Terms of Use

AGREEMENT

This ONLINE MUSIC DISTRIBUTION AGREEMENT (the "Agreement") is entered into by and between SIMA TECH INNOVATIONS (hereafter "SIMA TECH"), and <………………………………………………………………………. > (hereafter “you” or “Artist”) ………………………………………………………….effective as of <……………………………………………. >, (the “Effective Date”).

PURPOSE .

SIMA TECH TUNES is an online Music Store that sells music in MP3 file format. SIMA TECH allows consumers to download and listen to music. When consumers pay for access to quality online music, SIMA TECH will pay Artist 70% of all net revenue collected.

Artist, who has not signed an exclusive agreement with any record label, wishes to enter into a nonexclusive agreement with SIMA TECH to reproduce, publish, market, distribute and sell the Artist’s Work to consumers under the terms and conditions of this Agreement.

NOW THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:

SECTION 1:  DEFINITIONS

For purposes of this Agreement, the following capitalized terms are defined as follows:

  1.  "Derivative Works" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, sound recording, reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted. A "derivative work" can be when someone does a cover version of a song of yours.
  2. "Digital Audio Transmission" means a transmission that embodies a sound recording including the performance thereof.
  3.  "Digital Phonorecord Delivery" means each individual delivery of a phonorecord by digital transmission of a sound recording, or part thereof, which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.
  4. “Formats” means all electronic media formats including, but not limited to, the following: MP3, MP2, CD-ROM, Windows Media WMA, RealAudio, OGG Vorbis, Samples, AIFF, WAV, Flash, MIDI, Cubase, Sequencer file, and SampleCell.
  5. “Merchandise” means certain items with Artist's likeness, including but not limited to, music t-shirts, mugs, posters, CDs, (both one-off and bulk-created) and other items that the parties may designate.
  6. “Platforms” means all electronic media platforms including, but not limited to, “Windows Media Player”, “RealPlayer”, Internet radio, and MP3 player
  7. “Sale” means where money is paid and received by SIMATECH for the occurrence of any of the following:
    • A consumer requests to download a CD-quality copy of Artist’s Work.
    •  Sublicensing of the Artist’s Work, in whole or part, for commercial purposes; and
    • None digital sale of Artist’s Work and Merchandise. “Sale” shall not include promotional activities by SIMA TECH (where no cash sale has occurred), including distribution of high-quality copies of the Work (such as to DJs, A&R, barters, low-budget films), and any subscription service that allows listeners access to entire genres or a mix of music.
  8.  “Work” means all forms of sound, music, rhythm and lyrics that Artist intends to provide to SIMA TECH including, but not limited to: sound recordings, compositions, song lyrics, written prose, musical recordings, vocal recordings, vocal solos, samples, field recordings and ambiences. All Work submitted by Artist, which shall include one or more songs or music scores, shall be set forth in Attachment “A”, which shall be incorporated into this Agreement. Each subsequent submission of Artist’s Work shall be set forth by Attachment and will be incorporated into this Agreement. (The “Attachment A” is a page where you will list all the songs that you are licensing to us. You are under no obligation to license us any music in the future, and this agreement only covers the songs you explicitly name.)      

