Digital Distribution Services Agreement

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Digital Distribution Services Agreement

Last updated: August 14, 2020

This Digital Distribution Services Agreement (the “Agreement“) constitutes a binding legal agreement between Vampr, Inc., a California corporation (“Vampr,” “we“, “us” or “our“), and the individual(s) or entity(ies) being subscribers to Vampr Pro and identified as owners of the nominated sound recording(s) (“Music Tracks”) designated for inclusion in the service (“you” or “your“), such services being provided as a benefit available to purchasers of the Vampr Pro subscription pursuant to the Vampr Pro Services Agreement.

This Agreement applies to your use of the services more particularly described in paragraph 3 of the Agreement (the “Digital Distribution Services”).

The Vampr Terms & Conditions, the Vampr Pro Services Agreement, the Vampr Privacy Policy (“collectively “the Vampr Agreements”) are hereby incorporated into and made a part of this Agreement. This Agreement is also to be read in conjunction with the Terms of Use, an agreement provided by our digital distribution solutions service provider for our use and which is hereby incorporated in this Agreement. To the extent there is a conflict between this Agreement and the Vampr Agreements or the Terms of Use, the terms of this Agreement shall prevail. Any capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Vampr Agreements, as applicable.

This Agreement addresses certain additional rights and obligations associated with the Digital Distribution Services.

Please review the provisions found at https://www.vampr.me/vampr-distribution-style-guide (“Vampr Content Style Guide”) which forms part of this Agreement and which provide important information regarding our requirements of you when submitting your Music Tracks and Content for inclusion in the service.  These requirements are mandatory and your failure to follow the requirements of the Content Style Guide may result in your Music Tracks and Content being rejected by us for inclusion in the Service.

  1. Your Acceptance of this Agreement; Vampr’s Right to Modify this Agreement.

(a) You must accept all of the terms and conditions contained in this Agreement before accessing or using the Digital Distribution Services. Your clicking on the button marked “ACCEPTED”, presented to you on the Vampr App when you Opt-In to the Digital Distribution Services, indicates your acknowledgment that you have carefully read, understand and accept this Agreement and the Terms of Use. If you do not accept this Agreement and the Terms of Use, you may not access or use the Digital Distribution Services.

(b) Vampr may modify this Agreement from time to time by posting the modified version of the Agreement on the Vampr App and/or the Vampr website. Our right to modify this Agreement includes the right to add, remove or amend the terms hereof. When this Agreement is modified, we will also modify the “Effective as of” date set forth at the beginning of this Agreement.

(c) If and when we modify this Agreement, we will send you Notice pursuant to Paragraph 12, below, of such modification at least ten (10) calendar days prior to its effective date. If you do not accept any modification we have made, your only recourse is to terminate your subscription to the Digital Distribution Services. To do so, you must send a Notice of Termination of Subscription to support@vampr.me, within five (5) days of our having sent you Notice of such modification. You must include in the subject line of your email “Termination of Digital Distribution Services.” Upon any such termination, we will block your access to or use of the Digital Distribution Services; provided, however, that no termination of your subscription to the Digital Distribution Services pursuant to this provision shall affect any license for your Music Track(s) issued through or by means of the Vampr Pro App or the Digital Distribution Services and that commenced prior to such termination.

(d) Anything to the contrary herein notwithstanding, your failure to terminate your subscription to the Digital Distribution Services pursuant to Section 1(c), above, or your participation in the Digital Distribution Services after the effective date of any modification we may make to this Agreement, constitutes your agreement to be bound by all such modifications.

  1. Term and Termination.

(a) Subject to the provisions of Paragraphs s 2(b) and 2(c), below, this Agreement shall remain in full force and effect while you use or receive the benefit of the Digital Distribution Services. You may revoke designation of any or all of your Music Tracks for participation in the Digital Distribution Services (or change any such territory or Distribution Channel designation for any of your Music Tracks) by emailing support@vampr.me, no earlier than one (1) month after the date such Music Track is designated for participation in the Distribution Services.

(b) Notwithstanding the foregoing, and without limiting Vampr’s other rights and remedies set forth in this Agreement, Vampr reserves the right, in its sole discretion, at any time, for any or no reason, with or without prior notice, and without liability, to restrict, suspend, or terminate your access to or use of all or any part of the Digital Distribution Services and/or to take technical and/or legal steps to prevent you from accessing and/or using the Digital Distribution Services. In no event shall Vampr be liable to you or to any third party should Vampr exercise this right from time to time. Even after Digital Distribution Services are terminated, this Agreement will remain in effect as applicable to your Account or use of the Digital Distribution Services prior to such termination.

