1. Welcome to Bandvest!
1.1. Terms of Service. These terms of service (“Terms of Service”) govern the access and use of the website Bandvest.co (the “Site”) and affiliated websites, features, services, mobile applications, products, software and other services, or any portion thereof (collectively, the “Services”), offered, owned or controlled by Solve Three (co), DBA Bandvest, and its parents,
subsidiaries, affiliates, agents, representatives, consultants, employees, officers, and directors (collectively, “Bandvest” or “we” or “our” or “us”). Affiliated companies are entities that control, are controlled by or are under common control with Bandvest.
1.2. Privacy Policy. For information about how Bandvest collects, uses, and shares your information, please review our privacy policy (“Privacy Policy”), which can be found at Bandvest.co/Privacy, and is incorporated herein by reference. You agree that by using the Services you consent to the collection, use, and sharing (as set forth in the Privacy Policy) of such
information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by Bandvest.
1.3. Agreement. These Terms of Service, the Privacy Policy, and any other legal notices published by us on the Services are, collectively, an agreement (this “Agreement”) between Bandvest and you (“You” or “your” or “you” or, a “User”), a user of the Services. A User is any individual user who uses the Services, or a user authorized by an entity to use the Services. By accessing or using the Services you acknowledge and agree to this Agreement, including, without limitation, these Terms of Service, Privacy Policy, and any other legal notices published by us on the Services. IF YOU CHOOSE TO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THESE TERMS OF SERVICE OR THE PRIVACY POLICY, YOUR CHOICE IS TO IMMEDIATELY STOP USING THE SERVICES. By using the Services, you represent and warrant that:
● You have reached the age of majority in the jurisdiction in which you reside;
● You are able to create a binding legal obligation;
● You are not barred from receiving products or Services under applicable law;
● Your use of the Site will at all times comply with these Terms of Use;
● You will only make purchases on the Site for authorized use;
● You have the right to provide any and all information you submit to the Site, and all such information is accurate, true, current and complete, and you will update information provided to the Site to ensure that it is accurate at all times.
1.4. Changes to Terms of Service. We reserve the right to revise and update these Terms of Service from time to time in our sole discretion. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. New versions of the terms will never apply retroactively, we will tell you the exact date they go into effect. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the term and conditions of such changes. Bandvest is for your personal, non-commercial use, except as explained in Section 8, Section 9, and Section 10 below.
2. Intellectual Property.
2.1. License. Subject to these Terms, Bandvest grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and Services.
2.2. Intellectual Property Rights. Subject to the terms hereof, and excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned
by Bandvest. Neither these Terms (nor your access to the Site or Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Bandvest reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.
2.3. Restrictions. You will not, directly or indirectly, reverse engineer, duplicate, replicate, remove, transfer, reveal, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any
software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any
proprietary notices or labels. 2.4. User Content. “User Content” means any and all information and content, including, without limitation, any method, device, model, algorithm or other automated process, that a user submits
to, or uses with, the Site. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any
third party. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Bandvest. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates this Terms of Service or other policy on the Site. Bandvest is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3. The Bandvest Service Solutions.
3.1. Eligibility. The Services are a general audience service and are not intended for users under 18 years old. We require that only persons 18 years of age or older use any of the Services. By using the Services, you hereby represent that you are at least 18 years old. To view information on our policy regarding the privacy of children under the age of 13, please see the Privacy Policy. Parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that may be considered
harmful to minors.
3.2. Technology Platform. You understand that Bandvest acts only as a technology platform and interface between Users and that Bandvest may, but is not required to verify the qualifications of Users. Further, Bandvest reserves the right, but is not obligated to evaluate or control any ongoing manner exchanges between Users. Any opinions or statements expressed by a User are of those of the User alone, and shall not be attributed to Bandvest. Bandvest cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any User. Please use caution, common sense, and practice safety when using Bandvest. By using Bandvest, you agree to accept such risks and that Bandvest (and our officers, directors, agents,
subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of Users.
3.3. Disputes with Users. If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Bandvest is not responsible for the conduct of any User. As set forth in, and without limiting, Sections 17 and 18 below, in no event shall Bandvest (or our affiliates and subsidiaries, or our and their respective officers, directors, employees and agents) be liable, directly or indirectly, for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Services including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other Users or persons you meet through the Services. You agree to take all necessary precautions in all interactions with other Users, particularly if you decide to communicate off the Services or meet in person, or if you decide to send money to another User. You understand that Bandvest makes no guarantees, either express or implied, regarding your interactions with individuals you meet through the Services. You should not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other Users directly.
3.4. No Affiliation with Brands. Bandvest is a private company and has no affiliation or rights with any brand or third-party products on the Services. Bandvest disclaims ownership of any trademarks, logos or images belonging to any brand or third-party products appearing on the Site. The
appearance of trademarks and/or logos belonging to brands, third-party products or their respective companies on the Services does not constitute affiliation or endorsement by such companies of any of the services provided by Bandvest.
3.5. Errors, Inaccuracies and Omissions. Occasionally there may be information in the Services that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information in the
Services or on any related website is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services or on any related website, including without limitation, except as required by law. No specified update or refresh date applied
in the Services or on any related website, should be taken to indicate that all information in the Services or on any related website has been modified or updated.
4. Access to the Services.
4.1. Modification. Bandvest reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Bandvest will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
4.2. No Support or Maintenance. You acknowledge and agree that Bandvest will have no obligation to provide you with any support or maintenance in connection with the Services, but Bandvest reserves the right, on a case by case basis, to provide support or maintenance as the
need arises.
5. Your Account.
5.1. Account Registration. You can visit Bandvest without registering for an account. But to use some of Bandvest’s functions, you will need to register, choose a username, and set a password. If you choose to register for an account, you must complete the account registration process by
providing us with current, complete, and accurate information as rompted by the applicable registration form. You agree to register only once using a single account. You agree you will not (i) register on behalf of another person; (ii) register under the name of another person or under a fictional name or alias; (iii) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that you are a representative of an entity when you are not, or that is offensive; (iv) choose a username for the purposes of deceiving or misleading our users and/or Bandvest as to your true identity; (v) choose a username that incorporates a solicitation; or (vi) choose a username that is hurtful or that violates others rights.
5.2. Account Information. You are entirely responsible for any and all activities that occur under your account. Furthermore, you are entirely responsible for maintaining the confidentiality of your account information and password. You should notify us immediately of any known or suspected
unauthorized use of your username and password or any other breach of security at support@bandvest.co. Bandvest will not be liable for any loss that you may incur as a result of someone else using your username, password, or account, either with or without your knowledge. You could be held liable for losses incurred by Bandvest or another party due to someone else using your username, password, or account. You may not use anyone else’s account at any time, without the permission of the account holder. Your account is unique to you and may not be transferred to any third party.
5.3. Account Security. Bandvest cares about the integrity and security of your account information. However, Bandvest cannot guarantee that unauthorized third parties will never be able to defeat the Services’ security measures or use any personal information you provide to us for improper
purposes. You acknowledge that you provide your account information at your own risk.
5.4. Termination and Suspension of Account. You may delete your account at any time through your account settings. Bandvest may terminate or suspend your access to or ability to use the Services immediately, without prior notice or liability, for any reason or no reason, including breach of this Agreement. In particular, Bandvest may immediately terminate or suspend accounts that have been flagged for Intellectual Property infringement. Upon termination of your access to or
ability to use the Services, your right to use or access the Services will immediately cease. Bandvest may change, restrict access to, suspend, or discontinue any aspect of the Services at any time, including availability of any feature, database, or content. Bandvest may also impose limits on
certain features and services or restrict your access to all or parts of the Services without notice or liability. You acknowledge that you have continued right to use the Services, nor do we have any continuing obligation to provide the Services. You can contact us at support@bandvest.co for additional information or to request project page deletion.
5.5. Survival of Terms. This Agreement’s terms and conditions that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to Bandvest or any third party.
6. Abusive Conduct.
6.1. Conduct. Bandvest is a creative community where artists and fans can work together to ensure emerging artists have the best possible chance to succeed in music without a record deal. As a condition of your use of and access to the Services, you agree not to use the Services for any unlawful purpose or in any way that violates these Terms. Any use of the Services in violation of these Terms of Service may result in, among other things, termination or suspension of your account and your ability to use the Services. You may not engage in any of the following prohibited activities: a) Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
b) Copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; collecting or harvesting any personally identifiable information, including account names, from the Services; altering, modifying or creating derivative works of the Services, or any portion thereof;
c) Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; accessing any content or features of the Services through any technology or means other than those provided or authorized by the Services;
d) Transmitting spam, chain letters, or other unsolicited emails; using the Services for any commercial solicitation purpose;
e) Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services; uploading invalid data, viruses, worms, or other software agents through the Services; bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that
prevent or restrict use or copying of any content or features or enforce limitations on use of the Services or the content or features therein;
f) Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on Services infrastructure; interfering with the proper working of the Services; or
g) Disrupting the normal flow of dialogue, causes a screen to “scroll” faster than other Users are able to type, or otherwise negatively affects other Users’ ability to engage in real time exchanges.
h) Users may not use the Services or any content contained in the Services (including, but not limited to, content of other users, designs, text, graphics, images, video, information, logos, software, audio files and computer code) in connection with any commercial endeavors, such as advertising or soliciting any user to buy or sell any products or services not offered
by Bandvest. Bandvest may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Services.
7. User Content.
7.1. User Content. As a user with a registered account, you may be able to submit content to the Services, including videos, photos, images, audio, text, information (including, without limitation, Personally Identifiable Information), user comments, and any other content (collectively, “User
Content”). You shall be solely responsible for your own User Content and the consequences of submitting and publishing your User Content on the Services. You further agree that you will not submit to the Services any User Content or other material that is contrary to these Terms of Service or contrary to applicable local, national, and international laws and regulations.