 SECTION 2. WARRANTIES OF NON-EXCLUSIVITY, ORIGINALITY AND OWNERSHIP

  1. Artist Warranties: By offering the Work for release under this Agreement, Artist represents and warrants the following:
  1. Artist is the sole author of the Work and/or has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights hereunder, including all cover songs, samples, excerpts, recordings, lyrics, rhythms and melodies, without Artist or SIMA TECH having to pay any royalties, compulsory license fees, residuals or any other payments.
  2. The Work does not infringe the copyright, trademark, publicity rights, commo n law rights, or any other right of any third party or is otherwise illegal or constitute defamation, invasion of privacy, pornography or any tort injury to any third party.
  3. ARTIST CURRENTLY IS NOT BOUND BY AN EXCLUSIVE AGREEMENT WITH ANY RECORD COMPANY AND ARTIST DOES NOT REQUIRE THE PERMISSION OF ANY OTHER PARTY TO ENTER INTO THIS AGREEMENT Artist shall provide SIMA TECH immediate notice if it enters into an exclusive agreement with any record label or for the distribution of Merchandise.
  4. If Artist has entered into an agreement with any record label (“Prior Agreement”), Artist has had an attorney review the Prior Agreement who has determined that Artist has the legal right to enter into this Agreement and assume the duties hereunder and that SIMA TECH has the right to use the Work as provided herein. Artist shall provide SIMA TECH with a copy of any Prior Agreement.
  5. Artist is at least 18 years old and has the right and authority to enter into this Agreement on his/her behalf or, if Artist is more than one person, Artist has the right and authority to enter into this Agreement on behalf of such group.
  6. If artist is below 18 years he/ she shall be represented under this agreement by their legal guardians and or the next best friend.

SECTION 3. NON-EXCLUSIVE LICENSE GRANT TO SIMA TECH

3.1. Non-exclusive License Grant.  

 Subject to the terms and conditions of this Agreement, Artist hereby grants SIMA TECH a non-exclusive right and license throughout the universe to freely and without restriction use and exercise the rights in the Work identified in, as stated below:

  1. To use reproduce, publish, duplicate, publicly or privately perform and display, distribute and transfer the Work, or cause to do the same, including Digital Audio Transmissions and Digital Phonorecord Deliveries of the Work, and the right to couple any of the Work with recordings other than Artist’s licensed Work (“Electronic Distribution”); (You're giving us the non-exclusive right to play your music for people, distribute it, and otherwise get you better known).
  2. To use, market, license, sublicense, distribute and sell the Work, including individual tracks, MIDI, lyrics, samples music score and other constituent parts from the Works; (You're giving us the non-exclusive right to find people who want to pay for the right to use (or listen to) your music.)
  3. To create and reproduce Derivative Works, or cause to do the same; (We are going to try to get people to cover your songs, license your lyrics for their use, remix, etc. Basically, we want to find other ways to make money off your music.)
  4. To use, reproduce, distribute, display, deliver and transmit, publicly and privately, by any means now known or hereafter devised, the lyrics of the musical compositions embodied in the Work, for the purpose of promoting the Work or facilitating the exercise of the rights of Electronic Distribution of the Work; and
  5. To use the Work to promote Artist, the Work and SIMA TECH (and its products and services) and to use the name and likeness biographical material, logos, trademarks photographs, symbols, emblems, designs, and any other visual representations of the Artist, and any other individuals performing or otherwise represented in the Work. (We go out and do PR for you, as well as to try to sell T-Shirts, Posters, Mugs and other stuff with your face on it. You'll get your 50% cut as described below.)

The above rights may be exercised in all Formats, Platforms and Peer-to-Peer Technology, both presently known or to be developed, without any payment or royalty obligation to Artist, except for as specifically provided under Section 4. (As explained above, you give us the right to get your music heard through a variety of different formats

Artist also grants SIMA TECH the right to sell, or cause to sell, or sublicense Merchandise.

3.2. Term and Termination

  1. This Agreement will commence on the Effective Date and continue for a period of ONE year from the Effective Date (the “Initial Term”). This Agreement will automatically renew for successive one year terms in perpetuity, if not terminated in writing thirty (30) days or more prior to the expiration of the term (the Initial Term and any period thereafter, if any, collectively are referred to as the “Term”). You give us these rights for one year (remember, they're non-exclusive rights, so you're not giving anything up) and the right to renew for one year periods.
  2. This Agreement may be terminated if either Party breaches any of the provisions of this Agreement, which breach has not been remedied within thirty (30) days of written notice of the breach, and without prejudice to any remedies available to the non-breaching Party.

3.3. Abridge and Adapt.

 Artist grants SIMA TECH the right, in its sole discretion, to abridge and/or adapt the Work in order to conform to the requirements of the Formats, Platforms and Peer-to-Peer Technology utilized by SIMA TECH.

