LABEL AGREEMENT

This online agreement (the “Agreement”) is made by and between record label_______________ _____ , address:______________________________________ (hereinafter referred to as “LABEL”) and EYE ROCK, INC., 9102 Dorella Lane, Austin, TX, 78736, (hereinafter ”EYE ROCK”) and is effective as of the date LABEL clicks the “I ACCEPT” button at the bottom of this agreement (hereinafter, the “Effective Date”).

• 1. DEFINITIONS
  • 1.1 “LABEL PROGRAM” shall mean the services and products offered by EYE ROCK, which are specifically subject to change as more fully described in Paragraph 7 below, but which presently include (a) the digital distribution of LABEL’S music – with or without the use of custom “ARTIST DOWNLOAD CARDS;” (b) the provision of an ARTIST PAGE for each recording artist submitted by LABEL, to be used for purposes of digital distribution of such artist’s music, and related promotional purposes (“ARTIST PAGE”); and (c) such other features, programs and services as may be described on EYE ROCK’s 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 “LABEL MUSIC” shall mean the sound recordings and underlying musical compositions submitted to EYE ROCK by LABEL for use in the LABEL PROGRAM.
  • 1.5 “LABEL MATERIALS” shall include, without limitation, artwork, photographs, lyrics, videos, liner notes, biographical material and metadata submitted to EYE ROCK by LABEL for use in the LABEL PROGRAM.
• 2. GRANT OF RIGHTS.
  • 2.1.  Subject to the terms of this Agreement, LABEL hereby grants to EYE ROCK and its designees the right, privilege and license, during the Term and throughout the Territory as follows:
    • (a)  To reproduce and store the LABEL MUSIC and LABEL 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 the LABEL MUSIC into digital phonorecords (hereinafter “Digital Records”);
    • (c)  To perform and make available for promotional purposes, portions of the LABEL 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 EYE ROCK’s usage terms and policies;
    • (e)  To reproduce, deliver, publish, display, distribute, and deliver LABEL MATERIALS in connection with the LABEL MUSIC and ARTIST DOWNLOAD CARDS;
    • (f)  To use the LABEL MATERIALS, name and likeness, logos and trademarks for the purpose of promoting, marketing and or advertising LABEL, the LABEL MUSIC, LABEL MATERIALS, EYE ROCK or EYE ROCK’s website; and
    • (g)  To authorize EYE ROCK’s agents to perform any one or more of the activities specified above.
• 3. OWNERSHIP
  • 3.1 Insofar as EYE ROCK is concerned, LABEL shall retain ownership in the LABEL MUSIC and LABEL MATERIALS to the same extent that it did before entering into this Agreement.  Furthermore, this is a non-exclusive agreement, and LABEL shall have the right to license its LABEL MUSIC and LABEL MATERIALS to others for similar uses so long as such relationships do not affect EYE ROCK’s rights hereunder.
• 4. LABEL OBLIGATIONS
  • 4.1  To enroll in the LABEL PROGRAM, LABEL must register and provide all information requested by EYE ROCK, including a “user name,” a “password” and a valid email address (“Registration Data”).  LABEL agrees to provide accurate Registration Data.  EYE ROCK will use LABEL’s 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, LABEL will be prompted to “upload” files embodying the LABEL MUSIC and LABEL MATERIALS for use as set forth herein.
  • 4.3  LABEL is solely responsible for encoding media files, uploading content to EYE ROCK’s website, and maintaining the ARTIST PAGE for each artist submitted by LABEL.
  • 4.4  LABEL is responsible for correctly labeling all LABEL 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 LABEL MUSIC, removal of LABEL MUSIC and/or LABEL MATERIALS, and/or termination of LABEL’s account without notice.
  • 4.5  LABEL shall immediately notify EYE ROCK if LABEL knows of, or is notified of, any infringement of any right of any person in connection with LABEL MUSIC or LABEL 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 LABEL MUSIC or LABEL MATERIALS from the LABEL PROGRAM and/or EYE ROCK’s website.
• 5.  ROYALTIES
  • 5.1.  Under the current version of the LABEL PROGRAM, LABEL will generate revenues in two ways: (a) LABEL may purchase DIGITAL DOWNLOAD CARDS from EYE ROCK at prevailing rates (reflected on EYE ROCK’s website), in which case, LABEL retains proceeds from its resale of the DIGITAL DOWNLOAD CARDS to its customers (who may then redeem the cards through the EYE ROCK website to acquire Digital Records); and (b) fans of artists submitted by LABEL to the LABEL PROGRAM may purchase Digital Records directly from EYE ROCK’s website, in which case EYE ROCK will credit LABEL’s royalty account with LABEL’s share of proceeds therefor, as reflected in the pricing section of EYE ROCK’s website, found at www.eye-rock.com/pricing.php.
  • 5.2 LABEL hereby waives any right to any compensation, other than the royalties set forth in Paragraph 5.1, in connection with the distribution of LABEL MUSIC and LABEL 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 LABEL MUSIC and/or LABEL MATERIALS, including, without limitation, all mechanical royalties, performance royalties, and/or any monies owed to producers, engineers, musicians, side-musicians, artists, photographers, graphic designers, copy-writers, publicists, and/or any other persons engaged in connection with the LABEL MUSIC and/or LABEL MATERIALS (hereinafter “Third Party Payments”).  LABEL 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 LABEL MUSIC and/or LABEL MATERIALS hereunder.
  • 5.3 LABEL shall be solely responsible for determining how to distribute its royalties paid hereunder, and once payment has been sent to LABEL, EYE ROCK shall have no obligation to any other person in connection with the uses of the LABEL MUSIC and/or LABEL MATERIALS from which such payments are derived.  LABEL 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 LABEL MUSIC and LABEL MATERIALS in accordance with its then-current standard distribution policies.  EYE ROCK shall have no obligation to pay LABEL any royalties on said distributions.
  • 5.6 Statements as to the accrued royalties earned by LABEL hereunder, together with payment of any royalties payable to LABEL, 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 LABEL 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 the name(s), likeness(es) and biographical material of all artists submitted to the LABEL PROGRAM by LABEL solely in connection with the advertising, sale, distribution and exploitation of the LABEL MUSIC, LABEL 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 LABEL PROGRAM is an evolving and dynamic service, and accordingly, LABEL acknowledges and agrees that EYE ROCK shall have the right to revise it from time to time - adding or removing features which EYE ROCK believes (in its sole business judgment) will best serve its clients.  Accordingly, EYE ROCK reserves the right, in its sole discretion and at any time, to change, modify, add or remove any services and/or products offered as part of the LABEL 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 LABEL does not consent to any such amendments and/or modifications, LABEL’s sole recourse shall be to terminate the Term as provided in this Agreement, and its failure to do so within ten (10) days of the date of notice from EYE ROCK shall constitute LABEL’s 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 LABEL MUSIC or LABEL MATERIALS hereunder during the periods prior to such termination (and any associated accounting) in accordance with this Agreement.
• 8. NOTICES
  • 8.1 Notices to LABEL hereunder shall be sent via e-mail at the e-mail address provided by LABEL at registration. LABEL shall be responsible for updating its e-mail address in the event it changes, and as such, EYE ROCK’s notice to LABEL shall be deemed effective on the date that we send notice to the e-mail address set forth above.  LABEL’s notices to EYE ROCK 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 EYE ROCK may apprize LABEL), and shall be deemed effective as of the date reflected in the return receipt.
• 9. WARRANTIES AND REPRESENTATIONS.
  • 9.1 LABEL represents and warrants that:
    • (a) LABEL has 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, including, without limitation, the recording artists whose performances are embodied in the LABEL MUSIC, any so-called “record producers,” and the publishers or songwriters of the musical compositions embodied in the LABEL MUSIC.
    • (b) LABEL shall be responsible for all payments to third parties, including, without limitation, the recording artists whose performances are embodied in the LABEL MUSIC, any so-called “record producers,” and the publishers of the musical compositions embodied in the LABEL MUSIC.
    • (c) EYE ROCK’s use of the LABEL MUSIC and LABEL MATERIALS shall not infringe on any common law, statutory law, contractual right, or any other right of any third party;
    • (d) 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’s rights hereunder.
• 10. INDEMNITIES
  • 10.1 LABEL agrees to and does 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 LABEL hereunder; (b) any claim for royalties and/or infringement of copyright, trademark, patent or other intellectual property rights related to EYE ROCK’s use of the LABEL MUSIC and/or LABEL MATERIALS, (c) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity related to EYE ROCK’s use of the LABEL MUSIC, LABEL MATERIALS and/or any act by LABEL, and (d) any act by LABEL involving so-called “spamming,” or any other offensive, harassing or illegal conduct or violation of any policy posted on EYE ROCK’s Website.  LABEL agrees to reimburse EYE ROCK on demand for any payment made by EYE ROCK at any time with respect to any such indemnified claim.  In the event LABEL shall fail to do so, EYE ROCK shall have the right to recoup any and all payments related thereto from any monies payable to LABEL under this or any other agreement.  EYE ROCK shall notify LABEL of any such claim promptly after EYE ROCK has been formally advised thereof.  Pending the determination of such claim, EYE ROCK shall have the right, at EYE ROCK’s election, to withhold payment of any monies otherwise payable to LABEL hereunder in an amount reasonably related to the amount of EYE ROCK’s anticipated attorney’s fees and costs in connection therewith, and if EYE ROCK 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, EYE ROCK hereby disclaims 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 LABEL’S 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 LABEL’S TRANSACTIONS AND COMMUNICATIONS THROUGH THE WEBSITE; THE ACCURACY OF CONTENT, LINKS OR OTHER INFORMATION ON THE WEBSITE; the accuracy or effectiveness of EYE ROCK’S website (including the content therein); and/or any errors or problems of any kind that might arise from EYE ROCK’S website.
  • 11.2 EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, UNDER NO CIRCUMSTANCES WILL EYE ROCK BE LIABLE TO LABEL 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, LABEL shall immediately cease the sale and distribution of any previously purchased DIGITAL DOWNLOAD CARDS.  Provided LABEL delivers and we receive the undistributed cards within thirty (30) days of termination, we shall credit LABEL’s account therefor.  We shall continue to maintain LABEL’s ARTIST PAGE(s) 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 LABEL’s account was terminated (the “Post Termination Period”).  During the Post Termination Period, we shall continue to distribute Digital Records, LABEL MUSIC and LABEL MATERIALS in connection with any DIGITAL DOWNLOAD CARDS that were sold by LABEL (and/or LABEL’s agents) to customers prior to termination, and which were not yet redeemed on the date of termination.  Following the Post Termination Period, we shall disable LABEL’s ARTIST PAGE(s), and cease distribution of Digital Records, LABEL MUSIC and ARTIST MATERIAL.  From and after that date, LABEL 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 LABEL MUSIC or LABEL MATERIALS from EYE ROCK’S website, and to deactivate LABEL’s account in the following instances: (a) if EYE ROCK determines that LABEL has breached any of LABEL’s representations or warranties, or failed to fulfill any of LABEL’s obligations set forth herein; and (b) in the event EYE ROCK is notified by any third party of a demand or claim involving the LABEL MUSIC or LABEL MATERIALS, including, without limitation, any notice of copyright infringement forwarded to EYE ROCK 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, LABEL 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 LABEL represents and warrants that LABEL has read this agreement and understands 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, LABEL HEREBY AGREES TO SUBMIT TO THE PERSONAL JURISDICTION OF THOSE COURTS.