DATE: 04 Feb 2012
RESISTANCE MEDIA LIMITED
ARTIST SERVICES TERMS AND CONDITIONS


INTRODUCTION:
A. The artist (the "Artist") is a recording artist who wishes to make Bundles (as defined below) available for sale on its website.
B. Resistance Media Limited (the "Provider") has developed the System (as defined below) which is capable of being utilised for the purpose of selling products (including but not limited to the Bundles) on the internet.
C. The Artist wishes to use the System to sell Bundles on its website and to appoint the Provider to sell Bundles as agent for the Artist. The Provider has agreed to make the System available to the Artist on a non-exclusive basis for such purpose and has accepted the Artist's appointment, both on the terms and conditions of this Agreement.

AGREEMENT:
1. Definitions and Interpretation
1.1 In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:

"Agreement"this agreement;
"Alliance" the MCPS-PRS Alliance representing the interests of songwriters and publishers in the UK;
"Bundles" audio and/or visual music files, songs and videos, tickets, clothing, merchandise, and/or such other materials that the Artist may wish to make available for sale to, and purchase by the public via the System on the Website as inseparable bundled packages or (with the Provider's consent) as separate items;
"Commission" the sum payable to the Provider in consideration of the provision of the Services as agreed between the Provider and the Artist;
"End User" a person that has purchased a Bundle (or with the Provider's consent elements of a Bundle) from the Website;
"Force Majeure" any cause beyond a party's reasonable control that also prevents the performance by that party of its obligations hereunder including but not limited to acts of God, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government or regulatory authorities, terrorism, fire, flood, lightning, explosion or subsidence;
"Gross Revenue" all gross monies payable by End Users in respect of sales of Bundles via the System;
"Intellectual Property Rights" any and all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered or capable of registration, including but not limited to all patents, copyrights, design rights, domain names, trade marks, service marks, trade secrets, trade names, goodwill, know-how, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
"Net Revenue" the balance of Gross Revenue remaining after the deduction of the Commission and any music publishing royalties re-chargeable pursuant to Clause 6;
"Repertoire Bundle" a Bundle that contains one or more songs that form part of the Alliance repertoire due to the fact that (a) they are written or co-written by a member of PRS or MCPS or any overseas equivalent; or (b) they are published or co-published by a publisher member of MCPS or PRS or overseas equivalent; or (c) they contain samples of songs that fall under either (a) or (b) above; or (d) for any other reason claimed by the Alliance;
"Services" the provision of access to the System for the Artist and the storage and making available of Bundles on the Provider's server to enable the Artist to sell downloads of Bundles from the Website and the processing of customer payments in respect of such sales in accordance with the terms and conditions of this Agreement;
"System" the Provider's proprietary online media delivery platform known as "ArtistsFirst";
"Term" the period of time commencing on the date of signature of this Agreement and ending on the termination of this Agreement;
"Unacceptable Content" any material of any nature that is unlawful under any law anywhere in the world or in breach of any party's rights, or which is defamatory, obscene, or which would constitute a contempt of court, or which promotes violence or illegal activities or promotes discrimination based on race, sex, religion, national origin, physical disability or age, or which contains any viruses, worms, trojan horses or any other contaminants or materials that have the ability to access or modify, delete, disrupt or damage any data files or other computer programs, software or hardware or any material that provides access to any such contaminants or materials;
"Website" the Artist's website from which the Bundles will be sold.
1.2 Any references, express or implied, to statutes or statutory provisions shall be construed as references to those statutes or provisions as amended or re-enacted from time to time.
1.3 References to "Clauses" are to clauses in this Agreement (unless the context otherwise requires).
1.4 Headings are inserted for convenience only and shall not affect the construction of this Agreement.
1.5 References to "persons" shall be deemed to include natural persons, companies and other incorporated and unincorporated bodies.
1.6 A reference to any gender shall be deemed to include a reference to any other gender. The singular shall be deemed to include the plural and vice versa.

2. Licences, Appointment and Authorisations
2.1 In consideration of being paid the Commission the Provider hereby:
   2.1.1 grants the Artist a non-exclusive, non-transferable, non-sublicensable licence during the Term to use the System for the sole purpose of uploading Bundles on to the Website in accordance with this Agreement; and
   2.1.2 agrees to provide the Services to the Artist during the Term.
2.2 The Artist hereby grants the Provider during the Term:
   2.2.1 a licence to deploy the System on the Website and appoints the Provider as its worldwide agent to sell Bundles on the Website as agent for the Artist;
   2.2.2 the right and authority to use Artist's name and Intellectual Property Rights in order to perform the Services;
   2.2.3 the right to enter into and execute contracts with End Users and to sell Bundles to End Users on the Artist's behalf, and to bind the Artist under such contracts with the same force and effect as if the Artist had executed such contracts itself; and
   2.2.4 the right to collect all Gross Revenue, to deduct and retain the Commission and other permitted deductions therefrom and to remit the Net Revenue to the Artist.
2.3 The Artist hereby confirms that all contracts agreed by the Provider with End Users in accordance with this Agreement will bind the Artist and the Artist will indemnify the Provider in respect of any liability arising therefrom.
2.4 The Provider shall be entitled to assume that all Bundles uploaded to the Website are available to the public and it may sell such Bundles to End Users unless and until the Artist informs the Provider in writing that any particular Bundle(s) are no longer available.

