that you have had your parent or guardian explain this Agreement to you and that you understand and agree to the terms of this Agreement.

1.4 Changes to this Agreement:

We may amend, change or modify (including adding to or deleting parts from) this Agreement excluding changes to fees and charges that will remain constant for the term of this agreement by notifying you 14 days in advance. In addition your continued use of Activist Music, Our Content, the Activist Music Services or the Activist Music Website constitutes your acceptance of any such amendments to this Agreement.

1.5 Collecting Information:

 Please note that when you use Activist Music we may collect information about your use of Activist Music and other related information. This is explained in more detail in our Privacy Policy, located at http://www.activist.net.au/privacy-policy.html 

1.6 Capitalised and Other Terms:

Certain terms in this Agreement start with capital letters; unless the context provides otherwise, those terms have the meaning given to them in the final clause of this Agreement under the heading “Meaning of Capitalised Terms”. Any terms defined in the Copyright Act 1968 shall have the same meaning in this Agreement unless otherwise defined or the context indicates otherwise.

2 Distribution and Use of Your Recordings and Your Content

 
2.1 Digital Distribution of Your Recordings:

If you provide us with one or more of Your Recordings, you grant us a non-exclusive global licence to collect and administer to you royalties and reproduce, convert, communicate, sell, distribute and otherwise Exploit each of Your Recordings by all digital means and media (whether now known or existing in the future) including the right to transmit, perform, distribute, promote and make commercial use of Your Recordings via the internet and via other forms of digital dissemination of music and authorise Digital Distribution Outlets to do the same.
2.1.1 If you as artist have existing agreements in place with your digital content, Activist Music is unable to distribute it as well. For Activist Music to distribute Your Recordings, your distribution contract with any other party must be terminated. Activist Music is unable to affect the terms of any existing contract you have signed and takes no responsibility for potential breach of contract by you as an artist with a third party distributor.

2.2 Digital Distribution Outlet Terms and Conditions:

In order for us to deliver to and authorize Exploitation of Your Recordings by Digital Distribution Outlets, we must agree to the terms and conditions of each Digital Distribution Outlet. You authorise us to enter such terms and conditions in order to provide our services in accordance with this Agreement.
2.3 Promotion:

 You grant us the non-exclusive right to use Your Recordings/Videos and/or Your Content (including your name (or your or your group’s performing name), the producer’s name(s), your photograph(s), likeness(es), biographical material and other related information) for the purpose of marketing and promotion of Your Recordings, our business and Activist Music.

2.4 Removal of Your Recordings or Videos:

If Your Content or your conduct is in breach of this
Agreement or this Agreement is terminated, we may remove or delete Your Content, your Profile and any material in connection with Your Content or Profile from our systems without your consent and without recourse to you and we may deduct a sum equal to our reasonable costs as a result of your breach, including but limited to Net Income due to you under this Agreement.

3. Income Collection, Fees, Payments and Accounting

 
3.1 Our Right to Collect Income on Your Behalf:

 You grant us the right to collect all Net Income from the Digital Distribution and Exploitation of Your Recordings collected on your behalf pursuant to this Agreement. Such payments shall be made through your PayPal Account or direct to you bank account.
We shall only make payment to you of such income if:
(a) The total income due to you is equal to or greater than AUD$100 ex GST in any given calendar month otherwise the balance will be carried over to the following month until AUD$100 is reached. We also reserve the right to hold a retention of any monies owed prior to making a payment for Your Recordings unless:
(b) You have paid to us any sums due to us under this Agreement or otherwise; and
(c) You request payment of such income by submitting a ‘request for payment invoice’, which shall be available to you through the Activist Music Create.Connect portal once the conditions above have been met in accordance with this Agreement.
(d) If you do not have an ABN and/or are not registered for GST, Activist Music is required to withhold 46.5% of any monies owing to you in accordance with Australian Taxation law. To avoid this without applying for an ABN or registering for GST, you are entitled to an exemption of this percentage being withheld on the condition that you provide a Statement of Supplier form. The Statement of Supplier form must verify that any income received from Your Recordings is related exclusively to a recreational pursuit or a hobby.