(c) To the extent that your subscription to the Digital Distribution Services is terminated, or your designation of any or all of your uploaded Music Tracks for participation in the Digital Distribution Services is revoked, Vampr will endeavor to remove such of your Content from the Distribution Channels, subject to any termination period or other requirements imposed herein or otherwise by Vampr, any third-party service provider, or the Distribution Channel(s) in question. Vampr is not responsible for, and has no liability for, any delay or failure of any third-party service provider or a Distribution Channel to remove your uploaded Music Tracks from such Distribution Channel(s). You hereby acknowledge and agree that your uploaded Music Tracks for which Digital Distribution Services are terminated or for which designation has been revoked may remain available under pre-existing licenses or other arrangements between Vampr and any third party. In the event Vampr incurs any costs with respect to any of your uploaded Music Tracks for which Digital Distribution Services are terminated, Vampr may deduct such costs from any amounts payable to you by Vampr under this Agreement or otherwise.

  1. Digital Distribution Services; Grant of Rights.

(a) The Digital Distribution Services shall include the issuance of licenses by Vampr for those of your Music Tracks that you designate for inclusion in the Digital Distribution Services (and all other of your Content associated with such Music Tracks) for transmission through digital distribution solution providers (the identity of which shall be determined in the sole discretion of Vampr from time-to-time) and internet consumer distribution services (meaning any digital outlet, such as music download portals, music and video streaming services, mobile music platforms, digital (and terrestrial) radio stations, digital (and terrestrial) television networks, and mobile networks (eg: Apple iTunes, Spotify, Tidal, Google Play, etc.), that enables customers to purchase and/or listen to Music Tracks and view Content) or in connection with permanent digital downloads, temporary digital downloads, interactive or on-demand streaming, non-interactive or radio streaming, cloud services, or otherwise (collectively, the “Distribution Channels”).

(b) Without limitation to the foregoing the indicative nature of the Digital Distribution Services provided by our digital distribution solution provider can be perused at paragraph 2.2 of the Terms of Use and is inclusive of services described as “the transferring by any means of data transmission or communication, through the internet, internet radio, kiosks, in-store listening posts, mobile, wireless, satellite and similar communication systems, whether now known or existing in the future, of the Music Tracks and Content in multiple digital formats including but not limited to clips, permanent downloads, subscriptions, streams and timeout-downloads, ring-tones and ring-back tones and any other means”.

(c) With respect to your uploaded Music Tracks and Content, you hereby grant Vampr an exclusive, worldwide (or such other territory as may be specifically designated by you via functionality provided on the Vampr Pro App (if any) specifically for such designation), fully sub-licensable license to copy, reproduce, license, distribute, stream, publicly perform, communicate to the public, digitally transmit, and otherwise exploit your uploaded Digital Tracks and Content by all means (including through a third party) and media (whether now known or existing in the future) (each of the foregoing actions, a “Sale”) to or through all Distribution Channels (or such Distribution Channels as may be specifically designated by you, via functionality provided on the Vampr Pro App specifically for such designation and where Vampr provide such functionality in its sole discretion) and to collect all revenue deriving therefrom. This right and authorization is granted to us on an exclusive basis; this means that if You use the Digital Distribution Service to make Your Music Tracks and Content available to us You cannot make the same Music Tracks and Content available to any Distribution Channel using a service other than our Digital Distribution Service.

(d) Vampr does not guarantee any exploitation of your uploaded Music Tracks and Content or any financial outcome from such exploitation (which will depend, among other things, on consumer preference) nor the inclusion or participation of any given Distribution Channel. Vampr reserves the right in its sole discretion to (i) decline to engage with any Distribution Channel in connection with the Digital Distribution Services or to authorise their party service providers to so decline and/or (ii) decline to include any of your uploaded Music Tracks with any Distribution Channel.

(e) Vampr reserves the right, in its sole discretion, to reject any or all Music Tracks or Content you submit for participation in the Digital Distribution Services or to authorise our third party service providers to so reject. You agree that all Music Tracks or Content you submit will be submitted at your sole expense in the format(s) required by Vampr or any Distribution Channel. It is your responsibility to deliver all necessary information, metadata, Music Tracks, graphic files and any other information or music in the format required (all of which shall be deemed your Music Tracks and Content for purposes hereof). You acknowledge that Vampr will not be obligated to consider your Music Tracks or Content for participation in the Digital Distribution Services until Vampr receives all of your Music Tracks or Content with respect to any particular Music Track.

(f) The number of your Music Tracks that you are eligible to designate for participation in the Digital Distribution Services as an entitlement due to you pursuant to your subscription to the Vampr Pro App shall be twenty (20) per annum (commencing from the date of you completing your Vampr Pro subscription) (the Maximum Release Number), such participation eligibility being modifiable by Vampr from time to time. The use of Digital Distribution Services for any of the Maximum Release Number is not transferable from the Vampr Pro Account holder to any third party and any unused releases from the Maximum Release Number in any year cannot be carried forward to subsequent year(s). In the event that you wish to distribute Music Tracks in excess of the Maximum Release Number you may make a request to Vampr and Vampr may in its sole discretion modify the terms of this Agreement relating to Maximum Release number on terms provided to you by Vampr.