3.4. Artist’s Reservation of Rights.

SIMA TECH shall not grant rights that are greater than the rights granted under this Agreement. All other rights are reserved to Artist. Other than the Work identified by Attachment hereto, Artist shall have no obligation to license any other work or music. Subject to the nonexclusive license grant conferred to SIMA TECH herein, Artist shall retain all rights to the copyright interests in the Work.

SECTION 4. PAYMENT AND ROYALTY FEE

 4.1. Royalty Fee.

 In full consideration of all Royalty Fees due to Artist, SIMA TECH shall pay Artist seventy percent (70%) of all Net Revenues actually received by SIMA TECH from a Sale, in whole or in part, (“Royalty Fee”).

4.2. Net Revenues.

 For purposes of computing royalties, the term "Net Revenues" means gross revenue actually received by SIMA TECH from all Sales of the Work, adjusted for returns, mechanical royalty (if any), allowances, refunds, bad debt, overhead, shipping and handling, taxes of any kind and union guild or other third party fees that may be required by contract or the Copyright Act, if any.

4.3 Merchandise:

 SIMA TECH shall pay Artist fifty percent (50%) of all Net Profits of Merchandise. “Net Profits” means gross revenue actually received by SIMA TECH from all Merchandise sold, adjusted for all costs to create and purchase the Merchandise, returns, allowances, refunds, bad debt, overhead, shipping and handling, and taxes of any kind.

4.4 Limitations and Taxes.

There shall be no Royalty Fee for digital performances for Internet or satellite radio stations or other digital transmissions. Artist shall be solely responsible for any and all taxes, fees and assessments that may be imposed against the Royalty Fee by any governmental entity, which shall not be a part of, or an offset against, such fees. All objections concerning a Royalty Fee shall be submitted by Artist within one (1) year after the date of payment of Royalty Fee and/or Royalty Fee, after which time all objections shall be waived.

4.5 Payment Terms.

SIMA TECH shall provide payment of the Royalty Fee in Kenya Shillings to Artist monthly, on or before the 28th day of every month. Unless other payment arrangements are made between SIMA TECH and Artist, SIMA TECH reserves the right, in its sole discretion, to select an alternative payment service MPESA.

SECTION 5. OPERATIONAL DUTIES

5.1. Selection of Music.

SIMA TECH shall, at its sole discretion, select whether the Work, in whole or in part, is acceptable for use under this Agreement.

5.2 Marketing of the Work.

 Work that has been accepted by SIMA TECH shall be posted and available for SIMA TECH listeners and categorized by Artist’s name and genre. SIMA TECH shall have no further duties concerning the marketing or promotion of the Work or Artist. Notwithstanding the foregoing, SIMA TECH, in its sole discretion, shall be permitted to promote, market, and advertise the Work and Artist without limitation.

5.3 Pricing.

SIMA TECH shall decide, in its sole discretion, the price plan of all Sales of the Work and Merchandise.

5.4 Limitations.

  1. Notwithstanding any of the foregoing, SIMA TECH shall have no obligation whatsoever to provide services, payment or resources toward marketing, promotion or advertising for Artist or the Work.
  2. Other than the Royalty Fees stated herein, SIMA TECH shall have no obligation to provide to Artist any kind of payment, including an advance, license fees, residuals, Internet radio fees or any other form of compensation.
  3. SIMA TECH shall be permitted, in its sole discretion, to remove or edit the Work, or any portion thereof, from the SIMA TECH website at any time and without notice to Artist. SIMA TECH shall have no duty to post the Work or Artist on the SIMA TECH TUNES website
  4. Artist shall be solely liable for any claim for any royalty fees or charges that might be brought against SIMA TECH by a performing rights licensing organization.

