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YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY TMM THROUGH THE SITE OR WITH RESPECT TO YOUR TMM ACCOUNT, YOU AGREE TO BE LEGALLY BOUND BY THIS CONTENT LICENSE AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THE CONTENT LICENSE AGREEMENT IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY TMM.
CONTENT LICENSE AGREEMENT
This agreement (“Agreement”) dated as of “Effective Date” by and between Trendsetter Media & Marketing, LLC, d.b.a MusicVideoSubmissions.com, 31 East Main Street, Suite 901, Freehold, NJ 07728 (“TMM”) and the client (“Client”). For good and valuable consideration, the parties hereto agree as follows:
1. Services: TMM is in the business of procuring promotional and commercial exploitation of audio-visual content via premium networks, such as VEVO and dailymotion, as well as providing comprehensive management services, including catalog encoding, metadata management, online retail promotion, and royalty collection, administration, distribution, and reporting. Additional fees and terms apply for custom marketing and promotional services.
2. Rights Granted:
a. During the Term, Client hereby grants TMM (and TMM’s designees) an exclusive license with respect to Premium Distributors (“Defined Below”) and a non-exclusive license with respect to service providers without content limitations throughout the territory of the Universe (the “Territory”) to encode, host, cache, route, index, transmit, store, copy, stream (including without limitation, on-demand streams available for playback at the selection of the end-user and offline via caching or similar technology), download, perform, communicate to the public, display, reformat and otherwise exploit, use and make available the audiovisual works (including the sound recordings and compositions embodied therein), sound recordings, and musical compositions embodied within the videos set forth in Exhibit A, attached hereto and incorporated herein and otherwise delivered by Client to TMM from time-time during the Term (both content listed on Exhibit A and content delivered during the Term is referred to herein as “Client Content”). “Premium Distributors” shall mean content service providers and platforms which limit the exploitation of content via their services to select content providers, including without limitation VEVO, trendsettermedia.com, and dailymotion.com (and their affiliated companies).
b. Client hereby grants TMM (and TMM’s designees) a limited, non-exclusive, worldwide, royalty-free license to use trademarks, trade names, names, professional names, photographs, video stills, designs, logos, cover art and other associated materials related to Client Content and any artist, performer and producer, associated with the Client Content (“Client Brand Features”) for use in connection with the Client Content, including for use in TMM (and TMM’s designees) presentations, marketing materials, financial reports, press releases and customer lists and the Services.
c. For purposes of clarification and not meant to limit TMM’s rights hereunder, Client Content and Client Brand Features may be offered to end users on a free-to-user, advertising supported basis and/or on a paid subscription basis via various internet sites, IP-connected devices, and applications, including without limitation, personal computers, mobile and smart phones, connected media players and IPTV. Nothing contained herein shall obligate TMM (and TMM’s designees) to make any Client Content available at any time during the Term.
3. Term: The “Term” of this Agreement shall commence on the Effective Date, and continue for an initial contract period of Twelve (12) months; provided, however, the Term shall automatically be renewed and shall continue for additional contract period(s) of twelve (12) months each, unless terminated by either party by giving written notice (as described in Section 11. below) to the other party at least forty-five (45) days prior to the expiration of the then-current contract period.
4. Delivery: During the Term, Client will deliver to TMM the Client Content, related cover art, and any other applicable Client Brand Features, in accordance with TMM’s then-current specifications. Client shall be responsible for procuring and paying for all necessary rights, licenses and clearances, including without limitation any required payments to recording artists, actors, producers and all royalty participants arising from TMM’s (and TMM’s designees) authorized exploitations of the Client Content and Client Brand Features. Client shall furnish to TMM, at any time upon TMM’s demand, any and all agreements, licenses, clearances and other documents required by TMM (and TMM’s designees) to evidence any of the foregoing. Client Content and Client Brand Features shall not contain any so called “bugs”, logos, chyrons, or overlay messaging of any kind, or include any so called “bumpers” or pre-roll content or any third party advertising or promotional messaging of any kind.
