Fund raising Agreement 20091015

Fund raising Agreement SellaBand is the sole owner and license holder of the brand and concept 'SellaBand', the website www.sellaband.com and all the software and databases that are included in this website. The purpose of the website is to allow Artists to fund raise a fixed sum of money to finance a future Music Project. SellaBand accepts three types of Music Projects. Funds can be raised for: a: Music Recording b: Promotion / Marketing c: Live concerts / Touring / Festivals SellaBand hereby acts as the facilitator between You, the Artist and your investors, hereafter named Believers, and as administrator of the invested Funds. At the bottom of this Agreement you will find a list of definitions, explaining all key words in this Agreement. 1. Acceptance of terms Before you can become an active user of the SellaBand program you must review this entire Agreement, as well as the General Terms and Conditions. Once you have accepted them you can continue with the registration process. If you do not agree with these terms after you read this Agreement, you should not use the SellaBand service. By agreeing with this Agreement and using the SellaBand service, you agree that we may modify the terms of this Agreement, the General Terms and Conditions and the Privacy Policy in our sole discretion. You will be notified via e-mail and through our Website of these changes. Your continued use of our Services imply that you have accepted the amended Terms and Agreements. 2. Timing This agreement will commence once you have activated your Profile on our Website. There is no time limit attached to the use of our Service. However, after 6 (six) months of showing no activity (i.e. not logging in to your Profile) SellaBand has the right to de-activate your Profile. You will be notified via e-mail once your Profile has been deactivated. 3. Escrow All money invested in a Music Project will be held in escrow. The escrow account is administered by an independent notary of law. Neither party will have any access or rights to these funds prior to reaching the Goal of fund raising for the Project. At any point before reaching your Goal, Believers have the right to withdraw their money in your project. 4. Goal of fund raising As soon as the Goal of fund raising has been reached, SellaBand will transfer the full sum from its escrow account to a current account and will make available 90% (ninety) of this sum to be used for executing the Project. 10% of the total sum will be deducted and allocated to SellaBand as a Success fee and for administering this Project. SellaBand will not transfer any money of the Goal to the Artist directly, but will pay via approved invoices in order to complete the Project. 5. Your rights and obligation before reaching the Goal After signing this Agreement and completing the Registration and before achieving the Goal You will have the following rights and obligations: 5.1 You will create your own profile page, which will be based on the format of SellaBand’s standard profile page for Artists. On this profile page You will include your Plan, as well as a biography, including photographs, text, logos and other information and details with the purpose to promote your Music Project. You are not entitled to include (paid) commercial Banners or advertisements of third parties on your profile page. Besides, you will upload a Demo for streaming on your SellaBand webpage in accordance with SellaBand’s instructions. 5.2 Before reaching the Goal, you are entitled to withdraw from the SellaBand Program at any time. If you want to withdraw, you will inform SellaBand immediately in writing by sending an e-mail to info@sellaband.com. 5.3 You will have total career freedom and are entitled to enter into agreements with record companies, managers, agents or publishing companies, in accordance with this Agreement. You will retain 100% of all your Music Rights. 5.4 Before your Profile can be activated You must determine your Goal of fund raising. You have the right to increase or decrease your Goal. 5.5 You must put a Plan on offer. This Plan must include what you will be using the Funds for that you are raising on SellaBand. 5.6 You can make an offer to potential Believers for making an Investment in your Music Project. This offer can contain a financial component and non-financial incentives. The financial component is a percentage of potential revenues made with the Project. This percentage must be set in the Registration process. You have the right to increase or decrease this percentage before you reach the Goal. 5.7 The minimum return you have to offer to your Believers is a Music Download related to the Music Project. You are free to offer other non-financial Incentives, like for example, but without limitation, CDs, t-shirts, concert tickets, etc. All offers will only be in effect after reaching your Goal and completing your Music Project. You have the right to change these incentives before you reach the Goal. 5.8 You can change your Goal, incentives and revenue share percentage from your project Dashboard. After approval by SellaBand your believers will be notified of your changes by e-mail. Believers then have a period of two full weeks to increase or decrease their number of Parts before you officially have reached your Goal. 6. Your rights and obligations after reaching the Goal SellaBand - Fund raising agreement 20090930 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 6.10 6.11 6.12 6.13 SellaBand will claim no interest in the Copyright, Master right, or any other rights related to the Music Project. You will have total career freedom and are entitled to enter into agreements with record companies, managers, agents or publishing companies, in accordance with this Agreement. After achieving the Goal, you are not entitled to withdraw from the SellaBand program and its obligations, unless as a result of force majeure. SellaBand is solely entitled to decide whether you may withdraw from your obligations, or whether the commitments