STANDARD TERMS AND CONDITIONS
STANDARD TERMS: These Standard Terms and Conditions shall constitute a part of the Principal Agreement attached hereto in connection with the Campaign(s) described in the Principal Agreement. These Standard Terms and Conditions and Principal Agreement may also be collectively referred to as the “Agreement”.
SERVICES: Icon is responsible for providing, and shall act as a representative for Customer in connection with, the Services described in connection with Customer’s Campaign(s) as set out in the Principal Agreement, as such Services relate to Customer’s Song(s), Account(s), and/or Video(s) described in the Principal Agreement (collectively and as applicable, the “Content”).
TERM: Icon’s Services shall commence upon execution of this Agreement and payment of the Fee, and shall continue for thirty (30) days therefrom (the “Term”), at which point the obligations of the parties hereunder shall terminate unless provided otherwise herein.
REPRESENTATION: During the Term, the Services will be provided by a duly designated Icon representative who shall be entitled to all rights granted herein in order to provide the Services in connection with the Campaign(s).
EXCLUSIVITY: The Services provided to Customer shall be provided exclusively by Icon for the duration of the Term. For clarity, the foregoing entails that the Customer shall not engage a third party other than Icon to provide identical or similar services to Customer or an agent of Customer in connection with the Content for the duration of the Term.
DELIVERY OF CONTENT: Upon execution hereof, Customer shall deliver to Icon, at its own expense, the Content and all applicable media and information (including but not limited to links, downloadable files, and/or physical copies of any Song or Video, and login information including passwords for the Account) as necessary for Icon’s performance of the Services related to the Campaign(s).
COMPENSATION & PAYMENTS: In full consideration for Icon’s performance of all terms and conditions of this Agreement as well as all the rights granted herein, Icon shall receive the Fee in accordance with the Principal Agreement. Such Fee shall be paid by electronic transfer to Icon’s bank account according to details to be set out in Icon’s invoice to Customer.
CANCELLATION: The Fee is non-refundable. Upon payment of the Fee, Customer shall not be entitled to: (a) receive a full or partial refund for any reason, (b) cancel the Services; or (c) make any changes or alterations to the type or specifications of the Campaign(s) and Services chosen by Customer in the Principal Agreement.
GRANT OF RIGHTS: Throughout the Term, and in order to provide the Services, Icon is hereby granted the full right and license to use Customer’s name (including without limitation any pseudonym), likeness, image(s), voice, biography, brand(s), trademark(s), tradename(s), logo(s), artwork/album cover(s), press photo(s), quotes, Song(s) (including any title, lyrics, music, and master recording, or any part thereof), Video(s) (including any title, still images, video clips, or any part thereof) and Account(s).
OWNERSHIP: It is expressly agreed and understood by and between the parties that all ideas, designs, works, writings, and other materials conceived, produced, or developed by Icon pursuant to or in furtherance of the Services (collectively the “Material”) shall be deemed the sole property of Icon. To the extent that any such Materials are not automatically deemed the property of Icon, Customer hereby assigns to Icon all right, title and interest to such Material. For clarity, Customer retains all ownership, including copyright, in and to the Content.
DISCLAIMERS: Icon makes the following disclaimers in connection with its provision of the Services hereunder:
While Icon will use reasonable commercial efforts to provide the Services, Icon does not guarantee or control third party action or compliance (e.g., if Icon submits a Song to a playlist, there is no guarantee that the Song will remain on such playlist; likewise, if Icon submits a press release, there is no guarantee that such press release will be picked up by any given media outlet). Icon’s Services are limited to the Campaign and Icon shall take no responsibility for matters beyond its control;
Icon does not own or work for the playlists, media outlets, or other third party content providers that Icon may engage with in connection with a Campaign;
In connection with a Campaign, Icon will put a Song on a playlist for a maximum of thirty (30) days. Icon has no obligation to put a Song on a playlist for longer than thirty (30) days;
Icon does not differentiate between fake and real streams or views in terms of performance statistics for any Song or Video associated with a Campaign; and
Customer hereby authorizes Icon to release any and all information about him/her/it, and he/she/it agrees that Icon does not need approval from her/him/it to release any information or stories regarding her/him/it in the form of press releases, public statements, or other such writings. Stories and other released writings may contain incorrect information about Customer or the Content. Such information may result from Icon being misinformed or due to an unintentional error and/or omission, or for other reasons. Icon hereby informs Customer that he/she/it may suffer embarrassment and annoyance because of correct or incorrect publicity. Customer declares that he/she/it understands that he/she/it may suffer mental anguish and/or monetary loss due to publicity.
CONFIDENTIALITY
Confidential Information: Both parties acknowledge that during the Term of this Agreement, they may learn and become privy to Confidential Information. “Confidential Information” means all nonpublic and confidential information set forth in tangible materials or in an unwritten form, which is disclosed during the Term of this Agreement, including: (i) this Agreement and the transactions contemplated herein, (ii) all information marked confidential, restricted, or proprietary to the party, and (iii) any other information that is treated as confidential by the party and would be reasonably understood to be confidential, whether or not so marked. Confidential Information shall also include attorney-client privileged materials or attorney work product, third party contracts, rates and pricing, information with respect to competitors, strategic plans, account information, research information, trade secrets, financial/accounting information (including assets, expenditures, mergers, acquisitions, divestures, billing collections, revenues and finances), human resources and personnel information, marketing/sales information, information regarding businesses, plans, licenses, internal or external audits, law suits, regulatory compliance or other information or data obtained, received, transmitted, processed stored, archived, or maintained by the party under this Agreement. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iii) can be shown by documentation to have been independently developed by the receiving party without reference to any Confidential Information. Specific aspects or details of Confidential Information shall not be deemed to be within the public domain or in the possession of a party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of such party. Further, any combination of Confidential Information shall not be considered in the public domain or in the possession of a party merely because individual elements of such Confidential Information are in the public domain or in the possession of such party unless the combination and its principles are in the public domain or in the possession of such party.
Icon’s Use of Confidentiality: Confidential Information shall not be utilized by Icon for any purpose other than for performance under this Agreement and shall not be sold, assigned, leased, commercially exploited or otherwise provided to third parties by or on behalf of Icon or by Icon’s personnel. Icon may disclose Confidential Information to their affiliates, auditors, attorneys, accountants, consultants, contractors, and subcontractors, where (i) use by such person or entity is authorized under this Agreement, (ii) such disclosure is necessary for the performances of such person’s or entity’s obligations under or with respect to this Agreement or otherwise naturally occurs in such person’s or entity’s scope of responsibility, (iii) the person or entity (and its applicable officers and employees) agrees in writing to assume the obligations consisted with this provision and, (iv) Icon assumes full responsibility for the acts or omissions of such person or entity regarding their use and disclosure of such Confidential Information and Icon takes all reasonable measures to ensure the Confidential information is not disclosed or used in contravention of this Agreement.
Breach of Confidentiality: Icon shall (i) expeditiously notify Customer of any breach or potential breach of security relating to the Confidential Information, (ii) investigate such breach or potential breach and determine the cause of such, (iii) remediate the effects of such breach or potential breach of security, and (iv) provide Customer with such assurances as Customer request that such breach or potential breach will not recur.
Disclosure of Confidential Information: If Icon is required by applicable law, rule or regulation of a governmental authority or self governing regulatory organization to provide public disclosure of this Agreement or the transactions contemplated herein, Icon will use all reasonable efforts to coordinate the disclosure with Customer before making such disclosure and an application for confidential treatment of certain terms (which terms will be agreed upon by the parties) of this Agreement. Icon will provide Customer for review a copy of any proposed disclosure of this Agreement or its terms and any application for confidential treatment prior to the time any such disclosure or application is made and the parties will work together in good faith to cause the disclosure or application to be acceptable to both parties.
Termination: Upon termination of this Agreement for any reason, each receiving party shall (i) return to the disclosing party all Confidential Information provided in writing by the disclosing party to the receiving party, and (ii) destroy copies of memoranda and notes prepared by the receiving party or any of its employees or agents that contain Confidential Information of the disclosing party. The return of any Confidential Information will not relieve the receiving party of any of its obligations hereunder. These provisions shall survive expiration or earlier termination of this Agreement.
RELEASE OF CLAIMS: Customer hereby expressly releases Icon from and against any and all claims, demands, damages, liabilities, injuries, causes of action, suits, grievances, arbitrations, promises, obligations, costs, expenses, attorney's fees, at law or in equity, of every nature, character or description whatsoever, whether known or unknown or suspected or unsuspected or anticipated or unanticipated, which the Customer ever had, now has or may have in the future, which arise out of, may arise out of, pertain to, concern, or are connected with any contract, tort, statutory violation, violation of fiduciary duty, representation, non-disclosure, act, omission to act, fact, error, matter or thing whatsoever occurring which are based on or arise in connection with the Services or otherwise with this Agreement.
INDEPENDENT CONTRACTOR: It is expressly agreed and understood by and between the parties that Icon’s status under this Agreement is that of an independent contractor for all purposes.
ICON’S WARRANTIES: Icon represents and warrants that it is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction, with full corporate power, authority and capacity to enter into this Agreement.
CUSTOMER WARRANTIES: Customer represents and warrants that:
Customer has the full right and authority to enter into this Agreement and grant the rights and permissions granted hereunder;
The Content is wholly original with Customer and is exclusively owned and/or controlled by Customer;
The Content does not, and any permitted use by Icon hereunder will not, violate, conflict with, or infringe upon any rights whatsoever, including without limitation, any copyrights, trademarks, privacy rights, publicity rights, nor, to the best of Customer’s knowledge, information and belief, statutory or common law rights (including without limitation, rights relating to defamation) of any third party, whether such third party is an individual, body corporate or other legal entity such as a trust or estate;
The rights granted hereunder to Icon are exclusively controlled by Customer and Customer has not granted or licensed, nor will Customer (for as long as this Agreement remains in effect) grant or license, all or any portion of the granted rights to any third party; and
To the best of Customer’s knowledge, information and belief, there is no claim, litigation, or other proceeding outstanding, pending, or threatened against the Content or any of the rights granted herein, nor any cause for any such claim, litigation or other proceeding, and Customer agrees to advise Icon immediately upon acquiring actual or constructive knowledge of any such claim or litigation.
INDEMNITY: Customer shall indemnify Icon against all claims, liability, costs, and expenses (including attorneys’ fees) (“Claims”) arising from any third party claim or proceeding against Icon occasioned by any breach by Customer of any provision of this Agreement. Icon shall promptly give notice to Customer of any such claim or potential claim for indemnification under this Agreement.
FORCE MAJEURE: The date for performance of Icon’s obligations hereunder shall be postponed to the extent an event of force majeure delays the performance of such obligations hereunder. For purposes hereof, the term “force majeure” shall mean delays caused by war, acts of God, public enemy, strikes or other industry-wide labour disputes, riots, fire, explosion or similar casualties, delays of common carriers, embargo or restraint by public authorities, delays arising out of inability to secure necessary materials, national emergency, disability, illness or death, or any other cause beyond Icon’s reasonable control.
TAX LIABILITY: Any tax payable on the Services provided to Customer shall be the responsibility of Customer who shall pay, defend and hold harmless Icon from payment of any such taxes.
ASSIGNMENT: Neither party may assign this Agreement, or any of their rights or obligations under this Agreement without the prior written consent of the other party.
NOTICES: All notices and other communications between the parties must be in writing. Notices must be given by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, or (iv) electronic mail to the party’s address specified in this Agreement, or to the address that a party has notified to be that party’s address for the purposes of this Section. A notice given in accordance with this Agreement will be effective upon receipt by the party to which it is given or if mailed upon the earlier of receipt and the fifth day following mailing.
SEVERABILITY: If any part of this Agreement is declared unenforceable or invalid, the remainder shall continue to be valid and enforceable.
WAIVER: No waiver of a condition or nonperformance of an obligation is effective unless it is in writing and signed by the party granting the waiver. No waiver by a party affects the exercise of any of its other rights or remedies. Any failure or delay in exercising any right or remedy will not constitute, or be deemed to constitute, a waiver of that right or remedy. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
APPLICABLE LAW: This Agreement shall be interpreted and governed by the laws of the province of Ontario and the laws of Canada applicable therein and hereto.
ENTIRE AGREEMENT AND MODIFICATION: This Agreement, including the Principal Agreement and these Standard Terms and Conditions, shall constitute the entire agreement between Icon and Customer and replaces and supersedes all other agreements between the parties. Any amendment hereto must be in writing and signed by each party.
COUNTERPARTS: This Agreement may be signed in any number of counterparts, each of which will be deemed to be an original and all of which, taken together, shall constitute one single document. The parties acknowledge that copies which are executed, reproduced or transmitted via facsimile or electronic transmission will be equivalent to original documents.