ARTIST AGREEMENT

This online agreement (the “Agreement”) is made by and between you (the individual signing this Agreement, either individually, or as legal representative of a musical group), and Eye Rock, Inc., 9102 Dorella Lane, Austin, TX, 78736, (hereinafter “EYE ROCK,” “we” or “us”), and is effective as of the date you click the “I ACCEPT” button at the bottom of this agreement (hereinafter, the “Effective Date”).

IMPORTANT: THIS IS A LEGAL DOCUMENT.  READ IT CAREFULLY.  BY CLICKING ON “I AGREE” YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, THEN CLICK ON THE “NO THANKS” BUTTON.

• 1.DEFINITIONS
  • 1.1 “ARTIST PROGRAM” shall mean the services and products offered by EYE ROCK, which services and products are specifically subject to change as more fully described in Paragraph 7 below, but which presently include (a) the digital distribution of your music – with or without the use of custom “ARTIST DOWNLOAD CARDS;” (b) the provision of an ARTIST PAGE to be used for purposes of digital distribution of your music and related promotional purposes (“ARTIST PAGE”); and (c) such other features, programs and services as may be described on our website from time to time during the Term of this Agreement.
  • 1.2 The “Term” of this Agreement shall begin on the Effective Date, and continue until terminated, as provided herein.  Subject to the relevant provisions hereof, you or we may terminate this Agreement at any time upon thirty (30) days’ prior written notice.
  • 1.3 “Territory” means the Universe.
  • 1.4 “ARTIST MUSIC” shall mean the sound recordings and underlying musical compositions that you submit to EYE ROCK for use in the ARTIST PROGRAM.  As set forth more fully below, you shall submit only sound recordings and musical compositions for which you control all rights.
  • 1.5 “ARTIST MATERIALS” shall include, without limitation, artwork, photographs, lyrics, videos, liner notes, biographical material and metadata submitted to EYE ROCK by you for use in the ARTIST PROGRAM.As set forth more fully below, you shall submit only ARTIST MATERIALS for which you control all rights.
• 2. GRANT OF RIGHTS.
  • 2.1. Subject to the terms of this Agreement, you hereby grant EYE ROCK and its designees the right, privilege and license, during the Term and throughout the Territory as follows:
    • (a)  To reproduce and store ARTIST MUSIC and ARTIST MATERIALS on EYE ROCK’S servers, or cause EYE ROCK’S agents to do the same, for the purposes hereof;
    • (b)  To reproduce and convert your ARTIST MUSIC into digital phonorecords (hereinafter “Digital Records”);
    • (c)  To perform and make available for promotional purposes, portions of your ARTIST MUSIC by “streaming” to promote the license, sale and distribution of Digital Records;
    • (d) To promote, reproduce, deliver, publish, display, sell, distribute, and deliver Digital Records, as individual tracks or entire albums, and associated metadata to purchasers who may use such Digital Records in accordance with our usage terms and policies;
    • (e)  To reproduce, deliver, publish, display, distribute, and deliver ARTIST MATERIALS in connection with the ARTIST MUSIC and ARTIST DOWNLOAD CARDS;
    • (f)  To use your ARTIST MATERIALS, name and likeness, logos and trademarks for the purpose of promoting, marketing and or advertising you, the ARTIST MUSIC, ARTIST MATERIALS, EYE ROCK or EYE ROCK website; and
    • (g)  To authorize our Licensees to perform any one or more of the activities specified above.
• 3. OWNERSHIP
  • 3.1 Insofar as we are concerned, you shall retain ownership in the ARTIST MUSIC and ARTIST MATERIALS to the same extent that you did before you entered into this Agreement.  Furthermore, this is a non-exclusive agreement – you have the right to license your music to others for similar uses so long as such relationships do not affect our rights hereunder.