in the Music Project will be postponed, without any liability for SellaBand. After achieving the Goal, You are entitled to use 90 (ninety)% of the Funds for completion of the Music Project and for the fulfilment of Incentives. You are entitled to use the Funds at your own discretion and in accordance with paragraph 4 of this Agreement. Your Music Project must be completed within 12 months after achieving the Goal of fund raising on SellaBand. A Music Project is completed when the Plan has been fully executed and the Believers have received their Incentives. You are wholly responsible for fulfilling obligations both implied and stated in any Music Project that you have created. This includes, but is not limited to, delivery of goods and services, and any other terms, conditions, warranties or representations associated with listings on SellaBand. SellaBand shall not be liable for your Plan, your Offer, not for the completion of it, or the failure in doing so. When applicable, the term for sharing revenues with your Believers is for the lifetime of the Project. For Recorded Music this term is set for a period of 5 (five) years, commencing on the day of the Release of the Recorded Music. You agree that you will share all Net Revenues generated with the Music Project. SellaBand identifies three different types of Net Revenues related to Music Projects. See definitions under Net Revenues. In case of using the Revenue share model, Parties are obliged to send each other quarterly statements indicating all Gross and Net Revenues derived from the exploitation of the Music Project. Parties have the right to execute and audit on each others books and records, related to Gross and Net Revenues of the Music Project. In the event such an audit results in a deviation that is more than 10% of the original statement, the guilty party will indemnify the injured party with the missing amount and will also bear all additional costs. SellaBand has the right to, on the basis of your quarterly statements, to send an invoice for the amount due to your Believers, based on your Revenue share model. You agree to pay this amount within 30 days after the invoice date to an account indicated by SellaBand. SellaBand will then distribute the monies to your Believers. Remunerations due to you on the basis of this paragraph are credited to your Balance on SellaBand every 3 (three) months, in the first month following the end of the calendar quarter. An overview of all revenues is available on the Artist Dashboard page. At all times you can withdraw money from your balance and transfer it to your Paypal account. You hereby acknowledged that you shall be fully responsible for any and all taxes, interest and penalties arising from receipt by you of any remuneration from SellaBand. In addition to the general indemnification(s) granted elsewhere by you to SellaBand, you hereby agree to indemnify and hold SellaBand, its officers, directors, shareholders, predecessors, successors-in-interest, employees, agents, subsidiaries and affiliates, harmless from any demands, any withholding tax on capital, loss, liability claims or expenses (including attorneys' fees), made against SellaBand arising out of or in connection with, your use of the Site. When using our service for a Music Recording, you hereby agree that you shall refrain from writing and/or composing and/or performing texts and Artwork containing excessively racist, violent, harassing, insulting, incorrect, discriminatory, hurtful or otherwise wrongful or unlawful content. If you violate the obligations under this paragraph, SellaBand shall be reasonably entitled to refuse the recording of the specific Work(s) and/or use of Artwork and demand the delivery of one or more new Works and/or Tracks and/or Artwork within a reasonable period, or terminate your participation in the SellaBand program, without liability of SellaBand. You shall be wholly liable for any consequences following thereof. 7. Profile page Policy 7.1 To be able to create your own profile page as described in paragraph 5.1 on www.sellaband.com, SellaBand will provide you with a password. This password will be strictly personal and confidential. You are solely responsible to maintain the confidentiality of the password. You shall not disclose the password to third parties, nor will you provide third parties access to the webpage with the purpose to include or change information on the webpage. 7.2 You shall include the Demo for streaming on your profile page according to SellaBand’s instructions. 7.3 You are solely responsible for the content of your profile page. You shall refrain from any photographs or text containing excessive nudity, pornographic, racist, violent, harassing or otherwise wrongful or unlawful content. Besides, you shall refrain from any insulting, incorrect, discriminatory, hurtful or otherwise wrongful or unlawful remarks. SellaBand is entitled to remove specific photographs or texts contrary to this Section at all times, without liability. 7.4 You are not allowed to upload songs, videos or photos that infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. 7.5 You shall inform SellaBand immediately if you suspect any unauthorised use or access of the password. 7.6 You are not entitled to include (paid) commercial Banners or advertisements of third parties on your Profile page, neither before or after the Goal of fund raising is achieved. 