Be the Band Contest Music And Content License Agreement
This Agreement describes the relationship between you (an individual representing yourself, or if applicable, acting as a legal representative for one or more minors, or members of a musical group or band)) and OC Music Fest, Inc. (referred to in this Agreement as "we", "our" or "us"), pertaining to the Content (as defined below) you submit to enter the Be The Band™ Contest and, if you shall so elect, to make available for promotion and sale through the Be The Band™ Storefront located on our website at www.ocmusicfest09.com or any other URL that we may choose to utilize in connection with Be The Band™ Contest, Be The Band™ Storefront and/or any other services that we may offer (together all such websites are sometimes referred to hereinafter as the "Website").
By clicking on the "I Agree" button below, you (and each member of the group or band if you are part of a group or band) agree to be bound by all of the terms and conditions of this Agreement every time you submit Content to our Website. Please read the Be The Band™ Contest Official Rules for more information.
For good and valuable consideration, the receipt and adequacy of which you hereby acknowledge, you and we agree as follows:
1.GRANT OF RIGHTS:
a.During the Term (as defined below), you hereby grant OC MUSIC FEST, Inc. and any and all of our licensees, partners, or joint ventures of OC Music Fest, Inc. the non-exclusive, worldwide right to:
i.Publish, distribute, reproduce, publicly perform, display, promote and use, any media, any sound recordings (hereinafter "Masters"), musical compositions (hereinafter "Compositions), pictures, videos, song lyrics and/or other content (collectively, "Content") submitted by you to us, in whole or in part, on the Website, as well as on phonorecords (such as, but not limited to compilation CDs), home video devices (such as, but not limited to the DVD format), as ringtones, ringback tones, as well as any other form of distribution, promotion, and/or sale, whether now known or hereafter devised;
ii.Without limiting the generality of the foregoing, we shall have the right to reproduce, distribute, sell, perform, and/or display the Masters (including the Compositions embodied therein) in whole or in part, as individual tracks, or coupled with other master recordings, as digital audio downloads via the Be The Band™ Storefront so that customers may select, purchase and download the Masters via the Be The Band™ Storefront and either transfer such purchased Masters to a Compact Disc or portable storage medium or digital device; and
iii.Use the Content in order to promote our products and services and to use the name, likeness and biographical material and any logos, marks or trade names of you or any individuals performing in your group or band or otherwise represented or referred to in the Content, in any manner and in any and all media now known or hereafter devised, without any payment to you or any other persons or companies.
b.Except as specifically provided in Paragraph 5 below, with respect to all uses of the Content as provided herein, you acknowledge and agree that all such uses are promotional in nature, and notwithstanding our receipt of any monies in connection with the promotion, distribution and/or sale of any Content or copies thereof, we shall have no obligation to make any payment of any kind (including, without limitation, any royalties) to you or any other person, firm or corporation.
c.You acknowledge that we have received and will be receiving a large amount of submitted material from third parties and that we have had, and will continue to have, access to materials that may be coincidentally similar to and/or identical to any item of your Content. You agree that you shall not be entitled to any compensation by reason of our use of any such similar or identical materials.
d.You agree that we shall have the right to enter the Content on your behalf for inclusion in and otherwise in connection with the Be The Band™ Contest and any other contests or promotions that may be offered from time to time on the Website or any other websites that are owned, controlled, affiliated with, or licensed by us or our licensees (herein each a "Contest" and collectively the "Contests"). Your participation in any Contest shall be subject to the attendant rules of such Contest as shall be posted from time to time on the Website or such other website where the Contest is being offered.†By entering into this Agreement you are specifically consenting to the rules of the Be The Band™ Contest (please see Be The Band™ Official Rules for more information here). In the event you do not consent to participate in any other particular Contest, you shall have to right to send us notice hereunder of your election not to participate in such Contest within five (5) days following our announcement of such Contest on the Website or such other website where same is being offered.
2.OWNERSHIP OF CONTENT: As between you and us, you shall retain ownership of and all right, title and interest in and to each item of the Content, including any and all related copyrights, subject to the non-exclusive rights granted to us under this Agreement. For the avoidance of doubt, as you are granting rights to us hereunder on a non-exclusive basis, you are free to grant similar rights to others at any time, subject to the terms of this Agreement, even after you agree to be bound by this Agreement. Please note that we are not able to return to you any copies of the Content provided by you and you agree that you have and shall at all times retain at least one copy of each item of Content and do hereby release us from any and all liability for loss or other damage to any copies of any item of Content.