3.2 Net Income

 While Activist Music collects 100% of your royalties, these royalties are subject to factors beyond our control. These include but are not limited to foreign exchange variation, individual tax treaties, bank fees, withholding tax, and potential insurance liability

3.3 Our Upload Fee:

  In consideration for the services provided under this Agreement, you shall pay to us a one-off fee as set out below in respect of each Release. After signing up for free, you will be charged an artist subscription fee of  $19.95 Inc GST per year on a yearly basis. Your membership can be cancelled with 30 days’ notice, incurring an additional album takedown fee of $55.00 Inc GST if you have been an active subscriber less than six month’s. For each release, there is a one-off setup fee of $9.95 Inc GST for a Single (comprising one to three songs) or $9.95 Inc GST for an EP/Album (four or more songs, up to one maxiumum capacity standard CD).

3.4 Our Subscription Fee:

Upon the expiration of the annual date from signing this agreement in connection with each artist subscription’s renewal date,  you shall pay to us a renewal fee of $19.95 Inc GST per year. For the avoidance of doubt, we may deduct or offset the Subscription Fee (or any part thereof the Subscription Fee) from any income credited to you in accordance with this Agreement.

3.5 UPC and ISRC Codes:

 Each Release requires a unique UPC code (or barcode). You can obtain your own UPC code, or, if you want us to supply it, then you must pay an administration fee of $45.00 Inc GST for each UPC Code. For more information on UPC Codes please see the “What is a UPC code?” in the FAQ section.
(a) UPC code: it is mandatory for each release to have a unique UPC code or barcode.
(b) ISRC codes: it is mandatory to have an ISRC code with each track. Activist Music can provide one for you free of charge, however if your recording already has a unique ISRC code you should supply this code when uploading your content.

3.6 Accounting:

 We shall make available to you through the Activist Music Create.Connect portal, an electronic statement of accounts, which shall show any income owing to you, the number of Releases sold, the individual tracks sold, your previous and current invoices and such other related material. The statement of accounts is updated by Activist Music on each occasion we receive income to be credited to you from a Digital Distribution Outlet or after we make a payment to you or after you make a payment to us. Payments received made to you under the terms of this agreement will be processed 45 days after each month’s end. In other words, for all sales made in September, for instance, you will be paid in mid November. After your request for payment, Activist Music may take up to 30 days to process this request.

4. What You May Do With Activist Music

 
4.1 Licence:

 We grant you a licence to use the Activist Music Website, the Activist Music Services and any of Our Content made available to you through the Activist Music Website and to create and use your Profile in accordance with this Agreement. You promise only to use Activist Music for that purpose.

4.2 What You May Not Do With Activist Music

 
4.2.1 Sole User:

No other person may use your Profile. If any other person does use your Profile, you shall be responsible for that person’s use of your Profile and you shall be deemed to have authorised that person’s use and activities.

4.2.2 No Illegal Conduct:

 You promise not to use (or encourage others to use) Activist Music in any illegal manner or for any illegal purpose including in any way that infringes another person’s intellectual property rights (such as copyright or trade mark rights). For example, you may not use a third party’s artwork, music or sound recording in any material you provide to us, without that third party’s authorisation.

4.2.3 Our Content:

 We retain all rights in Our Content. You acknowledge you obtain no ownership in Our Content.

4.2.4 Your Recordings:

 You grant us the Digital Distribution in Your Recordings for the term of this agreement unless it is otherwise terminated or renewed for a further term. You promise that if you use Your Recordings and/or Your Content in connection with Activist Music, your use of Your Recordings or Your Content does not infringe the rights of others and does not breach any laws.

5. Your Further Promises to Us

 
5.1 True Information:

 You promise that any information you provide us or our affiliates will be (and will be kept and maintained) accurate, current and complete.

5.2 Use of Activist Music and Profile Security:

 You promise that you will be fully and solely responsible for your use of Activist Music and your Profile. You promise to keep your Profile details (including passwords) confidential.

5.3 Liability for Infringements:

 You promise that you will be solely liable for any breaches by you of the rights of any other party, including any breach of any intellectual property rights belonging to any third party.

5.4 Compliance with Local Laws:

 You are solely responsible for complying with all relevant laws (including tax, criminal, trade, copyright and data-protection laws) that apply to you and your use of Activist Music or any payments made to you.