(g) You acknowledge that in providing the Digital Distribution Services, Vampr will be required to enter into certain agreements with various Distribution Channels (including, without limitation, digital distribution solution providers). The selection of these Distribution Channels and the terms and conditions of such agreements shall be within the sole discretion of Vampr. You agree that the Digital Distribution Services shall be subject to and governed by any applicable terms and conditions of such other agreements that Vampr enters into with any Distribution Channel. You expressly acknowledge that certain Distribution Channels may require that your Music Tracks or Content be made available on their Distribution Channel at certain times and in certain formats relative to the availability of such materials elsewhere in the marketplace. To the extent that such requirements are not met, any Distribution Channel may have the right to not make available or discontinue the availability of such Music Tracks or Content within such Distribution Channel. Certain Distribution Channels may also have other policies, terms or conditions related to the inclusion, exclusion, or distribution of your Music Tracks or Content on such Distribution Channels’ platforms, and it is your responsibility to investigate such policies, terms or conditions, if any, and such policies, terms or conditions shall be binding upon you. You hereby expressly agree that Vampr shall have the right to provide information relative to the sales of your Music Tracks or Content hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate such information and aggregations thereof in any manner. In order to monitor and track the exploitation of Music Tracks or Content, an automated solution may be applied to the Music Tracks or Content, and Vampr or its third-party service provider(s) shall have the right to apply their own source and standard codes for such purposes.

(h) Nothing contained herein shall be construed as granting or conferring any property rights in the Service or any part thereof to You; therefore, We are not granting to You by means of this Agreement, the right to exploit our Intellectual Property of that of any of our service providers (including but not limited to copyright, patent, trademarks, registered marks, trade secrets, and confidential and proprietary information relating thereto). All these rights are expressly reserved by their owner and, as a consequence, the owner of those rights retains all licensed or ownership rights to the Service, brands, technology and any associated rights, registered or unregistered together with any part thereof.

(i) Nothing contained herein shall be construed as an obligation for us to effectuate any online promotion and/or marketing of Your Music Tracks and Content under this Agreement. However, We may offer complimentary promotional services in our sole discretion.

  1. Fees; Payment.

(a) Your submission of Music Tracks and Content for participation in the Digital Distribution Services requires that you obtain your subscription to the Digital Distribution Services via your subscription to a Vampr Pro Account. The amount, manner and method of payment of the your subscription to a Vampr Pro Account shall be set forth on the Vampr Website and may be amended from time to time by Vampr.  All Vampr Pro Account fees are non-refundable and non-pro-rateable.

(b) For purposes of this Agreement, “Net Receipts” means the royalty payments Vampr actually receives and retains from Distribution Channels (including, without limitation, digital distribution solution providers), solely for the Sale of your Music Tracks or Content, less any taxes, processing or transaction fees and other charges (including without limitation any charges made by a Distribution Channel or any third party service provider including, without limitation, digital distribution solution providers), file storage costs, mechanical royalty fees, transaction costs, reformatting costs if your Music Tracks or Content are not provided in the format required in accordance with Paragraph 3(e), returns, credits or deductions made due to technically faulty, defective or unfit Music Tracks or Content or fraudulent activity by end users, and legal, accounting and other professional fees incurred by Vampr in relation to any agreement, claim or dispute with a licensee or third party service provider related thereto. The payments Vampr receives from Distribution Channels are based on the royalty rates or service fees set by such Distribution Channels, which Vampr may have no control over and which may vary, based, without limitation, on the type of Music Tracks or Content and the end uses of the Distribution Channels.

(c) Vampr shall not be responsible for providing percentages of Net Receipts to additional participants in the Music Track other than you. You agree that the entirety of the Net Receipts from each Music Track will be paid to you and you undertake to accurately distribute any legitimate third party share to that party promptly and accurately.

(d) In consideration of your use of the Digital Distribution Services, Vampr shall retain only your Vampr Pro Fee and  (i) zero percent (0%) of Net Receipts and shall pay the remainder of Net Receipts (“Amount Due”) to you subject to the conditions provided in Paragraph 4(e) hereunder.

(e) You may request that Vampr remit the Amount Due to you (less any fee charged by PayPal) to your PayPal account (as identified as such by you at the time of such request for remittance) by activating the “Pay Me Out” functionality on your account upon which Vampr will generate the payment to you in accordance with this clause 4(e), such activation initiating a funds processing fee of 1% of the value of that transfer, payable by you to us by way of a deduction from the Amount Due payable upon us making the funds transfer to you.

(f) Notwithstanding anything to the contrary herein or in any other agreement between you and Vampr:

            (i) Vampr shall be entitled to set off against any Amount Due any amounts that you may owe to Vampr in connection with the Digital Distribution Services or otherwise; and

            (ii) in the event you are in breach of this Agreement (including without limitation the Vampr Terms & Conditions, or any other Vampr Agreement or the Terms of Use) or if you discontinue, fail to pay or allow to lapse, your Vampr Pro subscription (“Vampr Pro Discontinuance”) Vampr shall have the right exercised in its sole discretion to continue to include your Music Tracks in the Digital Distribution Services or remove your Music Tracks and Content from the Distribution Channels. Subsequent to any Vampr Pro Discontinuance Vampr will have the right, but not the obligation, to maintain the Digital Distribution Services with respect to your Music Tracks and Content and collect and retain any Net Receipts generated from your Music Tracks and Content until such time as you send an email to Vampr at support@vampr.me specifically requesting that we instruct our digital distribution service provider to expeditiously take down your Music Tracks and Content from any applicable internet consumer distribution services. Vampr will not be liable for any delay in this process. Upon your Vampr Pro Discontinuance (whether deliberate or inadvertent) you will be blocked from accessing the Digital Distribution Service and prevented exercising the Pay Me Out functionality provided in Paragraph 4(e) of this Agreement.

