Guitarati Home of Colorful Music

Last updated : February 1, 2008

GUITARATI Electronic Music Publishing Agreement

1. 1. Definitions

   1. 1.1 "Agreement" shall mean this agreement between Guitarati LLC (operating through the website www.guitarati.com), a Delaware Limited Liability Company ("Guitarati") and the party who is submitting Masters (or other Content) to Guitarati in connection with this Agreement.

   2. 1.2 "Content" shall mean all text, music, audio, video, audio-visual, graphics, artwork, images, photographs, animations, including Provider's musical recording(s) (or materials to which the Provider has an exclusive license), with individual titles to be selected at the sole discretion of Provider, along with all applicable cover art, meta-data, and any other materials needed by Guitarati to prepare Provider's musical recording(s) for sale and distribution.

   3. 1.3 "Effective Date" shall mean the date upon which the Provider accepts this Agreement by submitting Masters to Guitarati.

   4. 1.4 "Master" shall mean an original recording of sounds stored on or by any medium or means now known or later discovered.

   5. 1.5 "Proprietary Information" shall mean all data, information, software, designs and other materials and legally protectible elements of the Website, tangible or intangible, the selection, sequence, "look and feel" and arrangement of items, as well as all copyrights, trademarks, service marks, brand and trade names appearing on the Web Site.

   6. 1.6 "Provider" shall mean the copyright holder, lawfully-authorized representative or licensee of the copyright holder of any Content uploaded to the Web Site pursuant to this Agreement.

   7. 1.7 "Service" shall mean Guitarati's proprietary web-based computer service for searching, organizing, downloading, streaming and purchasing music and music-related content.

   8. 1.8 "Upload Date" shall mean the date that the Provider uploads Content to the Web Site.

   9. 1.9 "Web Site" shall mean the content and services accessed through "http://www.guitarati.com."

   10. 1.10 "Work(s)" shall mean those Artist's Master(s) submitted in connection with this Agreement and made apart hereof by this reference.

2. 2. Acceptance

   By submitting Masters or other Content to Guitarati via Guitarati's online form or in any other format whatsoever, you, the Provider, accept and agree to be bound by the terms and conditions contained in this Agreement. Title to the Masters and the underlying copyrights shall at all times remain with Provider (or the copyright holder on whose behalf Provider is acting). Nothing contained in this Agreement shall be construed to grant to Guitarati any rights in the copyrights beyond the licenses granted herein. Each individual submitting Masters or other Content to Guitarati via Guitarati's online form (either in paper or electronically), whether individually or on behalf of any person and/or entity, warrants and represents that the individual has full authority to so execute this Agreement on behalf of the party on whose behalf he or she acts. Each party separately acknowledges, agrees, represents and warrants that this statement of authorization is true, correct and accurate and is an essential and material provision of this Agreement and shall survive the execution of this Agreement.

3. 3. Fees & Payment

   1. 3.1 Content Pricing

      Provider acknowledges and agrees that Provider may suggest the price of the Content for sale. However, Guitarati may set a minimum price on the sale if, in Guitarati's sole and absolute discretion, the suggested price is deemed to be too low. Provider hereby acknowledges and agrees that Guitarati shall have sole and absolute discretion with respect to the pricing of the Content and the right, from time to time, to evaluate the sales volume and/or other sales statistics to determine whether to provide a discount or other combined offer price to end users. In the event Guitarati believes that an album or track price is justified and in line with the mutual goal of maximizing revenues, it is hereby acknowledged that Guitarati shall, without further consent of Provider, have the sole and absolute discretion to reduce the retail price of the Content or of the combined album price to a price set by Guitarati.

   2. 3.2 Guitarati's Retained Percentage

      In full and complete consideration of the performance of all the terms and obligations to be performed by Provider, and for all the rights granted to Guitarati hereunder, Guitarati agrees to pay to Provider an amount (the "Provider Payment") equal to the sales price of any Content sold on the Site (or by virtue of any partnership with Guitarati) to any third party ("Sales Revenue"), minus a fixed percentage of twenty five percent (25%) of such Sales Revenue ("Retained Percentage") per song.

   3. 3.3 Change in the Retained Percentage

      The Retained Percentage is subject to change by Guitarati, in Guitarati's sole discretion and judgment, upon prior written notice to Provider, including notice via email, text message, or display on the website. Notwithstanding the foregoing, if Provider objects to a change in the Retained Percentage, Provider may opt out of the Service and terminate this Agreement, by providing Guitarati written notice within ten (10) days of the date of Guitarati's notice to Provider of such increase. If the Provider chooses to opt out, any Content with a Special Price shall remain on the Web Site until the Deletion Date.