7.2. Representations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit. You further agree that User Content you submit to the Services will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and
infringement of intellectual property rights on the Services, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. We reserve the right to remove User Content without prior notice. By using the Services, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the world, in any media, now known or hereafter devised, on or through the
Services any of the following:
a) User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, foreign, national or international law, including, without limitation, the regulations of
the U.S. Securities and Exchange Commission;
b) User Content that is indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profane language), obscene, pornographic, abusive, inflammatory, untrue, misleading, illegal, invasive of privacy or publicity rights, libelous, slanderous or defamatory. WE DO NOT TOLERATE USERS HARASSING, THREATENING, DISCRIMINATING OR EMBARRASSING OTHER
USERS, INCLUDING HARASSMENT OR DENIGRATION BASED ON AGE, GENDER, RACE, RELIGION, NATIONAL ORIGIN, SEXUAL ORIENTATION OR DISABILITY, MARITAL STATUS OR VETERAN STATUS, OR THE STALKING OF OTHER USERS;
c) User Content that contains any confidential or proprietary information of any person or entity, or that otherwise violates the legal rights of any person or entity. You may not include in any User Content either any email addresses or telephone numbers of any person or entity, including your own. You may not use a false email address, impersonate any person
or entity (including any other user), or otherwise mislead as to the origin of your User Content;
d) User Content that is unrelated to the topic or context in which such Content is posted, or that, in the sole judgment of Bandvest, contravenes the above, is otherwise objectionable or inappropriate, or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Bandvest or its affiliates or its users to any harm or liability of any type.
7.3. User Content Disclaimers. We do not endorse any User Content submitted to the Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. Bandvest takes no
responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is Bandvest liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Bandvest is not liable for any statements, representations or User Content provided by its users. Although Bandvest has no obligation to screen, edit or monitor any of the User Content posted to or distributed through the Services, Bandvest reserves the right, and has absolute discretion, to remove, screen or edit without notice any User Content posted or stored on the Services at any time and for any reason and without liability to you or any third party, and you are solely responsible
for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense. However, we also reserve the right in our sole discretion to display any User Content that is submitted to us (or to decline to remove any User Content), even if it
violates this Agreement. Since not all of the areas of the Services are monitored on a “real time” basis, you may see User Content that violates this Agreement before we do. Please report such items to support@bandvest.co.
8. What is a Bandvest Project.
Bandvest provides a funding platform for music projects (“projects”). When an artist posts a project on Bandvest, they are inviting other people to form a contract with them. Anyone who backs a project is accepting the artist’s offer and forming that contract. Bandvest is not a part of this contract; the contract is a direct legal agreement between artists and their backers (hereinafter, “team members”). Here are the terms that govern that agreement:
When a project is successfully funded, the artist must complete the project and fulfill each reward. Once an artist has done so, they have satisfied their obligation to their team member. Team members are encouraged to promote the artist by sharing a provided link to artist content, to help them flourish and succeed. You are not only funding a project, but becoming a valued member of the street team which will ensure the artist succeeds. Following the end of the project, if and only if the project raises $2,500 or more, Bandvest will begin to act as a promotion agency for each artist. When an artist begins to generate music-related revenue, Bandvest may contact team members to potentially pay them for promotion efforts. Promotion team members are paid no more frequently than each quarter. Team members are paid based on revenue the artist earns and shares with Bandvest, and the percentage of promotion activity the team members are responsible for generating. This is a separate but essential component of building a thriving arts community, where team members help fund projects, and then remain engaged, even possibly working for the artists they fund as their careers grow. Being paid to promote artists is not guaranteed, but the only way to have a chance to be part of the paid e-promotion team is to demonstrate your value as a promoter following the project.
Backers are only eligible to become paid promotion team members under certain circumstances. Bandvest does not act as a promotion agency for any artist who raise less than $2,500 within a single project on the Bandvest platform. If a project raises less than $2,500, there is no paid street team, and Bandvest’s relationship with the artist and any project backers ends after the artist receives project funds. Team members are paid based on the amount of promotion activity they are able to generate. The calculation of payment is subject to change at any time based solely on the purview of Bandvest, and no team member is guaranteed payment. Payments will not be made to e-promotion team members of less than $5.
In order for Bandvest to act as a promotion agency, Bandvest must collect money from an artist, a furnishing company, a business manager, or an associated publisher, distributor, or other rights holder. If the artist does not properly file a Letter of Direction with the appropriate party, or any party does not honor a Letter of Direction appropriately or incorrectly calculates any figures, Bandvest may not receive an accurate amount of funds, and therefore may not be able to pay the promotion team accurately or at all. Bandvest will take reasonable efforts to ensure team members are paid in accordance with the outlined terms, but Bandvest is not liable for errors or omissions on the part of any party related to collecting an artist’s revenue for the purpose of paying team members. Bandvest will assume the funds being sent to Bandvest which are used to pay team members have been calculated accurately, and all appropriate Letter(s) of Direction have been filed properly and are being honored as agreed. Bandvest will pay team members based on these assumptions. Artists have an opportunity to terminate their agency arrangement with Bandvest and the Street Team at any time by paying a buyout. A portion of the buyout will be paid to Street Team members and allocated just as any other payments would be. This payment terminates any paid promotion agreement between Bandvest, the Artist and/or the Street Team.
Throughout the process, artists owe their team members a high standard of effort, honest communication, and a dedication to bringing their career to life. At the same time, team members must understand that when they back a project, they are helping to create something new, not ordering something that already exists. There may be changes or delays, and there is a chance something could happen that prevents the creator from being able to finish the project as promised or expected.
If an artist is unable to complete their project and fulfill a reward, they have failed to live up to the basic obligations of this agreement. To right this, they must make every reasonable effort to find another way of bringing the project to the best possible conclusion for team members. An artist in this position has only remedied the situation and met their obligations if:
a) They post an update that explains that work has been done, how funds were used, and what prevents them from finishing the project as planned;
b) They work diligently and in good faith to bring the project to the best possible conclusion in a timeframe that is communicated to team members;
c) They are able to demonstrate that they have used funds appropriately and made every reasonable effort to complete the project as promised;
d) They have been honest, and have made no material misrepresentations in their communication to team members; and
e) They offer to return any remaining funds to team members who have not received their reward (in proportion to the amounts pledged), or else explain how those funds will be used to complete the project in some alternate form. The creator is solely responsible for fulfilling the promises made in their project. If they are unable to satisfy the terms of this agreement, they may be subject to legal action by team members.
9. How Backing a Project Works.
9.1. Funding. This Section goes over the details of funding projects, including how money gets collected, whether pledges can be changed or canceled, and how creators can contact team members to provide rewards. These are the terms that apply when you are funding a project:
a) Team Members may fund a project at any time. Projects do not have to reach a minimum funding amount to be funded by a team member. The project will be funded regardless of progress towards any funding goals or caps that an artist has created. Your card will be charged immediately and funding is non-refundable.
b) In some cases, we will reserve the charge on your card. Bandvest and its payment partners may authorize or reserve a charge on your credit card (or whatever payment method you use) for any amount up to the full pledge, at any time between the pledge and the collection of funds.
c) The Estimated Delivery Date is the artist’s estimate. The date listed on each reward is the artist’s estimate of when they will provide the reward, not a guarantee to fulfill by that date. The schedule may change as the artist works on the project. We ask artists to think carefully, set a date they feel confident they can work toward, and communicate with team members about any changes.
d) Earning a reward. In order to receive a reward, team members must pledge money, and/or complete specified promotional activities, including but not limited to generating a certain number of link clicks to Bandvest, or any combination as specified in a project. Team members have thirty (30) days following the end of a project to complete their promotional activities. When a reward requires a combination of a financial pledge and promotional activities, a team member may not qualify for such reward if the promotional activities are not completed despite having pledged money. Bandvest does not offer refunds, as identified in subsection 9(f), to any team members who have pledged money in a project that requires a combination of financial funding and promotional activities.
e) The artist may need to send you questions about your reward. To deliver rewards, the artist might need information from you, such as your mailing address or t-shirt size. They will request that information after the project has succeeded. To receive the reward, you will need to provide the information in a reasonable amount of time. Artists should not ask for personal information that is not necessary to provide your reward, and should never request sensitive personal information such as your Social Security number or payment information. Contact us at support@bandvest.co if you receive a request for information that seems inappropriate or excessive.
f) Bandvest does not offer refunds. Responsibility for finishing a project lies entirely with the artist. Bandvest does not hold funds on artists’ behalf, cannot guarantee artists’ work, and does not offer refunds.
10. How Creating a Project Works.
In addition to any agreement with the artist and with respect to an artist’s project, these are the terms that apply for a project:
a) Bandvest and/or an Artist can refund individual pledges. While we don’t have any right to refund a pledge, once a project has received funds, Bandvest or an artist can cancel and refund a team member’s pledge at any time. If Bandvest or an Artist refunds such pledge, the artist has no further obligation to that specific team member, and no agreement exists between artist and the team member.
b) We will charge our fees before putting funds in artist’s account. Bandvest and its payment partners will subtract fees before transmitting the proceeds of a project to the artist.
c) Some pledges cannot be collected, which may reduce the amount of funding you receive. Because some payments cannot be collected, for instance, when a team member’s credit card expires before funding ends, and they do not provide updated information, we cannot guarantee that the amount of funding artist receives will be exactly equal to the full amount pledged minus fees.
d) We will help resolve payment-card disputes. If a team member of a project disputes the charge with their card issuer, we will handle re-presenting the charge to settle the dispute with the card issuer. Artist will be notified that a dispute has been filed, and artist will be able to provide evidence to help us resolve it in artist’s favor. If the cardholder’s dispute is found valid, artist authorizes us to charge the credit card number artist provided prior to their payout for the amount of the chargeback.
e) We will request tax documents and signed Letters of Direction before delivering the artist funds. Because Bandvest is collecting funds and then delivering them to artists, Artists must fill out a W9 and return it to Bandvest before funds will be delivered to the artist for all projects raising $600 or more. Additionally, any applicable letters of direction or other legal documents which enable Bandvest to transition to the role of promotion agency must also be filed before Bandvest will deliver funds to the artist for projects raising $2,500 or more.
f) Artists are responsible for any potential income or sales tax associated with rewards offered. Artists who have passed over the thresholds established by the IRS (currently $600 in payment per year) will receive a form 1099 from Bandvest or our payment processor, in or near January following the year in which their project was successfully funded. Bandvest is not a tax professional organization and is in no way responsible for any income taxes which may be owed by the artist. Bandvest rewards may be classified as a gift in some circumstances. A gift is defined as “detached and disinterested generosity” for personal reasons and without the expectation of getting something in return, or expenses associated with creating a reward may offset income. Bandvest is not able to provide guidance on handling these issues, and is in no way responsible for any taxes you may incur for income earned using the Bandvest platform, and we recommend you contact a tax professional. Sales tax may also be applicable in certain cases depending on the local rules. In general, sales tax applies only if the artist is delivering a product of appreciable value, and has sufficient connection to the location of the backer. Bandvest does not advise in this area. It is up to the artist to understand the sales tax rules and laws in their location. In order to deliver your rewards you will have to obtain the demographic information of your backers, which can aid you as you research sales tax with your tax professional. This is another reason to consider rewards which are fun and eccentric rather than a good with appreciable value. Bandvest is not responsible for any sales taxed owed for the sale of products through the Bandvest platform.