5. Restrictions/ Takedowns:
a. TMM does not monitor Client Content; however, if TMM is notified by TMM’s designees or Client, or TMM becomes aware and determines in its sole discretion, that the Client, Client Content or Client Brand Features: (i) violates the intellectual property rights or any rights of any third party; (ii) violates any applicable law or is subject to an injunction; (iii) is pornographic, obscene or violates TMM’s (or its designees) hosting policies or Terms of Service, as may be updated by TMM from time to time in its sole discretion; (iv) is being distributed by Client improperly; (v) is intentionally manipulating content by methods including but not limited to, "automated systems", "robots," "spiders," or "scripts" with the intent to inflate or exaggerate streams, plays, impressions or outcomes; or (vi) may create liability for TMM; TMM (and its designees) may, without limiting its other rights and remedies, withhold royalties, withdraw from, not display or cease displaying such Client Content or Client Brand Features, with no liability to TMM (or its designees).
b. At Client’s written request, solely in connection with specific Client Content or Client Brand Features which is subject to a third party claim, TMM will send a request to its designees to disable the specific Client Content, provided failure of TMM’s designees to do so shall not be deemed a breach of this Agreement. Further, TMM shall not be held liable for failure to disable such Client Content within a particular period of time, and Client will indemnify and hold harmless TMM (and its designees) in connection therewith.
6. Royalties: Provided that Client is not then-currently in breach of this Agreement, Provider will pay Client sixty-five (65%) percent of TMM’s Net Receipts (“Royalties”). “Net Receipts” means any and all gross revenue actually received by TMM, and not subject to return or contingency, which is solely and directly attributable to the exploitation of the Client Content, minus any and all expenses incurred by or on behalf of TMM in connection with TMM’s (and TMM’s designees) distribution, exhibition, and exploitation of the Client Content and Client Brand Features. After the Term, revenue received by TMM in connection with Client Content, if any, shall continue to be subject to the payment provisions herein.
7. Accounting/ Audit:
a. TMM will send Client any Royalties owed hereunder, together with an accounting statement related to such Royalties (the “Royalty Accounting”), within sixty (60) days following the month in which revenue was received by TMM. TMM is not required to send a statement during any period which no Royalties are earned. TMM shall not issue payments totaling less than $150 and any such amounts earned by Client shall be credited to Client’s account and paid to Client once amounts owed exceed $150, provided that any amounts owing to Client at the expiration or termination of the Term shall be paid to Client. Statements and payments due, if any, will be sent by regular mail and will be deemed rendered when mailed, until such time as TMM converts to an online or digital accounting system, at which time statements and payments will be accessed either online or via email and direct deposit, Paypal or other method, as applicable, at TMM’s discretion, and shall be deemed rendered when uploaded to the online system, dashboard, or emailed and deposited or otherwise paid, as applicable.
b. Client shall be deemed to have consented to all Royalty Accountings rendered by TMM under this Agreement, and each such Royalty Accounting shall be conclusive, final and binding, shall constitute an account stated, and shall not be subject to any objection for any reason unless specific objection in writing, stating the basis thereof, is given by Client to TMM within twelve (12) months after the date rendered. TMM shall have a right to rely on accounting statements provided by its designees as true and accurate in accounting to Client.
c. Client shall be solely responsible for all sales, use and other taxes imposed in connection with transactions provided under this Agreement. If TMM is required to deduct or withhold taxes from any payments made to Client and remit such taxes to the local taxing jurisdiction, then TMM shall duly withhold such taxes and shall pay to Client the remaining net amount after the taxes have been withheld. Client will be responsible for any taxes relating to payments it makes to third parties related to this Agreement. Prior to disbursement of Royalties, Client must furnish TMM any and all information required by TMM and the U.S. tax authorities including, but not limited to the following: (a) for U.S. taxpayers, a fully-completed Form W-9; and (b) for non-U.S. taxpayers, a fully-completed Form W-8.