   4. 3.4 Payment to other copyright owners

      Guitarati shall pay Provider's share of income received as a result of sales of Content only to the address (or bank/online account) of the Provider of the Content. Provider agrees that Guitarati shall have no obligation to distribute such income to writers, composers, other band members or any other copyright holders and Provider agrees to indemnify, defend and hold Guitarati harmless from any claims for such income. Guitarati reserves the right to share or not share a percentage of the income derived from streaming the Content or a portion thereof (e.g. income earned from subscriptions, advertising revenue from clips shown before, after or overlaid on the Widget (defined herein) playing the Content).

   5. 3.5 Special Price

      When a Web Site user listens to the full-length version of a song, a per-listen price is deducted from his account balance on the Web Site. When and if the user decides to download that song, the selling price of that song for that user is the indicated selling price minus the total per-listen price the user has already paid. Thus the song has a "Special Price" on it. In order to prevent a user from losing the ability to download/purchase a song with a Special Price in the event that Provider removes or deletes a such song, that song shall be available to that user for download/purchase for a period of thirty (30) days (until the "Deletion Date", set forth in Section 5.6) after it is marked for deletion. Guitarati may modify this period in its sole and absolute discretion.

   6. 3.6 Third Party Revenue

      Provider agrees that Guitarati may set, change or remove any listening fees on any Content provided to third parties for streaming of such Content and this fee shall be set in Guitarati's sole and absolute discretion to maximize the sales for mutual benefit of Guitarati and the Provider. If Guitarati charges any listening fees from the third party, the Guitarati may remit to Provider a percentage of those fees, minus any necessary taxes. This percentage is subject to change anytime at the sole and absolute discretion of Guitarati.

   7. 3.7 Payment Timeframe

      No later than thirty (30) calendar days after the end of a Pay Period, which is to be no longer than three (3) calendar months, and assuming the receipt by Guitarati of Sales Revenue from downloaded Content, Guitarati shall make the Provider Payment due Provider pursuant to this Section. This provision shall be in effect so long as there is at least Twenty Five US Dollars ($25.00) in Provider Payment from the sale of Provider's Content during the preceding Pay Period. If the Provider Payment is not at least Twenty Five Dollars ($25.00) from the sale of Content through the Site for a given Pay Period, then Guitarati shall be entitled to retain that revenue and apply it to each successive Pay Period until Provider has earned at least Twenty Five Dollars ($25.00) of cumulative Provider Payment. Once Provider has earned at least Twenty Five Dollars ($25.00) in cumulative Provider Payment, including any cumulative Provider Payment from prior Pay Periods, Guitarati shall pay the Provider's Payment no more than three (3) calendar months thereafter. In the event that this Agreement is terminated, Guitarati shall pay the Provider's Payment no more than three (3) calendar months thereafter upon Provider's written demand, even if the cumulative Payment is less than Twenty Five US Dollars ($25.00). Guitarati shall not pay interest or other gains on the amount held by Guitarati before remittance to the Provider. Guitarati may, in its sole and absolute discretion, change the method of remittance to the Provider including but not limited to sending checks, online payment methods (for ex. PayPal) or direct deposits. Provider agrees to provide Guitarati with accurate and true information for a remittance method currently in use. Guitarati shall not be responsible for delays or loss occurring because of incorrect information provided or the use of remittance methods. Depending on the means of payment distribution (e.g. electronic transfer of funds through a third party) the payment received by Provider may be reduced due to transaction fees charged by such third party. In no event shall Guitarati be liable for any fees charged by a third party for use of their service.