5.5 Artist’s Promotion Information and Merchandise.

 Upon request, Artist shall provide to SIMA TECH its biographical material including the following:

  1.  Four substantially different group photographs (high quality suitable for posters and  press kits);
  2.   Bio’s for each band member;
  3.   Close up photographs of each band member; and
  4.  High quality digital copies of album artwork. Items ii. and iii. shall not be required for bands composed of more than 6 people.

SECTION 6. INDEMNITY, DISCLAIMER AND LIMITATION OF LIABILITY

 6.1 Artist’s Indemnity.

Artist shall indemnify and defend SIMA TECH and hold SIMA TECH harmless from and against any and all costs, liabilities, losses, damages and expenses arising out of any claims, actions, suits, or proceedings of any kind from any third party claim relating to (i) a breach of Artist’s warranties and/or duties under this Agreement, (ii) any claim for royalties and/or infringement of copyright, trademark, patent or other intellectual property rights or (iii) any third party claims arising out of Artist’s conduct or representations under this Agreement. Further, in the event that a third party infringement claim is brought, SIMA TECH shall have no obligation hereunder to defend on protect Artist’s copyright interests.

6.2 Disclaimer

SIMA TECH MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6.3 Limitations on Liability.

SIMA TECH makes no warranty with respect to the accuracy or effectiveness of neither the SIMA TECH website, including content contained therein, nor any errors or problems of any kind that may arise from the website. SIMA TECH shall not be responsible for losses, damages, costs, or expenses of any kind resulting from the use or distribution of the Work by SIMA TECH or use by any consumer or end user. This includes, without limitation, any liability for business expenses or damages experienced by Artist or any third persons as a result of any deficiency, defect, error, or malfunction with the Website or the transfer or distribution of the Work. SIMA TECH shall not be liable for any indirect, special, incidental, or consequential damages relating to or arising out of the subject matter of this Agreement.

SECTION 7. GENERAL.

7.1 Notices.

All notices permitted or required under this Agreement shall be in writing and shall be delivered as follows

  1. E-mail,
  2.  Mail
  3. Facsimile transmission, or
  4. Certified or registered mail.

  

7.3. Arbitration and Controlling Law.

 Any and all disputes that may arise between the Parties under or in connection with this Agreement shall be submitted (together with any counterclaims and disputes under or in connection with other agreements between the parties) to final and binding arbitration heard by a single arbitrator in accordance with the then-current Commercial Arbitration Rules of the Kenya Arbitration Association (the “KAA”). The arbitration shall be conducted in any location as directed by the parties. All questions concerning the validity, operation, interpretation, and construction of this Agreement will be governed by and determined in accordance with the laws of the sovereign state of Kenya.

7.4. No Agency.

The relationship between SIMA TECH and Artist is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties or to allow either party to bind the other or incur any obligation on its behalf.

7.5. Counterparts.

This Agreement may be executed in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument

7.6 Assignment.

SIMA TECH may assign this Agreement to any entity to which it transfers all or substantially all of its ownership interest, whether through merger, acquisition or sale of assets. Otherwise, neither party may assign, voluntarily, by operation of law, or otherwise, this Agreement without the other party’s prior written consent, and any attempt to do so without that consent will be void.

7.7 Entire Agreement.

This Agreement is the entire agreement between Artist and SIMA TECH which supersedes any prior or contemporaneous agreement or understanding, whether written or oral, and any other communications between Artist and SIMA TECH relating to the subject matter of this Agreement. This Agreement may not be changed orally, but only by a writing signed by both parties which specifically references this Agreement.

7.8 Headings.

 The headings herein are for convenience only and are not intended by the parties of or to affect the meaning or interpretation of this Agreement.

 

Performing Rights, Internet Broadcast Rights Fee Waiver and Digital Distribution Option This letter shall set forth all work submitted by Artist, including one or more songs and/or music scores Artist’s Work shall comprise of the following tracks, songs and/or music scores: TRACK TITLES Digital Distribution Option Optional: artists gives SIMA TECH permission to be the exclusive digital distributor to 3rd party stores

 Artist retains the right to revoke this permission at any time for any reason, with 90 days written notice to SIMA TECH.