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Terms Of Service Agreement

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N2N Productions LLC – N2N Hosting
Independent Music Hosting & Sales
Terms of Service Agreement April 2016

Please read the following terms and conditions carefully. These terms and conditions, as well as the (the “Copyright Policy”) and the (the “Privacy Policy”) (incorporated herein by this reference and collectively referred to as the “Terms of Service”), govern your access to and use of the N2N-Hosting.com website (the “Site”), including the use of any content, information, products and/or services therein. This is a legal agreement between you, (“Vendor”) and N2N Productions LLC/N2N-Hosting, (“Company”). Company reserves the sole right at any time to modify, discontinue or terminate the Site and Services, or modify the Terms of Service without notice. It is your responsibility to check these Terms of Service periodically for changes. By continuing to use or access the Site and/or Services after Company makes and posts any such modification, you agree to be legally bound by the revised Terms of Service. You may not alter the terms and conditions of the Terms of Service without Company’s express written consent.

YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY COMPANY THROUGH THE SITE OR WITH RESPECT TO YOUR N2N HOSTING ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY COMPANY.

  1. GRANT OF RIGHTS.

(a) The rights granted hereunder shall include the sale of Recordings (as defined in Section 2 below) by, without limitation, permanent digital downloads services.

(b) You agree that you will not use the Site or Services to transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. You acknowledge and agree that Company may disable access to and/or terminate your account and/or remove or disable access to any Recordings or any associated materials you provide to Company in the event that Company receives any claim that, if true, would constitute a violation of your representations and warranties hereunder. Please see the Copyright Policy for further information.

(c) You agree that Company may terminate your account if you violate the Terms of Service or, in Company’s good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.

  1. RECORDINGS.

The term "Recordings" shall be defined as the sound recordings and audiovisual recordings that you submit to Company at any time. Company, in its sole discretion, reserves the right to reject any materials (including, without limitation, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images and artwork at your sole expense, in the format(s) required by Company. Technical descriptions of such format(s) will be provided to you. You agree that Company will have the right to supplement existing artwork necessary to complete on line posting and advertising. Reasonable efforts will be made to provide you with approval rights over such artwork, but in the event that you object to any such artwork your only remedy shall be to (a) provide appropriate replacement artwork or (b) request prospective discontinuation of delivery of your materials in such manner.

  1. PAYMENTS.

(a) Vendor will pay Company an agreed upon percentage of the Gross Income (as defined in Section 3(b) below). Gross Income will be posted to your PayPal account in a timely fashion after processing via our commissions based application and PayPal’s Adaptive Payment program. Once payment has been credited to your account, you will be able to make withdraw at your discretion, in accordance with PayPal’s terms of service. You will be responsible for any bank fees or other charges related to such withdrawals. Refunds are at your sole discretion and you indemnify N2N Productions LLC/N2N-Hosting of any responsibility regarding refund payments owed.

(b) "Gross Income" shall be defined as revenues collected at sale less any N2N Productions LLC/N2N-Hosting agreed upon percentage fee, or PayPal payment gateway fees. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than (6) months after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.

(c) To the extent that you owe any amounts to Company as a consequence of the Terms of Service or otherwise, Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise payable to you.

(d) In the event that Company has, in its good faith discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent or infringing activities, Company reserves the right to discontinue the posting of Net Income to your account. Furthermore, you agree that such revenues will be forfeited by you if Company determines, in its good faith discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by you or your affiliates actions or omissions, any costs incurred by Company (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by the Company hereunder.

(e) The Net Income posted to your Paypal account is held under their terms and not under the discretion of the Company. Any and all dealings with PayPal are at your discretion and you indemnify the Company from any and all dealings between you and PayPal.

(f) To the extent that you elect to use certain Recordings from your N2N-Hosting catalog to distribute free to any parties (via a Streaming Player, directly through your own website or otherwise), you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries. Without limiting any of the foregoing, you expressly agree to either waive music publishing royalties (if you own or control such rights) or pay any necessary royalties due to third party music publishers as a result of any such free distribution.

(g) In the event that Company is presented with a claim of infringement of copyright, trademark, right of publicity or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, you agree that Company may freeze any and all revenues in your account that are received in connection with the disputed Recordings or other materials submitted by you, and that such revenues will be forfeited by you if Company determines, in its good faith discretion, they are the result of fraud and/or infringement. Furthermore, if in Company’s reasonable business judgment it elects to engage an attorney to review and/or respond to such claim, Company shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to Company (such as a PayPal account, credit card or debit card) (each a “Payment Method”) a minimum of Three Hundred Dollars ($300) to offset the costs of associated legal fees and expenses.

  1. THIRD PARTY OBLIGATIONS.

(a) You shall be solely responsible for securing and paying for digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from musical composition copyright owners or their agents in connection with Company's exploitation of rights hereunder, as well as royalties due to artists, producers and other persons who performed in the making of the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.

(b) For digital download sales, including the mechanical royalty on the underlying composition. If you do not own or control the underlying composition(s) in your sound recording(s), it is your obligation to pay these publishing royalties to the person or entity that does.

(c) To the extent that Company permits you to select Recordings from your catalog to distribute free to fans or directly through your own website, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries.

  1. WARRANTIES; REPRESENTATIONS; INDEMNITIES.

(a) You warrant and represent that you are at least eighteen (18) years of age, you have the right and authority to enter into this agreement and to grant to Company all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, audiovisuals, images and any other materials furnished by you to Company or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site shall not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity; and that Company shall have the right to exploit same in any manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity other than the amounts payable to you hereunder.

(b) You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach or a claim which, if true, would constitute a breach of the foregoing representations and warranties or any of the agreements contained in these Terms of Service, including reasonable attorneys' fees and expenses.

(c) Company shall give you prompt notice of any claim that is subject to the foregoing indemnification obligation and you shall defend Company at your expense with counsel approved by Company, which approval shall not be unreasonably withheld. In the event you fail to retain approved counsel, Company may, if it so elects, defend itself at your cost and expense and you agree that Company may require your participation in such defense as a third party or otherwise and you hereby waive any objection or claim to compensation in respect of same. If a claim is made Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to Company's prior written approval.

(d) THERE ARE NO REPRESENTATIONS OR WARRANTIES BY COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN AS EXPRESSLY SET FORTH IN THE TERMS OF SERVICE.

The Terms of Service shall apply at all times while you utilize the Site or the Services.

You acknowledge and agree that, in the course of negotiating and transacting business with Company, you may become aware of certain otherwise confidential information related to Company’s business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential. You hereby expressly agree that Company shall have the right to provide information relative to the sales of your Recordings hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.

Copyright Registration & UPC/ISRC Codes.

You are responsible for any and all Copyright registration of your material. Company will provide you with free UPC and ISRC codes upon request. This is for your use only and may not be transferred or resold. If transferred or resold, Company will charge you Twenty-Five Dollars ($25.00) per ISRC code, plus any revenue made by you from such transfer or resale. Company may deduct such charges from any Net Income owed to you by Company or charge such amounts to any Payment Method you provide to Company.

(a) The Site and Services may be used and accessed solely for lawful purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services, including, without limitation, applicable common law, all relevant statutes, and the rules and regulations of the Office of Foreign Assets Control of the U.S. Department of the Treasury. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site and Services:

  • (i) Disable, hack, circumvent or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Company content or materials;
  • (ii) Use any metadata, meta tags or other hidden text utilizing a N2N Productions LLC/N2N-Hosting name, trademark, URL or product name;
  • (iii) Upload, submit, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
  • (iv) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
  • (v) Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are, in the sole opinion of Company, unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including, without limitation, any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable;
  • (vi) Destroy, interfere with or disrupt, or attempt to interfere with or disrupt, any web pages available on the Site, servers or networks connected to the Site or the technical delivery systems of Company’s providers or break any requirements, procedures, policies or regulations of networks connected to the Site;
  • (vii) Attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Site or Services;
  • (viii) Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services;
  • (ix) Attempt to search, meta-search or access the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Company or other generally available third party web browsers (e.g., Internet Explorer, Firefox, Safari), including, without limitation, any software that sends queries to the Site to determine how a website or web page ranks;
  • (x) Collect or store personal data about other users of the Site or Services without their express and explicit permission;
  • (xi) Misrepresent or impersonate your affiliation with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud;
  • (xii) Use the Site or Services in any manner not permitted by the Terms of Service; or
  • (xiii) Instruct or encourage any other individual to do any of the foregoing or to breach and/or violate any of the Terms of Service.

(b) Company shall not be deemed in breach of the Terms of Service unless you have given Company notice of the breach and Company has failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder.

(c) In no event will Company, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, Services, Company products or any Company content, no matter whether the damages are foreseeable and whether or not Company has been advised of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and in no event will Company’s aggregate liability to you exceed One Hundred Dollars ($100).

(d) The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of California excluding that body of law pertaining to the conflict of laws. Any legal action or proceeding arising under the Terms of Service shall be brought exclusively in courts located in the State of California and County of San Diego, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The parties to this agreement waive their respective rights to a trial by jury. In the event that any provision in the Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of the Terms of Service will not be deemed a waiver of such right or provision. You may not assign the Terms of Service (by operation of law or otherwise) without the prior written consent of Company and any prohibited assignment will be null and void. Company may assign the Terms of Service or any rights or obligations hereunder without your consent. The relationship of the parties under the Terms of Service is that of independent contractors and the Terms of Service shall not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that the Terms of Service and the rules, restrictions and policies contained herein, and Company's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Company. The Terms of Service, together with the rules and policies of Company, constitute the entire agreement between Company and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given (i) by Company via email (in each case to your email address of record), (ii) a posting on the Site, or (iii) by you via email to Admin@N2NProductions.com or to such other address as Company may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.

(e) You acknowledge that you have read and understand Company's Privacy Policy as more fully described on the Site, and by using the Services and the Site you have expressly accepted the terms and conditions set forth in such Privacy Policy, as same may be amended from time to time.

(f) It is your responsibility to deliver all necessary information, metadata, songs, graphic files or any other information or music in the format required. You acknowledge that Company will not be obligated to furnish its services hereunder until receipt of said materials.

(g) You authorize Company to make and perform sample clips of your Recordings for streaming to promote the band, artist and/or Sale of applicable Recordings. To the extent that you own or control the publishing rights in the musical compositions embodied in your Recordings used in the Clips (the “Compositions”), you authorize Company to make and perform sample clips of your Compositions via streaming to promote the band, artist and/or Sale of applicable Recordings. Said Clips will be created by Company and will be posted for streaming upon your consent.

(h) Company reserves the right, in its sole discretion, to refuse to provide its services to you or any customer for any or no reason whatsoever.

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