8. Protection of intellectual property 8.1 You agree not to infringe the intellectual and/or industrial property rights in relation to brands, trade names, trademarks, copyrights and/or neighbouring rights of SellaBand, and notably the SellaBand program and the website, and not to distribute, modify, reproduce or use in another way the brands, trade names, trademarks, designs and other protected objects. All the brands and trademarks that are possibly protected by third parties and are mentioned on the Internet offer are without restriction subject to the provisions of the labelling and property laws in force. SellaBand - Fund raising agreement 20090930 8.2 8.3 8.4 8.5 All rights related to the Demo, including intellectual and industrial property rights like copy- and neighbouring rights, will belong to you. Notwithstanding your rights under paragraph 8.2, SellaBand is entitled to have the Demo included on your Profile Page in such a way that Users are able to take notice of the Demo tracks through streaming. As far as needed, you herewith explicitly grant SellaBand unrestricted permission to include the Demo tracks on your Profile Page for the intended purposes. All neighbouring rights related to the Tracks, including Master rights, shall remain to you, in accordance with this Agreement. Before and after you have reached the Goal of fund raising, you herewith grant SellaBand free and unrestricted permission to use your name(s), portrait(s), image(s), biography, persona, and all other relevant personal details for use of promoting SellaBand and its service. Promotion of this service includes, but is not limited to activities on www.sellaband.com 9. Guarantees, warranties and indemnifications 9.1 You shall act in such a way that you will not violate the Agreements in any way. 9.2 You guarantee that you are fully entitled to both the Works and the Demo and Artwork and indemnify and hold SellaBand harmless for all claims related thereto. 9.3 You guarantee that you are fully entitled to enter into the Agreements and indemnify and hold SellaBand harmless against all third party claims related thereto. 9.4 Parties indemnify each other against all claims of third parties as a result of gross negligence or intent by the indemnifying party with respect to the performance of any activities under the Conditions and/or the Agreements. 9.5 You warrant that your the participation in the SellaBand program does not violate any applicable law or regulation and indemnify and hold SellaBand harmless for any claims or damages resulting thereof. 9.6 SellaBand is not responsible or liable for non-accessibility of the SellaBand website (www.sellaband.com) or thereto related webpages, such as your Profile Page, for whatever reason. 10. Liability SellaBand shall not be liable for any – direct either indirect - damage or loss suffered by you and/or the Believer(s) involved arising from any failure to meet any guarantee or obligation set out in this Agreement in whole or in part, including but not limited to damage or loss arising from any failure to meet any guarantee or obligation mutually agreed between you and the Believer(s) involved. Both you and Believer(s) involved are independently liable for such damage or loss. 11. Privacy Policy The Privacy Policy of SellaBand will be applicable. This Privacy Policy is incorporated into the Conditions by this reference thereto. 12. Termination 12.1 Until the Goal is achieved you are entitled to withdraw from the SellaBand program and therefore terminate the Terms & Conditions and/or the Agreements at any moment for whatever reason, subject to paragraph 5.2. 12.2 SellaBand may terminate your participation in the SellaBand program with immediate effect without notice of default or judicial intervention being required and without any further legal liability towards you in the following situations, and not limited thereto: if you or your statutory representative(s) have not filled in the Registration Form truthfully; if your profile page contains any photographs or texts contrary to paragraph 7.3 and 7.4. Before termination SellaBand will at its sole discretion decide whether specific photographs, songs, videos or text can be removed to avoid termination, without liability of SellaBand; if you do not fulfill your obligations towards the Believers involved, amongst others the agreed provision of (extra) incentives/offers, contrary to paragraph 5.6; if you have been given notice of default and remain in default after having been provided with a reasonable term to fulfill your obligations; for urgent cause, in accordance with the relevant statutory provisions; after a period of 6 (six) months without logging in by you . 13. Registration 13.2 You shall fill in and submit the Registration Form truthfully and accurately at all times. SellaBand is at its sole discretion entitled, but not obliged, to verify the information filled in at the Registration Form. 13.3 SellaBand is not responsible or liable for any incorrect, inaccurate or unlawful information and/or actions and consequences following thereof in relation to your age and other personal details and information provided by you at the Registration Form. 14. Force Majeure Neither of the parties shall be liable for any delay or non-compliance with his/her obligations under the Conditions if he/she is unable to comply as a result of force majeure. Parties will inform each other immediately in writing in case of force majeure which effects the SellaBand program or the Artist’s participation therein. If the situation of force majeure has lasted for more than 30 (thirty) days, parties shall consult whether the force majeure is expected to be terminated within a reasonable period. If there is no such expectation, parties are entitled to terminate the Conditions and/or the Agreements in accordance with the applicable legislation and regulations, without liability. 15. Applicable law and jurisdiction 15.1 The provisions of this Agreement, as well as any disputes connected with or ensuing from this Agreement, shall be governed by the laws of the Netherlands. SellaBand - Fund raising agreement 20090930 15.2 Any disputes ensuing from or connected with the provisions of this Agreement shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam. 16. International Accessing the Service can be prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws. 17. Additional terms 17.1 Should individual provisions of this Agreement be or become void or ineffective and/or conflict with legal provisions, then this will not affect the validity of any other conditions of use in this Agreement. The ineffective provisions shall be replaced by the Parties to this Agreement by provisions that best meet the economic purpose of the ineffective provisions in a legally effective way. This shall correspondingly apply to any missing provisions. 