5.5 Indemnity:

 You agree to fully indemnify and hold us harmless, and upon our request, defend us and our licensees and affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees and costs) concerning any claim against us relating to your use of Activist Music, Your Content and/or Your Recordings. Accordingly, you agree to reimburse us and our affiliates on demand (and/or allow us to retain your income received in accordance with this Agreement) for any such claim, cost, loss, damage or expense that is subject to indemnification under this clause and/or any payments made in resolution of any liability. We will promptly notify you of any such claim, and by obtaining, posting and maintaining an adequate bond for our benefit you may assume control of the defence of such claim, provided that we will have the right in all events to participate in the defence thereof.

5.6 Power to Enter Agreement:

You promise that you have the full power and authority to enter this Agreement and make the promises set out in this Agreement.

5.7 Activist Music is not your Employer or Agent.

Activist Music and our services are related to the terms set out in this agreement and do not constitute any form of employment or agent relationship.

6. What You Should and Should Not Expect From Us

 
6.1 Activist Music Modifications and Upgrades:

We may modify or upgrade Activist Music or any software used in connection with Activist Music at any time.

6.2 Operability of Activist Music:

 We are not responsible for providing any hardware, further software or application that allows proper access to or use of Activist Music. It is your sole responsibility to upgrade your software and hardware to ensure Activist Music runs on your computer.

6.3 Your Confidential Information and Personal Details:

We respect your privacy and shall use our best endeavours to keep your confidential information and your Profile details confidential in accordance with the Privacy Policy http://www.activist.net.au/privacy-policy.html However, we assume no responsibility for protection of such information and/or Create.Connect details and the limitations of liability set out in the following paragraphs shall apply to such information and/or Create.Connect details.

6.4 Limited Promises and Liability:

To the maximum extent permitted by law, all express or implied terms, conditions, warranties, statements, assurances and representations in relation to any product or service provided by us, our business and the Activist Music Website are expressly excluded. In particular, we assume no responsibility for (and you agree we will not be liable for) any cost, damage or loss incurred by you as a result of your use of Activist Music including but not limited to any error, action, omission, “bug”, interruption, interference, deletion, hacking, defect, delay in operation or transmission, communication line failure, theft, destruction or unauthorised access to, or alteration of Activist Music. If any of the exclusions or limitations set out in the preceding paragraph are declared illegal or void or if you claim that there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this Agreement, to the extent permitted by law, our entire liability and your exclusive remedy is limited, in our discretion, to any fee we have charged you for the use of Activist Music and any sums owing to you. In no event will we (including our partners, agents, employees or contractors) be liable for any direct or indirect or consequential loss (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without  limitation, contract or tort arising during and/or as a result of the performance or non-performance of this Agreement by us.

7. How You or We Can End This Agreement

 
7.1 Your Termination:

 You may terminate this Agreement by providing written notice to Activist Music of your intention to terminate this Agreement at least 30 days prior to the end of the term and by ceasing to use any and all parts of Activist Music from that day. Failing to terminate by the end of the term, this agreement will automatically continue for a further year of subscription.

7.2 Our Termination:

We may terminate this Agreement and delete your Activist Music Create.Connect platform:
(a) By notice in writing to you (including via email to the address you have provided), if you breach this Agreement including not having paid to us the Renewal Fee; or
(b) Upon 30 days notice to you;
At which time, all your rights to use Activist Music and Our Content will cease immediately and you must cease all use of Activist Music.

7.3 Rights upon Termination:

 Promptly and after written termination of this Agreement we will ensure to notify to remove your Releases administered by us from any Digital Distribution Outlets and we will pay to you any outstanding Net Income due to you less any sums owing to us or any fees in dispute. Activist Music will use its best endeavours to ensure this does not take longer than 12 months. We may also delete your Activist Music Create.Connect platform account. No further subscription fee will be charged after termination.

8. Miscellaneous

 
8.1 Entire Agreement:

The terms of this Agreement constitute the entire agreement between you and us with respect to the subject matter of this Agreement. You acknowledge that we do not give any warranties or make any representations other than those expressly set out in this Agreement. If any have been given, you acknowledge they were not relied upon by you in entering this Agreement.