11. What We Are Not Liable For.
Bandvest does not oversee the performance or punctuality of projects, and we do not endorse any content Users submit to the Site. When you use the Services, you release Bandvest from claims, damages, and demands of every kind, known or unknown, suspected or unsuspected, disclosed or
undisclosed, arising out of or in any way related to such disputes and the Services. All content you access through the Services is at your own risk. You are solely responsible for any resulting damage or loss to any party.
12. Our Rights.
To operate, we need to be able to maintain control over what happens on our Site. We reserve the right to make decisions to protect the health and integrity of our system. Bandvest reserves the right to (i) decide who is eligible to use Bandvest; (ii) cancel accounts or decline to offer our Services; (iii) change our eligibility criteria at any time; (iv) cancel any pledge to any project, at any time and for any reason; and/or (v) reject, cancel, interrupt, remove, or suspend any project at any time and for any reason. If these things are prohibited by law where you live, then we revoke your right to use Bandvest in that jurisdiction. Bandvest is not liable for any damages as a result of any of these actions, and it is our policy not to comment on the reasons for any such action.
13. Copyright Policy.
Bandvest respects the intellectual property rights of others. It is our policy to respond promptly to any claim that User Content posted on the Services infringes the copyright or other intellectual property rights (“Infringement”) of any person. Bandvest will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property laws and these Terms of Service where it believes an Infringement has taken place, including removing or disabling access to the User Content claimed to be infringing and/or
terminating accounts and access to the Services. To notify Bandvest of a possible Infringement you must submit your notice in writing to the attention of “Copyright Infringement” care of support@bandvest.co and include in your notice a detailed description of the alleged Infringement sufficient to enable Bandvest to make a reasonable determination. Please note that you may be held accountable for damages (including costs and
attorneys’ fees) for misrepresenting that any User Content is infringing your copyright. If we remove or disable access to User Content in response to a notice of Infringement, we will make reasonable attempts to contact the User who posted the affected User Content. If you feel that your User Content is not infringing, you may provide Bandvest with a counter-notice in writing to the attention of “Copyright Infringement Counter Notification” at support@bandvest.co. You must include in your counter notice sufficient information to enable Bandvest to make a reasonable determination. Please note that you may be held accountable for damages (including costs and
attorneys’ fees) if you materially misrepresent that your User Content is not infringing the copyrights of others. If you have any questions about copyright infringement or the notification and counter-notification process under the Digital Millennium Copyright Act (the “DMCA”), we recommend that you speak with an attorney.
14. Third Parties.
14.1. Third-Party Links & Ads. The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Bandvest, and Bandvest is not responsible for any Third-Party Links & Ads. Bandvest provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in
connection with such Third-Party Links & Ads.
14.2. Social Media Networks. The Services may include features that connect to third-party social media networks (“Social Media Networks”) and allow you to share or like content or services with your friends or other users of the Social Media Networks, or you may be able to connect your user account with your Social Media Networks’ accounts. To learn more about how your information may be shared with Social Media Networks or how your Social Media Networks’ account information may be shared with Bandvest, please read our Privacy Policy and the privacy policy or settings of the relevant Social Media Networks.
15. Fees and Payments.
15.1. Fees. Creating an account on Bandvest is free. Bandvest, and our payment partners, reserve the right at any time to collect fees if you create a project that is successfully funded. Our partners’ fees may vary slightly based on your location. Some funds pledged by team members are collected
by payment providers. Each payment provider is its own company, and Bandvest is not responsible for its performance. However, in no event will Bandvest collect any fees without giving you an opportunity to review and accept such fees. If our fees change, we will announce that on our site.
You may cancel your account at any time. You agree to pay all fees that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such fees are incurred, including all shipping and handling fees. In addition, you remain responsible for any and all taxes
that may be applicable to your purchase(s), and you agree that such taxes, if any, are not our responsibility.
15.2. Payments. If products, subscriptions, software, or services are made available for purchase through the Services and you wish to purchase such products, subscriptions, software, or services, you may be asked by us or our designee (or, if such product, subscriptions, software, or services
are being made available by a third party provider, by such third party provider) to supply certain information relevant to your purchase, including, without limitation, credit card number, expiration date, billing address and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED BY YOU OR THROUGH YOUR USERNAME(S) TO PURCHASE ANY SUCH PRODUCT AND/OR SERVICE. You acknowledge that any such information will be treated by us in accordance with our Privacy Policy. You grant us the right to provide such information to third parties in order to facilitate the completion of transactions initiated by you or on your behalf through the Services. Verification of information may be required prior to acceptance of any order through the Services.
16. Disclaimer of Warranty.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE SITE), IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.
BANDVEST, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BANDVEST DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT SERVICES OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. BANDVEST DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT OR DATA ON THE SERVICES, WITH RESPECT TO THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. BANDVEST DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY
FOR ANY PRODUCTS, OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY OTHER ADVERTISING, AND BANDVEST WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF PRODUCTS OR
SERVICES THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
17. Limitations of Liability.
IN NO EVENT SHALL BANDVEST, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE SITE), OR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE
OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BANDVEST IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT BANDVEST SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD
PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL BANDVEST’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
18. Indemnification.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Bandvest, its affiliates and subsidiaries, and each of their officer, directors, managers, members, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, settlements, costs or debt, and expenses (including but not limited to attorney’s fees) arising from, without limitation: (i) your use of and access to the Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your use of the Services caused damage to a user or third party. Bandvest may assume the exclusive defense and control of any matter for which users have agreed to indemnify Bandvest and you agree to assist and cooperate with Bandvest in
the defense or settlement of any such matters. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Services.
19. Governing Law and Dispute Resolution.
19.1. Governing Law. This Agreement shall be governed by the internal substantive law of the State of Illinois, without respect to its conflict of laws principles, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for
International Sale of Goods.
19.2. Mandatory Arbitration. For any dispute you have with Bandvest, you agree to first contact Bandvest and attempt to resolve the dispute informally. If Bandvest has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy
(excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related
Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Illinois in the United States. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This arbitration agreement survives the termination of this Agreement
between you and Bandvest.
19.3. Waivers of Class Action and Trial by Jury. YOU AND BANDVEST BOTH WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION INVOLVING DISPUTES BETWEEN US, AND YOU AND BANDVEST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THIS CLASS ACTION WAIVER IS AN ESSENTIAL PART OF OUR
ARBITRATION AGREEMENT AND MAY NOT BE SEVERED. IF FOR ANY REASON THIS CLASS ACTION WAIVER IS FOUND UNENFORCEABLE, THEN THE ENTIRE ARBITRATION AGREEMENT WILL NOT APPLY. HOWEVER, THE WAIVER OF THE RIGHT TO TRIAL BY JURY SET FORTH IN THIS SECTION WILL REMAIN IN FULL FORCE AND EFFECT.
19.4. Other Remedies. Notwithstanding the foregoing, either party may bring an individual action in small claims court. Nothing in this Section precludes you from bringing issues to the attention of federal, state or local agencies. Nothing in this Section shall prevent either party from seeking
injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Services.
19.5. Time Limitations. YOU HEREBY WAIVE AND FOREVER RELINQUISH ANY STATUTE OF LIMITATIONS OR STATUTE OF REPOSE RELATING IN ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT. YOU AND BANDVEST AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION
ACCRUES, REGARDLESS OF WHEN YOU FIRST DISCOVERED OR SHOULD HAVE DISCOVERED THE FACTS SUPPORTING THE CAUSE OF ACTION. YOU HEREBY WAIVE, AND AGREE NOT TO ASSERT, ANY ARGUMENT TO TOLL OR OTHERWISE DELAY THE BEGINNING OF ANY TEMPORAL LIMITATIONS TO BRING A CLAIM ARISING OUT OF OR RELATED TO THE SERVICES OF THIS AGREEMENT. YOU FURTHER AGREE THAT UPON EXPIRATION OF THE TIME LIMITATION HEREIN YOU SHALL NO LONGER HAVE ANY CAUSE
OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OF THIS AGREEMENT.
20. Disclosures.
In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Bandvest’s systems and users, or to ensure the integrity and operation of Bandvest’s business and systems, Bandvest may access and disclose any information it considers necessary or appropriate,
including, without limitation, account information (i.e. name, email address, etc.), IP addressing and traffic information, usage history, and posted User Content. Bandvest’s right to disclose any such information, as applicable, shall be pursuant to the terms of Bandvest’s Privacy Policy. Please see Bandvest’s Privacy Policy for the terms of our personal information collection and use practices with respect to the Services.
21. Notice for California Users.
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing
at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
22. Other Jurisdictions.
By accessing or using the Services, or submitting information, you acknowledge that you accept the practices and policies outlined in this Agreement and consent to having your data transferred to and processed in the United States. If you do not agree to the terms of this Agreement, please
do not use the Services. The Services are controlled and operated by Bandvest from the United States. We do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on
their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
23. General.
This Agreement, including, without limitation, these Terms of Service, together with the Privacy Policy and any other legal notices published by us on the Services, shall constitute the entire agreement between you and Bandvest concerning the Services. If any provision of this Agreement
is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Bandvest’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. We reserve the right to amend this Agreement, including, without limitation, these Terms of Service and the Privacy Policy, at any time and without notice, and it is your responsibility to review this Agreement, including, without limitation, these Terms of Service and the Privacy Policy for any changes. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be
assigned by Bandvest without restriction. Your use of the Services following any amendment of this Agreement will signify your assent to and acceptance of its revised terms.