(g) Without limiting any other rights and remedies of Vampr, you agree that (a) Net Receipts will be forfeited by you if Vampr determines that your Account or any Music Track or Content to which such Net Receipts relates is subjected to or involved in any fraudulent or infringing activity (see Clause 11 hereunder), and (b) to the extent that any fraudulent and/or infringing activity is determined by Vampr to be caused by any of your or your affiliates’ actions or omissions, any costs incurred by Vampr (including without limitation legal fees and expenses) in connection therewith may be deducted by Vampr from any amount otherwise payable to you by Vampr under this Agreement or otherwise.

(h) If any Distribution Channel outside of the United States does not agree to secure and pay for music publishing licenses, Vampr shall have the right (but not the obligation), in its sole discretion, to either;

            (i) decline to license such Distribution Channel; or

            (ii) assume the responsibility to clear and pay for the music publishing licenses required in connection with such Distribution Channel’s Sales, which   payments Vampr shall have the right to deduct from amounts payable to you. Vampr and/or its third-party service provider(s) or licensee(s) may be responsible for reporting and making payments for mechanical licenses payable to owners of Compositions by virtue of the exploitation of such Compositions as embodied in Music Tracks in accordance with this Agreement. Vampr shall have the right to deduct such payments from   amounts payable to you in connection with this Agreement or otherwise.

(i) If any of your Music Tracks or Content is rejected by us or a Distribution Channel or a third-party service provider (including without limitation a digital distribution solution provider) because it does not meet our or that Distribution Channel’s or third-party service provider’s technical or editorial specifications (including but not limited to the Vampr Content Style Guide), you shall be responsible for any costs and expenses associated with resubmitting such Music Track or Content. In the event you do not correct all errors and quality or editorial issues in order to resubmit your Music Track(s) and Content, there shall be no refund on any Vampr Pro Fee.

(j) All Net Receipts and other charges required to be paid or remitted hereunder are exclusive of all taxes imposed or payable, whether now or in the future, in connection with this Agreement, all of which shall be borne by you.

(k) You are fully liable for and solely obligated to timely pay all royalties, fees and other monies that are or may become payable to the authors, composers, artists, producers, publishers, administrators and other holders of rights related to any and all of your Music Tracks.

(l) Any objection relating to any payment to you of any amounts due hereunder, or otherwise, or any claim or dispute arising therefrom, must be made (and any claim or dispute commenced) by you no later than one (1) year after the date the amount(s) in question are paid to you and you hereby waive any longer statute of limitations that may be permitted by law.

(m) To the extent that any terms and conditions pursuant to paragraphs 4.1 to 4.8 of the Terms of Use are not superseded by or in conflict with provisions in this Agreement the terms and conditions of the Terms of Use are incorporated in this Agreement. In the event of a conflict between the Terms of Use and this Agreement, the terms of this Agreement shall prevail.

  1. Representations and Warranties.

(a) You represent, warrant and covenant, at all times relevant hereto, that;

(i) the information you provide to the Vampr portal provided for receipt of information regarding intended Music Track release (the “Distribution Portal”) for the Music Track is complete and correct in all respects;

(ii) notwithstanding Paragraph 4(c) information you provide to the Distribution Portal correctly identifies all rights holders with an interest in the Music Track;

(iii) the sound recording embodied in the Music Track, and the uses of the sound recording authorized hereunder, does not and shall not infringe any copyright or other intellectual property or proprietary right of any third party.

(iv) the sound recording does not contain any unauthorized samples;

(v) to the best of your knowledge, information you provide to the Distribution Portal as it relates to the musical composition embodied in the Music Track is complete and correct in all respects;

(vii) the Music Track and Content conforms to the Vampr Content Style Guide published by us from time to time.

(vi) You has all right, power and authority to enter into this Agreement and, to the extent specified herein, to grant, license, sell, assign, convey, and transfer all right, title, and interest in, to and under the Music Track, free and clear of any licenses, rights, claims, liens, security interests, charges, restrictions, covenants, options or other encumbrances or title defects, as may be necessary for Vampr and any Licensee to fully enjoy the license granted hereunder, and to otherwise carry out the terms and provisions of this Agreement;

(vii) You have secured all third party consents, licenses and/or permissions necessary to enter into and perform under this Agreement including, without limitation, those arising pursuant to any union agreements or collective bargaining agreements, and no further action or authorization on the part of any Distribution Channel, Vampr or any third party, and no payment to any third party, is necessary to carry out the terms and conditions of this Agreement;

(viii) to the best of your knowledge, no third party is infringing upon or interfering with the Music Track, and no such claims have been made against any third party;

(ix) all information you provided in connection with this Agreement, and the Registration of Music Track(s) with Vampr is complete and correct in all respects;

(x) the version of the Music Track uploaded by you does not contain any disabling devices or code which could be capable of impairing or tracking Vampr’s, or any third party’s access to or use of the Music Track or processing environment;

(xi) there is no agreement, understanding, license, right, restriction, settlement, consent, judgment, order, or pending or, to your knowledge, threatened litigation, arbitration, injunction, or administrative proceeding that restricts, impairs, limits or otherwise adversely affects, or which could be reasonably expected to restrict, impair, limit or otherwise adversely affect, your ability to perform your obligations under this Agreement;

(xii) You have consulted with legal, financial, tax and other advisors regarding the implications of this Agreement and of licensing Music Tracks and Content through the Digital Distribution Services, or have knowingly waived its right to do so, and you enter into this Agreement and you license Music Tracks and Content through the Digital Distribution Services with full knowledge and understanding of the legal, financial, tax and other consequences thereof; and

(xiii) You shall comply with all applicable laws, rules, regulations, and orders (as they may be amended from time to time), and without limitation of the foregoing you acknowledge that you have read and will comply with the conduct and restrictions on conduct that are provided at paragraphs 3.1, 3.2 and 3.3 of the Terms of Use.

  1. Disclaimers.

(a) You acknowledge and agree that the Vampr App and all services are provided on an “as is” and “as available” basis and, to the fullest extent allowed by applicable law, rules, regulations and orders, Vampr expressly disclaims all representations and warranties, whether written or oral and whether express or implied, including without limitation any representation or warranty with respect to merchantability, fitness for a particular purpose, title or non-infringement, any representation or warranty with respect to the reliability or performance of the Vampr App or the Digital Distribution Services or the reliability, accuracy or completeness of any content. In addition, Vampr does not represent, warrant, endorse, guarantee or assume responsibility for any third-party product or service advertised or offered on or through the Vampr App or the services or any hyperlinked website or feature in any banner or other advertising. You understand and agree that Vampr is not responsible or liable for any transaction between you and any third party. We have no control over and do not guarantee the ability of Distribution Channel(s) to pay for content or that they will actually complete a transaction. You should use your judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by you from or on behalf of Vampr shall create any warranty on behalf of Vampr in this regard. You agree that you are making use of the site and/or the services, including the Digital Distribution Services at your own risk. Some aspects of this Section may not apply in some jurisdictions, solely to the extent prohibited by the applicable laws of such jurisdictions.

(b) Although Vampr will in good faith endeavor to remedy errors in the Vampr App or the Digital Distribution Services, Vampr specifically does not warrant that the Vampr App or the Digital Distribution Services will operate without error or interruption or that all errors in the Vampr App or the Digital Distribution Services will be corrected. Vampr shall have no liability associated with any inoperability, performance of or inability or delay in your access to the Vampr App or the Digital Distribution Services. Vampr will not be responsible for any loss or any misappropriating, infringing or wrongful use of your content because of the Vampr App, the Digital Distribution Services or any other act or omission of Vampr, a third party, or otherwise.

(c) Vampr is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the internet, the site or on any of the services or combination thereof, including any injury or damage to users or to any person’s computer or other hardware related to or resulting from participation or downloading materials in connection with the Digital Distribution Services.

  1. Limitation on Liability.

(a) In no event shall Vampr or any of its affiliates, or any officers, directors, employees, agents, owners or representatives of any of the foregoing (collectively, “related parties”) be liable to you or any other party for any special, indirect, reliance, incidental, punitive, exemplary or consequential damages of any kind, lost profits, lost revenue, loss of business, or loss of goodwill, whether arising in contract, tort (including without limitation negligence) or otherwise, or for any breach of security associated with the transmission of sensitive information through the site or the services, even if Vampr or any of its related parties have been notified of the possibility thereof. We shall not be liable for any loss of, whether arising directly or indirectly, (i) profits, (ii) savings, (iii) goodwill, (iv) reputation, (v) revenue, (vi) anticipated savings, (vii) business or opportunity or (viii) any other like pure economic loss; nor any special, indirect, consequential or incidental losses or damages of any kind or nature whatsoever regardless of whether in each case arising from breach of contract, warranty, tort, strict liability, negligence or otherwise, even if advised of the possibility of such loss or damage, or if such loss or damage could have been reasonably foreseen.

(b) Without limiting the generality of the foregoing and to the extent permitted by applicable law, none of the related parties are liable or shall be responsible for any damages or losses resulting directly or indirectly from;

(i) your use or inability to use the Vampr App or Digital Distribution Services,

(ii) guidance provided by Vampr,

(iii) interruptions to the Vampr App or the Digital Distribution Services,

(iv) virus or malicious software contained on or transmitted through the Vampr App or the Digital Distribution Services,

(v) bugs or errors of any kind on the Vampr App or in the Digital Distribution Services,

(vi) damage to your hardware by use of the Vampr App or the Digital Distribution Services,

(vii) the actions or omissions of third parties, including without limitation other users; or

(viii) a suspension or termination of your account.

Some jurisdictions do not allow certain disclaimers of warranties or exclusions of damages and, to the extent prohibited by law, such disclaimers and exclusions may not apply to you.

(c) regardless of the previous paragraphs, if any related party is found to be liable, the aggregate liability of the related parties for any and all claims, actions, demands, losses, liability, damages (actual and consequential), costs, expenses or similar items of any kind or nature, whether known or unknown (collectively, “Claims”) arising under or related to this Agreement, the Vampr App, the Digital Distribution Services or otherwise shall be limited to the fees actually paid to and retained by Vampr during the 12 months prior to the claim for the specific activity or service giving rise to the liability.

  1. Indemnity.

You agree to indemnify and hold harmless Vampr and its Related Parties from and against any and all Claims arising out of or related to:

(i) your access to or use of the Vampr App, the Vampr Pro service or the Digital Distribution Services,

(ii) your violation of any third party right, including without limitation any copyright, patent, trademark, property or privacy right,

(iii) your breach of any of your representations, warranties or covenants contained in this Agreement, or

(iv) any Music Tracks and Content that you upload on the Vampr App or submit for inclusion in or through the Digital Distribution Services.

  1. U.S. Export Controls.

Software available in connection with the Vampr App and/or the Digital Distribution Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Vampr App or from the Digital Distribution Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

  1. Legal Disputes; Governing Law; Venue.

PLEASE READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. You agree that any claim or dispute that may arise between you and Vampr with respect to this Agreement will be resolved in accordance with this Section 10.

(a) Applicable Law. You agree that, except to the extent inconsistent with or pre-empted by federal law, this Agreement and any claim or dispute that may arise between you and Vampr and any Related Party under it shall be construed under the laws of the State of California, without regard to its conflict of laws rules.

(b) Agreement to Arbitrate. You and Vampr agree that any and all claims and disputes arising between us pursuant to this Agreement and your use of the Vampr App or the Digital Distribution Services shall be resolved exclusively through final and binding arbitration. When valid by law, any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in Los Angeles in the State of California in accordance with the WIPO Arbitration Rules. Alternatively, you may assert your claims and disputes in small claims court, if the claim or dispute so qualifies, so long as the claim or dispute remains in small claim court and advances on an individual (non-class) basis.

(c) Class and Representative Actions Prohibited. You and Vampr agree that each of us (or any other Related Party) may bring claims and disputes against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Vampr agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims or disputes or preside over a representative or class proceeding. The arbitrator may award relief only to the individual bringing the action and any relief awarded may not affect other Users.

(d) Invalidity. With the exception of Section 10(c) above (“Class and Representative Actions Prohibited”), if an arbitrator or court decides that any portion of this Section 10 is invalid or unenforceable, all other portions of this Section 10 shall continue to apply. If an arbitrator or court decides that Section 10(b) is invalid or unenforceable, then the entirety of Section 10(b) and its subparts shall be null and void, but the rest of this Section 10 shall continue to apply.

(e) Amendments to Agreement to Arbitrate. You and Vampr agree that if Vampr amends this agreement to arbitrate in the future, the amendment shall not apply to a claim or dispute filed by either party prior to the effective date of the amendment.

(f) Court. If the agreement to arbitrate does not apply to you as a result of a decision by an arbitrator or court order, you agree that any claim or dispute that has arisen between you and Vampr will be resolved exclusively by a state or federal court located in Los Angeles, California. You and Vampr agree to submit to personal jurisdiction of the courts located in Los Angeles, California for purposes hereof.

  1. Copyright/Fraud Information

(a) In addition to the warranties provided by you at Paragraph 5 hereunder you agree that you will not engage in activities constituting Fraud in relation to the use of the Services. Fraud is defined as “the unauthorized exploitation of material protected by copyright (Copyright Infringement); the infringement of any law that regulates the ownership of legal right holders; the use of (modified) artist, band or label names or artwork which may create confusion or false expectations related to content which is served to consumers by Distribution Channels (i.e., Musical Spam); the use of automated digital bots or other means to “click” on payment-generating links pretending to be consumers (i.e., Click Fraud), producing unnatural and fraudulent incomes; the upload of distorted music also to generate revenues and other unauthorized activities which are in breach with the terms of Service or our the agreements we have with Distribution Channels”.

(b) Without limitation, the following may be deemed to be Fraud:

  • Providing a Music Track or Content containing misleading artist names or track titles used to attract consumers to that Music Track.
  • Impersonating any artist, songwriter, recording company, music publisher or other entity
  • Providing a Music Track containing copyright material from someone else who did not grant publishing permission to you.
  • Until proven otherwise should we receive a content infringement notice from a Digital Channel or from any Performing Rights Organisation or a direct infringement claim from a claiming Rightsholder or their representative in relation to a Music Track or Content provided by you.

(c) It is Vampr’s policy that Fraud in all its forms is wrong, and is unacceptable to us. This is because where fraud occurs:

  • It is not only a loss to us and Distribution Channels, but ultimately to other content creators, damaging their copyrights, reputation or reducing the royalty pool which is made available by the Distribution Channels to content creators.
  • It may have a major impact on our reputation, our contracts with Distribution Channels and therefore again on other people using our Services.

(d) Our objective is to avoid and, if necessary, eliminate fraudulent usage of our Services. Any indications of fraud will be rigorously investigated and dealt with in accordance with Vampr policy. To this end we are are actively taking action in the following fields:

  • We are automatically monitoring (historic) sales data to combine this with other information (i.e., artist profiles, End User information, social media, etc.), to detect possible irregular activity.
  • Our entire back catalogue and all new tracks are fingerprinted and matched against several databases to avoid multiple uploads of the same song, uploads of “white noise”, “empty songs”, upload of already copyrighted materials and, in general, any unauthorized activity.
  • Our quality control (QC) processes are designed to track down the use of metadata that can be misleading, resulting in Musical Spam or any other unauthorized activity.

(e) In the event we detect or have suspicions of any Fraud by you, we will require you to cease such activities and warn you resulting in blocking your account in case our warnings are ignored.

(f) If you are deemed breaching of this our Fraud policy, we will have the right to terminate this agreement and any amounts due to you from any us for any fraudulent or unauthorized use of the service may be recouped by withholding such amounts from future payments due to you (“Withheld Payments”) and to the extent any fraudulent and/or infringing activities are determined to be caused by your actions, any costs incurred by us or our providers (including legal fees and expenses) in connection therewith may, in addition to other remedies, be deducted by us from any future payments due to you.

(g) Withheld Payments are kept in escrow until a timeframe of maximum 5 years has passed in order to be able to respond in the following situations:

  • You prove your activity is not fraudulent and, therefore, royalties will be made available to you.
  • A claim from a Distribution Channel is received, asking for a refund of the royalties in case any DMS deems it was generated through unauthorized or fraudulent activity. Please note that Distribution Channels contractually have the right to reclaim royalties during a timeframe of 5 years, that is why we refer to this period as well.
  • A claim from legitimate rights holders is received, claiming the payout of the royalties that have been retained, plus royalties that already have been paid to you with claimed unauthorized or fraudulent activity.

(h) We may, in our sole discretion, request you take the following steps in order to resolve a situation of possible Fraud by, without limitation:

  • Correcting any information you have provided.
  • Proving your non-infringing legal right to the Music Track or Content by sending us a license, contract or ownership certification.
  • Acquiring the applicable licenses.

If we do not elect to make those requests of you such election does not change our right to terminate this agreement pursuant provided by this Paragraph 11.

Fraud Evaluation

(i) We divide these issues into 3 severity tiers:

F0: Critical issues related to Your Account

F1: Issues related to Click Fraud

F2: Issues related to Musical Spamming and Copyright issues

F0 and F1: Critical issues related to Your Account, Issues related to Click Fraud

Once possible fraudulent content or Accounts are detected, a strike will be applied (see below) and the Your Account may be blocked preventively in the following cases which we consider very severe:

F0: Applicable cases

  • Your profile contains fake or incorrect information or unauthorized content that belongs to a third party
  • Repeated, inconsistent IP activity versus declared country of origin on an Account.

F1: Applicable cases

  • An Account contains releases from unknown artists which are generating a considerable number of streams or views and subsequently, revenues in a short period of time without a minimum fanbase (listeners or viewers) to support it.
  • Any sudden uplift in sales without corresponding numbers in profile views or social media to support it.
  • An account generating royalties without having any detailed customer information.

F2: Issues related to Musical Spamming and Copyright issues

F2: Applicable cases

  • An Account receives a strike when one or more of the following problems are detected:
  • A release contains misleading artist names or track titles, etc., to attract consumers to click.
  • Whenever the impersonation of any artist, recording company, etc. is confirmed.
  • A release contains copyrighted material from someone else who did not grant publishing permission to the User Account.
  • We received a content infringement ticket from a DMS or from any PRO in relation to content that has been sent to DMS.
  • We receive a direct infringement claim from the original Rightsholder or his or her representative.

In case we detect one or more of these issues in the content of your Account, you will receive a ticket or notice, indicating we have detected potential infringing or unauthorized activity.

(j) Strike Policy

In case We detect an F1 or F2 issue in Your Account, a strike is applied to the Account and You will receive a ticket or notice, indicating we have detected potential infringing or unauthorized activity and additional information from You may be required.

In case a strike is applied and You cannot or refuses to provide the requested information within 5 working days, or if infringing or unauthorized activity is confirmed, a Strike will be applied to Your Account, which will have the following consequences:

Strike 1:

  • You are informed.
  • Takedown of questioned content.
  • Warning of delay on 2nd strike and block on 3rd strike.

Strike 2:

  • You are informed.
  • Takedown of questioned content.
  • Warning that account is blocked on the third strike.

Strike 3:

  • You are informed.
  • Your account is blocked.
  • Your content is taken down.
  • Royalties will be kept in escrow for 5 years.
  • Once You have received three Strikes, we will block the Your account.

(k) Blocked Account Policy

  • In case You cannot, or refuses to provide the requested information and/or needed documentation within 5 working days, we may block and withhold revenues in Your Account that are received in connection with content that we believe, in our sole discretion, violate our Terms of Use or the agreements we have with DMS.
  • We may discontinue the contractual relationship with You.
  • The blocked Accounts will not be able to access the platform and, therefore, enjoy our services.
  • If You do not provide any kind of response, all content from the involved Account may be taken down.
  • The royalties corresponding to the infringing content are kept in escrow until a timeframe of maximum 5 years has passed.
  • During these 5 years we will contact the claimants and determine what amounts should be returned to them, including incurred expenses or economic claims, penalties or compensations determined by law. Once this process has been concluded, and the 5 years period has passed, any maintaining funds will be released and transferred to You.

(l) Unblocking an Account

In case You provide the requested information within 5 working days, and the information can be verified, the account can be unblocked.

  • We may request You take the following steps in order to unblock the account:
  • Your information must be fully completed.
  • You have to send us a copy of an identification document (passport or national ID).
  • In most cases we also request artist profiles, website urls, Twitter, Facebook, Instagram, etc., profile information from the artist in order to compare this with the sales data. These profiles must have historical data to support the sales data.

(m) Resolving a Strike

Once a Strike has been applied, we may request You to take the following steps in order to release the Strike and reduce the risk of blocking your Account and/or takedown of the uploaded tracks:

  • Correcting the release metadata.
  • In case there is doubt about the ownership of the uploaded tracks, You must provide proof of this, by sending us a license, contract or ownership certificate.
  • Acquiring the applicable licenses

In case the provided information suffices, the Strike will be resolved. In case the information requirements are not met, the Strike will remain applied and will be added to the existing ones.

(n) Takedowns

We will initiate takedowns of confirmed infringing content for Your Accounts and all content that is involved in F0, F1 or F2 issues. However, please also note that any content may be marked as suspicious by DMS at their sole discretion and may be taken down at their discretion.

  1. Notices.

(a) Unless otherwise specifically provided elsewhere in the context in which it applies, any notice required or permitted to be given to any party to this Agreement, or any other agreement between you and Vampr, shall be in writing and shall;

(i) if to Vampr , be either personally delivered by hand, delivered by prepaid courier or sent by prepaid registered mail and shall be deemed received upon delivery, and

(ii) if to a you, be delivered either via email, or by being posted as a notification to the your Account.

(b) Any such notice shall be delivered or sent:

            (i) if to Vampr, to 3110 Main St, Building C, Santa Monica, 90405, CA, USA,         and

            (ii) if to you, either to the email address specified in connection with your   Account, or by being posted as a notification to your Account.

(c) The address at which notice may be given to Vampr may be changed by Vampr by giving you written notice as provided in this Section 12.

  1. Force Majeure.

Vampr shall not be liable for any delay or failure in performance resulting from acts or occurrences beyond the reasonable control of Vampr, including, without limitation, (and whether similar or dissimilar) acts of God, acts of war, terrorism, riot, fire, flood, pandemic or other disaster or other natural occurrence, acts of government, strike, lockout, or power or Internet failure.

  1. Assignment.

You may not assign or transfer any of your rights or obligations under this Agreement, or any other agreement between you and Vampr, without the prior written consent of Vampr, which consent Vampr may withhold in its sole discretion, and any such attempted assignment or transfer without such prior written consent shall be null and void. This Agreement shall be binding on the parties and their respective successors and permitted assigns.

  1. Relationship of the Parties.

You and Vampr enter into this Agreement as independent contractors, and neither Vampr nor you shall be or construed to be a partner, joint venturer, agent or employee of the other party.

  1. General Provisions.

This Agreement, the Vampr Terms & Conditions, or the Vampr Privacy Policy or any applicable Vampr Agreement constitute the entire agreement between you and Vampr regarding your access of the Digital Distribution Services, operate to the fullest extent permissible by law and supersede all prior and contemporaneous agreements, understandings, proposals, and negotiations of any kind, whether oral or written, with respect to the subject matter hereof and thereof. The failure of Vampr to exercise or enforce any right or provision shall not operate as a waiver of such right or provision. Headings are inserted for convenience of reference only and shall not be used for the purpose of interpreting this Agreement, the Privacy Policy, or any other agreement between you and Vampr. No party may create any obligation on behalf of any other party except as expressly set forth herein or in connection with any other agreement between you and Vampr. If any provision of this Agreement, or any other agreement between you and Vampr, is declared by a court of competent jurisdiction to be invalid, unlawful, void or unenforceable, such provision shall be severed from the agreement in question, and the other provisions shall remain in full force and effect, and that provision shall, to the fullest extent lawful, be reformed and construed as if such invalid, unlawful, void or unenforceable provision (or part thereof) had never been included herein or therein and to be valid, lawful and enforceable to the maximum extent possible.