TERMS & CONDITIONS FOR VENDORS

Any person or entity (“Vendor”) selling, using or otherwise accessing the site at www.psytrance-pro.com (the “Site”) or any of the information contained in the site agrees to and is bound by the following terms and conditions of this vendor agreement (“Agreement”):

1. DEFINITIONS

In this Agreement, the following terms shall have the following meanings:

  • “Net Receipts”: means the net receipts and revenues received by Psytrance-Pro from the sale, distribution and exploitation of the Owner Content pursuant to this Agreement, less any expenses directly attributable to such sale, distribution and exploitation;
  • “Owner Content”: means any MIDI files, audio files, VST instruments, soundsets or other saleable materials provided to Psytrance-Pro by the Owner and approved by Psytrance-Pro in accordance with clause 3;
  • “Purchaser”: means a purchaser or potential purchaser of the Owner Contact via the Website;
  • “Recipient Device”: means a personal computer, as that term is commonly understood and/or a mobile telephone handset to which Owner Content may be Downloaded/Streamed;
  • “Service”: means Psytrance-Pro’s consumer Streaming/Download service, available via the Website, operated and controlled by Psytrance-Pro and by Owner where applicable, where Purchasers may purchase Owner content either individually or in aggregate;
  • “Streaming”: means the performance or continuous transmission, public or otherwise, of Owner Content from servers owned or controlled by Psytrance-Pro, by means of an internet transmission which is substantially contemporaneous with the audible and/or visual rendering of that Owner Content on the Purchaser’s Recipient Device, utilising a technology that is not designed to result in a reproduction of the Owner Content on such Purchaser’s Recipient Device or any other device which would be usable without a simultaneous, active connection to the digital transmission source;
  • “Term”: means the term of this agreement, which shall be perpetual unless terminated in accordance with clause 9.1;
  • “Website”: the website(s), and/or the WAP and/or iMode site(s), operated by Psytrance-Pro or an Approved Affiliate and through which the Service is made available.

2. ASSIGNMENT OF RIGHTS

In consideration for the payments set out herein and subject always to the terms hereof, Owner HEREBY ASSIGNS to Psytrance-Pro non-exclusive distribution rights of all material in the Owner Content.

3. DELIVERY OF CONTENT

  • 3.1
    Owner shall electronically provide the Content to Psytrance-Pro, in whatever file format reasonably requested by Psytrance-Pro, by uploading the Content to a web server space provided by Psytrance-Pro via File Transfer Protocol (FTP) access granted by Psytrance-Pro.
  • 3.2
    Psytrance-Pro shall review such potential Owner Content and shall, in its sole discretion, decide whether such potential Owner Content shall be made available for distribution via the Website. In the event that any potential Owner Content is not accepted by Psytrance-Pro, Psytrance-Pro may provide reasons for this to the Owner, but shall be under no obligation to do so.
  • 3.3
    Content shall be deemed to be Owner Content, and the assignment set out in clause 2 shall take effect on acceptance of the Owner Content by Psytrance-Pro in accordance with clause 3.2.

4. PSYTRANCE-PRO’S OBLIGATIONS

  • 4.1
    Psytrance-Pro shall be responsible for providing, at its expense, all systems and communications means necessary to sell and make available access to Owner Content.
  • 4.2
    While Owner Content is being Streamed on the Service, Psytrance-Pro shall make available to Purchasers a link to a location within the Service, or a “buy button”, through which the Purchaser may purchase the Owner Content.
  • 4.3
    Psytrance-Pro agrees not to offer or broadcast free samples of the Content, or otherwise apportion or create derivatives of the Product, whether for promotional or commercial purposes, without the written consent of Owner.

5. PRODUCT PROMOTION AND DISTRIBUTION

  • 5.1
    Psytrance-Pro will, in good faith, provide appropriate marketing and distribution support for the promotion and sell of the Product on its website www.psytrance-pro.com, as follows:
    – Assuming all costs and responsibility of said promotion and sales services, including, but not limited to, Content hosting, e-commerce, and customer service;
    – Ad banner, emails and other promotion as agreed.
  • 5.2
    Notwithstanding the provisions of 4.3, Owner grants Psytrance-Pro permission to use Owner’s name and likeness for the purposes of sales and promotion of the Product.
  • 5.3
    Notwithstanding the provisions of 4.3, Owner grants Psytrance-Pro permission to distribute and use provided materials such as audio demos, cover images and written descriptions for the purposes of sales and promotion of the Product. This may include but is not limited to distribution via Psytrance-Pro’s online channels on site such as soundcloud, youtube and other social media.

6. PRODUCT PRICING

  • 6.1
    Psytrance-Pro will ensure that the Product prices on its website, as promoted and sold, are up to date with Owner current price list and/or written instructions.
  • 6.2
    Psytrance-Pro will ask permission from Owner to hold any Product sales or promotion activity, including Psytrance-Pro affiliate sales and promotions.

7. PAYMENT AND ACCOUNTING

  • 7.1
    In consideration of the rights granted to Psytrance-Pro hereunder, Psytrance-Pro shall pay Owner Fifty Percent (50.00%) of the Net Revenue for each item of Owner Content distributed via the Website, Unless otherwise agreed in writing by both Parties.
  • 7.2
    Psytrance-Pro will provide electronic access to the Owner’s Sales Report for the clear display of the following information:
    – Total number of Content items sold;
    – Titles of each item of Owner Content sold;
    – Gross earnings of each item of Owner Content sold;
    – Gross Total earning;
  • 7.3
    Psytrance-Pro shall within 30 days of the end of each quarter render to the Owner a statement detailing all sales of Owner Content during the previous quarter (“Sales Report”). The format of the Sales Report may be modified from time to time by Owner in its sole reasonable discretion, but shall at all times be a form suitable for the clear display of the following information:
    – Total number of Content items sold;
    – Titles of each item of Owner Content sold;
    – Net earnings of each item of Owner Content sold;
    – Net Receipts;
  • 7.4
    Unless otherwise agreed in writing by both Parties, all payments to Owner will be made in Euro (EUR) via the website paypal.com to the account associated with the email address example@example.com and shall be disbursed on a quarter basis within thirty (30) days following the receipt of an invoice from Owner. Each party is responsible for their own respective fees when transferring funds between Parties.
  • 7.5
    All pricing in this Agreement is inclusive of Value Added Tax (VAT), where applicable.

8. WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY

  • 8.1
    Each party hereto represents, warrants and covenants that it has the full right and power to enter into and fully perform this Agreement in accordance with its terms and that its execution, delivery and performance of this Agreement will not violate the provisions of any agreement to which it is a party or violate any applicable law or regulation, including those related to personal data protection.
  • 8.2
    The Owner warrants and undertakes that:
    – nothing contained in the Owner Content is or shall be obscene, libellous, blasphemous or defamatory;
    – the exercise by Psytrance-Pro of the rights granted by this Agreement shall not infringe the copyright, privacy right, publicity performers’ right, performers’ property right, moral right or other right whatever of any third party;
    – the Owner Content is and shall be in first class condition and be of first class technical quality;
    – the Owner Content does not and shall not contain any defect which might give rise to any liability on the part of Psytrance-Pro to any person in respect of loss or damage or injury nor shall any of them contain any false attribution of authorship or any misleading or incorrect information;
    – the Owner Content shall not have been previously registered with any registry or government or industry body (including but not limited to Mechanical Copyright Protection Society Limited) and, where Psytrance-Pro in its sole discretion deems that registration may be desirable to protect its rights, Psytrance-Pro shall have the right to register the records in the name of Psytrance-Pro and shall have the right to commence proceeding to protect its rights under this Agreement;
    – in relation to the Owner Content, all importation and other requirements of whatever nature of HM Commissioners of Customs and Excise, the Mechanical Copyright Protection Society Limited, the Italian SIAE and any other relevant body shall be observed and performed by the Owner and all import fees and charges and levies shall be the responsibility of and be paid by the Owner;
    – the Owner shall deliver the Owner Content to Psytrance-Pro free and clear of all equitable remuneration payments recording, synchronization, mechanical and/or distribution payments royalties guild or union residual repeat or other fees and payments whatever including but without limiting the generality of the foregoing levies relating to the exploitation of the Owner Content;
    – all consents and waivers of moral rights which are necessary for the sale distribution and exploitation of the Owner Content in any and all media by any manner or means now known or invented in the future under the provisions of the Copyright, Designs and Patents Act 1988 and under any other code or statute have been obtained by the Owner and the Owner Content complies and will throughout the Term comply with all applicable legislation and all other relevant codes.
  • 8.3
    Psytrance-Pro warrants and undertakes that:
    – it shall comply with all current applicable laws in the operation of the Service and performance of all its obligations hereunder;
    – all information provided to Owner hereunder shall be provided in accordance with all applicable data protection legislation and that Psytrance-Pro shall implement a privacy policy for the operation of its website and WAP Site and the Service and obtain all necessary consent and approvals from the Purchasers. Psytrance-Pro shall at all times process all personal data in accordance with the Data Protection Act 1998.
  • 8.4
    The Owner will indemnify and hold the Psytrance-Pro and its officers, directors, employees and representatives harmless from and against any and all liabilities, damages, awards, settlements, losses, claims and expenses, including reasonable legal fees and costs of investigation, due to any claim by a third party relating to or arising out of a breach by the Owner of any of its representations, warranties, covenants and obligations hereunder.
  • 8.5
    Subject to clause 6.6, Psytrance-Pro maximum liability hereunder shall be limited to the charges payable by Psytrance-Pro to the Owner in the 12 months prior to the date of the claim.
  • 8.6
    Neither party shall be liable to the other party for any indirect, incidental, consequential, punitive or special damages arising out of or related to this Agreement including, without limitation, damages for loss of business or profits, business interruption or loss of business information, even if such party has been advised of the possibility of such damages. Nothing in this Agreement shall limit either party’s liability for death or personal injury caused by the negligence of such party and/or the negligence of such party’s respective employees or agents.

9. TERMINATION

  • 9.1
    In addition to any other remedy available at law or in equity either party may terminate the Term of this agreement:
  1. By giving not less than 30 days notice to the other party in writing; or
  2. Immediately, without further obligation to the other party, in the event of any breach of this Agreement by the other party that is not remedied within 30 days’ written notice of such breach.
  • 9.2
    Upon the expiration or termination of the Term of this Agreement for any reason:
  1. Psytrance-Pro shall be entitled to continue selling all Owner Content assigned to it during the Term;
  2. Psytrance-Pro shall continue to pay all amounts payable pursuant to this Agreement in respect of all Owner Content previously assigned to Psytrance-Pro by the Owner;
  3. Clauses 7 (to the extent of unpaid obligations), 8, 10 and 11 shall survive.

10. CONFIDENTIALITY

  • 10.1
    Each party (the “Receiving Party”) shall use its reasonable endeavours to keep confidential the provisions of this Agreement and all information and documentation disclosed by the other party (the “Disclosing Party”), before or after the date of this Agreement, to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all Sales Reports) or which is identified by the Disclosing Party as confidential (the “Confidential Information”) and will not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party. This clause shall survive termination of this Agreement for whatever cause.
  • 10.2
    During the term of this Agreement the Receiving Party may disclose the confidential information to its employees and sub-contractors (any such person being referred to in this Clause as the “Recipient”) to the extent that it is reasonably necessary for the purposes of this Agreement. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement.
  • 10.3
    The obligations contained in Clauses 10.2 and 10.3 shall not apply to any Confidential Information which is:
    – at the date of this Agreement already in, or at any time after the date of this Agreement comes into, the public domain other than through breach of this Agreement by the Receiving Party or any Recipient;
    – furnished to the Receiving Party or any Recipient without restriction by a third party having a bona fide right to do so; or
    – required to be disclosed by the Receiving Party by law or regulatory requirements of any stock exchange, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.

    11. GENERAL

  • 11.1
    This Agreement will governed by and construed in accordance with the laws of Italy and each party consents to the exclusive jurisdiction of the courts located in Padova, Italy for the adjudication of any disputes arising out of this Agreement.
  • 11.2
    Except as otherwise provided herein, whenever any notice, request, consent, approval or other communication shall be given by one party hereto to the other, such communication shall be in writing and shall be delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested, addressed to the address set out on the first page of this Agreement.
  • 11.3
    This Agreement will be binding upon and inure to the benefit of the parties, their respective personal representatives, and permitted successors and assigns. The rights granted to the Owner hereunder are personal and the Owner may not assign or otherwise transfer any of its rights or delegate any of its duties under this Agreement without the prior written consent of Psytrance-Pro. For purposes hereof, any change of control of the Owner or any assignment by operation of law shall be deemed an assignment requiring Psytrance-Pro’s prior written consent. Psytrance-Pro reserves the right, at its sole discretion, to assign or transfer any of its rights and delegate any of its duties hereunder, in whole or in part, to any entity.
  • 11.4
    There is no joint venture, partnership, agency or fiduciary relationship existing between the parties and the parties do not intend to create any such relationship by this Agreement.
  • 11.5
    Except as otherwise permitted by Psytrance-Pro hereunder, this Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both parties. No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective. The failure of either party at any time or times to require full performance of any provision hereof will in no manner affect the right of such party at a later time to enforce the same.
  • 11.6
    If any provision or term of this Agreement, not being of a fundamental nature, is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement will not be affected.
  • 11.7
    Except as may be expressly set forth herein, nothing in this Agreement shall be deemed or interpreted to create any third party beneficiaries, or confer any rights in any third parties.
  • 11.8
    Neither party will be liable for any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond its control, including industrial disputes of whatever
    nature, acts of God, public enemy, acts of government, failure of telecommunications, fire or other casualty.

Psytrance-pro
All rights reserved.

Via Petrarca, 22
Carmignano di Brenta
35010 – Padova
Italy