17.2 In case of multi language Agreements and/or Terms & Conditions, the English version(s) of the documents concerned will at all times prevail. 18. Services SellaBand offers additional services, such as: - The option to connect you with our network of Producers, Studios, Agents and Managements. - Selling music through our store - An international network of distribution partners. l - The possibility to manufacture and distribute your Music Recordings. - Fulfilment of your Incentive offers to your Believers. Additional charges may apply to using these services. SellaBand is entitled to add and offer new services through its website www.sellaband.com Definitions: Agreement and Registration: The moment in which the user confirms his/her acceptance of this Agreement and other Terms and Conditions and registers formally for the SellaBand program by filling in the Registration Form. All (photo)graphic designs, of whatever nature, produced for the purposes of and/ or suitable for use in the context of sales-promoting or other expressions, of whatever nature, including but not limited to expressions in daily or other newspapers, and on radio, television, (Internet) websites and mobile carriers, on flyers, inlay cards, record sleeves, boxes and packaging materials. A member who believes in your Music Project and its success. A Recording containing a minimum of 1 (one) Track of the Artist, exclusively produced by the Artist and uploaded on their SellaBand Profile Page. The total sum which has been raised through the SellaBand Program. The target amount of fund raising. The revenues as a result of the exploitation of Music Projects. What a Believer will be entitled to receive in return for his/her investment in your Music Project. Amount of money pledged in your Music Project. A registered user on SellaBand. SellaBand identifies three types of Projects for which you can fund raise: Music Recording, Promo/Marketing, Concert/Tour/Festival. a. any sound recording made for the purpose of or suitable for the production and/ or distribution and/or making available to the public of Reproductions thereof, including, unless indicated otherwise, Demos included; b. any recording of images, information, sound, data, information or a combination thereof, made for the purpose of or suitable for the production of linear and/or digital and/or interactive Reproductions thereof, which are capable of representing information, images and sound simultaneously. Artwork: Believer: Demo: Funds: Goal: Gross Revenues: Incentive: Investment: Member: Music Project: Music Recording: Net Revenues for Recorded Music: Gross Revenues reduced by all thereto related taxes, expenses and costs, including but not limited to all reasonable direct an/or indirect costs with regard to, manufacturing, distribution and stock. SellaBand - Fund raising agreement 20090930 Net Revenues for Promo/Marketing: Gross Revenues related to the promoted item, reduced by all thereto related taxes, expenses and costs, including but not limited to all reasonable direct an/or indirect costs with regard to manufacturing, distribution and stock. Net Revenues for Live concerts / Tours / Festivals: Gross revenues generated via ticket sales for the related event(s), reduced by all thereto related taxes, expenses and costs, including but not limited to all reasonable direct an/or indirect costs, with regard to staging the event(s) Part: Parties: Plan: Profile Page: Program: A declaration of faith in Artist’s success. You and SellaBand. Description of the purpose of your fund raising project and details of execution and fulfilment of the Music Project. Your Profile Page accessible by the users of SellaBand. The offering on SellaBand. Artist can fund raise a budget on SellaBand, funded by Believers, with the purpose of financing a Music Project. The program is completed when the artist has reached the goal on SellaBand. Release: Reproduction: The commencement of the exploitation of the Album by the making available to the public of a certain configuration in any way whatsoever in a particular country. A copy of one or more Recordings as impressed on a Master, or parts thereof, for the purposes of exploitation, in the form of gramophone records, music cassettes, compact discs and similar laser-read carriers, mini discs and other MO Discs, DCC, CD-i, CD-ROM, CD-Video, DVD, VHS, HD-DVD, Blu-Ray, UMD and any other sound and/or image and/or information carrier according to presently known like, but not limited to the Internet and/or other online distribution methods and mobile communication like UMTS, and yet unknown techniques for recording and reproduction thereof. Percentage of the Goal that will be allocated to SellaBand for handling and administration, once the Goal has been achieved and the Funds have been made available. The amount of the Goal of your Music Project. A Work, selected for performance or performed for the purpose of producing one or more Recordings pursuant to this Agreement. A Recording of a specific performance of a specific Title, whether made as trial or test performance or otherwise, incomplete or rejected by SellaBand, irrespective of whether it is represented on the Master. Success fee: Target Amount: Title: Track: User: Any user of the SellaBand website with the Internet address www.sellaband.com and associated websites, including the Artist’s Profile pages and the download portal. Musical works, with or without lyrics or text, amongst others musical works. Person or entity using the SellaBand service for fund raising a Music Project Overview of your earnings on SellaBand. Personal page on SellaBand. This page is only accessible by you with a password and login. From this page you can change your profile, upload pictures, songs and videos. Works: You: Your Balance: Your Dashboard: SellaBand - Fund raising agreement 20090930