This agreement (the “Agreement”) is made and entered into as of the date you click the below box and button (the “Effective Date”) by and between embr LLC, a Colorado limited liability company, d/b/a “Groove Monkey” (“Groove Monkey”), and you (“You”, “Your”, or “Artist”).
THIS AGREEMENT, WHEN AGREED TO AND ACCEPTED BY YOU AFTER YOU CLICK THE BELOW BOX AND BUTTON WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND GROOVE MONKEY, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, BAND, GROUP, LLC, OR CORPORATION, IN WHICH CASE “YOU”, YOUR”, OR “ARTIST” SHALL REFER TO THE ARTIST, BAND, GROUP, LLC, OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING THE BOX AND BUTTON.
Groove Monkey and Artist (individually, a “Party”, and collectively, the “Parties”) agree as follows:
1.PURPOSE AND BACKGROUND
(A)Groove Monkey owns and operates a streaming platform built for independent recording artists and for the fans who believe their music is worth supporting (such fans are hereinafter referred to each individually as a “Supporter” and collectively as “Supporters”). Unlike traditional streaming platforms, Groove Monkey allows artists to have a direct relationship with Supporters and monetize based on a percentage of time Supporters spend with such artist on the platform, creating a more user-centric model. Groove Monkey owns and operates the website with the URL “https://groovemonkey.fm/” (the “Website”). In addition to the Website, Groove Monkey may provide its services on other websites and/or apps, including but not limited to, other URLs, smart phone and tablet apps, smart TVs, living room media boxes, connected cars, and other digital and electronic formats, whether now known or hereinafter devised (individually, and collectively, the “Sites”). Groove Monkey currently only offers its services in the United States.
(B)Artist owns, controls, and/or has a license to exploit the musical composition(s) (the “Composition(s)”) and the sound recording(s) that embody the Composition(s) (the “Master(s)”), that Artist submits to Groove Monkey through the Sites. Throughout the Term (as described below), Artist may also provide Groove Monkey with artwork, liner notes, remixes, videos, and any other derivatives of the Composition(s) and/or Master(s) (collectively, the “Additional Materials”). The Composition(s), Master(s), Additional Materials, and any other materials Artist submits to Groove Monkey through the Sites are referred to individually and collectively hereinafter as the “Materials”. Artist agrees to deliver the Materials, to Groove Monkey’s satisfaction, by whatever method and format Groove Monkey reasonably requires to operate the services on the Sites.
(C)Groove Monkey currently licenses the rights to stream the Composition(s) via separate agreements in the United States directly with the appropriate performance rights organizations (e.g., ASCAP and BMI) (for public performance rights) and The MLC (for mechanical rights), and in the future and/or in other countries with record labels or artists, publishers, writers, mechanical and performing rights societies for particular countries or other controllers or the copyrights to the Composition(s). Groove Monkey licenses the rights to offer the Master(s) from the Website and Sites from record labels, distributors, and contributors like You.
(D)Artist desires for Groove Monkey to have the non-exclusive right to exploit the Materials on the Sites in exchange for reasonable payment as provided in this Agreement.
2.TERM AND TERMINATION
(A)Term. The “Term” of this Agreement shall commence as of the Effective Date and continue until terminated by either Party upon providing written notice (email shall suffice).
(B)After Termination. Upon expiration of the Term or termination of this Agreement, (i) Groove Monkey shall cease all use and distribution of the Materials within a reasonable time, and (ii) all revenues Groove Monkey receives for the Materials shall continue to be subject to payment to You as provided in this Agreement, so long as Groove Monkey receives such revenues.
3.TERRITORY
The “Territory” of this Agreement shall be the Universe.
4.FOUNDING ARTISTS; SUPPORTER DATA
(A)Founding Artists.
(i)Groove Monkey will provide You with a free membership in order to access the Sites. You also have the option to upgrade to a paid membership as described in the Terms of Use (attached and incorporated herein).
(ii)Without limiting the foregoing, the first one hundred (100) artists who sign-up for Groove Monkey’s services and agree to the terms of this Agreement shall be considered “Founding Artists”. During the Term, Founding Artists may receive a number of additional benefits, including, but not limited to, the following: (a) A “Founding Artist” badge on their artist profile on the Sites; (b) Direct access to Groove Monkey’s founder; and (c) Access to a private Discord channel specifically created for Founding Artists.