3. Payment and Reporting
3.1 For the avoidance of doubt the Provider shall be entitled to deduct Commission from the Gross Revenue and to retain the Commission absolutely and without restriction. Within one hundred and twenty (120) days of the end of each calendar month the Provider shall send the Net Revenue (if any) to the Artist, and shall make available to the Artist a statement itemising (in respect of the immediately preceding calendar month) the number of Bundles sold via the System on the Website, the Gross Revenue collected, the Commission retained by the Provider and the Net Revenue due to the Artist.
3.2 The Artist shall have the sole responsibility of calculating and accounting for the VAT element of Net Revenue and for making all arrangements pursuant or related to VAT with all applicable, fiscal, regulatory and governmental authorities.

4. Term and Termination
4.1 This Agreement will commence on the date of its signature and shall continue in full force and effect unless and until terminated in accordance with the termination provisions set out in Clause 4.2 or 4.3.
4.2 A party may terminate this Agreement:
   4.2.1 at any time by giving the other party at least thirty (30) days' prior written notice of termination;
   4.2.2 if the other party commits a material breach of this Agreement and (in the case of a breach capable of being remedied) fails, within thirty (30) days after receipt of a request in writing from the non-defaulting party to do so, to remedy the breach; or
   4.2.3 if the other party has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party enters into any voluntary arrangement with its creditors or becomes subject to an administration order or ceases to carry on business.
4.3 Without prejudice to any of Clauses 4.1 and 4.2, the Provider may terminate this Agreement with immediate effect by giving written notice to the Artist if in the opinion of the Provider a substantial number of the Bundles are not of sufficient quality or contain, constitute or provide access to Unacceptable Content.
4.4 Upon termination of this Agreement, the rights granted and the services provided to the Artist under this Agreement shall terminate, and the Artist shall immediately refrain from using the System, but all other operative provisions of this Agreement shall remain in full force and effect such as (for example) the Provider's obligation to account to the Artist pursuant to Clause 3.

5. Intellectual Property Rights and Licence Restrictions
5.1 The System and the Intellectual Property Rights in the System are and shall remain the exclusive legal and beneficial property of the Provider and/or its licensors and any rights not expressly granted herein are reserved by the Provider.
5.2 The Artist shall only be entitled to use the System in the manner and for the purpose specified in this Agreement and shall not use the System in any other way or for any other purpose whatsoever. In particular, but without limiting the foregoing, the Artist shall not and shall not attempt to:
   5.2.1 reverse engineer, decompile, or unbundle any software contained within the System or use any components of the System separately from the System, disassemble or otherwise reduce any machine-readable part of the System or component thereof to human-readable form, or create or attempt to create the source code or internal structure of the System;
   5.2.2 remove any product identification, legend or notices of any proprietary or copyright restrictions from any part of the System or other accompanying materials;
   5.2.3 list or otherwise display or copy any object code of the System (or any part of it);
   5.2.4 copy the System or any part of it, develop any improvement, modification or derivative works thereof or include any portion thereof in any other computer program, equipment or item save as specifically licensed under this Agreement; or
   5.2.5 hold itself out as, or represent that it is the owner of any rights (including but not limited to the Intellectual Property Rights) in the System.

6. Music Publishing Royalties
As a further service to the Artist the Provider undertakes on behalf of the Artist to use all reasonable endeavours to clear with the Alliance and pay for the music publishing royalties that are payable by the Artist in respect of the sale of Repertoire Bundles in the UK by means of download from the Website and as may be further permitted by the Alliance provided that:
6.1 the Artist shall notify the Provider at the time of uploading if the Artist knows or has reason to suspect that a Bundle is a Repertoire Bundle;
6.2 the Artist shall notify the Provider at the time of uploading if any Repertoire Bundle contains any sheet music, musical notation or any song lyrics;
6.3 the Provider may designate any Bundle a Repertoire Bundle if it has reasonable grounds to believe that it is a Repertoire Bundle notwithstanding any notice or lack of notice in that respect from the Artist;
6.4 the Provider shall be entitled to re-charge to the Artist all music publishing royalties paid by the Provider to the Alliance in respect of the use of Repertoire Bundles on the Website and the sale of Repertoire Bundles from the Website (including without limitation all royalties payable in respect of the use of sheet music and/or song lyrics);
6.5 the Artist shall be liable for all music publishing royalties that may be due on the sale of Bundles hereunder which for any reason are not designated Repertoire Bundles but which do in fact contain Alliance repertoire works and shall indemnify the Provider in respect of any such royalties paid by the Provider; and
6.6 if the Provider is unable to clear and pay for any download rights in any territory or to the extent that the Alliance licence available to the Provider does not cover all such download rights the Artist shall be responsible for all such clearances and payments. The Provider shall use reasonable endeavours to inform the Artist of the extent of the licences obtained by the Provider.