4. 4. License & Services

   Provider hereby grants to Guitarati, for the Term of this Agreement or any extension thereof, the following rights:

1. (a) the non-exclusive right to electronically distribute and sell throughout the Universe via the Site, without any limitation not specifically set forth herein or hereinafter, the Masters and all electronic copies thereof and the performances embodied thereon including but not limited to the right to make, cause or otherwise effect Digital Audio Transmissions and Digital Phonorecord Deliveries of the Masters ("Electronic Distribution") without any digital rights management restrictions. The term "Digital Audio Transmission" shall mean a transmission that embodies a sound recording including the performance thereof. The term "Digital Phonorecord Delivery" shall mean each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording;

2. (b) the non-exclusive right during the Term, throughout the Universe via the site, to use, reproduce, display, perform, distribute, transmit, publicly and privately, by any and all means and in any and all media now known or hereafter devised without any digital rights management restrictions: (a) the names, approved likenesses and biographical information (including professional, group, and other assumed or fictitious names) of any and all persons performing on or rendering services in connection with the creation of Masters, as well as of the Label (collectively, "Name and Likeness"); (b) any artwork, drawings, photographs, liner notes and/or other graphical materials furnished or identified by Label for Guitarati's use hereunder (collectively, "Artwork"); and (c) any trademarks, service marks or trade names embodied in the foregoing (collectively "Marks"). No so-called "merchandising rights" in and to the Artwork, Name and Likeness or Marks are granted by Provider hereunder;

3. (c) the non-exclusive right and license during the Term and throughout the Universe via the Site to use, reproduce, distribute, display, deliver and transmit, publicly and privately, by any means now known or hereafter devised, the lyrics of the Controlled Compositions (as defined herein) embodied in the Licensed Masters, solely for the purpose of promoting the Licensed Masters or facilitating the exercise of the rights of Electronic Distribution of the Licensed Masters. The term "Controlled Compositions" shall mean any and all musical works embodied in the Licensed Masters which are owned or controlled, directly or indirectly, by Provider, collectively or individually;

4. (d) the exclusive right to use the Guitarati "Widget" which includes but is not limited to the right to use the media player on the Web Site, through the Web Site, or in any other way related to the Web Site. For example, and without limitation, the right to use an embedded player on www.myspace.com to play, sell and download the Provider's Content, which is linked to the Web Site and specifically including the right to use and/or sell the Provider's Content through any of Guitarati's partners', affiliates' or licensees' websites, understanding that the Provider's Content shall remain on the Guitarati Network or database despite the appearance of a non-Guitarati branded player; and

5. (e) the right to modify the Content (e.g. re-encoding at a lower bit rate for streaming, creating clips for samples, resizing album cover art for display on website etc.) for display on the website and widgets, for promotional purposes and the non-exclusive right to use samples (sample clearance) in promotional activities.

1. 4.1 Provider shall submit to Guitarati the Content (e.g. musical recording(s)) with individual titles to be selected at the sole discretion of Provider, along with all applicable cover art, meta-data, and any other materials needed by Guitarati to prepare such Content for sale by uploading the Content directly onto the Web Site in accordance with the instructions for uploading set forth in the applicable section of the Web Site. The Content shall be displayed and made available for sale, download and/use on the Web Site at Guitarati's sole discretion. Provider hereby expressly acknowledges and agrees that any additional Content that is submitted by Provider (unless and until this Agreement is revoked by either Party in writing) to the Web Site shall be governed by the terms and conditions of this Agreement. There may be a delay before which the material shows up on the Web Site.

2. 4.2 Provider agrees to allow Guitarati to use full-length and less-than-full-length "samples" of Content for purposes of promoting the Web Site or Service and/or the Provider (such as in advertisements, banners, widgets etc.) without any obligation to compensate the Provider for such use of the Content.

3. 4.3 Guitarati.com is open to general audiences comprised of children above 13 years age and not all Content may be suitable for use by minors. Provider agrees to use its best efforts to mark any Content as "explicit," preferably immediately after uploading the song, if Provider thinks it may contain any kind of explicit language. Guitarati reserves the right to mark any Content "explicit." Guitarati reserves the right to hide or delete information related to the Content (including songs, album cover art, your biography etc.).

4. 4.4 Guitarati may employ people outside of the U.S. or Provider's country of origin for website administration, maintenance and development of features for the website, for which they may need to access the Content. Provider grants a Universal right to the directors, owners, employees, contractors, agents etc of Guitarati to access the content for such purposes. Provider grants Guitarati the right to backup and store the Content on backup equipment and location of Guitarati's choosing.

5. 5. Term, Termination & Removal of Content

   1. 5.1 This Agreement shall commence on the Effective Date and continue in effect for a period of two (2) years ("Term"), unless earlier terminated in accordance with its terms. The Term shall be automatically extended for consecutive one (1) year periods, unless terminated by either party by written notice to the other party at least thirty (30) days before the end of the then applicable Term. It is hereby acknowledged by Provider that the Provider's Content will be offered for sale through the Site (and through Guitarati's Strategic Network Partners, if separately agreed to by the parties) until either party validly terminates this Agreement. If not validly terminated by either party, this Agreement shall renew thereafter automatically on the same terms and conditions for additional successive one (1) year periods without the need for further action by either party.

