This Agreement describes the legal relationship between you (an individual, representing yourself, or if applicable, acting as legal representative for a group, company or corporation) and Emmis Radio, LLC. (collectively with our licensees and assignees referred to in this Agreement as “we” or “us”) the owner and operator of web pages at or linked to the root URL “whosnext.power106.com, power106.com” which may expand or change from time to time (the “Website”). Please read this document carefully; by clicking on the “I AGREE” button below, you will become a party to, and will be bound by this Agreement with respect to both your previously and newly uploaded Materials (as such term is defined herein) to the Website. If you do not agree with any of the terms and conditions of this Agreement please do not register nor use this website. We may modify this Agreement from time to time as further described in Section 4.11 below.
This Agreement addresses the services available on the Website (individually, a “Program,” collectively, the “Programs”). Under our Artist Program, you supply audio and/or other content to us and allow us to include your Material (as defined in paragraph 4.3 below) in our database, which we can use and make freely available over the World Wide Web and through various other means of transmission and distribution and which we may also make available as digital downloads. Under our Sound Recording Distribution Program, we will manufacture and sell mechanical copies of your Material on your behalf. Under our Member Program, members who sign up for a free account with us (each a “Member”) will be able to rate and vote on your Material and provide feedback on you and your Material. Under future Programs, Members may also be able to download your Material as digital downloads. The legal terms that apply to these Programs are described below.
1.1 ARTIST CONTENT AND MATERIAL. In order to participate in this Program, you must provide us with one or more sound recording(s) of musical composition(s) or other audio and/or audio visual content to be used by us as described in this Section (collectively, “Artist Content”). You will also provide us with other material related to your Artist Content, such as pictures, videos, song lyrics, press reviews, etc., for our use in connection with the Artist Program (collectively, “Artist Material”). Subject to the conditions of this Agreement, Artist Content and Artist Material will be listed and/or posted on your Artist Page, and from time to time, may be listed on the Website’s homepage, as well as websites or other media channels owned by us, and may be freely listened to and viewed by visitors to our Website or other websites or media channels to which we list your Artist Content and/or Artist Material. Unless otherwise designated by you, all Artist Content and Artist Material you provide to us may be enrolled in and used in all of our current and future promotions for Emmis Radio, L.P. and/or any properties owned thereby (collectively, the “Promotion(s)”). However, nothing herein shall require us to use any of your Artist Content or Artist Material in any of our Promotions.
1.2 LICENSE FOR ARTIST CONTENT AND ARTIST MATERIAL. By the act of delivering Artist Content and/or Artist Material to us, you grant us, our licensees and any entity affiliated with or website operated by us, a non-exclusive, royalty-free, worldwide license to: (a) publicly perform, publicly display, broadcast, encode, reproduce, transmit, manufacture, distribute and synchronize with visual images the Artist Content or Artist Material, in whole or in part, alone or in compilation with content provided by third parties, through any medium now known or hereafter devised for the purpose of demonstrating, promoting or distributing your or our products or services; (b) make your Artist Content accessible on the Website and other websites or media channels owned by us, including as audio streams or through other methods now known or hereafter developed; and (c) use any trademarks, service marks or trade names incorporated in the Artist Content or Artist Material and use the name and likeness of any individual whose performance or image is contained in the Artist Content or Artist Material in connection with the foregoing. Audio content and corresponding materials enrolled in a Promotion (whether or not listed on your Artist Page) shall be considered Artist Content and Artist Material, only to the extent that the operating of such Promotion reasonably shall require us to exercise the rights licensed in this Section.
1.3 DOWNLOAD OF ARTIST CONTENT. While the Website currently does not permit or enable Members to digitally download your Artist Content, by delivering Artist Content to us, you grant us a non-exclusive, worldwide license to make your Artist Content available to Members as digital downloads pursuant to the terms and conditions of any future Program which we make available to the Members which allow Members to digitally download your Artist Content from our database. You will be paid a royalty for any Artist Content downloaded by our Members pursuant to the terms and conditions of any Program that allows Members to download your Artist Content.
1.4 TERMINATION OF ARTIST PROGRAM LICENSE. Subject to the provisions contained in Section 4.4, “Term and Termination” below, you may terminate your license to us with respect to some or all of your Artist Content and Artist Material, at any time by utilizing tools provided in the Artist Admin Area. We may also terminate this agreement ourselves pursuant to paragraph 4.4.
Sound Recording Distribution Program
2.1 SOUND RECORDING DISTRIBUTION PROGRAM. Under our Sound Recording Distribution Program, we may manufacture, distribute and sell mechanical copies of your Artist Content or Artist Material in any medium now known or hereafter created, including, but not limited to, compact discs, audio tapes, digital audio tapes and digital files (“Artist Reproductions”).
2.2 LICENSE FOR ARTIST REPRODUCTIONS. By the act of delivering Artist Content and/or Artist Material to us, you grant us a non-exclusive worldwide license to: (a) publicly perform, reproduce, market, advertise and/or promote the musical compositions and recordings embodied in the Artist Content and/or Artist Material in connection with the sale and promotion of your Artist CDs; (b) use the recordings embodied and musical compositions embodied in the Artist Content in the recording, making and distribution of the Artist CDs; and (c) use any trademarks, service marks or trade names incorporated in the Artist Content and/or Artist Material and use the name and likeness of any individual whose performance is contained in the Artist Content or whose image or likeness is portrayed on the Artist Material in connection with the promotion, distribution, reproduction and performance of the Artist CDs, provided, however, that at the time of delivery of the Artist Content, you shall notify us of any limitations or restrictions related to our exercise of these rights and we shall use our reasonable best efforts to abide by any such limitation or restriction.
2.3 ROYALTIES. In exchange for the license granted as part of this Sound Recording Distribution Program, we will pay you the mechanical royalty associated for each work of Artist Content we reproduce, distribute and/or sell pursuant to paragraph 2.1 above. We shall pay the Statutory royalty rate for use on sound recordings, as of the date of this Agreement. We will provide you with royalty payments on a periodic basis, but no more frequently than once each quarter.
3.1 MEMBER PROGRAM. In order to use the Website to rate and/or critique Artist Content and/or Artist Material appearing on your Artist Page, on other Artist’s pages, or on other pages within the Website, users must become a “Member” of the Website. We may, at our sole and absolute discretion, make these ratings available to other Members or visitors to the Website on your Artist Page or on other pages within the Website, or through media or distribution channels on which the Artist Content and/or Artist Material may be posted or distributed as permitted hereunder. Members may also vote for, rate or critique your Artist Content and/or Artist Material in connection with any survey being conducted on the Website or elsewhere and/or in connection with any current or future Promotion. We may, at our sole and absolute discretion provide the results of any voting by the Members on your Artist Page or on any other page within the Website.
3.2 MEMBER FEEDBACK. Members will be allowed to provide feedback on you or your Artist Content and/or Artist Material (“Member Feedback”). Member Feedback may, at our sole and absolute discretion and for any and all purposes, appear on your Artist Page, other pages on the Website, or elsewhere in any and all media now known or hereafter devised.
3.3 MEMBER DOWNLOADS. By delivering Artist Content to us, you grant us a non-exclusive, worldwide license to make your Artist Content available to Members as digital downloads pursuant to the terms and conditions of any future Program which we make available to the Members which allow Members to digitally download your Artist Content from our database.
4.1 CO-BRANDED WEBSITE ON WHOSNEXT.POWER106.COM. During the term of this Agreement, we will host on the Website an HTML-formatted page (the “Artist Page”) featuring the Artist Content and Artist Material you may upload, as well as other information, including, but not limited to, Member Feedback, provided by us or our Members. For further information concerning the Artist Page, including terms and conditions governing their use, see: artists terms and conditions. You acknowledge that you have no entitlement to any revenue, income or compensation from us (from the Website, Promotions, or any other source) for your participation in the Artist Program or Member Program.
4.2 OWNERSHIP OF COPYRIGHTS. As between you and us, you retain ownership of the copyrights and all other rights in the intellectual property furnished by you for our use hereunder, subject only to the non-exclusive rights granted to us under this Agreement. You are free to grant similar rights to others during the terms of this Agreement. We retain ownership of the copyrights and all other rights in and to the contributions we make to your Artist Content and/or Artist Material.
4.3 REPRESENTATIONS AND WARRANTIES. The term “Material” means anything that you submit to us or post on the Website, including, but not limited to, Artist Content and Artist Material. You represent and warrant that: (a) we, our customers, our Members and our licensees shall not be required to make any payments in respect to the authorized use of your Material, including, without limitation, payments to you, third parties claiming through you or otherwise, music publishers, mechanical rights agents, performance rights societies, persons who contributed to or appear in the Material, your licensors, unions or guilds; (b) you have the full right and power to enter into and perform this Agreement, and have secured all third party consents, licenses and permissions necessary to enter into and perform this Agreement; (c) the Material does not contain “samples” of any third party’s sound recording or musical composition and will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, or moral rights; (d) the Material does not and will not violate any law, statute, ordinance or regulation, including, but not limited to, any laws or regulations related to export control; (e) the Material is not and will not be illegal, harmful, violent, abusive, defamatory, trade libelous, tortious, pornographic or obscene; (f) the Material does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data; (g) the Material does not invade the privacy of any other person and does not encourage or solicit others to engage in illegal activity, contain discriminatory statements and does not harm minors in any way; (h) the Material does not violate our intellectual property rights; (i) you will not use the Programs to transmit, upload, post or otherwise disseminate any unsolicited or unauthorized advertising or promotional materials including, but not limited to, “spam” or “junk mail”; (j) you will not use our the Programs to gain inappropriate or unauthorized access to us, our servers or accounts, or to disturb or interrupt our services; (k) you will not utilize the Programs to archive or backup software, or as a “warez” website; (l) you will not gain access to the Programs to create a competing service or product; (m) all factual assertions that you have made and will make to us are true and complete; and (n) you are of legal age of consent in all applicable jurisdictions and, in any event are at least eighteen (18) years of age. You agree to indemnify and hold us, our customers, our Members and our licensees and customers harmless from any and all damages and costs, including reasonable attorney’s fees, arising out of or related to your breach or alleged breach of the representations and warranties described in this Agreement. You agree to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this Agreement.
4.4 TERM AND TERMINATION. Upon termination of this Agreement, all of our license rights terminate, except that we retain those rights necessary for us to fulfill the terms and conditions of any Promotion in which you are participating. Subject to the foregoing, we shall use reasonable efforts to discontinue public access to your Material promptly upon termination; however, due to your participation in certain Promotions, your Material may remain accessible to the public for up to ninety (90) days following termination. We may terminate this Agreement with respect to any or all Programs, at any time by so notifying you; the Agreement will terminate upon your actual receipt of such notice or three (3) days after we have sent a notice of termination to the email address you supply to us, whichever is sooner. Sections titled “Term and Termination,” “Representations and Warranties,” “Disclaimer,” “Waiver of Certain Damages” and “Miscellaneous” shall survive termination.
4.5 USE OF PASSWORD: When you access your Artist Admin. Area, you will be asked to select a unique password for access to your Artist Page. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under the password. By logging your Artist Page, you represent and warrant that: (i) you are the Artist who registered for the Artist Page; (ii) that you are using the Artist Page and the Website only for permitted purposes; (iii) you are not a competitor of Emmis, or agent thereof; (iv) you will immediately notify us of any unauthorized use of the password or account or any other breach of security; and (v) you will ensure that you exit from your Artist Page at the end of each session. Please notify email@example.com of any potential unauthorized use(s) of your Artist Page, or breach of security.
4.6 CHOICE OF ARTIST NAME: When you access your Artist Admin Area, you will be asked to select a name for your Artist Page. You represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; and (iii) you will not select or utilize a user name that we in our sole discretion deem offensive.
4.7 DETERMINING TYPE OF CONTENT. We will implement and maintain reasonable business practices, which enable us to accurately categorize content that you deliver to us. However, if we make an error in good faith, and consequently exceed our license rights, your sole and exclusive remedy will be to notify us and we will promptly take all reasonable steps to correct the error.
4.9 DISCLAIMER. THE ARTIST PROGRAM AND THE MEMBER PROGRAM ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHERWISE. WITHOUT LIMITATION, WE DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE ARTIST PROGRAM AND MEMBER PROGRAM. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, THAT THE ARTIST PROGRAM AND MEMBER PROGRAM WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
4.10 WAIVER OF CERTAIN DAMAGES. EXCEPT FOR DAMAGES RELATED TO A BREACH OF THE SECTION TITLED “REPRESENTATIONS AND WARRANTIES,” NEITHER YOU NOR US WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT.
4.11 MODIFICATION OR AMENDMENT OF AGREEMENT. We reserve the right, in our sole and absolute discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be posted in your Artist Admin Area at least five (5) days prior to their effective date. In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate this Agreement with respect to any or all Programs, as provided above.
4.12 MISCELLANEOUS. This Agreement sets forth the entire understanding and agreement of the parties as to this Agreement’s subject matter and supersedes all prior proposals, discussions or agreements with respect to such subject matter. You agree not to resell, assign, otherwise transfer or delegate your rights or obligations under this Agreement without our prior express written authorization. Notices or communications under this Agreement shall be sent by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the following address: (a) if to us, such notices shall be addressed to firstname.lastname@example.org and (b) if to you, such notices shall be addressed to the electronic or mailing address specified when you register for the Program. This Agreement shall be governed by and construed in accordance with, and all legal issues arising from or related to your use of, or participation in the Programs shall be determined by the laws of the State of New York without regard to that State’s conflict-of-law provisions. The State and Federal courts of New York shall be the exclusive forum and venue to resolve any and all disputes arising out of or relating to the Agreement or to your use of, or participation in, the Programs. You consent to personal jurisdiction and venue in the United States District Court for the Southern District of New York. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. All headings in this Agreement are for convenience only and shall have no legal or contractual effect. You agree that we and you are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.