3.YOUR GUARANTEES TO US:
a.By accepting this Agreement, you represent, warrant and guarantee to us that:
i.You and each of the members of your group or band, if applicable, are of legal age to enter into contracts (If you are under eighteen (18) years of age, your parent or legal guardian must enter into this Agreement on your behalf);
ii.You have full right and power to enter into and fully perform this Agreement, and you are not bound or restricted by any agreement between you and any third party which would prohibit you from entering into and fully performing this Agreement. Accordingly, without limiting the generality of the foregoing, you specifically confirm that you are an "unsigned" artist who has not entered into an agreement with a third party such as, but not limiting, an independent or so-called "major" record label or music publisher;
iii.You have secured all third party consents necessary to enter into this Agreement and to submit each item of the Content as provided herein;
iv.The Content is your or your group or band's own original work (for example, no Master submitted hereunder is a recording of a so-called "cover" song that was written by someone other than you), and contains no sampled or replayed material or material otherwise created by someone other than you unless, prior to submitting the Content, you have obtained a license or expressed written authorization permitting the use of the Content as provided in this Agreement containing such other material from the original author, performer, and/or owner of such other material;
v.The Content does not and will not infringe on any third party's intellectual property or other proprietary rights, or rights of publicity or privacy;
vi.The Content does not and will not violate any law;
vii.The Content is not and will not be defamatory, libelous, pornographic or obscene;
viii.The Content does not and will not contain any viruses or other information which may damage or otherwise interfere with our computer systems or data or that of our visitors or other users; and
ix.All factual assertions that you have made and will make to us are true and complete.
b.You shall be fully responsible for any violation of your agreements including the representations and warranties made in this Paragraph 3, and you agree to indemnify and hold us and our customers harmless from any and all damages and costs, including reasonable attorneys' fees, arising out of or related to your breach of any representations and warranties contained herein. If there is a change of circumstance as a result of which you reasonably believe that you do not have, or no longer have, the rights necessary to authorize us and/or any or our licensees to use any Content as provided herein, then you shall promptly provide us with notice hereunder of such fact, and we shall have the right to remove all or any of the Content and/or terminate the Term of this Agreement. Such removal and/or termination shall not relieve you of any of your obligations hereunder.
4.YOUR OBLIGATIONS: You are solely responsible for all licensing, reporting and payment obligations of all kinds in connection with the use of the Content as provided in this Agreement. Specifically, you shall be responsible for and timely pay: (i) any royalties and other sums due to artists, authors, co-authors, copyright owners, producers and any other record royalty participants from performances, sales or other uses of any Master; (ii) all royalties and other sums (including, without limitation, mechanical royalties, print royalties, and synchronization royalties, performance royalties) payable to publishers and/or authors or co-authors from performances, sales or other uses of any Composition contained in the Content; (iii) all payments that may be required under collective bargaining agreements applicable to you or third parties; and (iv) any other royalties, fees and/or sums payable with respect to the delivery and use of the Content hereunder. You agree to execute and deliver documents to us that we may request to confirm our rights under this Agreement.
5.YOUR PARTICIPATION IN BE THE BAND™ STOREFRONT: Subject to your full and faithful performance of all of your obligations hereunder, with respect to the sale of a Master pursuant to Subparagraph 1(a)(ii) above (i.e., digital audio downloads via the Be The Band™ Storefront) you shall be entitled to receive the royalty rate applicable to the specific retail sale price category that you elected when you registered to sell your Content through the Be The Band™ Storefront [link here to royalty/pricing chart], which such royalty rate shall be payable for each Master sold for which we receive final payment. Following the close of each calendar week during which your Content is available for sale through the Be The Band™ Storefront, we will provide you with a statement via electronic mail to the address which you supply to us in the registration portion of our Website showing information about your account, including, without limitation, the total number of Masters sold during such calendar week. We shall also render any payments shown to be due thereby at such time. All payments hereunder shall be credited to your Pay Pal Account which you were required to provide to us when you registered to sell your Content through the Be The Band™ Storefront [link to Pay Pal Account information]. In the event that we are unable to render statements and/or payments to you because your address and/or Pay Pal Account is inactive or incorrect, we reserve the right to withhold any statements and/or payments shown to be due thereby until such time that you have provided us with an updated address and/or active Pay Pal Account. We are not liable for any claims regarding your Pay Pal Account, including without limitation, any accounting errors, missing royalties, technical interruptions, or any other related problems and you agree to look solely to Pay Pal with respect to any such claims.