   2. 5.2 Guitarati may terminate this Agreement at any time for any reason or no reason, upon notice to Provider. Provider may terminate this Agreement: (i) upon thirty (30) days advance notice to Guitarati; or (ii) immediately upon Guitarati's material breach of this Agreement provided Guitarati fails to cure such breach within thirty (30) days following notice thereof.

   3. 5.3 UPON TERMINATION OF THIS AGREEMENT BY PROVIDER, PROVIDER AND NOT GUITARATI, SHALL BE SOLELY RESPONSIBLE FOR REMOVING PROVIDER'S WORK(S) FROM GUITARATI'S DATABASE BY SENDING AN APPROPRIATE EMAIL MESSAGE TO: SUPPORT[AT]GUITARATI.COM.

   4. 5.4 Guitarati shall remit any pending dues within ninety (90) days of the date Guitarati receives notice of termination. However, Guitarati reserves the right to suspend any account and withhold any payments due for any Content subject to any copyright or ownership dispute.

   5. 5.5 Content may be removed by Guitarati from the Web Site without prior notice upon the occurrence of any of the following: (a) Guitarati receives notice that from a copyright claimant that certain Content has been uploaded illegally or without authorization (a "Copyright Dispute"), (b) Guitarati determines in its sole and absolute discretion that Content is inappropriate or objectionable, or (c) Guitarati determines in its sole and absolute discretion that Content is or may inhibit, obstruct or detrimentally affect the operation of the Web Site.

   6. 5.6 Content uploaded to the Site shall remain on the Site unless removed by Guitarati in accordance herewith, and/or requested to be removed by Provider, in writing. If Provider requests that the Content be removed from the Site, Provider shall state the reason for the removal request. Guitarati shall use its best efforts to remove the Content from the Web Site, within thirty (30) calendar days of the date of Provider's notice, if it has a Special Price ("Deletion Date"). Provider agrees that it may take longer than thirty (30) calendar days to remove the Content. It is also expressly agreed that a Provider shall not be permitted to request removal of Content submitted to the Site under the terms of this Agreement for a period of thirty (30) calendar days from the date Provider uploads such Content onto the Site (hereinafter the "Upload Date").

   7. 5.7 Technical Errors Not a Material Breach. Provider acknowledges and agrees that the Internet is sometimes unreliable, slow or inactive and that Guitarati shall not be responsible for any delays and/or errors in fulfilling orders for Provider's Content caused by Guitarati's Internet connection, equipment (including server) failure, distributors and/or delivery services and/or by Acts of God, and/or any other cause beyond the control of Guitarati. Guitarati shall not be responsible for any failure to list the submitted Content due to transmission errors and/or any other cause beyond the control of Guitarati.

   8. 5.8 Inadvertent/Minor Errors Not a Material Breach & Audits. It is hereby acknowledged and agreed to by the Parties that, although Guitarati uses its best efforts to accurately account, there may be minor, inadvertent accounting errors due to the number of transactions processed by Guitarati, coupled with the fractional dollar amount of many of these transactions. Provider shall have the right to request, not more than once per calendar year, during normal business hours, at Provider's expense and with at least thirty (30) days prior notice, an audit of Guitarati's records to verify the accuracy of Guitarati's accounting in regard to Provider's Content (an "Audit"). Audits shall occur at the place where Guitarati maintains such records. In the event that accounting errors are found, Guitarati reserves the right to address and rectify the alleged errors within fifteen (15) business days. Any Audit, objection relating to any accounting statement, or lawsuit arising therefrom, must be made (and lawsuit commenced) no later than one (1) year after the date of the Pay Period in question. Provider hereby waives any longer statute of limitations that may be permitted by law. Provider agrees that in the event Provider brings legal action against Guitarati for a purported breach of the Agreement due to a failure to provide an accurate accounting, and a financial review or audit of Guitarati's books and records yields a finding that the difference between the accounting provided by Guitarati to the Provider and the auditor's findings is five percent (5%) or less, then Provider agrees to reimburse Guitarati for its actual attorneys' fees, costs and disbursements incurred in connection with the Provider's action and/or audit.