24. Contact Information.
If you have any questions, feedback or to report a violation regarding these Terms of Service, you may email us at support@bandvest.co.
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ARTIST AGREEMENT (This portion of the terms of service applies only to Artists (project creators)
This Artist Agreement (the “Agreement”), dated as of the “Effective Date” (as defined below), by and between Solve Three (co) doing business as “Bandvest” (“Bandvest”), located at 1697 Stanwich Rd., Vernon Hills, IL 60061, Attn: Drew Russell & Tyler Claxton, and the undersigned individual (“Artist”). Artist’s address for purposes of this Agreement shall be the address that Artist provided to Bandvest via the “Platform” (as defined below). Bandvest and Artist are sometimes referred to individually as a “party” and collectively as the “parties”.
1. (a) Effective Date. The term “Effective Date” shall mean the first date that Artist created a so-called “profile” or similar page on the “Platform” (as defined below).
(b) Furnishing Company. In the event that Artist is entering into this Agreement through a so-called “furnishing company,” (e.g., such as a corporation, limited liability company, limited partnership, general partnership, any other type of legal entity and/or any so-called “dba” or the like) then all references herein shall not only refer to the individual performing and recording artist, but also such furnishing company.
(c) Consent to Electronic Agreement, Records and Signatures. This Agreement (or any signature, writing, or record pertaining hereto) shall not be denied legal effect, validity, or enforcement solely because it is in electronic form and/or because an electronic signature or electronic record was used in its formation. Artist expressly consents to Bandvest’s use of electronic documents and records with respect to this Agreement and providing the Platform to Artist. Upon reasonable request, Artist may obtain a PDF or printed copy of this Agreement and any electronic documents and records pertaining to Artist hereunder. The original of this document, including any and all electronic documents and records pertaining to Artist hereunder, may be scanned and stored in a computer database or other electronic format and the original destroyed, and any printout or other output readable by human sight, the reproduction of which accurately reproduces the original of this document, may be used for any purpose as if it were the original, including proof of the content of the original writing.
(d) Bandvest Terms & Conditions. Artist acknowledges prior receipt of Bandvest’s terms and conditions (whether provided to Artist in hard copy, electronically in pdf, email, or on Bandvest’s website). Artist has heretofore signed a copy of Bandvest’s terms and conditions, which Artist’s acknowledges and agrees, Bandvest has the right and authority to change such terms and conditions at any time, and for any reason, with or without notice to Artist as provided for in such terms and conditions. Artist acknowledges that the payment to Artist of any and all funds raised by or on behalf of Artist through the Platform is governed by the terms and conditions.
2. Disclaimer.
(a) Artist hereby acknowledges and agrees that Bandvest is simply providing the Platform through which Artist has elected to conduct the Artist Activities. Bandvest is not responsible for providing any personal or other services of any kind. Notwithstanding anything to the contrary in this Agreement, Bandvest’s sole responsibility to Artist under this Agreement is to make the “Platform” (as defined below) available to Artist during the Term of this Agreement. Artist hereby agrees that Artist and Bandvest are independent contractors and Bandvest shall have no liability for any acts or omissions of Artist. Furthermore, Artist acknowledges that any and all Street Team Members are also independent contractors and Bandvest shall have no liability for any acts or omissions of any Street Team Members. The term “Platform” shall mean, the so-called “cloud based” software and technology provided by Bandvest to facilitate the raising of funds through so-called “crowd funding” and the like as well as the paid and unpaid digital promotion of musical acts on the part of “users,” also referred to as “fans,” via software provided by Bandvest .
(b) Artist shall be solely responsible for (i) all activities conducted by or on behalf of the Artist on the Platform, (ii) any incentives or rewards, as well as fulfillment thereof, which Artist offers, guarantees, or otherwise advertises or promotes to “Street Team Members” through the Platform (or otherwise) as incentives to such Street Team Members in exchange for promoting the Artist Content or other promotion of Artist and Artist’s career (subsections (i) and (ii) above are collectively the “Artist Activities”). Artist represents, warrants and agrees, that Artist shall use all funds raised on the Platform for the furtherance of Artist’s career and the fulfillment of any reward(s), and Artist further represents and warrants that the Artist Activities shall at all times be conducted in the highest professional manner to the best of Artist’s ability (or if conducted by a third party on Artist’s behalf, then such third party shall conduct the Artist Activities in the highest professional manner to the best of such third party’s ability). Artist shall be solely responsible for compliance with all federal, state and local laws, rules and regulations in connection with Artist’s Activities, including, but not limited to, all federal, state and local laws, rules and regulations pertaining to sweepstakes and contests, as well as any commercial co-ventures or other similar promotions involving public charities and the like, and shall further indemnify and hold harmless Bandvest and the Bandvest Indemnified Parties with respect thereto. Bandvest shall not have any responsibility, or incur any cost or expense, pertaining to the Artist Activities (including, but not limited to, any incentives or rewards offered by or on behalf of Artist) and all such costs and expenses shall be borne solely by Artist. Furthermore, Artist hereby acknowledges and agrees that Bandvest makes no representation, warranty or guarantee (x) that any Street Team Members will promote the Artist Content, Artist or Artist’s career in any manner, and (y) that Street Team Members will conduct any such promotion, if any, in a manner satisfactory to Artist. Without limiting the foregoing, Bandvest shall not be responsible for any actions, inactions, or omissions of any Street Team Member, and Artist hereby releases Bandvest of any and all claims with respect thereto, including, but not limited to, defamation, any claim of copyright infringement, trademark infringement, libel, slander, defamation, invasion of privacy, or right of publicity or any other right.
2. Artist Obligations.
(a) Artist Content. The term “Artist Content” shall mean any and all sound recordings, video recordings (both short-form and long-form), artwork and related metadata owned or controlled by Artist (or by Artist’s affiliates or companies acquired by Artist, or with whom Artist has merged, or from whom Artist has obtained rights in/to Artist Content), whether created prior to the Effective Date of the Agreement or at any time during the Term and provided to
Bandvest during the Term of this Agreement. Upon review, certain short-form or long-form video recordings may require an addendum to this Agreement at Bandvest’s discretion. As between Artist and Bandvest, Artist shall own all Artist Content free from any and all claims by Bandvest (other than solely Bandvest’s fees under this Agreement).
(b) Exclusivity. The term “Field,” shall mean the business of rendering so-called “crowd funding” services, or services to assist in the raising of investment capital or other funds. The term “Competitor” shall mean any and all companies (including, but not limited to, KickStarter, etc.) engaging in the same or similar (or dissimilar) services within the Field that are deemed to be competitive to Bandvest in the sole discretion of Bandvest. Artist agrees that Artist’s Services and the Artist Content will be exclusive to Bandvest within the “Field” during the Term and throughout the Territory. Furthermore, during the Term, Artist will not use the services of any Competitor of Bandvest and Artist shall not authorize, suffer or permit Artist’s Likeness to be used in any manner by any Competitor of Bandvest.
(c) Grant of Rights.
(i) Artist hereby grants to Bandvest the following exclusive rights: (A) to distribute the Artist Content on the Platform via any and all digital and electronic means and media (whether now or hereafter known), (B) to create digital and/or electronic copies and compilations, to distribute, stream and to publicly perform, to sublicense and to otherwise exploit Artist Content via electronic, digital and mobile platforms or any other method or medium, now or hereafter known. During the Term, Artist shall not make Artist Content available to any Competitor of Bandvest via any electronic, digital or mobile platform or channel or any other method or medium, now or hereafter known. Artist further grants Bandvest a license to use Artist’s and Artist’s artists’ and writers’ approved copyrights, trademarks, names, sobriquets, biographical materials and approved likenesses, as well as the names, sobriquets and approved likenesses of any other person performing services in connection with Artist Content (the “ID Materials”) during the Term and throughout the Territory in connection with the exercise of Bandvest’s rights hereunder, including, without limitation the distribution and promotion of Artist Content, without further compensation to Artist or any other person except as otherwise expressly stated in this Agreement.
(ii) Notwithstanding anything to the contrary in this Agreement, however, subject to Bandvest’s rights under this Agreement, Artist shall retain the right to license or attempt to license Artist Content to digital service providers (“DSPs”) such as Spotify, Apple Music, iTunes, Amazon Music, Deezer, etc., third party distribution companies, record labels or other third parties who are not Competitors of Bandvest within the Field. All pre-existing relationships with outside DSP’s related to Artist Content are to be disclosed to Bandvest at the time of entering into this Agreement.
(d) Distribution. Bandvest may, at Bandvest’s sole option, introduce Artist to third party distribution companies. However, Artist specifically understands and agrees that Bandvest is not responsible for the distribution of Artist Content to any DSPs, retailers or other music outlets of any kind, and that as between Artist and Bandvest, Artist shall be solely responsible to do the following: (i) distribute and license the Artist Content to DSPs or other third parties that sell, distribute, transmit, stream, perform or otherwise exploit sound and/or audiovisual recordings by all means and media available, (ii) collect all income deriving therefrom, (iii) solicit and service the DSPs, (iv) secure the encoding of each Recording in format(s) required by the DSPs, (v) process the delivery of the recordings to the DSPs, and (vi) collect amounts due from the DSPs for payment to Artist, subject to the terms and conditions of this Agreement. Bandvest does not guarantee the success of any of the Artist Content on the Platform or with any particular DSP or any other outlet, method, medium or manner of exploitation, now or hereafter known, nor does Bandvest guarantee any specific dollar amount of fund raising through the Platform.
(e) Marketing. Promptly following the execution of this Agreement, Artist shall supply Bandvest with a reasonable number of ID Materials (as defined below). All ID Materials furnished by Artist to Bandvest will be deemed approved for all purposes under this Agreement. All ID Materials, if any, created by Bandvest are subject to Artist’s prior written approval. Bandvest will also have the right (but not the obligation) to create and use additional, basic marketing materials embodying the ID Materials to promote and expose Artist Content. For the avoidance of doubt, Bandvest shall have the perpetual right throughout the Territory, but not the obligation, to use the ID Materials to promote Artist’s brand on Bandvest’s website and/or social media channels. Artist agrees to use best efforts to promote the Artist Content on the Platform, as well as to independently promote the Artist Content outside the Platform (including, but not limited to, social media, YouTube, etc.).
