IS A PROGRAM PROVIDED BY REVERBNATION.COM, OWNED AND OPERATED BY EMINOR,
INC. (HEREINAFTER REFERRED TO AS "OUR", "WE" OR "US"),
PURSUANT TO WHICH YOU CAN CREATE YOUR OWN CUSTOMIZED ONLINE STORE AND
CUSTOMIZED PRODUCTS TO SELL THROUGH THE STORE. IF YOU WOULD LIKE TO
PARTICIPATE IN THE REVERB STORE PROGRAM, PLEASE REVIEW THE TERMS AND
CONDITIONS LISTED BELOW (THE "AGREEMENT"). IN ORDER TO PARTICIPATE
IN THE REVERB STORE PROGRAM YOU MUST ACCEPT ALL OF THE TERMS OF THIS
AGREEMENT. AFTER READING THE TERMS, IF YOU AGREE TO THEM, PLEASE INDICATE
YOUR DECISION BY CLICKING ON "I AGREE" AT THE END OF THIS AGREEMENT.
IF YOU DO NOT AGREE, INDICATE YOUR DECISION BY CLICKING ON "I DO NOT
AGREE" AND YOU WILL BE RETURNED TO THE HOME PAGE OF THIS WEB SITE.
The Reverb Store program is
a program whereby you can create and customize your own online store.
We offer this program in conjunction with Inhance Media, Inc. and your
online store will be co-branded by us and Inhance Media, Inc. The Reverb
Store program will provide you with free tools and other services (the
"Reverb Store Services"), which will, among other things, allow
you to create your online store and to design merchandise, CDs, T-shirts
and other promo items, ringtones (for sale only in those countries where
ringtones can be sold) and downloads (collectively, "Products").
You can provide widgets and links to connect consumers to your customized
store (the "Store"), and we will take care of the manufacturing
and distribution of all products. Your Store will enable you to sell
custom-designed products, both physical and digital, "on-demand"
directly to fans using portable, customizable storefronts deployable
worldwide as embeddable widgets in social networks, blogs, websites
and email. Your Store will provide a one-stop-shop ecommerce solution
for custom promotion, manufacturing, distribution and sale of Products
of your choice.
1. REVERB STORE ACCOUNT.
If you participate in the Reverb
Store program (the "Program"), you will be required to use your
existing ReverbNation user name and password to access and use the Reverb
Store Services to set up your personalized Store.
2. TERMS AND CONDITIONS OF
USE. The Program is subject to the ReverbNation Terms and Conditions
of Use ("Site Terms and Conditions of Use") in addition to these
Terms and Conditions.
3. RESTRICTIONS AND RESPONSIBILITIES.
You must use the Reverb Store Services in a manner that demonstrates common sense and respect for
the rights of us and third parties and in accordance with applicable
laws and regulations. You will be solely and exclusively responsible
for ensuring that any content or materials that you submit to we for
use with your Products ("Content"), comply with the terms
and conditions of this Agreement and the Site Terms and Conditions of
Use, as well as all applicable laws, regulations and rules. You will
not design, produce, market or sell a Product that, as determined by
us in our sole and absolute discretion:
(i) is generally offensive or
inappropriate (keep in mind that we are strongly in favor of freedom
of expression, but at the end of the day, we need to be able to have
sole discretion to remove certain content);
(ii) is unlawful, would constitute,
assist or encourage a criminal offense, or that would violate any local,
state, national, or international law, rule or regulation;
(iii) you do not have the lawful
right to design, produce, market, sell or distribute;
(iv) misrepresents your affiliation
with any person or entity;
(v) infringes the rights of
a third party, including, without limitation, copyrights, trademarks,
patents, trade secrets, and rights of privacy and publicity;
(vi) is libelous, defamatory
(vii) is obscene or pornographic;
(viii) is harmful to, or exploitative
of, minors in any way.
While we have no obligation
to monitor the transactions made through your Store, we reserve the
right to cancel any such transaction or take any other action to restrict
access to or the availability of any material that may be considered
to be objectionable, without any liability to you or any third party.
4. LICENSING YOUR CONTENT
In using any of your Content
in connection with your Store, you grant us a royalty-free, worldwide,
transferable, nonexclusive, right and license in such Content, in all
media existing now or created in the future: (a) to permit you to use
the Reverb Store Services to design, produce, market and sell Products
through your Store, and (b) to permit us to promote, advertise and distribute
your Products through your Store. Without limitation, this promotion,
marketing, or advertising may consist of:
(i) creating promotional "streams"
of audio or video Content and making such streams of your Content (in
the form of clips) available for you to publish on your ReverbNation
page, Facebook page, etc.;
(ii) providing order fulfillment
services for Products, including, without limitation, payment processing
and shipping and handling services;
(iii) promoting, selling, distributing,
and/or delivering your songs, as individual tracks or entire albums,
(iv) offering and selling Content
as alert sounds, ringtones and/or ringback tones;
(v) displaying and electronically
delivering artwork used in connection with your Content; and
(vi) using Content (including
artwork) and metadata as may be reasonably necessary or desirable for
us to exercise our rights under Agreement.
This section only licenses
us the right to use your Content for the purposes stated above, and
does not give us any ownership rights in or to your songs.
5. NAME AND LIKENESS; PROMOTIONAL
USE AND OPPORTUNITIES
We may use and authorize others
to use the names and approved likenesses of, and biographical material
concerning, any artists, bands, producers, and/or songwriters, in any
marketing materials for the sale, promotion and advertising of the applicable
Content which is offered for sale or other use (e.g., an artist or band
name and likeness may be used in an informational fashion, such as by
textual displays or other informational passages, to identify and represent
authorship, production credits and performances of the applicable artist
or band in connection with the sale or licensing of Content and Products). We
have the right, but not the obligation, to market, promote and advertise
the Content and Products, and we make no guarantees whatsoever about
there being any minimum sales or uses of any Content or Products. You
represent and warrant that (i) you have obtained written privacy and
publicity rights releases from each and every person who is depicted
or featured as a performer in any of your Content; (ii) you have been
granted the right to use and exploit such likenesses, images and voices
in any way you desire; and (iii) you are authorized to license those
rights to others. You hereby license those rights to us.
6. PRODUCT CREATION
You provide to us all Content
that you want to use with the Reverb Store Services in accordance with
the applicable instructions in the Reverb Store Services. You must also
provide all other Content required to package and market any of your
Products, such as cover artwork, titles, and complete and accurate credits.
We may, in our sole and exclusive discretion, determine whether any
Content complies with such instructions and is satisfactory for use
with the Reverb Store Services. You must have all necessary approvals
and consents to use all Content and you must deliver copies of those
approvals and consents to us, if we request them. You will be solely
responsible for the creation of the electronic and digital Content that
you provide to us, and you will pay all costs associated with its creation
and copies thereof, including, without limitation: (i) compensation
due to artists, authors, co-authors, copyright owners and co-owners,
producers and any other record royalty participants from sales or other
uses of the Content; (ii) payments required by any agreement between
you and any labor organization (such as unions or guilds); and (iii)
all studio, tape, editing, mixing, re-mixing, mastering and engineering
costs. You must pay all royalties or similar payments that are or may
become due to any third party, such as all payments under licenses for
third-party material in your Content. For example, you must pay all
mechanical copyright royalties due to the owners of any musical composition
used in your Content. You acknowledge that we are not currently a party
to any collective bargaining agreement with any union or guild and that
you are solely responsible for complying with any applicable union or
guild rules, including without limitation, those relating to payments.
7. MARKETING AND ADVERTISING
YOUR REVERB STORE
We reserve the right, but have
no obligation, to promote your Store or Products by, for example, featuring
your Store or your Products in our newsletters or on our website located
at www.reverbnation.com. You agree that we may refer users to
your Store, or describing your Products or Store in communications with
third parties. You may not use "spam," "blast-faxes"
or recorded telephone messages to market or sell Products. For your
convenience, if a particular Product does not have a UPC code, we may
assign a UPC code to that Product.
8. COMPENSATION AND FEES
We have certain minimum wholesale
prices that we set for the various Products that are sold through your
Store (the "Wholesale Price"). You will be able to select the price
for each Product you sell through your Reverb Store, provided that the
price you select is at least as much as the Wholesale Price. Generally,
for each valid purchase of a Product by an end user, which is not returned,
we retain the Wholesale Price as a fee for the Reverb Store Services
and we pay you the difference between the price you set for that Product
and the Wholesale Price. You will not be charged directly for the Wholesale
Price of Products. Please note that for certain Products, the charges
and fees may be different (for example, the charges and fees with ringtones)
than as described in this paragraph. When you use the Reverb Store Services,
you will be required to determine a price for each Product that is greater
than the applicable Wholesale Prices. You agree that the amount
payable to you, if any, is inclusive of any so-called "artist royalties"
that might otherwise be required to be paid for sales or exploitation
of the Content pursuant to the applicable laws of any jurisdiction.
You must provide your taxpayer information to us as required by the
IRS. If we do not have current taxpayer information for you on file
for a particular year, payments due to you under this Agreement will
not be made to you until December 31st of such year, and all of such
payments will be subject to a 30% backup withholding that will be submitted
to the IRS.
If you decide to participate
in the Program, we will set up a Store payment account in your name.
In order for us to set up this account and ultimately transfer funds
to you, you must provide us a valid PayPal account to which we can deposit
funds from your Store payment account. If you receive a payment to your
Store payment account, we will send you an email that informs you of
the amount. Please note that funds in your Store payment account will
be transferred to your PayPal account only if your Store payment account
balance exceeds [$20]. If you receive a deposit into your PayPal account,
all funds in your Store payment account will be deposited in your PayPal
account and your Store payment account balance will drop to zero. If
you receive a deposit into your PayPal account, we will notify you via
email that a deposit has been made to your PayPal account and the amount
of the deposit. We reserve the right to change the [$20] threshold limit
at any time. You must provide us with accurate and complete contact
and payment information for your PayPal Account. You must immediately
notify us if any of this information changes. If you do not provide
us with complete, accurate, and updated contact information, you may
not be eligible to sell Products. We will use your PayPal account data
http://www.reverbnation.com/main/privacy. In our sole discretion, we may send you a payment before
the balance in your Store payment account reaches or exceeds [$20]. If
your Store payment account has a
balance of less than [$20] for at least 365 days, then we may send you
a payment of such balance minus a [$5] processing fee. If the balance
is under [$5] for at least 365 days, such amount will be used to cover
our administrative costs and no payment will be made to you. If you
or we terminate your participation in the Program and you have less
than [$20] in your Store payment account, we may charge you a [$5] processing
fee when sending you your final payment to cover our administrative
costs. Payments are made to your Store payment account with respect to
amounts earned from transactions conducted through your Store within
60 days after the end of the month in which the applicable transaction
We charge certain fees for
specific types of Product-fulfillment services that we provide. Should
you choose to use certain Product-fulfillment services, you agree to
pay the fees designated by us for such services.
You agree to fully indemnify
and hold us and our subsidiaries, affiliates, officers, employees, directors,
agents, co-branders and other partners (collectively, the "Related
Parties") harmless, and upon our request, defend us and our Related
Parties from and against any and all losses, liabilities, damages, costs
or expenses (including reasonable attorneys' fees and costs) concerning
any claim made by any third party due to or arising out of Content you
submit, post to or transmit through the Reverb Store Services or your
use of the Reverb Store Services, your violation of this Agreement and/or
the Site Terms and Conditions of Use, or your violation of any rights
of any third party.
10. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that
you are at least 18 years of age and have the full authority to act
on behalf of any and all owners of any right, title or interest in and
to the Content.
You represent and warrant that:
(i) you own or control the necessary rights in order to make the grant
of rights, licenses and permissions herein, with respect to the Content
(ii) you have the right and authority to enter into this Agreement;
(iii) all of Content, including any sampled third party material embodied
therein, and any use or distribution of the same shall not infringe
on the copyrights or other rights of any person or entity; and (iv)
we and our partners shall have the right to exploit the Content in all
manners set forth hereunder free from adverse claim and without any
obligation to make any payment of any nature to any person or entity,
other than the payments due to you described in this Agreement.
YOUR USE OF THE REVERB STORE
SERVICES IS AT YOUR SOLE RISK. THE REVERB STORE SERVICES ARE PROVIDED
ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY
DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT
(i) THE REVERB STORE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE
REVERB STORE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
(iii) THE QUALITY OF ANY PRODUCTS PURCHASED OR OBTAINED BY OR THROUGH
YOUR STORE WILL MEET YOUR EXPECTATIONS, AND (iv) ANY ERRORS IN YOUR
STORE WILL BE CORRECTED.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL WE BE LIABLE
TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL
OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS AS A RESULT
OF YOUR PARTICIPATION IN THE REVERB STORE PROGRAM.
YOU EXPRESSLY UNDERSTAND AND
AGREE THAT WE AND THE RELATED PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA
OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE
THE REVERB STORE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE
GOODS AND SERVICES RESULTING FROM ANY PRODUCTS OBTAINED THROUGH YOUR
STORE; (iii) YOUR STORE BEING UNAVAILABLE OR OFFLINE; (iv) ANY OTHER
MATTER RELATING TO THE REVERB STORE SERVICES OR ANY CONSUMER'S USE
OF YOUR STORE.
IN NO CASE SHALL THE AGGREGATE
LIABILITY OF US OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT OF PAYMENTS
OWED TO YOU DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRIOR TO THE
TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions
do not allow the exclusion or the limitation of liability for consequential
or incidental damages, in such states or jurisdictions, the liability
of us and our affiliates shall be limited to the fullest extent permitted
12. DISCLAIMER AND TERMINATION.
We are not responsible or liable
to you in any way as a result of any incorrect or inaccurate information
you provide to us including information related to your PayPal account,
mailing address or email address. We may discontinue the Program at
any time in our sole discretion. If we discontinue the Program, all
amounts in your Store payment account will be deposited into your PayPal
account pursuant to the terms of this Agreement. Your participation
in the Program will not provide you with any control over the advertising
or advertising content that appears in, on or in connection with your
Store and we reserve all rights to control, manage and determine such
advertising or advertising content. WE DO NOT PROMISE OR GUARANTY THAT
YOU WILL RECEIVE ANY PAYMENTS UNDER THE PROGRAM.
We may suspend or terminate
your participation in the Program at any time and for any reason, including
without limitation any breach by you of the terms of this Agreement
or the Site Terms and Conditions of Use. You may terminate your participation
in the Program for any reason at any time by completing the online Reverb
Store termination form. If you or we suspend or terminate your Store,
we may: (i) delete any Content or other materials relating to your use
of the Reverb Store Services, and we will have no liability to you or
any third party for doing so; and (ii) not allow you to access your
Store or create, produce, market, or sell Products. Any sections of
this Agreement which, by their nature, should survive the termination
of this Agreement will survive termination of your participation in
13. GOVERNING LAW. This Agreement
shall be governed by and construed in accordance with the laws of the
State of North Carolina, U.S.A., without reference to conflicts of laws
provisions and, as to matters affecting copyrights, trademarks and patents,
by U.S. federal law. Any dispute or claim arising out of, or in connection
with, this Agreement shall be finally settled by binding arbitration
in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. § 1-567.1
et seq. (the "Uniform Arbitration Act") and the then-current
rules and procedures of the American Arbitration Association by one
(1) arbitrator appointed by the American Arbitration Association. The
arbitrator shall apply the law of the State of North Carolina, without
reference to rules of conflict of law or statutory rules of arbitration,
to the merits of any dispute or claim. Judgment on the award rendered
by the arbitrator may be confirmed, reduced to judgment and entered
in any court of competent jurisdiction. You agree that, any provision
of applicable law notwithstanding, the arbitrator shall have the authority
to award the prevailing party its costs and reasonable attorneys'
fees. In the event that the above arbitration provision is held invalid
or unenforceable, then any dispute with respect to this Agreement shall
be brought and heard either in the North Carolina state courts located
in Wake County, North Carolina, or the federal district court for the
Eastern District of North Carolina located in Raleigh, North Carolina.
In such event, you consent to the in personam jurisdiction and venue
of such courts. You agree that service of process upon you in any such
action may be made if delivered in person, by courier service, by telegram,
by telefacsimile or by first class mail, and shall be deemed effectively
given upon receipt.
14. MISCELLANEOUS. This Agreement
and the Site Terms and Conditions of Use set forth the entire agreement
between you and us pertaining to your participation in the Program.
We reserve the right, at our sole discretion, to change, modify, add,
or delete portions this Agreement at any time without further notice.
If we do this, we will post the changes to this Agreement on this page
and will indicate at the top of this page the new effective date. Your
continued participation in the Reverb Store program after any such changes
constitutes your acceptance of the revised Agreement. If you do not
agree to abide by this Agreement or any future revised Agreement, you
may terminate your participation in the Program by following the termination
provisions set forth in Section 12. It is your responsibility to regularly
review this Agreement. If any provision of this Agreement is held invalid
or unenforceable, such provision shall be revised to the extent necessary
to cure the invalidity or unenforceability, and the remainder of this
Agreement shall continue in full force and effect. Our failure to exercise
any right or provision of this Agreement shall not constitute a waiver
of such right or provision.
I HAVE READ THE TERMS OF THIS
AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.