TERMS OF AGREEMENT FOR CONTENT PROVIDERS TO STAYAROUND SITE
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND STAYAROUND.COM LIMITED, 25 Barnes Wallis Road, Segensworth East, Fareham, Hants, trading as Stayaround (hereinafter referred to as “Stayaround”) governing the terms of provision of content for use in the downloading service provided by Stayaround. This Agreement (together with any annexures additions updates or revisions hereto) constitutes the Agreement between you and Stayaround.
TO AGREE TO THESE TERMS, CLICK THE BOX MARKED “I AGREE”. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE BOX MARKED “I AGREE”, IN WHICH CASE YOU WILL NOT BE PERMITTED TO SUPPLY CONTENT.
NOW IT IS AGREED AS FOLLOWS
1.1 In this Agreement, the following words have the following meaning:
"Affiliate Distribution" distribution of content as ringtones and realtones by Stayaround through its network of third party affiliates. If you are not agreeable to this
then mark the relevant box "don't agree". You shall have the right to opt out by one month’s notice to Stayaround;
“Commencement Date” the date of this Agreement
“Content” sound recordings and other material (including without limitation the content of your home page or any other pages that you generate on our site) used in connection with the downloading activities of Customers of the Download Service in accordance with Stayaround’s standard terms and conditions for downloads;
“Customer” a person who acquires Content from or through the Download Service by Subscription;
“Download Service” the download service provided by Stayaround through its website;
“Intellectual Property Rights” all intellectual property rights, howsoever arising and in whatever media, whether or not registered or capable of registration including, without limitation, patents, copyright, trade marks, service, trade names, domain names, design rights, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
“Minimum Fee” means in relation to any Purchased Track: £1.50 Including VAT (unless we mutually agree to a lower price);
“Royalty” the payment due to you in accordance with the provisions of Schedule 1 hereof in the consideration of the downloading by Customers under the Download Service of your Content;
“Royalty Fund” a nominal account maintained by Stayaround of Royalty Fund Contributions for distribution to content providers in accordance with Schedule 1 hereof;
“Royalty Fund Contribution” the amount that Stayaround will credit to the Royalty Fund from each Subscription. The current contribution is 70p plus VAT. 70p plus vat is the minimum Royalty Fund Contribution during the Term;
“Service Report” the report to be delivered by Stayaround to you pursuant to Clause 6.2;
“Subscription” the weekly recurring subscription payment form the Customer for use if the Delivery Service, currently £4.50 (including VAT);
“Stayaround Radio” an on-line radio station broadcast by Stayaround to promote the Download Service and the Content. This can include your Content if you agree to the terms by clicking the acceptance box on sign up;
“Stayaround TV” broadcasting of television programming and “video juke box” to promote the Download Service and the Content on a number of satellite and or terrestrial channels, initially covering Europe, but subject to roll out. This can include your Content if you agree to the terms by clicking the acceptance box on sign up;
“ Purchased Track” An MP3 download by a Customer of a single recording for them to permanently keep.
This Agreement will continue indefinitely until you remove any submitted Content from the site. You acknowledge that it could up to approximately thirty (30) days to completely remove your Content from the entire distribution channels that are (operated or affiliated) with Stayaround.
3.1 By entering into this Agreement you shall have the right to supply Content for inclusion on the Download Service.
3.2 You shall ensure that the Content complies with the guidelines supplied to you by Stayaround from time to time.
3.3 Upon registration you shall be emailed a password that grants you access to your home page which you can design and customise and must maintain during the Term in accordance with the instructions contained on the site.
3.4 Once your Content is uploaded to the site then you agree that it will be available under the Download Service to Customers on the terms contained herein
3.5 If you have clicked the relevant box concerning creation of polyphonic ringtones then you are referred to Schedule 2 for the relevant terms and requirements.
This Agreement is non-exclusive. You have the right to supply Content or similar content directly to the public or to third parties.
5 LICENSES AND INTELLECTUAL PROPERTY
5.1 You hereby grant to Stayaround for the duration of this Agreement and throughout the Territory a non-exclusive right and license to access, use, reproduce, distribute the Content and make it available to Customers for download (or preview streaming) as polyphonic ringtones, realtones and as MP3 downloads of Purchased Track over the internet, and in the case of Polyphonic ringtones and realtones, (but not yet in relation to MP3s), through WAP services to mobile phones and other wireless devices.
5.2 You confirm that all consents required pursuant to Part II of the Copyright, Designs and Patents Act 1988 and all consents required pursuant to other laws now in force in any part of the world which may be required in respect of the exploitation by Stayaround of the Content in accordance with this Agreement have been irrevocably and unconditionally granted to Stayaround and their successors, assignees and licensees for the full duration of the rights granted hereunder. In addition, you shall use your best endeavors to ensure such consents are obtained in relation to any future legislation, enactment or other regulation which may be required to be obtained.
5.3 Without prejudice to any other provisions contained herein if you have clicked the box(es) approving the use of the content on Stayaround TV and Stayaround Radio then you grant Stayround all of the necessary rights respectively required in relation the that usage.
5.4 You shall be responsible for all clearances, including for the avoidance of doubt, the administration, licensing, reporting and payment relating thereto, for all rights including, without limitation, mechanical and/or master rights in, for example, any sound recordings and underlying musical works in the Content for delivery to Stayaround. You shall fully indemnify and keep fully indemnified Stayaround (and its directors, employees, affiliates and agents) in respect of all clearances including without limitation clearance from PRS/MCPS or any other territorial collections agency against liability, damage, expense, loss, claim or cost (including reasonable legal fees and related costs) incurred by Stayaround as a result of any breach by you of these obligations. If you own the publishing in the Content then you hereby grant Stayaround and it's licensees a mechanical licence for the reproduction of the underlying musical works in the Content. If we become aware of any third party opposition from a collection society, publisher or writer to the Download Service then we reserve the right to remove the Content from the site until we are satisfied that no third party infringement has taken place.
5.5 You irrevocably and unconditionally warrant that a waiver is in existence to all rights relating to the Content pursuant to the provisions of Sections 77,80,84 and 85 of the Copyright, Designs and Patents Act 1988 and any other moral or similar rights to which anyone may be entitled under any legislation now existing or in the future enacted in any part of the world.
5.6. Notwithstanding the provisions of Clause 5.4 (and without limiting your indemnity contained therein) if you have agreed to Affiliate Distribution you acknowledge that Stayaround’s affiliates have agreed to account for the mechanical royalties in relation to downloads and we agree to use our reasonable commercial endeavours to ensure their compliance with that obligation.
6. PAYMENTS AND REPORTING
6.1 The payment of any and all Royalties due under this Agreement shall be dealt with in accordance with this Clause 6 and Schedule 1.
6.2 Stayaround shall deliver to you within sixty (60) days following the end of each month, a Service Report detailing all relevant financial information, including and royalties payable during that month.
6.3 Upon receipt of the Service Report and in accordance thereof Stayaround shall issue you with an invoice for the Royalties (together with any applicable VAT) and all sums due under this agreement shall be paid by Stayaround to you within thirty (30) days of receipt of the relevant invoice.
6.4 For the purpose of confirming the accuracy of the Service Report and Royalties due from time to time, you or your authorised representative shall have the right at your own cost, no more than once in any contract year, during normal business hours and upon at least thirty (30) days prior written notice, to audit , examine and make copies of the appropriate records maintained by Stayaround pursuant to which the Service Report is prepared.
7. WARRANTIES AND ASSURANCES
7.1 Each party to this Agreement represents and warrants to the other that it has, and will retain for the duration of the Agreement all right, title and authority (i) to enter into this Agreement; (ii) to grant to the other party the rights and licenses granted in this Agreement; and (iii) to perform all of its obligations under this Agreement.
7.2 You represent and warrant that:
7.2.1 You have obtained and will maintain in force all necessary registrations, authorisations, consents and licenses enable you to provide the Content;
7.2.2 you have obtained all content clearances for all rights including, without limitation, mechanical and/or master rights in, for example, any sound recordings and underlying musical works supplied as Content hereunder and that you will be responsible for any payment of any mechanical license fee/royalty or performance fee if applicable;
7.2.3 the Content shall at all times for the duration of this
188.8.131.52 be complete, accurate and up-to-date;
184.108.40.206 not include any content or other material the carriage or publication of which would require any licence, authorisation, approval or consent; or if you do include any such content or material that you have, and shall deliver to Stayaround copies of such licenses, authorisations and consents on request; and
220.127.116.11 shall not infringe any rights, including without limitation, Intellectual Property Rights of any third party, nor contain anything unlawful, libelous, defamatory, or cause injury to, invade the privacy of or otherwise infringe or violate the rights of any person or third party.
7.3 You shall use reasonable commercial endeavors to ensure that the Content and its electronic delivery systems shall at all times throughout the duration of this Agreement have been subject to testing with the latest commercially available detection software for viruses and that you shall ensure that deliverables infected with any virus are not supplied under the Agreement. For the purpose of this Clause, “virus” shall be without limitation “Trojans”, “worms”, “logic bombs” and “canselbots” as the same may be generally understood within the computing industry from time to time.
Stayaround warrants that it will use all reasonable endeavors to protect your Intellectual Property Rights by giving appropriate notices to Customers.
8.1 shall fully indemnify and keep fully and keep fully Indemnified Stayaround (and its directors, employees, affiliates and agents) against any liability, damage, expense, loss, claim or cost (including reasonable legal fees and related costs) incurred by Stayaround as a result of any breach by you of any of your obligations or warranties set out in this Agreement.
8.2 Where Stayaround wishes to assert its right to be indemnified by you under this Clause 8 in respect of third party claims, Stayaround shall
8.2.1 co-operate fully with you and promptly provide all reasonable assistance and promptly provide you and its advisors reasonable access to premises and personnel and all relevant assets, accounts, documents and records that it possesses or controls for the purpose of investigating the matter and enabling you to take action referred to in Clause 8.2.2;
8.2.2 settle, or defend, the claim after reasonable consultation with you; and
8.2.3 otherwise allow you at your request and sole cost to have the exclusive conduct of the proceedings, provided always that you shall not cause any unreasonable delay and shall keep Stayaround notified of the conduct of the proceedings.
9.1 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees
9.2 Neither party shall be liable to the other for any indirect, consequential or special damages arising out of or in connection with this Agreement.
10. CONFIENTIALITY AND PUBLICITY
10.1 During the Term and thereafter, both parties agree with each other to keep all information that they obtain about each other, including, without limitation, any information concerning the business, finances, technology and affairs of the other, strictly confidential (“Confidential Information”)
10.2 The provisions of this Clause 10 shall cease to apply
10.2.1 information that has come into the public domain other than by breach of this Clause 10 or any duty of confidence;
10.2.2 information that is obtained from a third party without breach of this Clause 10 or any other duty of confidence;
10.2.3 information that is known by either party, in connection with the other party, and which has been disclosed to either party by a third party, other that you or Stayaround, or a contractor and not in breach of any duty of confidence;
10.2.4 information that is required to be disclosed by a government body or court of competent jurisdiction.
10.3 On termination of this Agreement for whatever reasons the parties shall deliver up as soon as reasonably possible to the other party Confidential Information and any other documents records or property that either party may hold belonging to the other party.
10.4 Neither party shall make any public announcement regarding the subject matter of the Agreement without the prior written consent of the other.
11. TERMINATION AND CONSEQUENCES OF TERMINATION
11.1 Either party shall be entitled to terminate this
Agreement forthwith on written notice in the event that the other:
11.1.1 commits a material breach of the terms of Agreement and having received from the party not in breach written notice of such breach and stating the intention to terminate the Agreement if not remedied, fails to remedy the breach within thirty (30) days; and/or;
11.1.2 shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertakings or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter not any voluntary agreement with its creditors, or shall be unable to pay its debts as they fall due, or if an individual you are declared bankrupt.
11.2 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall affect the coming into force, or the continuance in force of any provision which is expressly or by implication to come into or continue in force on or after such termination.
Any notice required to be given under this Agreement shall be in writing and shall be deemed to have been duly served if sent by us to the email address in the information provided to us or sent by facsimile or, or if sent within the United Kingdom, by first class special delivery post correctly addressed to the relevant party’s principal place of business as specified in this Agreement.
12.2 Entire Agreement
12.2.1 This Agreement (as amended from time to time) together with any documents expressly referred to in any its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or orally between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.
12.2.2 Both parties confirm that, in agreeing to enter into this Agreement, they have not relied on any representation save in so far as the same has expressly in this Agreement been made a representation and agree that each shall have no remedy (other than in respect of any fraudulent misrepresentation) whether or not such has become a term of this Agreement.
12.2.3 In the event that any terms, conditions or provisions of this Agreement are held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in force and effect.
12.3 No Waiver
No failure to exercise and no delay in exercising, on the party of either of the parties, any right or remedy in respect of any provision of this Agreement shall operate as a waiver of that right or remedy and any single or partial exercise of any right or remedy shall not prelude any other or further exercise of that right or remedy.
12.3. Assignment and Rights if Third Parties
12.3.1 You may not assign, transfer or sub-contract in whole or in part any of your rights under this Agreement without prior written consent of the Stayaround (such consent not to be unreasonably withheld or delayed).
12.3.2 Notwithstanding any other provisions in this Agreement a person who is not a party to this Agreement has no right under the Contract (Right of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement. Nothing in this Agreement shall affect any right or remedy of a third party which exists or is available other than as a result of the aforementioned Act.
12.4. No Partnership
Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in anyway or for any purpose.
12.5. Age Requirements
13 GOVERNING LAW AND JURISDICTION
This Agreement and all matters arising out of or in connection with it shall be governed by and constructed in accordance with English law and the parties hereto irrevocably agree to submit to the exclusive jurisdiction of the English Courts in respect of any dispute or matter arising out of or connected with this Agreement.
There are two separate methods of Royalty accounting for downloads.
The Following Royalties shall be payable:-
1. Ringtones and Realtones (which are available on an unlimited basis for Customers)
The Royalty shall be calculated each week using the following formula
Royalty = Royalty Fund divided by the total number of downloads of Ringtones and Realtones from the site from all content providers, multiplied by the total number of downloads of Ringtones and Realtones of your Content
By way of example, on the basis that there are 50,000 Customers, Stayaround will contribute 70p each to the Royalty Fund which will amount to £35,000 that week. If there were 150,000 downloads in total in that period then (£35,000 divided by 150,000) the royalty would be 23.3p per download. If you had 2,500 downloads then your Royalty would be (23.3p x 2,500) £583.33. These figures are for example only they are not guaranteed nor represent the minimum or maximum that can be generated per ringtone download. This royalty is inclusive of mechanical and MCPS royalties (or any other territorial collection agencies where applicable) and any royalty due to artists and performers.
2. Ringtones and Realtones through Affiliate Distribution
The greater of 45% of the revenue received by us from such distribution or 5p per download. This is exclusive of mechanical and MCPS royalties (or any other territorial collection agencies where applicable) as our affiliates have agreed to account directly for these, but is inclusive of any royalty due to artists and performers.
3. MP3 downlaods of Purchased Tracks (which are subject to the Minimum Fee.
The “all in” sum of 53p (plus VAT where applicable) per Purchased Track will be due to you. This is inclusive of mechanical and MCPS royalties (or any other territorial collections agencies where applicable) and any royalty due artists and performers
If you require your Content to be available for download as a polyphonic ringtone then Stayaround will (if you click with an “x” the relevant box) provide you with a service to convert your MP3 files into polyphonic ringtones. The cost per recording is £35 (including VAT) and is payable in accordance with the instructions given therein.
You hereby grant Stayaround and our agents the right to digitally reproduce the recordings supplied as aforesaid and to license them in accordance with Para 5 herein. The copyright in the polyphonic ringtone shall belong to you.