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SoundExchange Addendum

SOUNDEXCHANGE ADDENDUM

Last Updated: 05 August, 2023

This CD Baby SoundExchange Addendum (“SoundExchange Addendum,” or “this agreement”) governs the terms upon which CD Baby, a division of Audio and Video Labs, Inc., (“CD Baby” or “us”) will provide you (“you” or “your”) with collection of digital performance rights administration services through SoundExchange (the “SoundExchange Services”) as described in this agreement in accordance with the options you select in connection with your CD Baby account registration or as you may later update in connection with your account settings. Please read these terms carefully prior to using or registering for the SoundExchange Services. BY REGISTERING FOR A CD BABY PACKAGE THAT INCLUDES SOUNDEXCHANGE SERVICES OR SIGNING UP TO ADD SOUNDEXCHANGE SERVICES, YOU AGREE TO THE TERMS OF THIS SOUNDEXCHANGE ADDENDUM AS WELL AS TO THE TERMS OF THE CD BABY ARTIST AGREEMENT (THE “ARTIST AGREEMENT”) AND THE CD BABY TERMS OF SERVICE (THE “TOS”) AND TO THE CD BABY PRIVACY POLICY (THE “PRIVACY POLICY”) AND ANY OTHER ADDENDA TO WHICH YOU HAVE AGREED. If you do not agree to all these terms, then you may not use the SoundExchange Services. To the extent that there is any conflict between the terms of this SoundExchange Addendum and any term(s) in the Artist Agreement or the TOS, the terms of this agreement will control.

If you are registering for CD Baby or otherwise signing up for the SoundExchange Services on behalf of one or more other persons, a group, or a company or other entity, then you represent and warrant to us that you are duly authorized to do so on their behalf and to bind them to this agreement. The term “you” and “your” includes all such people and entities.

1. GRANT OF RIGHTS

You hereby grant to CD Baby, its successors, and assigns, the sole and exclusive worldwide rights to administer, promote, and manage your Digital Performance Rights (as defined in the Artist Agreement) in the sound recordings you submit to CD Baby and indicate for SoundExchange collection (”Your Authorized Content”), including without limitation the sublicensable right to:

  • (a) Register, on your behalf, with SoundExchange and other similar organizations and licensing agencies that collect royalties for Digital Performance Rights (“Digital Performance Royalties”) and for which CD Baby may offer such registration services (the “Third-Party Registrations”) unless you opt out as described below;
  • (b) Collect, on your behalf, all Digital Performance Royalties unless you opt out as described below, and other amounts owed to you for the exercise and exploitation of your Digital Performance Rights in Your Authorized Content; and
  • (c) Otherwise exercise and exploit, and allow others to exercise and exploit, your Digital Performance Rights in any manner or media, whether interactive or noninteractive, including digitally performing and licensing others to digitally perform Your Authorized Content publicly or privately, for profit or otherwise, by any means or media whatsoever, whether now known or hereafter conceived or developed.

2. SOUNDEXCHANGE SERVICES

The specific SoundExchange Services to be provided will be as specified on the Website in accordance with the options you select in your account and is contingent upon the payment of all applicable fees.

3. FEES

  • (a) In consideration of the SoundExchange Services rendered hereunder, you shall pay to CD Baby the registration fees described in the relevant account registration (the “Registration Fees”) and the administration fee as set forth below (the “Administration Fee”). Registration Fees are nonrefundable once paid and will not be prorated upon termination.
  • (b) CD Baby shall retain an Administration Fee of nine percent (9%) of the “Gross Receipts.” As used herein, Gross Receipts shall mean the total amounts actually collected on your behalf from SoundExchange by CD Baby.

4. PAYMENT OF NET INCOME; ACCOUNTING

CD Baby shall remit to you all Net Income (as defined below) collected from SoundExchange on your behalf. “Net Income” shall mean the Gross Receipts actually received by CD Baby on your behalf, less the Administration Fee applicable to such Gross Receipts, and less all actual and reasonable non-overhead costs or expenses paid or incurred by or on behalf of CD Baby in connection with the SoundExchange Services, the performance of this agreement, and the collection of income, including, without limitation, audit fees, collection expenses, and any taxes required to be deducted. CD Baby will make payment to you in accordance with the policies and procedures set forth in the Artist Agreement.

5. TERM AND TERMINATING DIGITAL PERFORMANCE ROYALTY COLLECTION

The Term of this agreement will commence when you register for the SoundExchange Services and will continue until you take the steps outlined in 5(b) below.

  • (a) If you do not want CD Baby to collect Digital Performance Royalties from, or register with, SoundExchange (or any other similar licensing agencies) on your behalf, you must opt out of such collection and registration by unchecking “SoundExchange” under the CD Baby Boost options page when signing up a new submission, or upgrading an existing submission.
  • (b) If you previously opted in to SoundExchange Services and you would like CD Baby to stop collecting Digital Performance Royalties from SoundExchange, you must claim Your Authorized Content from within a SoundExchange Direct account, which must be acquired through SoundExchange, by following the instructions at https://support.cdbaby.com/hc/en-us/articles/360041667111. If you do not claim Your Authorized Content through SoundExchange, CD Baby will continue to claim your recordings and collect your SoundExchange revenue. This revenue will be paid out to you through your CD Baby account according to the terms of the CD Baby Artist Agreement.

6. WARRANTIES AND INDEMNIFICATION

You hereby warrant and represent as follows:

  • (a) Your Authorized Content has not been opted in with any other collecting entity or agent to collect the Sound Recording Copyright Owner share from SoundExchange.
  • (b) All registration information and other information you submit to CD Baby is and will remain truthful and accurate. You will notify us promptly if any information changes or needs to be updated. In the event we are put on notice with respect to a discrepancy or any inaccuracy with respect to information provided in the registration, we shall have the right to suspend payments generated in connection with the content in question until the discrepancy or inaccuracy is resolved to our reasonable satisfaction, without limitation of our indemnity rights as set forth below.
  • (c) You have and shall continue to have the full right, power, and authority to enter into and fully perform this agreement and grant the rights granted herein. Without limiting the foregoing, no consent or other permission of any third party is required, nor shall it be required, in order to effectuate the grant of rights made to CD Baby under this agreement, or CD Baby’s enjoyment of such rights and the proceeds thereof as contemplated hereunder.
  • (d) Your Authorized Content is wholly original to you, and no portion thereof (including the sound recording and any music, title, lyrics, or other material) infringes or shall infringe upon any copyright, trademark, publicity rights or other statutory, common law or other rights of any third party; violates or shall violate any applicable law, rule or regulation or will otherwise cause any harm to or liability for CD Baby
  • (e) Your Authorized Content is and shall be free from any adverse claims, liens, or encumbrances of any kind by any person or entity.
  • (f) CD Baby shall not be required to make any payments of any nature for, or in connection with, the exploitation of Your Authorized Content except as specifically set forth herein.
  • (g) You shall at all times defend, indemnify and hold harmless CD Baby and its affiliates and their respective members, employees, affiliates, representatives, agents, licensees and distributors (collectively, the “Other Indemnitees”) from and against any and all claims, liabilities, damages, judgments, losses, costs, and expenses, including actual out-of-pocket legal expenses and reasonable attorneys’ fees, arising out of
    • (i) any exercise of the rights granted under this agreement,
    • (ii) any breach or alleged breach by you of any warranty, representation, or agreement made herein,
    • (iii) any act, error, or omission committed by you or any person or entity acting on your behalf or under your direction or control, and
    • (iv) Your Authorized Content and any use or exploitation thereof as contemplated under this agreement. You will reimburse CD Baby and the Other Indemnitees, on demand, for any payment made at any time after the date hereof in respect of any liability or claim for which CD Baby or the Other Indemnitees are entitled to be indemnified, or CD Baby may elect to deduct any such payments from all sums otherwise due you hereunder.

7. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY

IN NO EVENT WILL CD BABY BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE WEBSITE OR THE SOUNDEXCHANGE SERVICES, EVEN IF CD BABY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CD BABY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO CD BABY FOR THE SOUNDEXCHANGE SERVICES.

THE WEBSITE AND THE SOUNDEXCHANGE SERVICES ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE” BASIS AND CD BABY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND REGARDING THE WEBSITE AND THE SOUNDEXCHANGE SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CD BABY CANNOT GUARANTEE AND DOES NOT PROMISE ANY REVENUE OR OTHER SPECIFIC RESULTS FROM USE OF THE WEBSITE AND/OR THE SOUNDEXCHANGE SERVICES. TO THE EXTENT THESE DISCLAIMERS AND LIMITATIONS ARE LIMITED BY APPLICABLE LAW, THEY SHALL OTHERWISE APPLY TO THE FULLEST EXTENT OF SUCH LAW.

8. MISCELLANEOUS

  • (a) This agreement, together with the CD Baby Artist Agreement, Privacy Policy, TOS applicable to the Website generally, and the actions you take within your account to enable SoundExchange Services, sets forth the entire understanding between CD Baby and you regarding the Website and SoundExchange Services. We may assign or delegate this agreement or any or all of our rights and obligations hereunder to one or more third parties without notice to you.
  • (b) No waiver of any provision or default under this agreement shall affect either party’s rights thereafter and no waiver by either party shall be deemed a continuing waiver. Except as expressly set forth herein, neither party has made or makes any representations or warranties, express or implied, with respect to any matter contained in this agreement or with respect to the making of this agreement, all of which are expressly disclaimed. If any clause, sentence, paragraph, or part of this agreement or the application thereof to any person, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall be limited and confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy and shall not affect the remainder of the agreement.
  • (c) You acknowledge that CD Baby cannot guarantee that any Net Income will be generated or earned hereunder. You waive all claims and warrant, represent, and agree that you will not make any claim, nor will any liability be imposed upon CD Baby based upon a claim, that more Net Income could have been generated or better business achieved than that which was actually generated or achieved by CD Baby and/or its licensees.
  • (d) CD Baby does not guarantee, represent, or warrant that your use of the Website or SoundExchange Services will be uninterrupted or error-free, and you agree that from time to time CD Baby may suspend the Website and SoundExchange Services for indefinite periods of time for technical maintenance or upgrade or otherwise, or may cancel the SoundExchange Services at any time, without notice to you. The functions and features of the Website and SoundExchange Services are subject to change without notice. Similarly, the partners providing SoundExchange Services through CD Baby may take action outside of our control, including, but not limited to, adjusting or halting their royalty collection and payout practices and delaying or refusing to ingest or collect for Your Authorized Content.
  • (e) CD Baby may terminate this agreement at any time upon written notice, for any reason or for no reason. Termination of your account or of the CD Baby service as a whole will also constitute termination of this agreement.
  • (f) Your use of the Website and the SoundExchange Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR REGISTRATION AND ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR THE SOUNDEXCHANGE SERVICES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
  • (g) You may not assign or transfer your account, rights, obligations, or interest under this agreement to anyone else unless otherwise agreed in writing by CD Baby. Any assignment, encumbrance, or other ownership transfer of any of Your Authorized Content will remain subject to this agreement.
  • (h) The following Sections will survive any termination of this agreement: Sections 3, 4, 5, 6, 7, and 8. After the Term, we shall continue to have the right, but not the obligation, to collect all income payable under this agreement that was earned during or before the Term. We will continue to account to you for all such income pursuant to payment terms in the Artist Agreement.

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