As of September 2021
This Distribution Agreement and Terms of Service (hereinafter referred to as this “Agreement”) is a binding legal agreement between you and Palm Media Enterprise (“DIXTRIT.media”, “our” or “us”) regarding your use of our DIXTRIT.media services to distribute your musical recordings to selected digital services and stores (our “Service”), and any other uses of your musical recordings and musical compositions by DIXTRIT.media and its licensees as described herein. If you are entering into this Agreement on behalf of one or more persons, a group, or a company or other entity, then by accepting this Agreement you represent and guarantee us that you are duly authorized to do so on behalf of all such person(s)/entity(ies) and to bind them to this Agreement and that DIXTRIT.media is fully entitled to rely on that fact (in which case, the term “you ” includes all such person(s) and entity(ies) in our performance under this Agreement.
DIXTRIT.media does not take any copyright or other interest in any of your music, only a license to distribute.
Please understand that you must own or otherwise have the legal right to reproduce and distribute 100% of the recordings, musical compositions, literary works, dramatic works, spoken word content, artwork and any other material that you intend to upload and distribute via the DIXTRIT.media service, including the right to make and distribute digital downloads embodying the musical compositions therein, and electronic transmissions of such musical compositions (including, without limitation, via streaming services), as necessary.
1. THE DIXTRIT.media SERVICE AND YOUR RECORDINGS
- The DIXTRIT.media Service enables you to upload to our servers digital files containing audio-only musical sound recordings or audio-visual works and the underlying musical compositions, literary works, dramatic works or spoken word content embodied therein (“Recordings”) for distribution to your choice of digital stores, streaming services, and other digital service platforms within our distribution network ( “Digital Stores”; which shall include user-generated content platforms such as TikTok, YouTube, Twitch, etc.), who may make your Recordings available to the public, customers and end-users (“Customers”). Such musical compositions, literary works, dramatic works or spoken word content embodied in the Recordings are sometimes referred to herein collectively as “Compositions”.
- The term of this Agreement (the “Term”) will begin on the date you upload your Recording(s) to our Service, and will continue for two (2) years. DIXTRIT.media shall be able to exercise an option to renew if the contract isn’t terminated by either party.
- Note that the term will begin on the date you upload each of your Recording to our Service.
- The Term will renew automatically at the end of each annual contract period (and your credit or debit card will be charged accordingly) unless you terminate your account prior to the end of the then-current contract year via your account on the user dashboard on our Site (i.e. DIXTRIT.media or any other website that we might use in the future for the same purpose).
- DIXTRIT.media may unilaterally terminate the Term for any reason, including but not limited to:
- If we reasonably believe that you or any of your Recordings or other content have violated this Agreement or the terms and conditions of any Digital Store.
- That you or your Recordings infringe the intellectual property or other rights of any person(s) or entity(ies).
- if we are prompted by any Digital Store or reasonably believe that any Digital Stores will not accept your Recordings or other content specifically or categorically.
- That you are otherwise abusing our Service or any Digital Store or engaging in fraudulent or illegal activity.
- We may also terminate the Term if the credit or debit card that you provided to us expires, is cancelled, or if our attempts to charge your Service fee are declined for any reason, or if we reasonably believe that charges were incurred fraudulently. So if the number, expiration date, billing address, or any other card or account information changes, please be sure to update your DIXTRIT.media account promptly via the Site user dashboard. At our sole option, we may nevertheless, after the expiration of the current term, elect to renew the Term and to deduct the applicable renewal fee from any and all sums payable to you hereunder. We may also terminate the Term if our Service is discontinued for any reason.
- After the end of the Term, we will notify all applicable Digital Stores to remove your Recordings and will have no further obligation to you other than to account and pay for monies earned during the Term. Customers who downloaded or otherwise accessed your Recordings on any applicable Digital Stores may be able to retain and continue listening to your Recordings even after the Term of this Agreement is over.
