ImmersiveAudioAlbum.com Digital Download Distribution Agreement

Effective Date: September 2021

Welcome to IAA’s Digital Download Retail Agreement (henceforth referred to as “Agreement”). This Agreement sets forth the legally binding Terms and Conditions for your use of the website www.ImmersiveAudioAlbum.com (henceforth referred to as “Site”) and the managed retail sale of permanent digital downloads (henceforth referred to as “Service”) owned and operated by Immersive Audio Album (a website property owned by Deviate Labs, LLC, collectively referred to in this Agreement as “us,” “we,” and “IAA”). By using the Site in any manner, you agree to be bound by this Agreement. IAA reserves the right to add, delete and/or modify any of the Terms and Conditions contained in this Agreement, at any time and in its sole discretion. In the event of substantive changes to this Agreement, vendors will be notified by email. Please read this Agreement carefully.

Acceptance of Terms.

The Download Service is offered subject to acceptance of all of the terms and conditions contained herein (the “Terms of Agreement”), which also incorporate the Privacy Policy available at https://immersiveaudioalbum.com/terms/, and all other operating rules, policies and procedures that may be published from time to time on the Site. In addition, some services offered through the Site may be subject to additional terms and conditions published by IAA from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.

If you are distributing music on behalf of a company, entity or organization (including, but not limited to, a recording label) (each henceforth referred to as an “Artist Entity”), then you represent and warrant that you: (i) are an authorized representative of that Artist Entity and any recording artists represented by such Artist Entity (a “Represented Artist”) with the authority to bind such Artist Entity or Represented Artist to these Terms and (ii) agree to be bound by these Terms on behalf of such Artist Entity and/or Represented Artist.

The Download Service is available only to individuals who are at least 16 years old. You represent and warrant that if you are an individual, then you are of legal age to agree to these Terms, and that all information you submit to the Site is accurate and truthful.

Modification of Terms of Agreement.

IAA reserves the right, at its sole discretion, to modify or replace any of the terms in this Agreement, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, data, or content) at any time by posting a notice on the Site. In the event of substantive changes to this Agreement, vendors will be notified by email. IAA may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check these Terms periodically for changes. Your continued use of the Service following the posting of any changes to these Terms constitutes acceptance of those changes. Notwithstanding the preceding sentences of this section, no modifications to this Agreement will apply to any dispute between you and IAA that arose prior to the date of such modification.

Authorization.

You hereby appoint us as your non-exclusive representative for the sale of permanent digital downloads of your Authorized Digital Content as described below.

1. Your Authorized Digital Content consists of Digital Audio Files as individual tracks or entire albums, and any associated metadata, that you provide for the purpose of offering for sale permanent digital downloads to Customers. You must own or control all rights to everything you authorize for sale.
2. We will host your Authorized Digital Content on the Site for the purpose of selling and offering for sale permanent digital downloads to Customers.
3. We will provide non-downloadable streams of sample clips up to thirty (30) seconds via the Site to Customers for the purpose of promoting the sale of your corresponding Authorized Digital Content.
4. We will display and electronically deliver Authorized Artwork used in connection with Your Authorized Digital Content, solely in conjunction with the applicable Digital Audio File(s) and any associated editorial or promotional content.
5. We will use Your Authorized Digital Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement.

Transactions.

IAA hosts payments for purchases of Your Authorized Digital Content made available via download through the Site. Each such purchase is a “Transaction.” All Transactions may be made by Customers using credit card or debit card.

Fees and Payments.

You will set the prices for Your Authorized Digital Content to be sold to Customers upon setting up your listing(s) in our vendor platform, and you may change the Prices at your sole discretion. Notwithstanding the preceding sentence, IAA may redistribute previously purchased copies of your Content to users who have, in IAA’s sole determination, received a corrupted copy of your product, an incorrect file format version of your product, an incomplete copy of your product, or suffered a loss of your product through drive failure, damage, theft or destruction, on a no-fee basis to the user (i.e., the user is not charged a new fee for the redistribution). In the event of any of the foregoing redistributions, no additional payments shall be made to you for such redistributions.

For content sold through the Site, we will pay you an amount equal to eighty percent (80%) of the net price that we receive from Customers. You will receive payouts via direct deposit upon setting up your vendor profile and coordinating with IAA.

Payments for Your Authorized Digital Content are processed first by IAA and paid out to your account within 5-7 business days from the date of purchase, providing that your bank account is correctly connected to your vendor profile. IAA collects twenty percent (20%) at the time of sale along with payment processing fees. These fees vary depending on currency conversion and are typically around 2-3%. IAA may retain funds otherwise payable to you if IAA is required or compelled to provide a refund on your behalf.

You shall be solely responsible and liable for, and IAA shall have no responsibility or liability for, payment processing fees, credit card transaction fees (together, “Fees”), bad debts (such as credit card returns or fraud), disputed payments, and refunds, except as provided in this Agreement.

IAA may withhold any taxes, duties, charges or levies on payments by IAA to you pursuant to this Agreement as may be required by applicable law, rule or regulation. IAA shall remit any such withheld taxes, duties, charges or levies to the appropriate tax authority.

When you receive a payment for Your Authorized Digital Content, you are liable to IAA for the full amount of the payment sent to you plus any Fees if the payment is later invalidated for any reason. This means that, in addition to any other liability, you will be responsible for the amount of the payment sent by the sender, plus the applicable Fees if there is a chargeback, a dispute, or if there is a reversal of the payment. You agree to allow IAA to recover any amounts due to IAA by debiting your account or agreeing to reimburse IAA through other means.

IAA retains the right, but does not have the obligation, to immediately halt the offering or sale of any Authorized Digital Content, goods or services, prevent or restrict access to the Site or the Service or take any other action in case of technical problems, objectionable material, inaccurate listings, or actions otherwise prohibited by the procedures and guidelines contained on the Site, or for any other reason in the sole and absolute discretion of IAA, and to correct any inaccurate listing or technical problems on the Site. IAA may immediately halt the offering or sale of any goods or services upon receipt of notifications of claimed infringement, upon acquiring knowledge of actual infringement, or becoming aware of facts or circumstances from which infringing material is apparent with respect to any Authorized Digital Content, goods, or services.

Promotion

You hereby grant to us, during the Term of this Agreement, the right to use the names and approved likenesses of, and informational material concerning any albums, bands, tracks, producers, engineers, and/or songwriters, as well as Authorized Artwork, trademarks and logos, in any marketing materials for the sale, promotion and advertising of the applicable Authorized Digital Content which is offered for sale or other use under the terms of this Agreement (e.g., an artist or band name and likeness may be used in an informational fashion, such as by textual displays or other editorial features, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the applicable Authorized Digital Content).

You hereby grant to us the right to market, promote and advertise Your Authorized Digital Content as available for purchase, as we determine in our discretion. This includes the right to temporarily bundle products, promote discounts, or market a free sample track on occasion at our discretion, which may affect the retail price and subsequent payout for Your Authorized Digital Content, and which will be communicated to you with due notice of five (5) days prior to the promotion’s effective date. In the event that you do not consent to any such proposed promotion, you may elect to opt out, and your failure to do so within five (5) days of the date of any such notice from us to you, shall constitute your acceptance of the proposed promotion.

Ownership

Subject to this Agreement, all rights, title and interest in and to (i) Your Authorized Digital Content and Authorized Artwork, (ii) all copyrights and equivalent rights embodied therein, and (iii) all materials furnished by you, will be yours.

Intellectual Property Rights.

By sending any Music or Artworks to distribute using the Site:

• you represent and warrant, and can demonstrate to IAA’s full satisfaction upon request, that (i) you own or otherwise control all rights to your Music and Artworks (or that such Music and Artworks are in the public domain or have otherwise been directly licensed to the Artist in writing with a grant of rights sufficient to permit the Artist to enter into this Agreement and to grant all of the rights with respect to the Artist’s Music or Artworks as set forth in this Agreement (hereinafter “Direct Licensed”); (ii) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any Music you share for upload to the Service and to the Artworks; (iii) you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Music and/or Artworks, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Music and/or Artworks) as contemplated by these Terms of Agreement, and (iv) you are authorized to grant all of the aforementioned rights to the Music and/or Artworks to IAA for its Service.
• you represent and warrant that the use of your Music and/or Artworks by IAA and/or by users of the Site as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
• you represent and warrant that, to the extent you are the songwriter of any or all of the Musical Works embodied in your Sound Recordings or Music Videos, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any performing rights organization (“PRO”), whether based in the United States (e.g., ASCAP, BMI or SESAC) or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to IAA for communications to the public of your Musical Works, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the public performance or communication to the public of your Musical Works.
• you represent and warrant that no fees of any kind shall be due any third party, including, but not limited to, any union, guild, non-featured vocalist or musician, engineer or producer, for the use or re-use of your Music as authorized under this Agreement.

If any agreement you have entered into with any third party, including, but not limited to a PRO, music publisher, union or guild, whether by law or contract, prohibits you from granting IAA the right and license set forth in this Agreement and making the representations and warranties set forth above, then you are prohibited from sending your music to be available on the Service and shall be responsible for indemnifying and holding IAA harmless from and against any and all claims arising from the exploitation of your music on the Service, including all court costs and legal fees.

Electronic Communications Privacy Act Notice (18 U.S.C. §§ 2701-2711): IAA makes no guarantee of confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. IAA will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on IAA’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.

Withdrawal.

You have the right, at any time during the Term of this Agreement, to withdraw your permission for the sale or other uses of Your Authorized Digital Content and Authorized Artwork, upon written notice to us via email (“Withdrawal”). Within 5 business days following our receipt of your notice of Withdrawal, we will no longer offer the sale or other use of Your Authorized Digital Content or Authorized Artwork. Sending your notice of Withdrawal will not limit your responsibility for sales and other uses of Your Authorized Digital Content or Artwork that occurred prior to the implementation of such Withdrawal.

Termination.

We reserve the right to change, modify, add to, or remove all or part of this Agreement in our sole discretion. Notice of any substantive change will be sent to you by email at least five (5) days prior to its effective date. In the event that you do not consent to any such proposed changes, you may elect to terminate your use of the Service by email notice to us, and your failure to do so within five (5) days of the date of any such email from us to you, shall constitute your acceptance of such changes.

The expiration or termination of the Term will not relieve either you or us from our respective obligations incurred prior to or during the Term. Accordingly, applicable provisions of this Agreement will continue to apply even after the expiration of the Term.

Indemnification.

You shall defend, indemnify, and hold harmless IAA and its affiliates, employees, contractors, directors, suppliers and representatives, from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees and court costs, that arise from or relate to your use or misuse of, or access to, the Site, Service, or Content, or violation of these Terms of Agreement, or infringement by you, or any third party, of any intellectual property or other right of any person or entity, and for breach of any of your representations and warranties in these Terms of Agreement. For the avoidance of doubt, you hereby agree to defend, indemnify, and hold harmless IAA from any and all claims by a third party owning, controlling or claiming any right in or to your Music, including claims for performance royalties, synchronization royalties, mechanical royalties, and use or re-use fees. IAA reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with IAA in asserting any available defenses at your sole expense.

Dispute Resolution.

These Terms of Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the Southern District of California. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of these Terms of Agreement, including without limitation, this section.

Integration and Severability.

These Terms of Agreement are the entire agreement between you and IAA with respect to the Service and use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and IAA with respect to the Site. If any provision of these Terms of Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

Additional Provisions.

IAA shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond IAA’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). These Terms of Agreement are personal to you, and are not assignable, transferable or sublicensable by you except with IAA’s prior written consent. IAA may assign, transfer or delegate any of its rights and obligations hereunder without your consent or notice. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, when receipt is electronically confirmed after transmission by email. The captions and headings in this Agreement are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this Agreement, or of any provision of this Agreement, nor in any way affect the interpretation of this Agreement.