8.2 Arbitration and Mediation:

We shall use our best endeavours to help resolve any complaint you may have of us or Activist Music or any dispute that may arise between you and us. In the event of dispute between you and us concerning any matter arising from this Agreement or the use of Activist Music, you must provide written notice of the dispute to us and any other party to the dispute. Upon receipt of such notice, the parties to the dispute shall use best efforts to resolve the dispute within 28 days through commercial negotiations. If the dispute is not resolved within 90 days of the provision of such notice, either party may bring proceedings in relation to the matter. This clause shall not apply to any application for urgent interlocutory action.

8.3 No Waiver:

 The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.

8.4 Unenforceability:

If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be severable and shall not affect the remaining provisions of this Agreement.
Jurisdiction: The construction, validity and performance of this Agreement shall be governed in all respects by the law of the State of Victoria, and the parties submit unconditionally to the jurisdiction of the Courts of Victoria.

Meaning of Capitalised Words:

 
“Agreement” means the terms and conditions set out in these ‘Website Terms and Conditions and Distribution Agreement’. It should be read in conjunction with the Privacy Policy and expressly excludes the paragraphs above titled ‘Activist Music Summary’ and ‘Summary of Agreement’.
“UPC” means a ‘universal product code’ that is required for tracking the sale of products sold through the Digital Distribution Outlets and which must be attached to each Release.
“ISRC” means ‘international standard recording code’ and is a worldwide identification system for sound recordings and music promotional videos. Each ISRC is permanently encoded within a specific product for the purpose of identifying it, and can be used to trace and track the product throughout the value chain. An ISRC also facilitates automatic product identification for royalty purposes and can be used as a tool for combating piracy.
“Digital Distribution Outlet” means any third party that we authorise to carry out the marketing, distribution and sale or other use of Your Recordings in accordance with this Agreement. 
"Exploitation" or "Exploit" means the reproduction, sale, communication, editing, marketing and/or distribution of one or more of Your Recordings, including any and all reproductions made and distributed of any and all Your Recordings.
“Setup Fee” means our one-off fee set out in the clause above titled “Our Setup Fee”.
“Activist Music” means any and all of the Activist Music Website, the Activist Music Services and Our Content that we make available to you from the Activist Music Website and includes any related material and services.
“Activist Music Services” means the products (including newsletters and information sheets) and services we provide in connection with the Activist Music Website and as set out in this Agreement.
“Activist Music Website” means the set of internet web pages hosted by us and available for access in accordance with this Agreement, and which publish certain content and which are currently located at the URL: www.activist.net.au
“Net Income” means all income credited to you from the Digital Distribution Outlets for the Exploitation of Your Recordings and collection of royalties in accordance with this
Agreement less any Subscription Fee due to us and any further costs, damages or expenses incurred by us on your behalf or as a result of your breach of this Agreement.
“Our Content” means any graphics, images, text, video and other intellectual property (including copyright works and trade marks) that we own or control and offer to you through Activist Music specifically for the purposes of use in connection with Activist Music in accordance with this Agreement.
“PayPal Account” means your registered account with PayPal, which you will maintain in accordance with PayPal’s policies, and into and from which account all payments required under these Terms and Conditions of Use will be made by you and Activist Music.

“Privacy Policy” means the privacy policy located on the Activist Music Website as amended from time to time.
“Create.Connect platform” means the account you set up when registering with us via the Activist Music Website and includes all data, personal details, passwords and associated information.
“Release” means each of Your Recordings or each collection of Your Recordings delivered in accordance with the Agreement which is connected to a single Bar Code and which we Exploit or provide to Digital Distribution Outlets in accordance with this Agreement.
“Subscription Fee” means the subscription fee set out in the clause above titled “Our Subscription Fee”.
“You” and “your” means the person who clicks or signs “I Agree” in that person’s personal capacity and/or on behalf of any entity or other person(s) you warrant you are authorised to represent.
“Your Content” means any graphics, images, text, video and other intellectual property you own or control or are authorised to use, share, reproduce, communicate, upload, distribute and deal with in any way and includes website links you have “posted” on the Activist Music Website.
“Your Recordings” means any sound recordings together with all underlying copyright works and other such subject matter such as inlay books embodied in such recordings and any related material (including copyright material such as artworks) which you have complete authority to use, share, reproduce, communicate, upload, distribute and deal with in any way.