• 4. ARTIST OBLIGATIONS
  • 4.1 To enroll in the ARTIST PROGRAM, you must register and provide all information requested by EYE ROCK, including a “user name,” a “password” and a valid email address (“Registration Data”).  You agree to provide accurate Registration Data, and to update your Registration Data in the “artist profile” section of the EYE ROCK website (“ARTIST PROFILE”), as necessary to keep it accurate.  EYE ROCK will use your Registration Data in accordance with its privacy policy, which you can review at www.eye-rock.com/privacy.php.
  • 4.2 During the registration process, you will be prompted to “upload” files embodying the ARTIST MUSIC and ARTIST MATERIALS for use as set forth herein.
  • 4.3 You are solely responsible for encoding media files, uploading content to EYE ROCK’S website, and maintaining your ARTIST PROFILE and ARTIST PAGE.
  • 4.4 You are solely responsible for ensuring that you have, and will continue to have, all rights in the ARTIST MUSIC and ARTIST MATERIALS that are necessary for us to use the ARTIST MUSIC and ARTIST MATERIALS in the manner contemplated in this Agreement.  In connection, you shall obtain and pay for any and all clearances and licenses as may be required in order to effectuate the purposes of this Agreement.  Without limiting the generality of the foregoing, you shall be responsible for and shall pay (a) any royalties or other sums due to artists, authors, co-authors, copyright owners and co-owners, producers and/or any other royalty participants from sales or other uses of the ARTIST MUSIC, (b) all mechanical royalties or other sums payable to publishers and/or authors or co-authors of musical compositions embodied in ARTIST MUSIC from sales or other uses of the ARTIST MUSIC, (c) all payments that may be required under any collective bargaining agreements applicable to you or any third party, and (d) any other royalties, fees and/or sums payable with respect to the ARTIST MUSIC and ARTIST MATERIALS.  By checking the box below, you confirm that you understand EYE ROCK is relying on the information you provide and the commitments you make herein regarding your rights in the ARTIST MUSIC and ARTIST MATERIALS.
  • 4.5 You are responsible for correctly labeling all ARTIST MUSIC that contains explicit content in accordance with the RIAA Parental Advisory Program Guidelines, which can be found at http://www.riaa.com/parentaladvisory.php.  Failure to provide appropriate labeling could result in the re-labeling of ARTIST MUSIC, removal of ARTIST MUSIC and/or ARTIST MATERIALS, and/or termination of your account without notice.
  • 4.6   You shall immediately notify EYE ROCK if you know of, or are notified of, any infringement of any right of any person in connection with ARTIST MUSIC or ARTIST MATERIALS.  This includes all proprietary rights (including copyright and trademark), privacy, publicity and all other rights or ownership interests.  Upon notification, EYE ROCK shall have the immediate and unrestricted right to remove any affected ARTIST MUSIC or ARTIST MATERIALS from the ARTIST PROGRAM and/or EYE ROCK website.
• 5. ROYALTIES
  • 5.1. Under the current version of the ARTIST PROGRAM, you will generate revenues in two ways: (a) You may purchase DIGITAL DOWNLOAD CARDS from EYE ROCK at prevailing rates (reflected on the EYE ROCK website), in which case, you retain proceeds from your resale of the DIGITAL DOWNLOAD CARDS to your customers (who may then redeem the cards through the EYE ROCK website to acquire Digital Records); and (b) Your fans may purchase Digital Records directly from the EYE ROCK website, in which case EYE ROCK will credit your royalty account with your share of proceeds therefor, as reflected in the pricing section of the EYE ROCK website, found at www.eye-rock.com/pricing.php.
  • 5.2 You hereby waive any right to any compensation, other than the royalties set forth in Paragraph 5.1, in connection with the distribution of ARTIST MUSIC and ARTIST MATERIALS hereunder.  Payment of the royalties reflected in Paragraph 5.1, if any, shall be inclusive of any and all sums payable to any person, firm or corporation claiming rights in or to the ARTIST MUSIC and/or ARTIST MATERIALS, including, without limitation, all mechanical royalties, performance royalties, and/or any monies owed to producers, engineers, musicians or artists who perform(ed) or record(ed) with you, photographers, graphic designers, copy-writers, publicists, and/or any other persons engaged by you (hereinafter “Third Party Payments”).  You will be solely responsible for the payment of any Third Party Payments, and will indemnify EYE ROCK and hold EYE ROCK harmless against any and all losses, damages, costs (including reasonable attorney’s fees and court costs) or claims made by any party resulting from the use of the ARTIST MUSIC and/or ARTIST MATERIALS hereunder.