9. Disclaimer: TMM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE; (B) WARRANTIES AS TO THE QUALITY OR PERFORMANCE OF THE MATERIALS, INFORMATION, GOODS, SERVICES, TECHNOLOGY OR CONTENT PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (C) WARRANTIES AS TO THE PERFORMANCE OF COMPUTERS, TECHNOLOGY, AND NETWORKS. TMM MAKES NO WARRANTY THAT TMM’S (AND TMM’S DESIGNEES) SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. TMM CANNOT GUARANTEE THAT CLIENT’S CONTENT WILL BE DISPLAYED OR DISTRIBUTED, OR THAT CLIENT’S CONTENT WILL GENERATE ANY INCOME.
10 Indemnity: Client hereby agrees to, and does hereby, indemnify, save and hold TMM and its designees harmless from any and all damages, liabilities, costs, losses and expenses (including legal costs and reasonable attorneys' fees) arising out of, connected with or as the result of any inconsistency with, failure of, breach or threatened breach by Client, of any warranty, representation, agreement, undertaking or covenant contained in this Agreement including, without limitation, any claim, demand, or action by a third party which is inconsistent with any of the warranties, representations, agreements or covenants made by Client in this Agreement. In addition to any other rights or remedies TMM and its designees may have by reason of any such inconsistency, failure, breach, threatened breach or claim, Client shall reimburse TMM and its designees, on demand, for any payments made by TMM and its designees at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Additionally, TMM shall have the right to deduct from any and all monies otherwise payable to Client under this Agreement sums equal to such loss, damage, costs and liabilities (including actual court costs and reasonable attorney’s fees). Pending the determination of any such claim, demand or action, TMM may withhold payment of any monies otherwise payable to Client hereunder in an amount which does not exceed Client's potential liability to TMM.
a. All notices under this Agreement shall be in writing and sent via certified mail, return receipt requested, or via personal delivery, or via a nationally recognized overnight express delivery service with proof of delivery (i.e., FedEx, UPS, etc.), all charges pre-paid, to the addresses of the parties as set forth herein, or to any other addresses as the addressee may hereafter designate in writing. The date of receipt, personal delivery or the delivery to such an overnight express delivery service shall be deemed the date of the giving thereof. Copies of all notices given to TMM shall be simultaneously sent to Hilleary Law, 725 Cool Springs Blvd., Suite 600, Franklin, TN 37067, Attn.: Shawna R. Hilleary, Esq.
b. No suit, action or proceeding may be commenced by Client against TMM unless Client first gives TMM written notice of the specific details of the breach or alleged breach, and TMM has not cured same within sixty (60) days after TMM's receipt of such notice.
12. Miscellaneous: This Agreement shall be binding upon the parties to this agreement and their respective principals, officers, directors, shareholders, employees, agents, representatives, parents, affiliates, subsidiaries, heirs, executors, administrators, successors and permitted assigns. If any portion of this Agreement is determined by a court of competent jurisdiction to be invalid, the remainder of this agreement shall remain in full force and effect. TMM may assign this Agreement, or any of its rights hereunder, in whole or in part, to any third party. Client may not assign this Agreement without TMM's express prior written consent. TMM's failure at any time to require performance by Client of any provision of this Agreement shall in no manner affect TMM's right at a later time to enforce the same. This Agreement does not constitute a partnership or joint venture between the parties, it being intended that their relationship to each other is that of independent contractors. This Agreement has been entered into in the State of New Jersey and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of New Jersey applicable to contracts entered into and performed entirely in the State of New Jersey, without regard to conflicts of laws provisions. Any and all disputes arising from or connected with this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts located in the State of New Jersey, and not elsewhere. This Agreement represents the entire agreement between the parties and may not be amended except by a further written instrument signed by TMM and Client. The headings of paragraphs are inserted only for the purpose of convenient reference and not intended to have legal effect. This Agreement may be executed in one or more counterparts and delivered by facsimile or via other electronic transmission, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. The provisions of Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 above shall survive any expiration or termination of this Agreement.
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