(f) Introductions to Third Party Vendors. Bandvest will have the option (but not the obligation) to connect Artist with various third party vendors for Artist’s consideration to engage such third party vendors’ services, including, but not limited to, legal services, business management services, artist management services, music agency services, music distribution services, etc. Artist agrees to consider in good faith all such third party vendors recommended by Bandvest.
3. Delivery; Storage.
(a) Delivery Procedures.
(i) Artist shall upload the Artist Content to Bandvest via the Platform. Artist Content shall be uploaded following the execution of this Agreement and during the Term at Artist’s own expense. Artist Content shall be technically and commercially satisfactory to Bandvest and shall be delivered in first-class commercial quality, in compliance with the specifications required by Bandvest and all marketing and related materials shall bear an appropriate copyright notice. Delivery and completion of Artist’s profile will not be deemed complete until Bandvest provides written confirmation thereof. Denial of Artist Content may occur for various reasons and as outlined in paragraph 12 below.
(ii) Delivery to/from Bandvest. Artist is solely responsible for uploading Artist Content to the Platform. Bandvest does not obtain or secure transfer of Artist Content from Artist’s former distributor or other third parties. Upon the expiration or termination of this Agreement, Bandvest is not responsible or obligated to transfer Artist Content from Bandvest to Artist or any third party. Artist will be solely responsible for removal of all Artist Content from the Platform.
(iii) Artist Responsibility. Artist will be solely responsible for ensuring that Artist Content and account details are correct and updated in with Bandvest at all times.
(b) Modifications by third parties. DSPs and other third parties receiving the Artist Content may modify portions of Artist Content (e.g. genre, artist name, release name) if in their reasonable business judgment, they feel it is appropriate. Bandvest will distribute Artist’s material “as is.” Artist understands that “as is” means that the Artist Content delivered to Bandvest is delivered to the Platform in substantially the same form as Artist delivers to Bandvest.
(c) Storage. Artist acknowledges that he or she is solely responsible for storage and backup of Artist Content on his or her own server(s) or devices. Bandvest may store specific files for purposes of this Agreement, but is not obligated or required to store Artist Content. Bandvest is not obligated to provide Artist with copies of Artist Content in the event Artist requests same.
(d) Updates (Redelivery, Mistakes, File Replacements). Artist should use reasonable efforts to ensure that its material is correct and final prior to uploading to the Bandvest Platform. Artist will be solely responsible for any changes in any material that need to be made (which may require Artist to re-upload such material). Artist agrees to provide Bandvest with replacement files, if requested, for purposes of re-delivery to the Platform. For the avoidance of doubt, the provisions of this paragraph 3(d) and paragraph 3(c) above do not, and shall not be deemed to, impose or impart any storage, backup or retrieval obligations on Bandvest with regard to Artist Content.
(e) Takedowns. In the event that Bandvest takes down any Artist Content for any of the reasons specified below, the following will apply: in the event that Bandvest receives a takedown request from any third party based on a credible copyright or trademark infringement claim (as determined by Bandvest in its sole and absolute discretion), Bandvest will charge a US Fifty Dollar ($50.00) processing fee per release, plus Artist will be responsible for any and all damages, costs or other losses suffered by Bandvest as a result thereof, including, but not limited to, outside attorneys’ fees and court costs, any labor charges associated with the takedown, etc. Further, in the event that a takedown occurs based on Artist’s actions, omissions or violation hereof, including infringement of any third party’s intellectual property (a “Claim”), Artist further agrees to reimburse Bandvest for outside attorneys’ and/or other reasonable miscellaneous outside legal fees and any damages or settlement payments resulting from such incident or Claim. A Claim or any other damages, costs or losses under this paragraph is also subject to the provisions of Paragraph 10.
(i) If Bandvest receives a copyright or trademark infringement or other legal notice from third parties or partners regarding Artist Content, Bandvest will notify Artist. If Artist does not respond within three (3) calendar days of Bandvest’s notification of Artist, Bandvest may issue and/or authorize takedowns for any affected Artist Content. Further, in the event Bandvest issues takedowns related to any Artist Content as a result of a legal notice based on a credible copyright or trademark infringement claim (as determined by Bandvest in its sole discretion), Bandvest will charge a Fifty Dollars ($50.00) fee per release subject to takedown, plus Artist will be responsible for any and all damages, costs or other losses suffered by Bandvest as a result thereof, including, but not limited to, outside attorneys’ fees and court costs, any labor charges associated with the takedown, etc.
(ii) In addition to the above, Bandvest may request documentation to support the ownership of material from the Artist at any time. Failure to provide documentation within three (3) business days of Bandvest’s request for same may result in non-payment of monies raised, takedown of content, and immediate closure of Artist’s account, all at Bandvest’s election and at Artist’s expense.
(f) Third Party Royalties. Without limiting Artist’s representations, warranties and indemnities under this Agreement, Artist acknowledges and agrees that as between Artist and Bandvest, Artist remains solely responsible for paying any and all royalties (including, but not limited to, mechanical royalties, producer royalties, mixer royalties, remixer royalties) and other monies (including, but not limited to, union and/or guild fees, residuals and the like) due to third parties in connection with the exploitation of Artist Content by Artist or any other person, firm or entity (including, without limitation, any uses exploitations under this Agreement by Bandvest). Bandvest shall not be responsible for any payments of any kind (whether royalties, union or guild fees, license fees or any other remuneration of any kind, nature or description) arising from or in connection with the Artist Content, and Artist hereby indemnifies and holds harmless Bandvest and the Bandvest Indemnified Parties with respect thereto (including, any erroneous payments that are made by any distributor or DSP, whether resulting from inaccurate metadata or otherwise).
(g) Removal of Artist Content at the Close of Artist Activities. At the close of Artist’s campaign and other Artist Activities under this Agreement, Artist shall be solely responsible to remove all Artist Content from the Platform.
4. Term; Territory.
(a) Term. The term of this Agreement will be for a period commencing on the Effective Date and ending on the date that is two (2) years from the end date of Artist’s campaign hereunder on the Platform. Notwithstanding the foregoing, Bandvest may terminate this Agreement by giving at least thirty (30) days prior written notice (“Termination Notice”) to Artist at any time. No termination of this Agreement shall affect Bandvest’s entitlement to fees on any funds raised by Artist, nor the commission payable to Street Team Members.
(b) Territory. The territory of this Agreement shall be the entire universe (the “Territory”).
(c) Buyout. Artist may terminate this Agreement upon thirty (30) days’ prior written notice at any time upon payment to Bandvest of the “Buyout Amount”. The term “Buyout Amount” shall mean an amount equal to two (2) times the gross dollar amount of all funds raised by or on behalf of Artist. Such termination shall relieve Artist of Artist’s obligations under paragraph 6(b) below, but all of Artist’s other obligations under this agreement shall continue to apply, including, but not limited to, any reward or incentive fulfillment obligations, Artist’s representations and warranties, Artist’s indemnity obligations, Artist’s responsibility to obtain all third party licenses, clearances and consents with respect to the Artist Content and pay all license fees, royalties, or other monies with respect thereto.
5. Bandvest Compensation. Artist shall pay, or cause to be paid, to Bandvest the following amounts:
(a) Five percent (5%) of all monies raised on the Platform
(b) A commission of all “Artist Revenue” (as defined below) earned by Artist (regardless of when received) in an amount equal to two percent (2%) per Five Thousand Dollars ($5,000.00) raised on the Platform up to a maximum of twenty percent (20%) (i.e., for example only and not by way of limitation, if Fifty Thousand Dollars [$50,000.00] is raised on the Platform, then the resulting commission of Artist Revenue would be twenty percent [20%], and if One Hundred Thousand Dollars [$100,000.00] is raised on the Platform, then the resulting commission of Artist Revenue would be capped at twenty percent [20%]). For the avoidance of doubt, Bandvest shall be paid the commission on Artist Revenue earned by Artist during the Term, but not received until after the expiration of the Term.
(c) (i) The term “Artist Revenue” shall mean any and all gross monies or other considerations paid to, or collected by, Artist or on Artist’s behalf in connection with Artist’s services and activities in the Entertainment Industry, including, without limitation, fees, royalties, advances, in-kind payments, profits, guarantees and net recoveries of claims for damages specifically relating to Artist’s activities in the Entertainment Industry (whether by judgment, settlement or decree), Artist’s salaries, earnings, residuals, advances, bonuses, proceeds of sales, or licenses, shares of stock, partnership interests, convertible debt and/or other equity interests, any amount paid for packaged television, motion pictures and radio programs, directly or indirectly earned or received by Artist, or paid to Artist or on Artist’s behalf or to Artist’s heirs, devisees, successors, and assigns, or applied for Artist’s benefit, directly or indirectly, whether as an actor, writer, author, lyricist, singer, producer, musician, performer, or as an equity participant in an entertainment, production, or publishing company or entity, and whether from the sale or other disposition of literary, dramatic or musical property or radio or television program or any use of Artist’s names, likeness or talents for advertising purposes or otherwise, including all sums earned by Artist during the Term of this Agreement under (i) any employment or contract entered into or consummated, initiated, or substantially negotiated before or during the Term hereof; and (ii) any substitutes, directly or indirectly, for such contract or employment, including (without limiting the foregoing) a contract or employment with an employer or contracting party entered into during the Term. Any commissions or other sums due Bandvest resulting from any judgments, awards, settlements, payments, damages and/or proceeds relating to any suits, claims, actions, arbitration or other proceedings specifically relating to Artist’s activities in the Entertainment Industry shall be computed after first deducting all reasonable expenses and fees in connection therewith. Should Artist be required to make any payment for any such shares of stock or other equity interests, Bandvest will pay Bandvest’s prorata share of such payment unless Bandvest elects not to acquire Bandvest’s percentage thereof. Notwithstanding anything to the contrary in this Agreement, Bandvest’s commission shall not include any percentage of so-called “touring revenue” or “merchandise” revenue derived from sales at tour events.