  • 5.3 You are responsible for determining how to distribute your royalties, and once payment has been sent to you, EYE ROCK shall have no obligation to any of the individuals of your musical group (if applicable) and/or any other person in connection with the uses of your ARTIST MUSIC and/or ARTIST MATERIALS  from which such payments are derived.  You shall be solely responsible for any and all taxes, fees, dues and/or assessments that may be imposed against the royalties hereunder by any union, guild or governmental entity.
  • 5.4 Rates charged to purchasers shall be determined by EYE ROCK in its sole discretion and shall be subject to change in EYE ROCK’s sole discretion.
  • 5.5 EYE ROCK shall have the right to distribute promotional copies of Digital Records containing ARTIST MUSIC and ARTIST MATERIALS in accordance with its then-current standard distribution policies.  EYE ROCK shall have no obligation to pay you any royalties on said distributions.
  • 5.6 Statements as to the accrued royalties earned by you hereunder, together with payment of any royalties payable to you, shall be sent no later than sixty (60) days after the close of each calendar quarter.  Notwithstanding the foregoing, if the total amount due to you is less than twenty five dollars ($25), EYE ROCK shall not pay you the amounts owed for that royalty period, and shall instead carry the balance over to the next royalty period.
• 6. Name and Likeness
  • 6.1 EYE ROCK may use and authorize others to use your name(s), likeness(es) and biographical material solely in connection with the advertising, sale, distribution and exploitation of the ARTIST MUSIC, ARTIST MATERIALS, and/or for any other purpose related to the business of EYE ROCK, or may refrain therefrom.
• 7. modification or termination
  • 7.1 The ARTIST PROGRAM is an evolving and dynamic service, and accordingly, you acknowledge and agree that EYE ROCK shall have the right to “tweak” it from time to time - adding or removing features which we believe (in our sole business judgment) will best serve our clients.  Accordingly, EYE ROCK reserves the right, in our sole discretion and at any time, to change, modify, add or remove any services and/or products offered as part of the ARTIST PROGRAM, and/or to modify any part of this Agreement.  Notice of any amendments and/or modifications shall be sent to you by email at least thirty (30) days prior to the effective date thereof.  In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate the Term as provided in this Agreement, and your failure to do so within ten (10) days of the date of notice from us to you shall constitute your acceptance of such amendments and/or modifications.
  • 7.2 Notwithstanding any termination under the provisions of this paragraph 7, the promises, covenants and warranties set forth in Sections 1, 3, 4, 5, 8, 9, 10, 11, 12 and 13 shall remain in full force and effect.  Moreover, EYE ROCK shall continue to make any payments with respect to the sale or other use of ARTIST MUSIC or ARTIST MATERIALS hereunder during the periods prior to such termination (and any associated accounting) in accordance with this Agreement.
• 8. NOTICES
  • 8.1 Notices to you hereunder shall be sent via e-mail at the e-mail address provided by you at registration, and maintained by you in the your ARTIST PROFILE.  You shall be responsible for updating your e-mail address in the event it changes, and as such, our notice to you shall be deemed effective on the date that we send notice to you at the e-mail address set forth in your “ARTIST PROFILE.”  Your notices to us hereunder shall be in writing and shall be delivered by certified mail, return receipt requested, to the address set forth in the first paragraph of this Agreement (or at such subsequent address as we may apprize you), and shall be deemed effective as of the date reflected in the return receipt.
• 9. WARRANTIES AND REPRESENTATIONS.
  • 9.1 You represent and warrant that:
    • (a) You are not a party to any exclusive recording agreement affecting the ARTIST MUSIC and/or ARTIST MATERIALS;
    • (b) You are a U.S. citizen and at least eighteen (18) years of age, and have the full right and authority to enter into this Agreement on your behalf, or, if you are registering on behalf of a group, you have the right and authority to enter into this Agreement on behalf of your group;
    • (c) You have the full right and authority to grant all of the rights, licenses and permissions set forth in this Agreement, free and clear of any claims, rights and/or obligations of any third party;
    • (d) EYE ROCK’s use of the ARTIST MUSIC and ARTIST MATERIALS shall not infringe on any common law, statutory law, contractual right, or any other right of any third party;
    • (e) You are the sole owner of your professional and/or group name and you have the sole and exclusive right to use and to allow others to use your professional and/or group name as contemplated herein; and
    • (f) Except as otherwise specifically provided herein, EYE ROCK shall have no obligation to pay any person, firm or corporation any amounts in connection with the exercise of any of EYE ROCK’ rights hereunder.
• 10. INDEMNITIES
  • 10.1  You agree to and do hereby indemnify and hold EYE ROCK harmless from any damages, liabilities, costs, losses and/or expenses (including legal costs and reasonable attorneys’ fees) arising out of or connected with any claim by any third party related to: (a) a breach of any of the warranties, representations or covenants made by you hereunder; (b) any claim for royalties and/or infringement of copyright, trademark, patent or other intellectual property rights related to our use of the ARTIST MUSIC and/or ARTIST MATERIALS, (c) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity related to our use of the ARTIST MUSIC, ARTIST MATERIALS and/or any act by you, and (d) any act by you involving so-called “spamming,” or any other offensive, harassing or illegal conduct or violation of any policy posted on the EYE ROCK Website.  You agree to reimburse EYE ROCK on demand for any payment made by us at any time with respect to any such indemnified claim.  In the event you shall fail to do so, EYE ROCK shall have the right to recoup any and all payments related thereto from any monies payable to you under this or any other agreement.  EYE ROCK shall notify you of any such claim promptly after we have been formally advised thereof.  Pending the determination of such claim, EYE ROCK shall have the right, at our election, to withhold payment of any monies otherwise payable to you hereunder in an amount reasonably related to the amount of our anticipated attorney’s fees and costs in connection therewith, and if we shall determine that such claim has merit, the amount of such claim.
• 11. LIMITATION OF LIABILITY
  • 11.1  eye rock’s services and products are provided “as is” AND “AS AVAILABLE,” without warranty of any kind.  AS APPLICABLE, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, We hereby disclaim all warranties, whether express or implied, including all implied warranties of merchantability and fitness for a particular purpose.  warranties related to the following are specifically diSclaimed: EDITING OR formatting of YOUR recordings; delivery of digital records and/or materials; unauthorized sharing or distribution of music; software flaws or network disruptions; THE CONTROL, OPERATION AND SECURITY OF YOUR TRANSACTIONS AND COMMUNICATIONS THROUGH THE WEBSITE; THE ACCURACY OF CONTENT, LINKS OR OTHER INFORMATION ON THE WEBSITE; the accuracy or effectiveness of the EYE ROCK website (including the content therein); and/or any errors or problems of any kind that might arise from the EYE ROCK website.
  • 11.2  EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, UNDER NO CIRCUMSTANCES WILL EYE ROCK BE LIABLE TO YOU FOR ANY COMMERCIAL OR ECONOMIC LOSS OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING FROM AND/OR CONNECTED WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR IF SUCH DAMAGES ARE FORESEEABLE.
• 12. RIGHT TO TERMINATE SERVICES HEREUNDER
  • 12.1  "At-Will" Termination: Pursuant to paragraph 1.2 above, this agreement may be terminated by either party upon written notice.  Said notice shall be deemed effective in accordance with the provisions of paragraph 8.1 above.  Upon termination, you shall immediately cease the sale and distribution of any previously purchased DIGITAL DOWNLOAD CARDS.  Provided you deliver and we receive the undistributed cards within thirty (30) days of termination, we shall credit your account therefor.  We shall continue to maintain your ARTIST PAGE for a period beginning on the date of termination, and ending on the last day of the quarterly accounting period immediately following the calendar quarter during which your account was terminated (the “Post Termination Period”).  During the Post Termination Period, we shall continue to distribute Digital Records, ARTIST MUSIC and ARTIST MATERIALS in connection with any DIGITAL DOWNLOAD CARDS that were sold by you to customers prior to termination, and which were not yet redeemed on the date of termination.  Following the Post Termination Period, we shall disable the ARTIST PAGE, and cease distribution of Digital Records, ARTIST MUSIC and ARTIST MATERIAL.  From and after that date, you shall be solely responsible for any refunds, claims or demands in connection with any previously distributed DIGITAL DOWNLOAD CARDS.
  • 12.2  Termination "For Cause": Notwithstanding anything to the contrary contained herein, EYE ROCK shall have the unrestricted and immediate right to remove any or all ARTIST MUSIC or ARTIST MATERIALS from the EYE ROCK website, and to deactivate your account in the following instances: (a) if we determine that you have breached any of your representations or warranties, or failed to fulfill any of your obligations set forth herein; or (b) in the event we are notified by any third party of a demand or claim involving the ARTIST MUSIC or ARTIST MATERIALS, including, without limitation, any notice of copyright infringement forwarded to us under the provisions of Title 17, United States Code, Section 512(c)(2).  From and after the date of termination “for cause,” in addition to our other rights and remedies hereunder, you shall be solely responsible for any refunds, claims or demands in connection with any previously sold DIGITAL DOWNLOAD CARDS
• 13. Miscellaneous
  • 13.1  This Agreement, including any written amendments hereto, contains the entire understanding of the parties relating to the subject matter hereof.  No modification, amendment, waiver, termination or discharge of this Agreement or of any its terms shall be binding upon either party unless confirmed by a document signed by the parties.  No waiver by either party of any term of this Agreement or of any default hereunder shall affect the parties’ respective rights thereafter to enforce that term or to exercise any right or remedy in the event of any other default, whether or not similar.
  • 13.2  If any provision of this Agreement is held void, invalid, illegal or inoperative, no other provision of this Agreement shall be affected as a result, and, accordingly, the remaining provisions shall remain in full force and effect as though the void, invalid, illegal or inoperative provision had not been contained herein.
  • 13.3  The parties agree and acknowledge that they shall each have the status of independent contractors under this agreement and nothing contained herein shall constitute a partnership or joint venture, and neither party is the other’s agent, partner, employee or representative.  No party is intended to be nor shall be a third party beneficiary of this agreement.
  • 13.4  The paragraph headings herein are solely for the purpose of convenience and shall be disregarded completely in the interpretation of this Agreement or any of its terms.
  • 13.5  This Agreement shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of the parties.
  • 13.6  YOU represent and warrant that YOU haVE read this agreement and YOU understand that this is an important, binding legal document.
  • 13.7  THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF TEXAS, U.S.A., AND SHALL BE GOVERNED BY THE LAWS OF THAT STATE.  THE EXCLUSIVE JURISDICTION AND PROPER VENUE FOR DISPUTES ARISING HEREUNDER SHALL BE THE APPROPRIATE STATE OR FEDERAL COURT SITTING IN THE COUNTY OF TRAVIS IN THE STATE OF TEXAS.  IN CONNECTION THEREWITH, YOU HEREBY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THOSE COURTS.
• 14. ACCEPTANCE
  • 14.1  Before accepting the terms and conditions of this Agreement, think about any other agreements you may already have with other companies or people.  Be certain that signing this agreement does not conflict with your other obligations (for example, have you granted anyone the worldwide exclusive right to distribute your music?)  In the event you are sure you want to, and can, enter into this Agreement, click the “I ACCEPT” button below.  Note – this Agreement sHALL NOT BE binding upon EYE ROCK unless you print out and save a copy, or save a copy of this Agreement to your computer hard Drive and are able to retain and/or recover a hard copy of same.