6.MANAGING CONTENT AND DISCLAIMERS: Nothing herein shall obligate us to exercise any rights granted under this Agreement, and any use of the Content shall be made at our sole election. We shall also have the right to review your Content and in our discretion, edit, alter, decline to post or remove any of the Content at any time and for any reason. You acknowledge that our Website may from time to time encounter problems and may not necessarily continue uninterrupted without technical or other errors, and we shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuation of our service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE WEBSITE AND ANY SERVICES PROVIDED BY US. We have no express or implied obligation to promote or distribute the Content in any particular manner or in any minimum quantities. You do not have and we expressly shall not provide you the right to use any of our trademarks, copyrights or other proprietary information or property in connection with any activity, or to create any implied endorsement by us of you, unless authorized by us in our sole discretion in writing in advance.
7.TERM AND TERMINATION: The Term of this Agreement shall commence on the Effective Date (as defined below) and shall continue for a period of 36 months or until OC MUSIC FEST, Inc. terminates the Term hereof as provided in this Paragraph 7. At any time five (5) days after the date you first submit Content onto our Website, you may choose to withdraw any or all items of your Content by sending an e-mailed request to legal@ocmusicfest09.com. Promptly following our receipt of your request, we will use commercially reasonable efforts to delete the materials you identify to us as owned by you (e.g., group or band recordings) from our system. Of course, we will not be responsible for, and need not take any steps to withdraw or terminate the future distribution of, any copies of any of your Content that may have been distributed (including by download) by us or from our Website before we received your request to remove such Content. We retain the right to continue any and all promotions containing any item of Content initiated prior to the termination of the Term. We reserve the right to terminate this Agreement at any time by so notifying you and the Agreement will terminate upon your receipt of notice sent to the electronic mail address which you supply to us in the registration portion of our Website. Notwithstanding the foregoing, or anything to the contrary contained herein, the termination of the Term of this Agreement shall not affect those provisions which shall survive the termination hereof, including, without limitation, the indemnification provisions contained in Paragraph 3. This agreement auto-renews every 36 months, unless OC Music Fest has been notified in writing 180 days prior to the term expiration. Any and all assets (audio, video, and stills) that are generated at the expense of OC Music Fest, Inc. remain the property and rights of OC Music Fest, Inc.
8.DAMAGES: We will not be liable for any consequential, indirect, exemplary, special or incidental damages arising from or relating to this Agreement (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss).
9.NOTICES: Except as specifically provided otherwise herein, any notice, approval, request, authorization, direction or other communication given to you under this Agreement shall be in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail or regular mail to the addresses which you supply to us in the registration portion of the Website, or as properly updated. In the event we are unable to send any such notices to you because your addresses are, for example, inactive or incorrect, we shall have the right to refrain from using the Content hereunder until such time that you provide us with updated addresses. Any notice, approval, request, authorization, direction or other communication given to us under this Agreement shall be in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to legal@ocmusicfest09.com or by regular mail to our address at: OC MUSIC FEST, Inc., Be The Band™, 33161 Camino Capistrano #L, San Juan Capistrano, CA 92675.
10.MISCELLANEOUS: You and we agree and acknowledge that the relationship between you and us is that of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, employee, or representative. This Agreement shall be governed by and is to be construed under the laws of the State of California applicable to agreements entered into and wholly to be performed therein, without regard to principles of conflict of laws. This Agreement sets forth the entire understanding and agreement between you and us regarding the Content submitted hereunder. This Agreement supersedes all previous agreements and communications, oral or written, between you and us regarding its subject. We reserve the right, in our sole discretion, to change, modify, add or delete all or part of the provisions of this Agreement, provided that notice hereunder of any amendments and/or modifications to this Agreement shall be sent to you prior to their effective date. In the event that you do not consent to all such amendments and/or modifications, your sole remedy shall be to terminate the Term of this Agreement by sending notice thereof within five (5) business days following your receipt of such notice.
11.YOUR ACCEPTANCE OF AGREEMENT: By clicking in the "I Agree" check box, you represent that you and each member of your band have carefully read this Agreement, that you understand its contents, and that you have had an opportunity to seek independent legal advice regarding the advisability of entering into this agreement. The Effective Date of this Agreement shall be the date that you click on the "I Agree" button below.
Be The Band™ Rules
To enter a battle competition, bands must do the following:
1.Each band must mail or upload at least one (1) working mp3 or wma or wav file to be considered for the contest or mail as part of a press kit, their CD or EP.
2.Each band must mail or upload at least one (1) working photo file to be considered for the contest.
3.Each band is judged based on performance indicators including: musicianship, crowd support, online support, corporate Artist and Repertoire review.
FREQUENTLY ASKED QUESTIONS
Q:What do I get as a part of my submission?