3. GRANT OF RIGHTS
- In order for us to provide the Service and to distribute your Recordings (which includes the Compositions) and related content to your selected Digital Stores via our Service, you hereby grant us the non-exclusive, sub-licensable right and license during the Term and throughout the Territory (i.e. the entire world) to:
- reproduce and distribute your Recordings, to Digital Stores for them to sell or sublicense to their Customers by any and all applicable digital (non-physical) formats, configurations, technologies and methods (including, without limitation, permanent downloads, temporary or “tethered” download, interactive and non-interactive streaming, “scan and match” services, “cloud” services, digital jukeboxes, digital and online/wireless karaoke services, business establish background services, home-exercise background and audiovisual services, and other audiovisual services) to any and all capable devices (including, without limitation, to personal and tablet computers and smartphones), in each case as now or hereafter known. Without limiting the foregoing, you acknowledge that the foregoing rights include the rights to allow Digital Stores and/or their users to synchronize your Recordings in timed-relation with visual images, and any necessary rights of performance and reproduction required for the operation of such Digital Stores;
- create, reproduce, publicly perform and make available, and to authorize Digital Stores to reproduce, create and publicly perform and make available, free preview clips of your Recordings via streaming format either on DIXTRIT.media Sites or via the Digital Stores;
- authorize third-party partners and/or licensees of DIXTRIT.media, which offer services permitting the creation, use and exploitation of so-called “remixes” of your Recordings and so-called “user-generated content” embodying your Recordings, including, without limitation, YouTube, Facebook, Instagram and TikTok (collectively, the “UGC Services”). Without limiting the foregoing, you agree that DIXTRIT.media shall have the right to grant UGC Services the following related rights:
- to synchronize and authorize others to synchronize your Recordings (which again, solely for clarification, includes the Compositions), with visual images and/or combine excerpts of your Recordings with any series of still or moving images, either pre-capture, post-capture or as a live stream;
- to use and include your Recordings and/or remixes of your Recordings in “Mix Content” which shall mean the combination of two (2) or more whole or partial audio-only tracks which may be harmonically, rhythmically or otherwise mixed, remixed, edited or mashed up;
- to store, host, reformat, make on-demand streams of, make conditional (“limited” or “tethered”) downloads of, and display your Recordings as have been embodied in user videos, “art tracks,” audio-only tracks (including remixes), label videos and Mix Content, and to make your Recordings available on and through the UGC Services, including without limitation, in embedded YouTube video players;
- You also grant to us and to your selected Digital Stores the right and license during the Term and throughout the Territory to take all steps desired or required to effect the foregoing rights and to distribute your Recordings and Materials as contemplated in this Agreement, including without limitation, to store, host, cache, reproduce, convert, edit, serve, transmit and publicly perform such Recordings, and as otherwise required pursuant to our agreements with those Digital Stores, as may be amended from time to time during the Term. You understand that Digital Stores may grant to Customers, rights to use your Recordings beyond the Term of this Agreement, even perpetual rights. As noted above, Digital Stores and/or we may decline to distribute or otherwise exploit any Recordings or other Materials (or to remove any Recordings that have already been distributed or offered to Customers) in our reasonable business judgment. You will be deemed to have approved any artwork, photographs, biographical material or other information or materials that you provide to us.
- Only as soon as sales reports and money are made available by Digital Stores, and upon the full and faithful performance of all the material terms by all parties, 80% of the income (the “Royalties”) generated from your Recordings throughout the Territory through Digital Stores and UGC Services will be paid to you.
- You agree to indemnify and reimburse us in full via your Royalties balance and/or separate payment against any claims, liabilities, damages, losses or expenses (including legal fees) suffered or incurred by us as a result of your breach of any of the warranties or undertakings in this Agreement, or any claims by any third party including but not limited to claims for payment of outstanding debts for services provided or goods supplied by such third parties.
5. REPRESENTATIONS AND GUARANTY; INDEMNIFICATION
- You shall indemnify and hold harmless, and upon our request, defend Palm Media Enterprise and our affiliates, sub-licensees (including your selected Digital Stores and their Customers), successors and assigns, and the respective directors, officers, shareholders, members, managers, employees, agents and representatives of the foregoing, from and against any and all claims, suits, proceedings, disputes, controversies, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs) resulting from:
- a breach or alleged breach of any of your warranties, representations, covenants or obligations under this Agreement;
- any claim that the Recordings, Materials, data or information provided or authorized by you or on your behalf hereunder or the use thereof by DIXTRIT.media, a Digital Store, or an ID Service (if applicable) violates or infringes the rights of another party;
- any other act or omission by you or any of your licensors, agents or representatives.
You shall promptly reimburse DIXTRIT.media and any other indemnified parties on demand for any amount subject to indemnification. We shall notify you of any such claim and shall control the defense thereof, though you may participate in such defense at your own expense. You may not settle any claim for which we may be liable without our prior written consent, which we will not withhold unreasonably. If any facts, claims, proceedings or other circumstances arise that would be subject to indemnification, then DIXTRIT.media, in addition to any other right or remedy, shall have the right to withhold from any payments otherwise due to you an amount reasonably related thereto until the claim, proceeding or circumstance has been finally resolved, settled or fully adjudicated and the judgment satisfied, or that the statute of limitations on such claim has run, or when you have provided reasonable and adequate security for the claim. DIXTRIT.media reserves the right to charge you (or deduct from monies payable to you) for any legal fees incurred by DIXTRIT.media as a result of your violation of this Agreement.
6. NO WARRANTIES; LIMITATION OF LIABILITY
- The site and service are offered and provided to you on an “as-is” basis. DIXTRIT.media makes no guarantees, representations or warranties, express or implied, statutory or otherwise, including without limitation as to the amount of income that may be earned by or payable to you hereunder, or as to the condition, quality, continuity of operation, performance, merchantability or fitness for a particular purpose of our site or service. We do not guarantee that access to or use of the site or service will be continuous, uninterrupted, error-free or secure. Any and all warranties are expressly disclaimed and excluded.
- To the maximum extent permitted by law, neither Palm Media Enterprise, the DIXTRIT.media Service, nor any of its affiliates, employees, owners, representatives or agents will be liable for any indirect, incidental, special, exemplary, punitive or consequential damages, including without limitation; loss of profits, lost sales, loss of data or loss of goodwill, for any acts or omissions of Digital Stores or their Customers, ID services, or for your use of or access to the Site or Service, whether based on warranty, contract, tort (including negligence), product liability or any other legal claim, and whether or not we have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will DIXTRIT.media’s aggregate liability arising out of or in connection with this Agreement exceed the sums actually due to you in accordance with paragraph 4.a above. The limitations of damages set forth above are fundamental elements of the basis of the agreement between DIXTRIT.media and you.
- A party’s waiver of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement. If any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, such determination shall not affect any other provision hereof, and the unenforceable provision shall be limited solely as necessary or replaced by an enforceable provision that most closely meets the commercial intent of the parties.
- Neither Palm Media Enterprise nor the DIXTRIT.media Service will be liable for a curable breach of this Agreement unless you provide us with written notice specifying the alleged breach that we confirm receipt of, and we fail to cure such breach within ninety (90) days thereafter.
- You may not assign, transfer or delegate any of your rights or obligations hereunder without our prior written consent, and any purported attempt otherwise will be null and void ab initio. We may assign, delegate, pledge, encumber, sublicense and otherwise transfer this Agreement and/or any or all of our rights and obligations in order to operate the Service and Site. This Agreement will be binding on and inure to the benefit of the parties and their respective assigns and successors in interest.
- This Agreement shall be construed and enforced exclusively in accordance with the laws of the Federal Republic of Nigeria. Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a court of competent jurisdiction located in Lagos State, and the parties irrevocably consent to the in personam jurisdiction and venue of said courts. You agree that service of process by us to you by one of the methods designated above for the giving of notices will be deemed effective as personal service within Lagos State and hereby consent to service of process by such methods.