(ii) For clarity, Artist Revenue shall include, but not be limited to, all Artist Revenue generated from agreements in connection with all of Artist’s activities in the Entertainment Industry, including, without limitation, all publishing agreements, recording agreements, composition or master recording agreements, theatrical agreements, live performance agreements, multi-media agreements, television agreements, film agreements, advertising or commercial endorsement agreements, video gaming agreements, amusement park entertainment agreements, personal image licensing agreements, online or internet agreements, shares of stock, partnership interests, convertible debt and/or other equity interests, and any and all other agreements which are presently customary or to be developed in the future within the Entertainment Industry, as well as any and all renewals, renegotiations, modifications, substitutions, novations, extensions, or improved terms with respect to any such agreements. Furthermore, Artist Revenue shall include amounts that are credited to Artist’s account against a prior advance for which Bandvest did not receive its commission.
(iii) The term “Entertainment Industry” shall include, but shall not be limited to, music, television, film, and theatrical industry, songwriting, recording and producing phonograph records, music publishing, music production, the literary film and visual arts, commercial advertising jingles, video gaming, motion picture, theater, and television, personal appearances (other than “touring engagements”), entertainment themed business ventures, and the use of Artist’s names, approved likenesses and approved biographical information in connection therewith for commercial and promotional purposes and the sale, lease or other disposition of musical, literary, dramatic, or other artistic material (but excluding merchandise sold at tour events), which Artist may create, compose or acquire, or any other matter or endeavor related to Artist’s career in the entertainment field, but excluding so called “touring” and “merchandise” sold at tour events.
(d) Exclusions from Artist Revenue. The following shall be excluded from “Artist Revenue”:
(i) any gross monies or other considerations received by Artist as reimbursement for or actually paid by Artist or on Artist’s behalf as recording costs and/or video production costs (including, without limitation, applicable union scale payments to Artist, fees to session musicians, singers, producers, engineers, mixing, mastering, sample and clearance costs);
(ii) any gross monies or other considerations received by Artist as reimbursement for or actually paid by Artist or on Artist’s behalf as fees or royalties to a third party providing services in connection with any master recordings recorded or produced by Artist, including, without limitation, any producer, mixer or engineer;
(iii) passive earnings derived from non-Entertainment Industry investments; provided that Artist does not actively participate in such investment or activity as an entertainer, participating talent, performer, celebrity endorser or promoter;
(iv) royalties or fees paid do any third party songwriter, publisher, or administrator with respect to any musical composition exploited by or on behalf of Artist;
(v) monies realized from the sale of equipment;
(vi) monies paid to Artist from personal injury settlements or awards, including monies to reimburse Artist’s legal fees and other expenses, and damages of any kind awarded to Artist by judicial process or arbitration, except for actual damages in a proceeding to recover Gross Income from Artist’s activities in the Entertainment Industry and reasonable expenses related to any claims as long as such injury is not the proximate result or connected with Artists’ efforts, duties, and obligations within the Entertainment Industry and not the result of a breach of an obligation, contract, or covenant to pursue the same;
(vii) monies paid by Artist for the manufacture of audio and audiovisual products (e.g., CDs, DVDs), including union payments, music publishing royalties, and royalties to third parties (such as producers, mixers, etc.), if Artist sells his/her own audio and/or audiovisual products either directly or through arrangements with third-party merchants (e.g., Wal-Mart, Best Buy);
(viii) the value of musical instruments, clothing and similar items provided to Artist pursuant to endorsement deals, provided the items are not furnished to Artist in lieu of cash.
(ix) any other source of revenue listed by Artist in the “Revenue Sharing Exclusions” section of Artist’s profile created while setting up the Artist Page within the Platform.
(e) Fees. Any and all “Fees” (as defined below) shall be deducted from any monies payable to Artist under this Agreement, including from, but not limited to, Artist’s share of monies raised by Artist on the Platform. The term “Fees” shall include, but shall not be limited to, credit card fees or any other third party fees incurred by Bandvest in connection with making the Platform available to Artist or otherwise in connection with Bandvest’s or Artist’s activities under this Agreement, including but not limited to, Artist’s activities to raise money on the Platform. Bandvest anticipates, but makes no guarantee, that such Fees will be in the range of two percent (2%) to five percent (5%) of the gross amount of the transaction in question.
(f) Documents required before payout. Upon the successful completion of an Artist’s project, Bandvest reserves the right to collect W9 forms, signed letters of direction, and credit card authorization forms, electronic or physical, for the purpose of paying any potential chargebacks related to non-delivered goods of rewards. Bandvest may require an Artist to provide information or sign any or all of these documents before paying out project funds to the Artist.
6. Accounting & Audit.
(a) Accounting. In the event that Artist has engaged a business manager or certified public accountant, then promptly following the end of each calendar month in which Artist collects or receives (or is credited with) any Artist Revenue, then Artist shall compute the amount of the commission due and owing to Bandvest and shall, within forty-five (45) days of the last day of the preceding calendar month, provide a detailed, line-item statement (“Statement”) to Bandvest, in accordance with Bandvest’s standard business practices, setting forth the amount of all Artist Revenue and the amount of the commission due and owing to Bandvest. Along with each monthly Statement, Artist shall send payment to Bandvest in respect of any commission on Artist Revenue due and owing provided that the aggregate amount payable to Bandvest hereunder totals at least Ten Dollars ($10.00). In the event that the aggregate amount due and owing to Bandvest following any calendar month does not total at least Ten Dollars ($10.00), then Artist shall not be obligated to send payment with the monthly Statement, but shall instead carry such payment obligation over to the following month, at which time such carried-over amount due and owing to Bandvest shall be cumulated with the following month’s commission payment amount. Notwithstanding anything herein, Artist shall make payment to Bandvest in respect of Artist Revenue, if any, no less frequently than every three (3) months, regardless of the amount of commission due and owing. Artist’s payment and accounting obligations shall survive the expiration or earlier termination of the Term. In the event that Artist has not engaged a business manager or certified public accountant, then Bandvest may from time to time request an accounting statement consistent with the foregoing provisions. All payments made by Artist hereunder to Bandvest shall be made via PayPal (or other payment platform designated by Bandvest hereafter) or pursuant to other instructions given by Bandvest at the time in question.
(b) Letter of Direction. With respect to Bandvest’s commission of Artist Revenue, Artist shall cause all third parties to account for and pay to Bandvest directly all amounts earned by Bandvest hereunder and no less often than on a calendar-quarter basis pursuant to one or more Letters of Direction, a copy of which is attached hereto as Exhibit A. If such third party fails to make such accounting and payment to Bandvest directly, then Artist shall do so within thirty (30) days of Artist’s receipt of any accounting by any such third party. Artist hereby grants to Bandvest a limited power of attorney, in Artist’s name, to sign such Letter of Direction in the event that Artist fails or refuses to do so within five (5) calendar days of Bandvest’s request therefore. Such limited power of attorney is hereby coupled with an interest and therefore irrevocable.
(c) Audit. Bandvest has the right to audit Artist’s books and records to verify the accuracy of Statements, but only once with respect to any particular Statement. Audits are permitted once per calendar year during Artist’s normal business hours, on at least thirty (30) days’ prior notice, at the place in the U.S. where Artist maintains such records (or alternatively Bandvest may require Artist to send Bandvest copies of all source documents for remote audits, or at Bandvest’s option, Bandvest’s representative may make such copies of all such source documents for remote audits). Audits are at Bandvest’s expense, and may only be conducted by an certified public accountant, or other representative with music industry auditing experience. Each payment, Statement and other accounting rendered hereunder by Artist will be conclusive, final, and binding, will constitute an account stated, and will not be subject to any objection for any reason whatsoever unless Bandvest gives Artist notice stating the specific basis for that objection within two and one-half (2 1/2) years after the date the applicable Statement is rendered. Bandvest will have no right to sue Artist in connection with any royalty accounting Statement, unless Bandvest commences the suit within three and one-half (3 1/2) years after the date the particular Statement is rendered. Upon the expiration of such period, Bandvest shall have no right to sue Artist in connection with any such Statement, in connection with the amounts received, or relating to the period such Statement covers. In the event any audit shows a discrepancy of ten percent (10%) or more, then Artist shall reimburse Bandvest for all out-of-pocket costs and expenses pertaining to such audit. Bandvest’s audit rights shall survive the expiration or earlier termination of the Term.
(d) Tax Details. Bandvest conforms to United States IRS-issued guidelines. Artist must confirm Artist’s tax residency status by submitting Form W-9, Request for Taxpayer Identification Number and Certification (for U.S. citizen and residents), or Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (individuals) (for non-U.S. residents). Bandvest will, in some cases, reach out for additional information as needed. Artist and Bandvest each have the status of an independent contractor, and nothing in this Agreement contemplates or constitutes one party as agent or employee of the other or a partnership relationship between Artist and Bandvest. Bandvest will not deduct any payroll-related taxes from any payments to be made to Artist under this Agreement. Artist acknowledges that Artist is solely responsible for the payment of all taxes with respect to income earned by Artist pursuant to this Agreement or any other agreement. To the extent applicable, Bandvest shall have the right to deduct from any amount payable to Artist hereunder that portion thereof required to be deducted under any statute, regulation, treaty or other law, or under any union or guild agreement.
7. Third Party Obligations. Artist shall be solely responsible for payment to its affiliated artists, licensees, producers and other persons responsible for any Artist Content. Artist shall also be responsible for payments related to collective bargaining agreements, third-party licenses, music publishing licenses and other royalties pertaining to Artist Content. For the avoidance of doubt, in connection with the exploitation of Artist Content under this Agreement, Artist shall be solely responsible for any obligations or liabilities to third parties related to such exploitation or use by Bandvest.
8. Intellectual Property Ownership. Artist warrants and represents that it owns and/or controls all rights in and to all Artist Content provided to Bandvest (including, but not limited to masters, videos, sound recordings, compositions, ID Materials, artist names, writer names song names, artwork and images) and that it owns and/or controls all rights necessary to grant the rights set forth in this Agreement. Artist also guarantees that it has secured written permission from any and all third parties whose performances and/or contributions are embodied in Artist Content or underlying compositions. Artist will not deliver any Artist Content to Bandvest which is not owned and/or controlled by Artist. If any portion of any material delivered to Bandvest hereunder contains content not owned and/or controlled by Artist, and such material is subject to a third-party claim, Artist will indemnify and hold Bandvest harmless in accordance with the terms in Section 11.
9. Termination and Breach.
(a) Artist Content Remaining. Upon termination of this Agreement, Bandvest will not be subject to any liability for previously distributed Artist Content which remains on the Platform.
(b) Bandvest Rights to Terminate. Regardless of other termination provisions, Bandvest reserves the right to terminate this Agreement anytime for any reason immediately upon written notice to Artist. Grounds for termination may include, but are not limited to, disruption of or threat to Bandvest’s business or relationships, misconduct, improper manipulation of sales or streams, violation of another person’s intellectual property, or breach of the terms of this Agreement.
(c) Breach of Exclusivity/ Right to Cure: If Artist fails to abide by the exclusivity provisions set forth in this Agreement, it will be considered a breach of this Agreement, subject to a ten (10) calendar day opportunity to cure such breach. If Artist fails to cure such breach within ten (10) calendar days of notification of same, in addition and without prejudice to all of Bandvest’s other available rights and remedies at law and in equity, Bandvest will have the right to terminate this Agreement immediately upon notice at the sole discretion of Bandvest. For the avoidance of doubt, termination by Bandvest shall be a non-exclusive remedy for any breach of the exclusivity provisions by Artist and nothing contained in this paragraph shall preclude Bandvest from pursuing any other remedies available to Bandvest in the event Artist fails to abide by exclusivity provisions contained herein.
(d) Attorneys’ Fees. In the event Bandvest is required to bring a lawsuit to enforce the terms of this Agreement, or alternatively, in the event Bandvest successfully defends a lawsuit brought by Artist against Bandvest, then Bandvest shall be entitled to recover its reasonably outside attorney’s fees and costs.
(e) Illegal Boosting. Use of bots, third party tools, so-called “juicing” or any artificial method of fabricating or boosting the amount of Artist Content streams is prohibited. If Bandvest suspects after a bona fide, good faith investigation, or learns that Artist is engaging in this activity, Bandvest will withhold all funds related to Artist Content that is the subject of such activity, until a resolution is reached, or until Bandvest’s good faith, bona fide investigation determines that Artist has not engaged in the prohibited activity and that Artist is entitled to such funds.
(f) Artist Termination Rights. Artist may terminate this Agreement effective upon written notice in the event that (i) Bandvest files a petition in bankruptcy or becomes insolvent; or (ii) Bandvest commits an act of fraud hereunder.
10. Indemnification. Artist will indemnify, defend, and hold harmless Bandvest and Bandvest’s affiliates, their respective officers, directors, shareholders, members, employees, attorneys, licensees, and agents (“Bandvest Indemnified Parties”) from and against any and all losses, liabilities, claims, obligations, costs, and expenses (including reasonable outside attorney’s fees) which result from or arise in connection with or are related in any way (i) to a breach by Artist of any of its representations and warranties in this Agreement, including, but not limited to, any claims against Bandvest for use of Artist Content which may constitute infringement of copyright and/or trademark, and violate rights of privacy and/or publicity, or (ii) to a breach of any agreement, covenant, understanding or other obligation of Artist to any third person, firm or entity, or (iii) to any negligent or intentional action, inaction or omission of Artist, including, but not limited to, failure to provide accurate metadata to any digital distributor and/or DSP or the like. If a third party asserts a claim or allegation which, if proven, would constitute a breach by Artist of any of its representations, warranties, covenants and or obligations under this Agreement, Bandvest shall promptly notify Artist in writing; provided that a failure to do so shall not derogate from Artist’s indemnification obligations hereunder. Artist shall have the right at Artist’s own expense to participate in the defense thereof with counsel of Artist’s own choosing, provided however that Bandvest’s decision in connection with the defense or settlement of any such claim or demand shall be final (without any requirement to obtain Artist’s consent or approval thereof).
11. Assignment. Bandvest may assign Bandvest’s rights and/or obligations, in whole or in part, under this Agreement to any person, party, firm or entity, and such rights may be similarly assigned by any such assignee. Bandvest is hereby released from any liability hereunder to the extent of any such assignment. Bandvest may also assign Bandvest’s rights to any of licensee if advisable or desirable in Bandvest’s sole discretion to implement the rights granted by Artist under this Agreement. Artist shall not have the right to assign this
Agreement or any of Artist’s rights or obligations hereunder without Bandvest’s prior written consent, in each instance.
12. Denial of Artist Content.
(a) Denials. Bandvest may elect not to distribute any Artist Content on the Platform for the following reasons: (i) if, in the opinion of Bandvest, such distribution might violate a statute, law or regulation, or violate any rights of any persons or entities, including suspected violation of the intellectual property of another, (ii) Bandvest believes that its distribution of any of Artist’s recordings hereunder would constitute a breach by Artist of any of Artist’s agreements, warranties or representations contained herein or if Bandvest reasonably deems the recording or the associated artwork to be offensive to reasonable standards of public morals, or (iii) the submitted recording does not comply with the current specification stated on Platform or otherwise specified by Bandvest. Notwithstanding the preceding sentence, in the event the objectionable material is later eliminated, or the source of objection is removed, Artist may resubmit the recording to Bandvest for review and possible distribution on the Platform.
(b) Scandalous Material. Bandvest will not distribute scandalous, illegal, hateful, highly objectionable or offensive material. Bandvest reserves the right to reject or retract distribution of any Artist Content at Bandvest’s discretion.
(c) Parental Advisory. The parties shall cooperate in implementing any applicable parental advisory labeling. It is understood that Artist shall use reasonable efforts to click “Explicit” while submitting their content if, to their knowledge, the material contains explicit material. Please note that explicit material is different than, and may not arise to, scandalous material.
13. Confidentiality. Each party (the “Receiving Party”) acknowledges that it may come into contact with the other party’s (the “Disclosing Party”) confidential information, such as valuable, secret, special, and unique assets or business practices, including those learned in the course of dealing or performance hereunder. Confidential information includes but is not limited to the Disclosing Party’s customer lists, royalty data and reports, marketing and financial tools, pricing information, business plans, relationships, and agreements between DSPs and the Disclosing Party (collectively the “Confidential Information”). The Receiving Party covenants and agrees that, during the Term, and all times thereafter, it will not disclose the Disclosing Party’s Confidential Information to any person, firm, corporation, association, or other entity for any reason or purpose without the express written approval of the Disclosing Party, except to its attorneys, accountants and other authorized representatives (collectively the “Authorized Agents”). Notwithstanding anything to the contrary contained herein, disclosure of Confidential Information may be disclosed as required by law or by a court, governmental agency or legislative body after providing the Disclosing Party with notice of the potential disclosure. Nothing in this provision shall prohibit either party from disclosing the terms of this Agreement to Authorized Agents.
14. Representations and Warranties. Artist warrants and represents that: (a) it has the right and authority to enter into this agreement and to grant to Bandvest all rights specified hereunder; (b) all of the Artist Content, recordings, compositions, ID Materials, artwork, metadata, videos and any other materials delivered by Artist to Bandvest are owned or controlled by Artist and Bandvest’s use and exploitation of such materials, as authorized and contemplated hereunder, shall not infringe on the copyrights or other rights of any third person or entity; (c) Artist has not granted and will not grant to any third party any rights in connection with Artist Content or the underlying compositions or ID Materials that are inconsistent with those granted to Bandvest herein; (d) that Bandvest shall have the right to exploit same as authorized under this Agreement without obligation to make payments to any person or entity; and (e) Artist does not know of any currently existing or impending acts or circumstances, and Artist shall not, at any time during or after the Term, engage in any act or omission, which would, in the reasonable judgment of Bandvest: (1) have or attract publicity that would have a direct or indirect adverse effect upon the status or reputation of Bandvest, Artist or the Artist Content, or (2) directly or indirectly tarnish, denigrate or disparage the status or reputation of Bandvest, its affiliates, or any of their respective products, services or trademarks, and Artist shall notify Bandvest in writing immediately if Artist becomes aware of any such act, omission or circumstance. Bandvest warrants and represents that it has the right, power, and authority to enter into and fully perform this Agreement and all of its obligations under this Agreement.
15. LIABILITY LIMITATIONS; WAIVER OF JURY TRIAL.
(a) BANDVEST WILL NOT BE LIABLE TO ARTIST, OR ANY OTHER PERSON, FIRM OR ENTITY, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING LOST RIGHTS, PROFITS OR GOODWILL, BUSINESS INTERRUPTION, REPUTATIONAL DAMAGE AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE, NON-PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF BANDVEST HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
(b) OTHER THAN AS EXPRESSLY SET FORTH ABOVE, BANDVEST MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING ANY PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THE OPERATION OR FUNCTIONALITY OF THE PLATFORM OR THAT THE RUNNING OF THE PLATFORM WILL BE UNINTERUPTED) THAT BANDVEST MAY BE REQUIRED TO SUPPLY HEREUNDER, INCLUDING, BUT NOT LIMTIED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, EACH PARTY KNOWINGLY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE HAD TO A TRIAL BY JURY IN RESPECT OF ANY SUCH DISPUTE.
16. Notices. All notices hereunder shall be given to the following addresses pursuant to the mail methods below and with a copy via email at addresses indicated.
To Bandvest:
Bandvest Distribution
1697 Stanwich Rd.
Vernon Hills, IL 60061
Attn: Drew Russell & Tyler Claxton and
via email to: Notice@bandvest.co
With a copy to:
Dirickson Law, PLLC
PO Box 90867
Nashville, TN 37209
Attn: R. Landon Dirickson, Esq.
and via email to landon@diricksonlaw.com
To Artist
At the address set forth on the first page of this Agreement
Any notice shall be sent postage prepaid, either by certified mail, return receipt requested (and in the case of notices sent to or from a location outside the United States, by air mail), or by personal delivery (with a receipt signed by Bandvest or Artist, as applicable) or air express (e.g. Federal Express, DHL or any other similar type of first class overnight courier service that give the sender of proof of delivery) and shall be deemed served when the same is deposited in any United States mail box addressed as aforesaid, except that (a) all materials personally delivered shall be deemed served when received by the party to whom addressed, (b) overnight air express materials shall be deemed served the next business day after delivery to the air express company, (c) notices in connection with change of address shall be effective only from the date of written receipt, and (d) Statements shall be sent as set forth in Section 5.
17. Independent Contractor Status. This Agreement shall in no way be construed to create a partnership, joint venture or agency relationship, it being understood that Bandvest and Artist are acting hereunder as independent contractors.
18. Amendment. Any change, modification or amendment of this agreement within the Term must be in writing and signed by both parties and/or through a web based verified e-sign technology (such as DocuSign or similar technologies).
19. Interpretation and Severability. This Agreement embodies all of the representations and terms between the parties. If any provision of this Agreement is deemed invalid, the remaining text and enforceability of any other provision shall stand unaffected. The paragraph headings and designations used throughout this Agreement are solely for convenience and reference.
20. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction). Any and all disputes in connection with this Agreement shall be brought exclusively in federal or state courts located in Davidson County, Tennessee. Any service of process may, among other methods, be served upon the Artist or any other person who approves, ratifies, or assents to this Agreement to induce Bandvest to enter into it, by any method permitted under the laws of the State of Tennessee, as well as delivering the process or mailing it by registered or certified mail, directed to the address first above written or such other address as the Artist or the other person concerned may designate by written notice to Bandvest.
21. Cure. Neither party shall be entitled to recover damages or to terminate the Term by reason of any breach by the other party of its material obligations, unless the latter party has failed to remedy the breach within thirty (30) days following receipt of notice thereof. (The preceding sentence shall not apply to any termination by Label under subparagraph 15.01(b) or to any recovery to which Label may be entitled by reason of your failure to fulfill your Recording Commitment hereunder.) Notwithstanding the foregoing, you shall not be entitled to terminate the Term in connection with any claim that additional monies are payable to you hereunder, unless: (i) such claim is reduced to afinal, non-appealable judgment by a court of competent jurisdiction and the failure to pay such monies is determined to constitute a material breach and (ii) Label fails to pay you the amount thereof within thirty (30) days after Label receives notice of the entry of such judgment.
22. Miscellaneous. If any part of this agreement, or the application thereof to any party, shall be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect the remainder of this agreement, which shall continue in full force and effect, or the application of this agreement to the remaining parties. A waiver by either party of any provision of this agreement in any instance shall not be deemed a waiver of such provision, or any other provision hereof, as to any future instance or occurrence. All remedies, rights, undertakings, and obligations contained in this agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, or obligation of either party. The captions of the Articles in this agreement are included for convenience only and shall not affect the interpretation of any provision. You understand and acknowledge that this agreement is a valid and binding legal document which affects your legal and financial interests. You acknowledge that you have had ample opportunity to read the agreement and that you understand the terms and conditions set forth in this agreement. You hereby acknowledge that Label has advised you to obtain independent legal counsel in connection with the execution of this agreement and you further acknowledge that you have either obtained such independent legal counsel or have voluntarily waived its right to do so. This agreement shall not be construed against either party as the drafter, it being agreed that this agreement has been drafted jointly by the parties. You expressly acknowledge that your services hereunder are of a special, unique, intellectual and extraordinary character which gives them peculiar value, and that in the event of a breach by you of any material term hereof, I may be caused irreparable injury which may not adequately be compensated by money damages, entitling me to seek injunctive or other equitable relief in connection therewith. This Agreement sets forth the entire understanding relating to the subject matter hereof and may not be modified except by a written agreement signed by Producer and Company. Each of the parties irrevocably acknowledges and agrees that neither party has made any representations or promises in connection with this Agreement or the subject matter hereof not expressly contained in this Agreement. The paragraph headings are included solely for the convenience of the parties and shall not be deemed to describe, limit, modify or in any way affect the scope or interpretation of the paragraph themselves. For purposes of contractual construction, no provision in this Agreement shall be construed against any party hereto as the drafter hereof. Producer acknowledges and agrees that nothing herein shall be deemed to constitute a partnership or joint venture between the parties.
23. Force Majeure. The following events shall be referred to as a “Force Majeure Event”: act of God; inevitable accident; fire; lockout, strike or other labor dispute; riot or civil commotion; act of public enemy; enactment, rule, order or act of any government or governmental instrumentality (whether federal, state, local or foreign); failure of technical facilities; failure or delay of transportation facilities; failure of Internet, pandemic (whether global, national or regional); or other cause of a similar or different nature not reasonably within Bandvest’s control; If. because of a Force Majeure Event, Bandvest is hampered in fulfilling its obligations, Bandvest shall have the option (a “Suspension Option”) by giving Artist notice to suspend the running of the Term as well as any of Bandvest’s obligations hereunder for the duration of any such Force Majeure Event plus thirty (30) days after the cessation of such Force Majeure Event. Notwithstanding the preceding sentence, in the event that Bandvest is reasonably unable to provide Artist with notice that it intends to exercise the Suspension Option hereunder, such Suspension Option will be deemed to have been exercised as of the first day of the Force Majeure Event giving rise to such option. If any such Force Majeure Event affecting no other business in competition with Bandvest continues for more than six (6) months, Artist may on written notice request that Bandvest terminate the suspension by notice given to Artist within sixty (60) days after Bandvest’s receipt of Artist’s notice. If Bandvest does not do so, the Term shall terminate at the end of that sixty (60) day period (or at such earlier time as Bandvest may designate by notice to Artist), and all parties shall be deemed to have fulfilled all of their obligations under this agreement except those obligations which survive the end of the Term .
24. ARTIST’S RIGHT TO LEGAL COUNSEL. THE PARTIES HERETO ACKNOWLEDGE THAT THE LAW FIRM OF DIRICKSON LAW, PLLC HAS REPRESENTED ONLY BANDVEST’S LEGAL INTERESTS IN THE PREPARATION AND NEGOTIATION OF THIS AGREEMENT. NEITHER DIRICKSON LAW, PLLC, NOR R. LANDON DIRICKSON, ESQ., HAVE REPRESENTED ARTIST’S LEGAL OR OTHER INTERESTS IN THIS MATTER. FURTHERMORE, ARTIST HAS BEEN ADVISED AND ENCOURAGED TO SEEK INDEPENDENT LEGAL COUNSEL OF ARTIST’S OWN CHOOSING TO REPRESENT AND ADVISE ARTIST WITH RESPECT TO THE NEGOTIATION, LEGAL MEANING AND EFFECT OF THIS AGREEMENT, AND ARTIST HAS EITHER BEEN SO REPRESENTED OR ARTIST HAS KNOWINGLY AND VOLUNTARILY WAIVED SUCH RIGHT AND ANY AND ALL CLAIMS BASED THEREON.
EXHIBIT A (Letter of Direction)
__________________
__________________
__________________ [INSERT ARTISTADDRESS]
INSERT DATE
__________________
__________________
__________________
[INSERT BUSINESS MANAGER ADDRESS]
RE: BUSINESS MANAGER LETTER OF DIRECTION
Dear Sir or Madam:
I hereby request and irrevocably authorize you to make payments to Solve Three (co) doing business as “Bandvest” (“Bandvest”), in accordance with the attached Artist Agreement (the “Agreement”) with Bandvest.
I hereby request and irrevocably authorize you to pay ____% of my “Artist Revenue” (as defined in the Agreement) to Bandvest. All monies becoming payable under this authorization will be remitted to Bandvest at the address stated below or otherwise as they direct you in writing, and will be accompanied by statements with respect to those payments. Bandvest’s address for payments is as follows:
Solve Three (co) d/b/a “Bandvest”
1697 Stanwich Rd.
Vernon Hills, IL 60061
Attn: Drew Russell & Tyler Claxton
drew@bandvest.co
tyler@bandvest.co
Term: Initial term to run through _________, with no renewal.
Please let me know if you have any questions.
Very truly yours,
[ARTIST]
EXHIBIT A (continued)
__________________
__________________
__________________ [INSERT ARTISTADDRESS]
INSERT DATE
__________________
__________________
__________________
[INSERT PAYOR ADDRESS]
RE: GENERAL LETTER OF DIRECTION
Dear Sir or Madam:
I hereby request and irrevocably authorize you to make payments to Solve Three (co) doing business as “Bandvest” (“Bandvest”), in accordance with the attached Artist Agreement (the “Agreement”) with Bandvest.
I hereby request and irrevocably authorize you to pay ____% of my “Artist Revenue” (as defined in the Agreement) to Bandvest. All monies becoming payable under this authorization will be remitted to Bandvest at the address stated below or otherwise as they direct you in writing, and will be accompanied by statements with respect to those payments. Bandvest’s address for payments is as follows:
Solve Three (co) d/b/a “Bandvest”
1697 Stanwich Rd.
Vernon Hills, IL 60061
Attn: Drew Russell & Tyler Claxton
drew@bandvest.co
tyler@bandvest.co
Term: Initial term to run through _________, with no renewal.
Please let me know if you have any questions.
Very truly yours,
[ARTIST]
EXHIBIT A (continued)
Publisher Letter of Direction
To whom it may concern:
This is to advise that Solve Three (co) doing business as “Bandvest” (“Company”) and ________________ (Publisher) have entered into an agreement whereby Company will commission ____% of Publisher’s so-called “publisher’s share” of income. Company is entitled to collect and receive the above percentage of royalties and other sums derived from Publisher’s compositions which are or may become payable, regardless of when earned.
Please send all send such payments to:
Solve Three (co) doing business as “Bandvest”
1697 Stanwich Rd.
Vernon Hills, IL 60061
Attn: Drew Russell & Tyler Claxton
drew@bandvest.co
tyler@bandvest.co
Territory: World
Effective Date: April 1, 2020
Term: Initial term to run through _________, with no renewal.
On behalf of Publisher, I hereby grant to Company, and any of its representatives, full right and power to sign any documents necessary to register, index, administer, license and collect income from the above named publishing catalog(s).
“Publisher” “Company”
Solve Three (co) d/b/a “Bandvest”
_____________________________ ________________________
By: [NAME] Authorized Signatory
Federal Tax ID: