2crank - Promoting Your Music Worldwide

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Please review the following terms and indicate your agreement below:
1 DEFINITION & INTERPRETATION 1.1 Save and except where the context expressly states otherwise or the construction and/or meaning thereof results in absurdity or uncertainty, the following terms and expressions shall have the following meanings and definitions:- (a) "Artwork" shall mean album cover artwork and any other artwork relating to your Content that has been authorized to use by you in accordance with Section 2 below. Any artwork that is provided by you or on your behalf to us will be deemed to have been authorized by your uploading of your Content on 2Crank or as described in the prior sentence; (b) "Content" means sound recordings created, owned or controlled by you that is uploaded and/or provided by or on behalf of you to us, and in which we have legally acquired the necessary rights to authorize electronic sales and sound recording performances by you pursuant to the terms of this TOS, including but not limited to sound recordings in the form of (i) single-track sound recordings/clips, and (ii) multi-track albums/clips. (c) "Content Price" shall mean the amount payable by us to you as royalty in the form, amount and manner as published on our Website for each of the Digital Content File sold by us through this Website; (d) "Digital Content File" shall mean each digital file containing a single-track sound recording or multi-track album of your Content, applicable Artwork (if any), parental advisory notices (if any), copyright notices (if any), videos (if any, provided by you and used by us at our discretion), and associated metadata, e.g., core track data and editorial content data (if any); (e) "Fulfillment Activities" shall mean the sales and marketing activities relating to the sale and delivery of your Content as set forth in the provisions of Section 3 of this TOS; (f) "Security Solution" shall mean our proprietary content protection system used to protect your Content sold on this Website pursuant to this TOS and which may be modified by us from time to time. (g) "Metadata" shall mean data about other data, of any sort in any media; (h) "Term" shall mean the period of three (3) years commencing from the date of the publication of your then latest Content as authorized user of this Website; (i) "Territory" shall mean the all countries in the world; (j) "Website" shall mean this electronic music portal store known for the time being as www.2Crank.com and shall include its storefronts branded, owned, operated and/or controlled by us; (k) "Upload Price" shall have the meaning as set forth in Section 5 below and shall include include any and all revisions and/or amendments thereto. 1.2 In this TOS, unless otherwise expressly stated to the contrary:- (a) all headings, sub-headings and table of contents in this TOS are inserted for guidance and convenience only and shall be ignored in the interpretation and/or enforcement of this TOS; (b) any reference to the word "writing" or cognate expressions includes any communication effected by telex, e-mail, short message service, facsimile transmission and/or other comparable means; (c) any annexure, enclosures, appendix, exhibits and/or schedule attached or referred hereto shall be taken, read and construed as essential part of this TOS; (d) words importing the masculine gender shall include the feminine and neuter gender and vice versa and words importing the singular number shall include the plural number and vice versa; (e) words applicable to natural person shall include any body of person, company, corporation, firm or partnership incorporated or unincorporated or vice versa. 2. SCOPE & AUTHORIZATION 2.1 You hereby agree to appoint and authorize us to act as your reseller of the Content. Accordingly, you hereby grant a non-exclusive right to us during the Term (or any extensions thereof), to inter alia:- (a) perform and make thirty (30) second clips of your Content available by streaming ("Clips") to promote the sale of the Content on this Website, which Clips, if not provided by you, may be created by us by using the any thirty (30) seconds of your Content; (b) promote, sell, distribute, and electronically fulfill and deliver your Content and associated metadata to purchasers via 2Crank; (c) display and electronically fulfill and deliver Artwork for personal use solely in conjunction with the applicable purchased Content; and (d) use the Content, Artwork and metadata as may be reasonably necessary or desirable for us to exercise our rights under the terms of this TOS. 2.2 We will endeavor not to exploit the Content or Artwork in any manner or form not expressly authorized herein however, nothing in this TOS shall be construed to prevent us from marketing or selling the Content or Artwork by online sales (any other means shall be subject to your agreement). Nothing herein shall obligate us to actually exercise our rights under this TOS. 2.3 Except for a special circumstance, such as an exclusive, limited-time, one-off promotion for a particular sound recording or for a reason beyond our control, you shall make all of the Content available to us hereunder for sale on the this Website in both a so-called "single" format and in a multi-track "album" format. We may sell the Content on this Website in the format that we believe most favorably furthers the commercial purpose of this TOS and otherwise in accordance with our then-current business practices. 2.4 Save and except as provided for under this TOS or any amendments thereto, we will not edit, change or alter any of the Content or Artwork without your prior written consent (which shall not to be unreasonably withheld, delayed or conditioned), provided that we may modify Metadata as reasonably necessary to correct errors or to append sub-genres or like information for artist and track categories 3. FULFILLMENT ACTIVITIES 3.1 We shall use commercially reasonable efforts to promptly obtain the necessary approvals or permissions from those having the appropriate jurisdiction over the matter in the Territory for all sound recordings under our control, and related artwork, in order to enable sales of your Content by us hereunder. 3.2 We shall use commercially reasonable efforts to electronically deliver properly encoded Digital Content Files to end users. 3.4 We, or a third party designated by us in writing, shall commence delivery of Digital Content Files as soon as reasonably possible your upload of the Content. 4. ROYALTIES 4.1 For each sale of your Content through this Website by us, we will pay to you the amount as published and set forth in the Content Price page of this Website, which shall be subject to amendments at our discretion from time to time, as royalty ("Content Proceeds") and for avoidance of doubt, the "sale" of each Content shall only deemed to have occurred when your Content is successfully delivered by us to an end user and we will only pay to you the said royalty as soon in the manner and form as set forth in Section 4.3 below. Royalties due to you shall be at the then published Content Price at the time of successful delivery. 4.2 All royalties shall be subject to service charges and taxes. 4.3 We will compute the Content Proceeds payable to you on or before the expiry of every quarter of each calendar year (January, March, June, September) and will send to you the Content Proceeds Statement accompanied with the appropriate Contents Proceed in accordance with our standard business practices. 5. UPLOAD PRICE 5.1 You shall pay us the amount as set forth in Upload Price page of this Website for the all your Content uploaded by you to this Website. The Upload Price paid hereunder is to allow you to place your Content on this Website and we reserve the right to revise, amend and/or determine the Upload Price at any time and from time to time. 6. OUR OBLIGATIONS 6.1 We shall be responsible for all costs associated with our Fulfillment Activities as set forth in Clause 3 above. 6.3 If there is a change of circumstance during the Term (or extended Term as the case may be) as a result of which you reasonably believe that you do not have, or no longer have, the rights necessary to authorize us to use any the Content or Artwork as provided for herein, or we reasonably believe that the continued sale of any of your Content or Artwork may expose us to losses, damages or liability or harms our reputation or image or violates the terms of this TOS or any of our agreement then we shall have the right to withdraw or remove the Content without any reference to you. 7. PARENTAL ADVISORY 7.1 If you provide a parental advisory warning about a particular sound recording in the Digital Content File, we shall conspicuously display such parental advisory when other information about such recording is displayed. 9. NAMES & LIKENESSES; PROMOTIONAL USE & OPPORTUNITIES 9.1 We may use the names and likenesses of, and biographical material concerning, any Content artists, bands, producers and/or songwriters, as well as track and/or album name, and Artwork, in any of our marketing materials for the sale, promotion and advertising of the applicable Content which is offered for sale on this Website under the terms of this TOS (e.g., an artist or band name and likeness may be used in an informational fashion, such as textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the authorized exploitation of applicable Content). 9.2 We shall have the unrestricted right to market, promote and advertise your Content in any manner we deem fit. 10. COPYRIGHT NOTICES & OWNERSHIP 10.1 You may provide a copyright notice (which shall be not more than 21 characters in length) for applicable Content and associated Artwork in the Digital Content File, in which case we shall include such copyright notice in a manner that can be viewed prior to purchase of such Content. We shall not knowingly defeat, impair or alter any watermark in your Content, including any related Artwork or materials delivered by you hereunder. 10.2 All rights, title and interest in and to (i) your Content, excluding the Security Solution, (ii) the Clips, (iii) all copyrights and equivalent rights embodied therein, and (iv) all materials furnished by you, except as to any of our rights (whether pre-existing or under this TOS), shall remain your property at all times. 10.3 The contents of this Website, including all software, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectible elements of the Website, including, without limitation, the selection, sequence and 'look and feel' and arrangement of items, and all trademarks, service marks and trade names (individually and/or collectively, "Material"), are the property of us or our subsidiary, affiliate, licensor, supplier, operational service provider, advertiser, promotional partner, or sponsor and are legally protected under Malaysian law and also without limitation, under applicable foreign laws, regulations and treaties and you shall not do or cause to be done anything that may in any way violate or infringe the above. 11. DATA PROTECTION 11.1 We shall use the Security Solution, which shall be no less protective of your Content than any other security solution provided by us for any other sound recordings on 2Crank. If the Security Solution is compromised such that the Content have been unencrypted and are being widely used without restriction, having an adverse material effect on the commercial intent of this TOS, then the agreed liquidated damages shall not under any circumstances exceed Ringgit Malaysia Fifty (RM50) only. The foregoing shall constitute our sole obligation and your sole remedy from us in the event of such a security breach. 11.3 All contents in our control or possession shall reside solely on a network server, workstation or equivalent device owned or controlled by us or our contractors, located in Malaysia and/or such other area deemed fit by us, and shall be secured with restricted access. 12. RECORD KEEPING 12.1 We shall maintain and keep books and records concerning the amounts payable to you arising from transactions relating to our sale of your Content on this Website. 12. TERMINATION & EFFECT OF TERMINATION 12.1 Either of us shall have the right to terminate our relationship herein prior to the expiration of the of the same if and when one of us (i) becomes insolvent, (ii) files a petition in bankruptcy, (iii) makes an assignment for the benefit of creditors, or (iv) breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of notice of such breach, or if not able to be so cured, then resolved to the other party's satisfaction. 12.2 The expiration or earlier termination our agreement herein shall not relieve you or us of our respective obligations to make any payments with respect to the sale of your Content in the periods prior to such expiration or termination (and the associated accounting) in accordance with this TOS. 12.3 Upon the expiration or earlier termination of this TOS, all your Content, Clips, and Artwork in our possession or control shall be promptly deleted or destroyed, excluding any archival copies maintained in accordance with our standard business practices or required to be maintained by applicable law, rule or regulation. 13. REPRESENTATION & WARRANTIES OUR REPRESENTATIONS & WARRANTIES 13.1 We warrant and represent that the matters referred to in this TOS true and correct. 13.2 We warrant and represent that any and all representations and warranties made on our part prior or leading to the execution of this TOS is and shall remain true and correct. 13.3 We warrant and represent that we have full authority to enter into this TOS, and to fully perform its obligations hereunder. 13.4 We warrants and represents that we shall not act in any manner which conflicts or interferes with any of our existing commitment or obligation and that no agreement previously entered into by us (if any) will interfere with our performance of the obligations under this TOS. 13.5 We warrant and represent that we shall perform its duties and obligations as set forth in this TOS in compliance with any applicable laws, rules and regulations of any governmental authority. YOUR REPRESENTATIONS & WARRANTIES 13.6 You warrant and represent that the matters referred to in this TOS are true and correct in every particular and form. 13.7 You warrant and represent that any and all representations and warranties made on your part prior or leading to your agreement of the terms hereunder and the shall remain true and correct. 13.8 You warrant and represent that you have full authority to enter into this TOS and to fully perform your obligations hereunder, including but not limited to the fact that you are the owner and creator of the Content. 13.9 You warrant and represent that you legally own or control the necessary rights in order to make the grant of rights, licenses and permissions herein, and that the exercise of such rights, licenses and permissions by you hereto shall not violate or infringe the rights of any third party. 13.10 You warrant and represent that you shall not act in any manner which conflicts or interferes with any of our existing commitment or obligation and that no agreement previously entered into by you (if any) will interfere with the performance of your obligations under this TOS. 13.11 You warrant and represent that you shall perform its duties and obligations as set forth in this TOS in compliance with any applicable laws, rules and regulations of any governmental authority. 13.12 You warrant and represent that no other person, firm or corporation other than yourself have any right, title or interest in or to the Content. 13.13 You represent and warrant that there are no liens, encumbrances and/or obligations upon or in connection with the Content not specifically set forth herein which would in part or in whole:- (a) limit, restrict and/or prevent the Content from being used by us for the purposes and in the manner contemplated by this TOS; or (b) derogate from the rights granted to us hereunder. 13.14 The Parties agree that their representations and warranties as stated in this TOS are true as of the date of this TOS and shall remain true for as long as this TOS is enforceable. 13.15 You agree to not use this Website to: (a) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through 2Crank; (e) upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party; (g) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose; (h) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of this Website are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges; (j) interfere with or disrupt this Website or servers or networks connected to this Website; (k) intentionally or unintentionally violate any applicable local, state, national or international law; (l) "stalk" or otherwise harass another; and/or (m) collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above. 14. GENERAL PROVISIONS 14.1 Except pursuant to an express indemnity obligation, in no event shall either us shall be liable to the other for indirect, incidental, consequential or special damages including loss of profits revenue, data, or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages. Our liability for damages hereunder shall in no event exceed the aggregate of all Upload Price paid by you under this TOS. 14.2 No warranty or term, express or implied, statutory or otherwise as to the condition, quality, durability, performance, merchantability or fitness for a particular purpose of this Website, the Security Solution or any elements of the foregoing is given to or should be assumed by you and any such warranties and terms are hereby excluded. 14.3 Any notice or other communication to be given under this TOS shall be in writing and shall be deemed to have been duly given if left at or sent by registered post, telex, electronic mail, short message service, facsimile or other comparable electronic media to a Party at the address or relevant telecommunications number for such Party or such other address as set forth below or as the Party may from time to time designate by written notice to the other and any such notice or other communication shall be deemed to have been served:- (a) if personally delivered, at the time of delivery; (b) if posted, at the expiry of three (5) working days following the dispatch; (c) if sent by telex, electronic mail, short message service or facsimile message, at the time of transmission. To you: Pursuant to your details so provided during upload on this Website To us: Pursuant to our details so provided on this Website 14.4 This TOS together with any supplements, addendum, amendments, schedules, modifications or attachments, comprises the entire agreement between us with respect to the subject matter hereof and shall supersedes all prior and contemporaneous correspondences, agreements and understandings. 14.5 We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this TOS. We will post or display notices of material changes on this Website and we may also e-mail you about these changes. Once we post them on the Website, these changes become effective immediately and if you use the Site after they become effective it will signify your agreement to be bound by the changes. 14.6 Any knowledge and acquiescence or failure or omission by either of the parties hereto to enforce at any time or for any period any one (1) or more of the terms or conditions of this TOS shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this TOS. 14.7 This TOS shall be governed by the laws of Malaysia and in the event of any dispute arising pursuant hereto the same shall be resolved by any court of competent jurisdiction within Malaysia.
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