(B)Supporter Data. As set forth in the Privacy Policy (attached and incorporated herein), Supporters may elect to share their personal information (e.g., name, email address, and city) with Artist for purposes such as allowing Artist to build direct relationships with them. Artist may only use such personal information from Supporters for communications relating to Artist’s music, projects, performances, merchandise, and similar related activities. Notwithstanding the foregoing or anything to the contrary contained herein, Artist agrees and acknowledges that Artist may not under any circumstances sell a Supporter’s personal information, share such personal information with unrelated third parties, use such personal information for purposes unrelated to Artist communications as specifically described herein, or continue contacting a Supporter who has opted-out of such communications as described in the Privacy Policy.
5.GRANT OF RIGHTS
For good and valuable consideration, sufficiency of which is hereby acknowledged by Artist, during the Term and throughout the Territory, Artist hereby grants to Groove Monkey the non-exclusive right to exploit the Materials on the Sites, and any other similar rights needed to operate the Sites as provided herein. Accordingly, in connection with the foregoing rights, Artist acknowledges and agrees that Groove Monkey shall have the following non-exclusive rights during the Term and throughout the Territory:
(A)To offer and provide copies of the Materials on the Sites for streaming in any digital or electronic format, whether now known or hereinafter devised, and potentially for downloading and offline listening as described below in paragraph 5(B) in the future, including but not limited to, the right to reproduce, distribute, display, perform, modify (e.g., encoding, transcoding, resizing, formatting, or creating previews), and any other rights needed to enable users of the Sites to stream and download the Materials within the Sites;
(B)You also authorize users of Groove Monkey’s services the right to make copies of the Materials for personal uses, including, but not limited to, the right to copy the Materials onto their computer, smartphone, tablet, smart TV, living room media box, connected car, and other digital and electronic formats, whether now known or hereinafter devised, that are able to utilize Groove Monkey’s services so that a user of Groove Monkey’s services can listen and play along with the Materials while not being connected to the Internet, so long as users are not permitted to use the Materials separate from Groove Monkey’s services. Users of Groove Monkey’s services are granted the above rights in accordance with the Terms of Use contained on the Sites;
(C)To use, publish, and/or to permit others (including users of Groove Monkey’s services) to use and/or publish Your name (legal and/or professional), approved likeness, approved voice, and/or approved biographical material solely in connection with the Materials as part of Groove Monkey’s services. The foregoing shall apply with equal force and effect to any other party that contributed to the Materials in any way, including but not limited to, composers, lyricists, musicians, singers, engineers, mixers, masterers, and producers; and
(D)To use and/or publish the Materials, in any manner, in whole or in part, any associated artwork for the Materials, Your name and the name of any other party that contributed to the Materials, submitted images, and any other submitted materials in connection with the Materials, on the Sites, and/or to promote Groove Monkey, in any media, in Groove Monkey’s sole discretion. All images or materials are “submitted” or “approved” if You send it to Groove Monkey.
6.RESERVATION OF RIGHTS
This Agreement does not transfer the copyrights in the Materials (including, but not limited to, the copyrights in the Composition(s), Master(s), Additional Materials, and all other copyrights). You expressly reserve all rights that are not specifically granted in this Agreement. For clarity, the right to modify the Materials described above in paragraph 5(A) does not include the right to create derivative works except as specifically described herein.
7.ROYALTY
In full consideration for the rights granted under this Agreement, sufficiency of which is hereby acknowledged, provided You are not in breach of any term of this Agreement and You are in compliance with Your obligations hereunder, Groove Monkey agrees to pay You as follows:
(A)Groove Monkey will first calculate the total gross receipts that Groove Monkey actually receives (and does not have to refund or pay for mechanical or performance rights as described below) attributable to each particular Supporter for the relevant accounting period (as described below in paragraph 8) (“Individual Supporter’s Gross Income”);
(B)Groove Monkey will deduct and retain thirty-three percent (33%) of the Individual Supporter’s Gross Income as compensation for offering and maintaining its services. The remaining sixty-seven percent (67%) shall be considered the “Individual Supporter’s Revenue”.
(C)Next, unless already accounted for above, Groove Monkey will deduct all the direct out-of-pocket sums owed for exploitation of the Composition(s) from the Individual Supporter’s Revenue (e.g., sums owed for mechanical rights, and sums owed to the applicable performance rights organizations (e.g., BMI and ASCAP) during the applicable accounting period). The remaining sums shall be considered the “Individual Supporter’s Distributable Revenue”.
(D)Next, Groove Monkey will calculate each Supporter’s Total Qualifying Time. “Total Qualifying Time” means the aggregate amount of time a single Supporter that has Individual Supporter’s Gross Income spends listening, viewing, and/or otherwise interacting with the materials submitted to Groove Monkey by any artist subject to this Agreement and made available on the Sites during the applicable accounting period.
(E)Then, Groove Monkey will calculate how much of that Total Qualifying Time is attributable directly to the Materials during the applicable accounting period (“Your Qualifying Time”).
(F)Finally, Groove Monkey will determine Your share of each Individual Supporter’s Distributable Revenue by multiplying the Individual Supporter’s Distributable Revenue by a fraction, the numerator of which is Your Qualifying Time and the denominator of which is the Total Qualifying Time (the “Royalty”). Groove Monkey will pay You the Royalty from each Individual Supporter’s Distributable Revenue as described below in paragraph 8.
(G)For clarity, You will not be paid a Royalty in connection with the following uses of the Materials: (i) For any time a Supporter spends listening, viewing, and/or otherwise interacting with the Materials under a free membership with Groove Monkey (in other words, there is no Individual Supporter’s Gross Income); (ii) In the event that a Supporter generates no Total Qualifying Time during an accounting period, in which case, Groove Monkey shall be entitled to retain one hundred percent (100%) of the Individual Supporter’s Gross Income and no portion thereof shall be payable to You; and (iii) For any of Your Qualifying Time that is the result of (a) illegal or fraudulent streaming or similar activities in connection with the Materials, or (b) exploitation of materials wholly generated by artificial intelligence.
8.ACCOUNTING; STATEMENTS
Following the close of each monthly accounting period, Groove Monkey will confirm and post to Artist’s account the amount of Royalty earned during that period (the “Confirmed Balance”) no later than the fifteenth (15th) day of the following month. The Confirmed Balance shall be held by Groove Monkey and shall be released to Artist upon Artist’s request as described herein. Any interest generated while being held by Groove Monkey shall be retained by Groove Monkey. Artist may request payout of all or any portion of the Confirmed Balance at any time, subject to a limit of one (1) payout per calendar month. Notwithstanding the foregoing, Artist is solely responsible for any actual third-party payment processing fees charged by Groove Monkey’s third-party payment processor in connection with payment of the Confirmed Balance, which Groove Monkey shall deduct from each applicable payout. Such payment processing fees are set by Groove Monkey’s third-party payment processor and may change from time to time as reflected on the Sites. Notwithstanding the foregoing or anything to the contrary contained herein, in the event Artist does not request payment of the Confirmed Balance within time periods set by applicable laws, Groove Monkey may liquidate such unpaid amounts in accordance with applicable laws.
9.REPRESENTATIONS, WARRANTIES, AND DOCUMENTS
(A)The Parties represent and warrant that (i) they are free and legally permitted to enter into and to perform under this Agreement, and (ii) this Agreement will not interfere with any contract to which they are a party.
(B)In addition to the above, Artist represents and warrants that:
(i)All elements within the Materials are fully original with Artist, have not passed into the public domain, are capable of copyright and other protection throughout the Universe, and shall not incorporate any sound recording, musical composition, or other materials wholly generated by artificial intelligence (i.e., there must be some human authorship);
(ii)Artist owns, controls, and/or has a license to exploit one hundred percent (100%) of all rights of whatsoever nature and kind throughout the Universe in and to the Materials (including, but not limited to, the copyright to the Master(s), the Composition(s), the Additional Materials, any videos, any artwork, and any renewal and/or extension of such copyrights);
(iii)All elements within the Materials and the exploitation of any rights in accordance with this Agreement, or any part thereof, does not and will not violate and/or infringe in any way whatsoever on any person or entity’s copyright, personal rights, proprietary rights, rights of publicity, or rights of privacy;
(iv)The Materials are entirely free and clear from any liens, charges, pledges, security interests, demands, encumbrances, or any other claim whatsoever from any person or entity. For clarity, the Materials do not contain any unauthorized samples, including but not limited to, any portion(s) or interpolation(s) of third-party master recording(s) and/or composition(s), video(s) and/or other material(s), or portions thereof whether musical, lyrical, or otherwise, not owned and/or controlled by Artist;
(v)There are no outstanding advances to Artist whatsoever from any performing rights society, publisher, subpublisher, label, distributor, or other person or entity that would interfere with this Agreement;
(vi)There are no threatened or existing actions, litigation, or proceedings that would adversely affect or prejudice the rights granted herein;
(vii)Artist has the right, on Artist’s behalf and on behalf of all others who participated in or in connection with the making of the Materials, to grant to Groove Monkey all the rights described in this Agreement;
(viii)There are no other restrictions against Artist from granting to Groove Monkey all the rights described in this Agreement;
(ix)Except as expressly specified herein, Groove Monkey and users of Groove Monkey’s services shall have no obligation whatsoever to Artist or any third-party for or in connection with the creation of the Materials and Groove Monkey and users of Groove Monkey’s exercise of any rights described in this Agreement;
(x)Artist has obtained written privacy and publicity rights releases from any person or entity that contributed in any way whatsoever to the creation of the Materials, Artist has been granted both the right to use and exploit such rights (e.g. name, likenesses, images, voices, and biographies) in any way Artist’s desires and the right to assign and license those rights to others;
(xi)Use of the Materials as set forth in this Agreement will not give rise to any claims for payment of re-use fees or residuals (any and all third-party payments shall be Artist’s sole responsibility); and
(xii)Neither Artist nor any person deriving any rights from Artist shall at any time do, or authorize any person or entity to do, anything inconsistent with, or which might diminish or impair, any of Groove Monkey’s and users of Groove Monkey’s rights hereunder.
(C)Artist agrees to deliver to Groove Monkey copies of any documents Groove Monkey reasonably requests supporting Artist’s right to license the rights granted to Groove Monkey hereunder including, but not limited to, employment agreements, copyright assignments, work made for hire agreements, and privacy and publicity rights releases.
(D)The representations and warranties set forth above are true now, will be true in the future, and shall survive termination of this Agreement for any reason whatsoever.
10.INDEMNITY
Artist agrees to at all times indemnify and hold Groove Monkey, its affiliates, subsidiaries, directors, officers, employees, agents, partners, and licensors harmless from any and all losses and damages (including, but not limited to, attorneys’ fees, expert fees, expenses, and costs) whether or not an action is actually commenced, arising out of or connected with any breach or alleged breach by Artist of any warranty, representation, or term of this Agreement. This obligation shall survive the termination of this Agreement for any reason whatsoever.
11.RELATIONSHIP OF THE PARTIES
Nothing herein shall be deemed to create any association, partnership, or joint venture between the Parties. It is specifically understood that each Party will perform its obligations hereunder as an independent contractor without any right to bind the other in any way, except as may be specifically permitted hereunder or expressly agreed upon in writing by the Parties.
12.BREACH; CURE
Except as specifically provided otherwise herein, no Party shall be in breach of this Agreement unless the non-breaching Party gives the breaching Party written notice of such failure to perform and such failure is not corrected within thirty (30) days from and after the breaching Party’s receipt of such notice, or if such breach is not reasonably capable of being cured by the breaching Party within such thirty (30) day period, the breaching Party does not commence to cure such breach within such thirty (30) day period and proceed with reasonable diligence to complete the curing of such breach thereafter.
13.NOTICE
Except as specifically provided in this Agreement, any notices or communications required or permitted to be given under this Agreement must be emailed or mailed by certified mail to the address of the other Party indicated in this Agreement (or such other address as a Party subsequently provides to the other Party). All such notices shall be deemed to have been given and received on the date of delivery.
14.MODIFICATIONS
Except as otherwise specifically provided herein, Groove Monkey may unilaterally make changes to this Agreement upon thirty (30) days written notice to You (email shall suffice), advising of the change(s) and the effective date thereof. Such changes will be effective if You do not notify Groove Monkey that You object within thirty (30) days. If You do provide notice to Groove Monkey of objection, then Groove Monkey may either continue exploiting the Materials under the terms of this Agreement without such change(s), elect to discontinue exploiting the Materials, or agree to negotiate the proposed changes in good faith with You. Groove Monkey agrees and acknowledges that any unilateral change to any term of this Agreement will be exercised with good faith and fair dealing. You agree and acknowledge that You may not change this Agreement in any way without first obtaining Groove Monkey’s written signature and consent.
15.REMEDIES
(A)In the event of a breach by Groove Monkey, Artist’s sole remedy shall be an action at law for only monetary damages not to exceed the monetary compensation payable hereunder, and in no event shall Artist be entitled to equitable or injunctive relief.
(B)The Parties agree and acknowledge that Artist’s services are of special, unique, unusual, extraordinary, and intellectual character involving skill of the highest order which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated for by damages in an action at law. In the event of a breach or a threatened breach by Artist of this Agreement in any way, Groove Monkey shall be entitled to injunctive and other equitable relief, in addition to whatever legal remedies are available to Groove Monkey, to prevent or cure any such breach or threatened breach. The rights and remedies of Groove Monkey as specified herein are not to the exclusion of each other or of any other rights or remedies of Groove Monkey. Groove Monkey may exercise or decline to exercise any of its rights and remedies as Groove Monkey may deem fit, without jeopardizing any other rights and remedies of Groove Monkey.
(C)Without limiting the foregoing, in the event that Groove Monkey receives a claim, notice, or otherwise reasonably suspects that Artist’s use of the Sites involves misrepresentation, misconduct, deception, fraud, or other inappropriate conduct (including, but not limited to, illegal or fraudulent streaming or similar activities in connection with the Materials or exploitation of materials wholly generated by artificial intelligence), and Groove Monkey has already paid Artist the Royalty for such Materials, then in addition to any other available rights and remedies, Groove Monkey shall have the right, in its sole discretion, to suspend or terminate the distribution of the affected Materials and/or the Term of this Agreement, and/or to deduct the improperly paid amounts from any monies otherwise payable to Artist under this or any other agreement between Artist and Groove Monkey, or demand repayment from Artist for such amounts within thirty (30) days after Groove Monkey’s notice to Artist.
16.CONFIDENTIALITY AND NON-DISCLOSURE
The Parties agree that all correspondences, information, and disclosures between the Parties in connection with this Agreement shall be strictly confidential, and shall not be disclosed voluntarily to any third-party other than the respective officers, directors, shareholders, members, managers, employees, attorneys, and accountants of a party who are bound to keep any such disclosures strictly confidential. Notwithstanding the foregoing, correspondences, information, and disclosures between the Parties in connection with this Agreement may be disclosed: (A) To a court or governmental body having jurisdiction to require and actually requiring such disclosure; (B) As may be required by law; (C) As a defense to another similar action; or (D) In any action or proceeding to enforce this Agreement.
17.GENERAL
(A)Entire Agreement. This Agreement, together with the Terms of Use, Privacy Policy, and Copyright Policy (attached and incorporated herein), contains the entire understanding of the Parties and supersedes all prior agreements, representations, and understandings between the Parties relating to the subject matter hereof.
(B)Severability. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.
(C)Waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
(D)Assignment. All obligations contained in this Agreement shall extend to and be binding upon the Parties’ respective successors, assigns, and designees.
(E)Choice of Law. The validity, construction, and performance of this Agreement shall be governed and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws provisions.
(F)Dispute Resolution. If a dispute arises out of or relating to any aspect of this Agreement, all of the Parties agree to try and settle the dispute quickly and fairly through discussion. If the dispute cannot be settled through discussion, all Parties agree to first try in good faith to settle the dispute by private mediation before resorting to arbitration. If a dispute cannot be resolved with either discussion or mediation, then the dispute shall be submitted to binding arbitration to ADR Services, Inc. in Los Angeles County under ADR Services’ rules. In the event that ADR Services no longer exists, Groove Monkey shall select another arbitration service in Los Angeles County to conduct the binding arbitration under such services’ rules. In any arbitration or litigation under this Agreement, the prevailing Party shall be entitled to recover from the other Party all costs the prevailing Party reasonably incurs in such arbitration or litigation, including without limitation, reasonable attorneys’ fees.
(G)Clause Headings. Headings within this Agreement are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer.
18.INDEPENDENT COUNSEL
Artist agrees and acknowledges that Artist has been represented by independent legal counsel or has had the opportunity to be represented by independent legal counsel of Artist’s own choice for purposes of advising Artist in connection with the negotiation, preparation, and execution of this Agreement.