7. Representations and Warranties
7.1 Each party represents and warrants to the other that:
   7.1.1 this Agreement has been validly executed by a duly authorised representative, and once executed, will impose valid and binding legal obligations upon it;
   7.1.2 its entry into and performance of this Agreement will not conflict with any of its existing obligations, or any other agreement to which it is a party; and
   7.1.3 it shall perform its obligations under this Agreement with reasonable care and skill.
7.2 The Artist represents and warrants to the Provider that the Artist:
   7.2.1 is the exclusive legal and beneficial owner with full title guarantee, or a properly authorised licensee, of all rights (including but not limited to the Intellectual Property Rights) in and to all Bundles;
   7.2.2 has secured all necessary rights, consents, authorisations and permissions (including without limitation from publishing companies, record labels and from collecting societies) required for the Bundles to be made available for sale via the System on the Website in accordance with this Agreement save the right to sell Repertoire Bundles by means of downloads in the UK and as otherwise permitted by the Alliance provided that the Provider clears such rights as described above;
   7.2.3 will not use the System other than in accordance with this Agreement;
   7.2.4 will not introduce any Unacceptable Content into any Bundle or into the System; and
   7.2.5 has not entered into any agreement, contract or undertaking that could in any way prejudice the Provider's ability to perform this Agreement or that would expose the Provider to liability for performing the Services in accordance with this Agreement.

8. Liability and Indemnity
8.1 The Artist shall defend and indemnify the Provider from and against any and all claims, demands, actions, costs (including legal fees), damages, expenses, liabilities, proceedings or litigation arising from any claim that any Bundle infringes any Intellectual Property Rights of a third party, is in breach of any contract, agreement, undertaking or any third party's rights or that any Bundle contains, constitutes or provides access to Unacceptable Content.
8.2 For the avoidance of doubt the Provider shall have no liability for the breach of any party's Intellectual Property Rights arising as a result of the integration of the System with any software, hardware or material where such breach would not have occurred but for such integration.
8.3 The maximum aggregate liability of the Provider under this Agreement shall not exceed the total Commission received by the Provider under this Agreement.
8.4 The Provider shall not be liable for any loss of goodwill, profits, revenue, contracts, opportunity or for data or any other consequential, incidental, indirect, special or punitive damage, loss or expenses (including but not limited to business interruption) even if it has been advised of their possible existence.
8.5 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury caused by its negligence.

9. Force Majeure
9.1 Subject to Clauses 9.2, 9.3 and 9.4, any delay or failure to perform an obligation under this Agreement by a party (the "Affected Party") shall not constitute a breach of this Agreement to the extent that it is caused by an event of Force Majeure.
9.2 Upon the occurrence of an event of Force Majeure, the Affected Party shall promptly notify the other party in writing of the estimated extent and duration of its inability to perform its obligations. Upon the cessation of the event of Force Majeure, the Affected Party shall promptly notify the other party in writing of such cessation. The Affected Party shall use all reasonable endeavours to mitigate the effect of each event of Force Majeure.
9.3 If following sixty (60) days from the date of notification under Clause 9.2 the event of Force Majeure persists, the unaffected party may forthwith terminate this Agreement by service of notice in writing to the Affected Party.
9.4 Without prejudice to the generality of this Clause 9 neither party shall be in breach of this Agreement for any failure to perform its obligations or observe the provisions of this Agreement where to do so would place such party in breach of any applicable law in force.

10. General
10.1 No variation of this Agreement shall be effective unless made in writing and signed by each of the parties.
10.2 If any provision or part of a provision of this Agreement shall be, or be found by any authority or court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
10.3 The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law or otherwise.
10.4 No breach by any party of any provision of this Agreement shall be waived or discharged except with the express written consent of the other party.
10.5 No failure or delay by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of that right, power or privilege and no single or partial exercise by any party of any right, power or privilege shall preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
10.6 The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
10.7 This Agreement shall be binding on and enure for the benefit of each party's successors in title. Neither party shall assign, sub-contract, transfer or otherwise dispose of all or any part of its rights or benefits under this Agreement without the prior written consent of the other party (and such consent may not be unreasonably withheld or delayed).

11. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising in relation to this Agreement.