-4 3-Day All-Stage Passes (non-transferable), tickets will be sold to public for $149 each.
-Coverage in all press related to band submissions, keep checking with press page on ocmusicfest09.com/press
-Bands in the Run section of our myspace page at myspace.com/ocmusicfest
-Rotation thru Top Friends Section on MySpace Top Friends
-Listed in BandsInTheRun section of ocmusicfest09.com
-Listed in atlease 1 nationwide press release updating world on status of contest
-1 entry into wildcard spot for show (hat drawing from all entrants, no matter review results)
-1 login account to track your submission to review on Ocmusicfest09.com/[USERNAME]
-Possible post-production quality video for you promotional use and pleasure.
-MORE STUFF COMING SOON!
Q: Am I guaranteed to play the fest with my submission?
No. You will get in the running to showcase at the show. Only 80 Bands will be selected from submissions. BUT! what you do get is 1 entry in the Wildcard race and all the press coverage of your submission that we can generate. Access to panels, keynote address, tickets for the event, and all the love we can dish out. 40% of your getting thru is up to your fans. You will have an opportunity to drive them to your page and push you up in the ranks.
Q:What are the prizes?
1st Prize: (2 Year Pre-Paid Lease) Dodge Sprinter 2500 Turbo Diesel Cargo Van (or equivalent), 1000 Gallons of Fuel, $1000 Cash, Cover of June No Cover Event Guide
2nd Prize: $500 Cash, Full Band Writeup in June No Cover Event Guide
3rd thru 10th Prize: $100 and 100 Compilation CD's, Full Band Writeup in June No Cover Event Guide
Q:What about the rest of the Bands?
All Bands that play get paid $100 and get Food Pass for Free Backstage Food Booth and camping if we can arrange it.
Q:Is there any other prizes?
We are negotiating prize contributions with sponsors right up to the event. We reserve the right to add prizes, substitute prizes with equivalent, and create new prize incentives for the event.
Q:How many bands will be selected?
80 Bands in all. 60 will showcase at the event, 20 will be selected as alternates. Alternates may be booked on the stages at the event, at event parties, during the Rock 5K Saturday Morning, and partner venues in nearby orange county.
Q:How will I know the status of my submission?
Submission status will be reviewable at your url on ocmusicfest09.com/[username]. Example: if your band is The Who, your submission review will be visible at ocmusicfest09.com/thewho. Here your songs will be reviewed individually, voted on by your fans, reviewed and commented by Indutry A&R professionals. This review system is planned to be live by 9-1-08.
Q:How are the bands selected to Showcase?
Origninality, Fan Base, Raw Talent, Experience, Uniqueness, Originality, and Confidence play an important roll in the A&R review process. Additionally, your fans participation thru your URL is important as it makes up for nearly 50% of the review process.
Q:What is the Deadline for submission?
No submissions will be accepted after 2-15-08. We reserve the right to end this sooner if we feel we have found an adequate number of acts that we feel will make for a better show.
Q:What is the Cancellation Policy?
You have 3 days from your date of submission to cancel. There are no refunds. We begin working on your package right away, and within hours, engineers, marketing, public relations are working to promote your participation in this event. If you wish to withdraw from further contest reveiw, please notify us in writing at OC Music Fest, 33161 Camino Capistrano, #L, San Juan Capistrano, CA 92675
Q:What do I submit to enter?
see: http://www.ocmusicfest09.com/whattosent-checkingstatus.doc
Q: I can't login! It says my account isn't verified.
When you register, an email is sent to the email address you registered with. That email contains a verification link that must be entered into your web browser to enable your account. If you didn't receive the email, please check your JUNK/SPAM folders for it. You can also resend it by going here!
Q: Is there anything else I can do to promote my band up to the event?
We are currently doing compilation CD's with No Cover Magazine, OC Music Fest is putting 7 Bands per issue on these CD's. Many bands on these Compilations are signed. These compilations are distributed in Magazine in San Diego, Orange, and Santa Barbara/Venture Counties. The Cost per track is $300.
Q: Why can't I upload my MP3?
Uploads are limited to 10MB so make sure your MP3 is smaller than that. Also make sure you are actually selecting a file on your hard drive to upload and not just entering a link.
Q: I uploaded my music but it's not playing on my profile, why not?
It can take up to 24 hours for your audio to propagate to our streaming server. Please be patient. If in 24 hours your audio has not appeared, do not upload again. Send us an email and we will resolve the problem.
Q: I am having trouble streaming audio or video on the website.
You may need to update your flash player to the latest version. Go to macromedia.com to get the latest version of Flash for your computer.