6. 6. Relationship of the Parties

   For all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venture, or agent of the other and shall not bind nor attempt to bind the other to any contract. Provider is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort.

7. 7. Representations & Warranties

   1. 7.1 Provider hereby represents and warrants that: (a) no part of this Agreement is or will be inconsistent with any obligation Provider may have to others; (b) Provider has the full right and authority to allow it to provide the assignments and rights provided for herein; (c) that provider has the full legal authority of the writer/composer to upload the Content on Guitarati, and (d) that the Work(s) will not infringe on any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy of, or libel, slander, defame or disparage, any third party ("Third Party Claims").

   2. 7.2 Provider hereby expressly represents and warrants that Provider is and shall be solely responsible for all applicable royalties due to the holder(s) of any rights (or sub-rights) in and to any Content by reason of any sale, display, download, sampling, infringement claims and/or use of any Content in any way and in any media now known or hereinafter discovered, including, but not limited to, master recording royalties, performance royalties and publisher royalties.

   3. 7.3 Content is Unencumbered. Provider represents and warrants that there are no liens, encumbrances or obligations upon or in connection with any Master underlying any performance submitted as Content that are not specifically set forth herein.

   4. 7.4 Provider Shall Obtain Mechanical Royalties. Provider hereby acknowledges and agrees that: (a) Provider shall obtain all necessary mechanical licenses from the copyright owner(s) of the compositions embodied on all Masters, (b) Provider shall pay any and all mechanical license fees, and synchronization license fees, which are or may become properly due by reason of the sale of Content derived from any and all Masters. In the event that Provider is the copyright owner of any composition or compositions embodied on any Master, Provider warrants and represents that Provider has issued to itself the necessary documents required by the copyright office.

   5. 7.5 Guitarati hereby represents and warrants that with respect to the Services provided pursuant to this Agreement: (i) that none of the Services nor any part of this Agreement is or will be inconsistent with any obligation Guitarati may have to others; (ii) Guitarati will not engage in any conduct which will create risk of liability for Provider with respect to any Third Party Claims or cause Provider to become a party to any action or proceeding involving Third Party Claims.

8. 8. No Warranties

   NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES RELATING TO THE PERFORMANCE OF THIS AGREEMENT, AND/OR ARISING HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, REPRESENTATIONS OR AFFIRMATIONS OF FACT, OR STATEMENTS REGARDING SUITABILITY FOR USE OR PERFORMANCE OF THE WEB SITE, SERVICE OR ANY OTHER TECHNOLOGY), WHETHER MADE BY A PARTY'S REPRESENTATIVE, EMPLOYEE OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY THAT PARTY FOR ANY PURPOSE, AND/OR GIVE RISE TO ANY LIABILITY OF THAT PARTY. THE TOTAL AGGREGATE LIABILITY OF GUITARATI TO THE PROVIDER FOR ALL CLAIMS ARISING OUR OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED ALL FEES AND COMMISSIONS COLLECTED OR DUE HEREUNDER.

9. 9. Limitation of Liability

   Each party shall indemnify, defend and hold the other harmless from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defence costs and attorneys' fees arising from or related in any way to all Third Party Claims caused by a party. Provider acknowledges and agrees that whatever users do with the Content after purchase is not under the control of Guitarati and that Provider shall not hold Guitarati liable for anything a user does to the downloaded Content. Guitarati shall not be responsible for any losses incurred due to technical or non-technical errors. In case of duplication of Content through different accounts (e.g. different members of the band knowingly or unknowingly) uploading the same albums or songs to the Web Site, the dispute regarding the earnings shall be resolved among the Provider parties without recourse to Guitarati. Guitarati reserves the right to merge or deny merging of, multiple accounts for the same artist, band or Provider. Provider acknowledges and agrees that the Internet and computers are prone to breakages, machine failures, viruses, hackers' attacks and other malfunctions. Guitarati shall use commercially reasonable efforts to store, backup and secure all Content and information. Guitarati shall use commercially reasonable efforts to restore Content in the event of such a malfunction. However, in no event shall Guitarai have any laibility or repsonsibility for loss of Content or Provider profits arising out of such malfunctions.

10. 10. Indemnification

    Provider shall indemnify, defend and hold Guitarati (and its owners, officers, directors, employees, contractors, agents and representatives or affiliates) harmless from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defence costs and reasonable attorneys' fees arising from or related in any way to:

    1. (i) any claim which, if proved, would breach any warranty, representation of Provider;

    2. (ii) Provider's breach of any term or condition of this Agreement,

    3. (iii) any claim arising from the services of the artists, musicians, song writers, and any other rights holder(s) whose work (or a portion of whose work) Provider submits to Guitarati for sale, display, download, and/or use,

    4. (iv) any claim on account of any illegal, unsafe, scandalous, obscene, libellous or morally deviant and/or otherwise inappropriate material contained in or suggested by Provider's Content, and

    5. (v) any and all Third Party Claims arising out of any Content submitted by Provider or transmitted through this Web Site by Provider.

11. 11. Restrictions

    Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that are part of any Guitarati Web Site are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Guitarati. No material from any Guitarati Web Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except with express written consent of Guitarati.

    1. 11.1 General Restrictions

       Provider shall not commit any of the following acts through its use of this Web Site:

    1. (a) transmit any content that is invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

    2. (b) use foul language or post links to adult-oriented Web sites;

    3. (c) transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of unrequested solicitation;

    4. (d) post advertising messages or solicitations, URLs containing a referral code or referral address, or links to businesses or pages with advertising, including "blind" or "hidden" referral links; or

    5. (e) collect, store, use or disseminate personal data or information about other Users in any manner whatsoever, including but not limited to, solicitation of products or services by mail, telephone or e-mail (e.g. e-mail addresses).

    2. 11.2 Provider agrees to not upload harmful or malicious Content which may cause damage to the functioning of the Web Site or may render the Web Site unavailable for use. Provider agrees to upload Content only in the format required. Provider also agrees to not masquerade any other Content as that required for Guitarati's operations. Provider agrees to upload virus-free Content that will not knowingly cause malfunction in devices and machines of Guitarati and its customers, the Web Site, the Service or users. Provider agrees that the Content can be rated or commented upon by any third party consuming the Content. Guitarati may also employ algorithms to display Provider's Content on the pages of the Web Site along with and in relation to other Providers' Content. Consumer ratings, comments and the display algorithms may or may not, in combination with or without each other, affect the display position of and the sales of Content.

    3. 11.3 Provider, and not Guitarati, shall remain at all times exclusively responsible for any and all costs or claims arising out of, or related in any way to, any act or omission committed in response to, or suggested by, Provider's Content, including, but not limited to, suggestions or inducements that a listener should engage in any illegal, unsafe, scandalous, obscene, libellous or morally deviant or otherwise inappropriate behavior. Provider agrees that Provider shall immediately notify Guitarati in writing of any claim of infringement, obscenity, incitement, or any other legal action is brought against Provider in connection with any Content, including, without limitation, any claim pursuant to this Section 11. Guitarati shall not be liable for comments or remarks posted by users of the Web Site.

    4. 11.4 Guitarati shall not be responsible for editing any Content and Provider shall have some editorial control over the Content after its submission. However, Guitarati retains the right, in its sole discretion, to delete and/or decline to use any Content that in Guitarati's opinion is illegal, unsafe, scandalous, obscene, libellous, morally deviant and/or otherwise of an inappropriate nature. Guitarati may employ people outside of the U.S. or Providers country of origin for website administration, maintenance and development of features for the website, which may require access to the Content. Provider grants Guitarati, and its officers, directors, employees, contractors and agents a limited right to access the Content for such purposes. Provider grants Guitarati the right to backup and store the Content on backup equipment and location of Guitaratis choosing.

    5. 12. Copyrights and Copyright Agents

       If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights have been otherwise violated, please provide Guitarati's Copyright Agent the following information:

       1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

       2. (b) a description of the copyrighted work or other intellectual property that you claim has been infringed;

       3. (c) a description of where the material that you claim is infringing is located on the site;

       4. (d) your address, telephone number, and email address;

       5. (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

       6. (f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

       7. (g) Company's Agent for Notice of claims of copyright or other intellectual property infringement:

       8. Copyright Agent c/o David M. Adler, Esq. & Assoc. PC 161 N. Clark Street, Suite 2550 Chicago, IL 60601 By phone: (866) 734-2568 By email: copyright@ecommerceattorney.com

    6. 13. Miscellaneous

       1. 13.1 Cookies and Other Personal Information

          Provider acknowledges and agrees Guitarati shall have the right to compile and use statistics related to the sale of Provider's Content and Provider's purchases to better understand the Provider and his/her preferences. Guitarati hereby expressly reserves the right to collect information about its users, including, without limitation, information about its Provider, via cookies and recorded data from Guitarati's servers and/or partners. It is expressly agreed to by the parties to this Agreement that it is permissible for Guitarati to provide and/or sell any or all of the collected information to Guitarati's business partners, in Guitarati's sole discretion and judgment, without the necessity of notice to, approval by, and/or compensation to Provider; provided, however, except as otherwise provide on the Site, that in accordance with Guitarati's Privacy Policy, as set forth elsewhere on this Site, Guitarati shall take reasonable steps to avoid knowingly disclosing its Providers' names, addresses, telephone numbers, email addresses, banking information and/or address without first notifying Provider in advance in sufficient time to allow its Providers to object and to legally prevent Guitarati from disclosing said information.

       2. 13.2 No Expectation of Privacy

          By using this Web Site, Provider acknowledges and agrees that Internet transmissions are never completely private or secure. Provider acknowledges and agrees that any message or information sent to Guitarati may be read or intercepted by others, even if there is a special notice that a particular transaction or transmission (for example, credit card information) is encrypted.

       3. 13.3 Taxes, Interest and/or IRS Penalties

          Provider acknowledges and agrees that Provider shall be exclusively responsible for any and all taxes, interest and penalties arising from receipt by Provider of any Provider Payment (or other income) from Guitarati. In addition to the general indemnification granted elsewhere by Provider to Guitarati, Provider hereby agrees to indemnify, defend and hold Guitarati, its officers, directors, shareholders, predecessors, successors-in-interest, employees, contractors, agents, subsidiaries and affiliates, harmless from and against any demands, loss, liability claims or expenses (including attorneys' fees), made against Guitarati by any third party due to or arising out of or in connection with Provider's uses of the Web Site.

       4. 13.4 Governing Law and Venue

          This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Illinois, without regard to the conflicts of laws principals thereof. The parties agree to submit to jurisdiction and venue in the U.S. District Courts in the State of Illinois. The parties hereby irrevocably consent to service of process in connection with any controversy by the mailing thereof by registered mail or certified mail, postage prepaid to the respective parties at their respective addresses set forth in or designated pursuant to this Agreement. Any award made by a Court in conjunction with litigation between the parties regarding this Agreement shall include an award of all reasonable attorneys' fees and legal costs incurred by the party in whose favor the final decision is rendered.

       5. 13.5 Assignment

          Neither party may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other party.

       6. 13.6 No Waiver

          No waiver of any term or condition of this Agreement shall be valid or binding on a party unless the same shall have been set forth in a written document, specifically referring to this Agreement and duly signed by the waiving party. The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the other parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.

       7. 13.7 Severability

          If any provision in this Agreement shall be found or be held by a court of competent jurisdiction to be invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by any party. In such event, the parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly effects the parties' intent in entering into this Agreement.

       8. 13.8 Force Majeure

          Guitarati shall not be liable for failure to fulfil its obligations under this Agreement due to any causes beyond its reasonable control.

       9. 13.9 Notice

          Any notice required or permitted to be given under this Agreement shall be delivered by hand, by registered or certified mail, postage prepaid, return receipt requested to the address of the other party first set forth during registration on Guitarati's Web site, or to such other address as a party may designate by written notice in accordance with this Section 8.6 or by overnight courier. Notice so given shall be deemed effective when received, or if not received by fault of addressee, when delivered. Provider acknowledges that Provider is responsible for immediately notifying Guitarati, in writing, of any address and/or notice changes where Provider is to receive payment and/or notice. Provider assumes all responsibility with respect to advising Guitarati of any change in information affecting the payment. In the event a Provider Payment does not reach Provider due to a failure to provide updated mailing address information or such required by the remittance method, Provider hereby absolves Guitarati from any liability in connection with such failure.

       10. 13.10 Entire Agreement

           This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements relating thereto, written or oral, between the parties. Amendments to this Agreement must be in writing, signed by the duly authorized officers of the parties.

       11. 13.11 No Third-Party Beneficiarie

           Except as expressly provided herein, this Agreement is made and entered into for the sole protection and benefit of the parties hereto. Nothing herein express or implied, is intended to or shall be construed to confer upon or give to any person, firm, corporation or legal entity, other than the parties and their Affiliates any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.

       12. 13.12 Counterparts

           This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement.