1. What Does This Agreement Cover?
This Agreement governs your use of Cinder Block Merchandise LLC dba Topspin Media’s (“Topspin”) integrated marketing and commerce platform, consisting of the services, widgets, APIs, developer kits, and tools provided by Topspin on or through the Topspin managed domains (currently topspinmedia.com, topspin.net and spinshop.com), (collectively, the "Artist Tools and Services") for the management of products owned or controlled by you that you wish to sell to or through Topspin (each a "Product" and collectively the "Products") for resale, delivery and/or fulfillment (as applicable) by Topspin. At your election, you may elect to use or not use Topspin's fulfillment services hereunder.
2. How Does an Artist Begin Using Topspin's Artist Tools and Services?
To use the Artist Tools and Services, you will create an Artist Account containing your accurate and truthful contact and payment information, and you will be responsible for providing Topspin any updates if such information is amended or modified. You may designate members of your management team and others, such as band members and designers, as authorized users of your Artist Account. Those authorized users will have full rights to access your Artist Account and to take any actions that you are authorized to take under this Agreement. However, you are solely responsible for any activity that occurs on your Artist Account (except for activities expressly identified in this Agreement as provided by Topspin), for maintaining the confidentiality of your Artist Account password, and for keeping current your account information.
3. How Does an Artist Use the Artist Tools and Services to Make Products Available for Sale?
3.1 Scope of Use.
Topspin is not paid for, responsible for, nor involved with the distribution of anything not distributed through the Artist Tools and Services. Topspin acknowledges and agrees that this Agreement is non-exclusive and that you may sell your Products via any other method, including but not limited to, direct sales, via other physical and online retail outlets and distributors, and via alternative software mechanisms. Topspin will be paid a sales fee, calculated as a percentage of the retail sales price of each individual package sold by You using the Artist Tools and Services, as described more fully in Section 10.2 herein ("Sales Fee"). Topspin will only be paid a Sales Fee for Products that are distributed using the Artist Tools and Services.
3.2 Adding Products for Sale.
You will be responsible for uploading the Products to the Artist Tools and Services. The Artist Tools and Services will guide you through this process. You can easily add or remove Products, change suggested retail prices, or edit Product information through your Artist Account at any time. You will cooperate with Topspin in providing accurate information for each Product, such as images or verbal descriptions. You acknowledge that inaccurate information, such as inaccurate information about the product, shipping, weights, and any other input data may adversely affect the performance of the Artist Tools and Services and customer satisfaction. Topspin is not responsible for any issues relating to inaccurate information, and any resultant costs or charges (e.g. refunds, chargebacks, or reshipping charges) shall be borne by you and deducted from the Payment Obligation.
If you elect to use Topspin Fulfillment, the terms of Section 8 will apply.
If you do not elect to use Topspin Fulfillment, you will be responsible for fulfilling your own orders, or contracting directly with a fulfillment partner of your choice. As such, you or your designated fulfillment agent ("Designee") will be responsible for, without limitation, warehousing, obtaining factory SKUs and pick-pack-and-shipping physical Products to your customers as the orders are placed. You or your Designee will enter the SKUs and Product quantities into the Artist Tools and Services, and you or your Designee will be responsible for inventory management, such as deciding when to have more goods manufactured. You or your Designee are responsible for having your Products delivered to your designated warehouse in a timely manner, with proper packing documentation included. If your failure to do so causes a split shipment, such that an additional shipping fee is charged, you will be responsible for such additional shipping fees, which will be deducted from your Artist Account.
If you have chosen to use a third party fulfillment partner, you must contact us and request a business user account to allow your Designee access to the orders portion of the Topspin platform. You are responsible for ensuring that either you or your Designee complies with the following requirements:
You or your Designee must insert your agreed-upon rates into the Artist Tools and Services.
You or your Designee must update the shipping status with the date that the order shipped.
You or your Designee must notify customers when the order has shipped and if there are any delays.
With respect to delays, you or your Designee must update the shipping date in the Artist Tools and Services and communicate the new ship date to customers (or provide a status update to customers if the new ship date is not known).
Your Designee must invoice you directly for their fees (i.e., Topspin will not pay your Designee unless you enter into a separate agreement with Topspin.).
If these requirements are not met, Topspin reserves the right to terminate your business user account and withhold payment.
3.4 Suggested Retail Price.
For each individual Product and Product bundle, you will provide Topspin with your suggested retail price. Topspin's policy is to charge customers the suggested retail price that you provide.
3.5.1 Display of Topspin As Retailer in the U.S.
You are a client of Topspin utilizing Topspin services for selling or reselling your Products. Topspin is the retailer and seller of record for sales of Products to customers in the U.S. For clarity, Topspin is not the retailer and seller of record for sales of Products to customers outside of the U.S. As required by law, Topspin will post "Powered by Topspin" language in the checkout flow. To comply with credit card provider rules and trademark law, you will not display any credit card logos or insignia on Artist Site(s) as they pertain to your relationship with Topspin.
3.5.2 Appointment of Agent in foreign countries.
You hereby appoint Topspin as your disclosed agent for the marketing and delivery of the Products to customers outside the U.S.* You hereby acknowledge that Topspin will market and deliver the Products to customers outside the U.S., but Topspin will be acting in your name and on your behalf. In furtherance of Topspin's appointment under this Section 3.5.2, you hereby authorize and instruct Topspin to:
(a) market, solicit and obtain orders for Products in your name and on your behalf from customers located in foreign countries;
(b) issue invoices for the purchase price payable by customers for the Products;
(c) use (i) trademarks and logos associated with the Products and Product information for promotional purposes and (ii) use images and other materials that you may provide to Topspin for promotional purposes; and
(d) otherwise use Products and Product information and associated metadata as may be reasonably necessary in the marketing and delivery of the Products in accordance with this Agreement.
The parties acknowledge and agree that their relationship under this Section 3.5.2 is, and shall be, that of principal and disclosed agent and that you, as principal, are, and shall be, solely responsible for any and all claims and liabilities involving or relating to, Products sold to customers outside the U.S., as provided in this Section 3.5.2. The parties agree that your appointment of Topspin as your disclosed agent under this Section 3.5.2 is non-exclusive. In all other respects, the parties are independent contractors and each party is not and shall not be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose.
Unless otherwise expressly agreed in writing by Topspin, as between you and Topspin, you are solely responsible for and shall pay all royalties, fees and other monies owing any person or entity arising out of the use, sale, distribution or other exploitation of any Product or Artwork (defined in Section 12.1) on or through the Artist Tools and Services, including without limitation (i) any sums due to artists, authors, co-authors, copyright owners and co-owners, producers and any other record royalty participants and (ii) fees for any rights, consents, royalties, or any other sums payable to any third party in connection with the exploitation of any materials contained in the Products or Artwork protected by any intellectual property rights (e.g. ASCAP, BMI, Harry Fox, other music publishing rights holders).
3.7 Implementation Assistance.
After we activate your account (i.e. from the date you receive login credentials sent by Topspin to the email address you designated), we will provide you with access to a training orientation upon your request and reasonable email assistance. If you desire or require additional implementation assistance, please contact us.
We aim to make the Artist Tools and Services available continuously, excluding scheduled maintenance, downtime resulting from outages of third party connections or utilities, or other reasons beyond our control. We will endeavor to complete scheduled maintenance in three hours per week during low usage periods, during which time the system will be unavailable. If you feel the Artist Tools and Services are not meeting these goals, please contact us at email@example.com and we will work to resolve the situation.
4. What Happens After a Customer Places an Order?
4.1 Order Fulfillment of Physical Products.
When a customer within the U.S. places an order for physical Products through the Artist Tools and Services, you will immediately (or when available for backordered or preordered Products) sell the applicable Product to Topspin for resale to such customer. You or your designated fulfillment agent ("Designee") will receive orders from any customers in a timely manner via the Artist Tools and Services. When a customer within the U.S. purchases a Product, title to the Product will pass from you to Topspin, to allow for Topspin's subsequent resale to the customer. When a customer outside the U.S. purchases a Product, title to the Product will pass directly from you to the customer. Topspin will not have physical possession of your Products at any time. You (or your Designee) will fulfill and ship all orders of physical Products (acting, in the case of customers within the U.S., on Topspin's behalf as our fulfillment agent) directly to customers, using the information provided in the pending order. You will not make partial shipments due to backordered or unavailable Products, unless you agree to be responsible for all additional shipping costs. If you cannot completely fulfill any order within five (5) business days after we send the request to you (except for backordered or preordered Products), you must promptly cancel the order using the Orders feature of the Artist Tools and Services. For backordered and preordered Products, at all times, you will indicate the estimated shipping date in the Artist Tools and Services. If the Products are not available to be shipped by the estimated shipping date that you indicated, then you must notify the customer via email of the updated estimated shipping date.
4.2 Order Fulfillment of Digital Products.
Topspin will fulfill orders for digital Products placed through the Artist Tools and Services. With respect to fulfillment of orders for digital Products outside the U.S., Topspin will be acting in your name and on your behalf. Topspin will provide the customer with a mechanism to access or download the digital Product.
5. What Other Requirements Apply to the Shipment of Physical Products?
5.1 Shipping Charges.
You or your Designee will accurately address each shipment of Products to the customer address provided in the pending order. Using the Artist Tools and Services, you will insert standard shipping charges (or the shipping charge agreed upon between you and your Designee). You acknowledge and agree that Topspin will charge the customer and pay you the agreed-upon shipping amount you specified. Your failure to insert proper shipping and handling charges on the offer creation pages will not relieve you of the obligation to ship such Product. Unless you have made separate arrangements with Topspin, Topspin will pay the shipping charges directly to you. Any shipping charges or other costs incurred by your Designee (e.g., storage charges, receiving, rush fees, etc.) must be invoiced directly to and paid by you.
5.2 Risk of Loss.
As between you and Topspin, you bear all risk of loss during the shipment of Products until delivered to the customer (you may allocate risk with your Designee, if applicable). You are responsible for purchasing any insurance you deem necessary while the Product is in transit. You (or your Designee) are responsible for complying with all applicable shipping laws and regulations necessary to ensure prompt delivery of Products to the customer, including the declaration of accurate values and descriptions necessary for applicable customs regulations, and the payment of any duties or the like.
5.3 Shipment Acknowledgement.
After you ship the Product, you (or your Designee) will promptly acknowledge the shipment using the Orders feature of the Artist Tools and Services, and you will not indicate an order has "shipped" until you actually ship the Product. You (or your Designee) will give us prompt and accurate information concerning the order fulfillment. An order will not be deemed shipped and Topspin will not distribute proceeds to you until you have shipped and marked the product as "shipped" in the orders feature of the Artist Tools and Services.
6. What If There Are Problems with Products or the Shipment?
6.1 Returns and Refunds.
Topspin is not responsible for any additional charges in connection with customer returns of physical Products for any reason. If we receive a customer request for a refund or to return a Product, we will promptly forward any information to you or your Designee via email. Then you or your Designee must promptly respond to the inquiry or complaint with the customer and either (i) request via email that we process a refund or (ii) ship the customer the appropriate Product, at no additional cost to us or the customer. We will not be responsible for reimbursing you for any of these losses including, without limitation, shipping and handling or credit card fees. If at any time the customer inquires or complains directly to Topspin, to the customer's credit card issuer, or to a third party such as a law enforcement agency or consumer protection agency concerning your Products, we will promptly forward the inquiry or complaint to you via email. If you fail to respond adequately and promptly to the customer issue, we reserve the right to respond and resolve the issue at our reasonable discretion, and directly bill you for all costs incurred. Notwithstanding the foregoing, upon your receipt of any notice of the event of any termination due to dissolution or winding up of Topspin pursuant to Section 14.5 hereof, Topspin shall not accept any customer requests for refund or returns of Products, and you shall be solely responsible for any such all such refunds, returns and requests for any refunds or returns.
If at any time the customer inquires or complains directly to Topspin, to the customer's credit card issuer, or to a third party such as a law enforcement agency or consumer protection agency concerning your Products, we will promptly forward the inquiry or complaint to you via e-mail. If you fail to adequately respond to the inquiry or complaint by the end of three (3) full business days (U.S. business days, ending at midnight Central Time), then Topspin may unilaterally make a refund to the customer, and you will be responsible for and directly billed for all costs incurred. Topspin reserves the right to process a refund for any order which we believe, in our reasonable business judgment, to be of a fraudulent nature, was transacted in a manner inconsistent with the terms of this Agreement, or violates any statute or law.
6.3 Failure to Ship.
If you or your Designee fails to ship all Products within five (5) business days after receipt of an order (or within 5 days of stated availability for backordered or preordered Products), or if you fail to reship a Product that was lost or damaged from the original shipment within five (5) days of receiving a customer complaint, we will notify you that your order is subject to cancellation. At any time thereafter we may reasonably cancel the order and process a refund to the customer, in which you will be responsible for all costs incurred. If you contact us before we cancel the order, we may, at our reasonable discretion, grant you an extension of time. We will promptly inform you when a purchase order has been cancelled, but you are responsible for any losses you suffer if you ship any Products after you receive a cancellation warning from us (unless we had granted an extension of time to you in writing, including email).
6.4 Event Cancellation.
You may purchase your tickets from a promoter or other event coordinator for resale by Topspin. By accepting from Topspin the ticketing revenue generated from the sale of tickets via the Artist Tools and Services prior to an event, you acknowledge and agree that if such event does not occur for any reason, you will refund Topspin all such ticketing revenue within five (5) days of the event's originally scheduled date, and Topspin agrees to refund all customers within thirty (30) days of receipt of such funds from you. In the event that the original show is postponed, you agree that Topspin may grant a refund to any customer that so requests a refund and that you will repay Topspin the full amount of all such refunds within five (5) days of request from Topspin. If an event is cancelled, Topspin will refund customers Topspin's Sales Fees on tickets. Topspin will not refund customers for tickets purchased other than for cancelled or postponed events. If you instruct Topspin to pay ticket revenue generated using the Artist Tools directly to a promoter, venue, or any other third party, you hereby release Topspin from any claims or liabilities to you or any third party for such revenue.
7. What Customer Support Does Topspin Provide?
We provide customer support by assisting potential customers in the use of the Artist Tools and Services to purchase Products, assisting customers with questions about digital downloads, assisting customers with refunds, and billing questions as set forth in the Customer Support Guidelines attached in Attachment A. You must provide a customer support email and/or a customer support form link when you set up self-fulfillment via the Topspin Artist Tools and Services. You must address any support requests related to physical orders, shipping and fulfillment that you or your Designee fulfill. Failure to address customer support issues in a timely manner may result in the suspension or termination of your account by Topspin.
8. Topspin Fulfillment.
If you elect to use Topspin Fulfillment, the terms of this Section 8 will apply. You will arrange for your manufacturer to ship non-defective physical Products to our designated warehouse. Topspin (or our fulfillment agent) ("Topspin Fulfillment") will provide you with the factory SKUs for your Products and will pick-pack-and-ship the physical Products to your customers as the orders are placed. Topspin Fulfillment will enter the SKUs we provide to you and Product quantities into the Artist Tools and Services. You will be responsible for inventory management, such as deciding when to have more goods manufactured. You are responsible for having your Products delivered to the designated warehouse in a timely manner, with proper packing documentation included. If your failure to do so causes a split shipment, such that Topspin Fulfillment incurs an additional shipping fee, you will be responsible for such additional shipping fees, which will be deducted from the Payment Obligation. You will provide the bill of lading for the packages in the received shipment. Each shipping carton and inner packaging of the Products must be labeled with product details, Artist name, product name, and product code ID, UPC or catalog number. Shipments that arrive with no labeling or inner packaging designating this information may be subject to additional handling fees at Topspin Fulfillment's discretion.
8.1 Order Fulfillment of Physical Products.
When a customer within the U.S. places an order for physical Products through the Artist Tools and Services, you will immediately (or when available for backordered or preordered Products) sell the applicable Product to Topspin for resale to such customer. When a customer within the U.S. purchases a Product, title to the Product will pass from you to Topspin, to allow for Topspin's subsequent resale to the customer. When a customer outside the U.S. purchases a Product, title to the Product will pass directly from you to the customer. Topspin Fulfillment will fulfill and ship all orders of physical Products directly to customers, using the information provided in the pending order, and acting in your name and on your behalf for customers outside the U.S.. We will not make partial shipments due to backordered or unavailable Products. If we cannot completely fulfill any order within five (5) business days after the customer places the order (except with respect to backordered or preordered Products), we will notify you and reserve the right to refund or cancel the order. For backordered and preordered Products, you will indicate the estimated shipping date in the Artist Tools and Services. If we have not received the Products from you within one week of the estimated shipping date that you indicated, we will contact you and you must notify the customer of the current estimated shipping date.
8.2 Order Fulfillment of Digital Products.
Topspin will fulfill orders for digital Products placed through the Artist Tools and Services. With respect to fulfillment of orders for digital Products outside the U.S., Topspin will be acting in your name and on your behalf. Topspin will provide the customer with a mechanism to access or download the digital Product.
8.3 Shipping Charges.
Topspin Fulfillment will use a common carrier such as the U.S. Postal Service, United Parcel Service, or Federal Express, shipping charges prepaid, with instructions to deliver the Product to the customer. Shipping prices will be set by Topspin Fulfillment based on a published weight-based shipping table. Topspin Fulfillment reserves the right to override artist set weights after confirming upon receipt at the warehouse and factoring in shipping materials.
8.4 Risk of Loss.
As between you and Topspin, Topspin bears all risk of loss from the time the Product is in our possession until it is delivered to the customer. You are responsible, however, for purchasing any insurance you deem necessary while the Product is in transit from your manufacturer until the Product is delivered to Topspin Fulfillment. We are responsible for complying with all applicable shipping laws and regulations necessary to ensure prompt delivery of Products to the customer, including the declaration of accurate values and descriptions necessary for applicable customs regulations.
8.5 Shipment Acknowledgment.
After Topspin Fulfillment ships the Product, we will acknowledge the Product as "shipped" in the Artist Tools and Services. We will also notify the customer when orders are shipped.
8.6 Returns and Refunds.
We recommend that you do not allow returns or refunds, except as required by law, but returns or refunds may be processed at your discretion. If you do authorize returns, such returns will be subject to Topspin Fulfillment's return policies. If a Product is returned to Topspin Fulfillment as "undeliverable" (for example, if a customer enters his/her address incorrectly), then we will refund the customer less the Shipping Charge and credit card fees or reship at your expense. If (a) a customer requests to return a Product because it is defective, (b) a shipment of Products is not delivered intact to the customer within thirty (30) days after the customer makes the purchase, or (c) a customer indicates the Product was either damaged upon arrival and was not accepted, or was accepted from the shipping carrier and later determined to be damaged, we will promptly forward any information concerning such incident to you via email. You must request via email that we either (i) process a refund or (ii) ship the customer the identical, non-defective Product. If you fail to respond adequately and promptly to the customer issue, we reserve the right to respond and resolve the issue at our reasonable discretion. If the Product contained a latent or patent defect, then you shall bear all costs of replacement, including the cost of goods and reshipment. If the Product was damaged in transit from Topspin Fulfillment to the customer, then Topspin will bear all costs of replacement including cost of goods and reshipment. If Topspin Fulfillment does not have adequate quantities of the Product you authorized us to reship, you will procure more Products from your manufacturer and send to Topspin Fulfillment at your expense (or authorize a refund). Topspin will not be responsible for any costs associated with any defective Products. The terms in this Section 8.6 also apply to defects affecting an entire shipment of Products. We will not earn a Sales Fee for any Products returned (but not replaced) or refunded for any reason other than a defect. Notwithstanding the foregoing, upon your receipt of any notice of the event of any termination due to dissolution or winding up of Topspin pursuant to Section 14.5 hereof, Topspin shall not accept any customer requests for refund or returns of Products, and you shall be solely responsible for any such all such refunds, returns and requests for any refunds or returns.
8.7 Damage During Shipment.
Except as set forth below, Topspin Fulfillment will be responsible for the wholesale cost of any Product damaged or lost during shipment to the customer from Topspin Fulfillment as well as for the Shipping Charge for the reshipment of a replacement Product to a customer (if you authorize us to make such reshipment) in the event such Product damage was caused during the shipment to the custom from Topspin Fulfillment. Notwithstanding the foregoing, Topspin shall not be responsible for shrinkage less than 2% or loss in weight, wear and tear or inherent qualities of the goods. For Products lost or damaged during the shipment from your manufacturer to Topspin Fulfillment, you will be responsible for the shipment (if any, at your discretion) of replacement Products to Topspin Fulfillment and the wholesale cost of such lost or damaged Products. If you are not using Topspin Fulfillment, Topspin is not responsible for any damage during shipment.
8.8 Customer Support When Using Topspin Fulfillment.
We provide customer support by assisting potential customers in the use of the Artist Tools and Services to purchase Products, assisting customers with questions about digital downloads, providing information about the status of order fulfillment or shipment, assisting customers with refunds, and billing questions as set forth in the Customer Support Guidelines attached in Attachment A. We will forward to you any support requests that may require your attention, such as refunds or replacements.
9. How Does an Artist Get Paid When Topspin Sells the Products?
9.1 Payment Collection.
Topspin will verify a customer's credit card information, collect and process the credit card information, and collect the purchase price and any applicable fees and taxes.
9.2 Artists Proceeds.
Topspin will endeavor to provide an accounting for you in which Topspin will report the gross proceeds we receive from the sale of your Products and tickets, minus any Deductions as set forth in Section 10.1 ("Payment Obligation"). Within forty-five (45) days after the end of each calendar month, Topspin will endeavor to provide you with accounting statements describing the gross proceeds and Payment Obligation for the previous month in U.S. dollars ("Artist Statement"). Topspin will pay you the Payment Obligation in U.S. dollars. If you have opted to be paid via ACH, then Topspin will endeavor to pay you the Payment Obligation within forty-five (45) days of the end of each calendar month. If you have opted to be paid via wire transfer, then (i) the cost of the wire transfer will be deducted from your Payment Obligation and (ii) unless the Payment Obligation is less than $500 (after taking into account the Deductions as described below), Topspin will endeavor to pay you the Payment Obligation within forty-five (45) days of the end of each calendar month.
9.3 Payments to Third Party.
You hereby acknowledge and agree that (i) Topspin will make payments only to the third parties designated by you on the Artist Tools and Services ("Third Party Payments"), (ii) if the Third Party Payment is incorrect, you are solely responsible for (a) collecting the balance of any overpayments from the designated third party and (b) remitting the balance of any underpayment to the designated third party, and (iii) you hereby release Topspin from any liability or responsibility associated with making such Third Party Payments, provided that Topspin pays the Third Party Payments designated by you on the Artist Tools and Services. Any changes that you make to the Third Party Payments will be effective at the start of the next pay period.
10. What Deductions Will Topspin Make?
The Payment Obligation includes the gross funds we collect from the sale of your Products minus the following items ("Deductions"): (i) Sales Fees payable to Topspin as described in Section 10.2 herein; (ii) U.S. Sales Taxes, as defined in Section 10.3; (iii) third party licensing fees (payable by Topspin when applicable as described in Section 10.4) (iv) refunds to customers (such as credit card charge backs, defined below in Section 10.5), disputed charges, or fraud, (v) actual bandwidth costs; (vi) actual credit card transaction fees (except with respect to the sale of tickets for which credit card fees are included in the 15% Sales Fee as described more fully in Section 10.2 below); (vii) reserves (if any); (viii) Third Party Payments (e.g. payment to a label); (ix) other features we add to the Artist Tools and Services to which you expressly opt-in (if any); and (x) shipping and handling fees, which Topspin will retain, if you are using Topspin Fulfillment or which Topspin will pay to you directly (and you shall remit to your designated third party fulfillment house, if you are not using Topspin Fulfillment). More information on these Deductions is described below in Sections 10.2 – 10.7.
10.2 Sales Fees.
For all items except tickets that You sell using the Artist Tools and Services, Topspin shall retain a Sales Fee of fifteen percent (15%) of the retail sales price (excluding shipping and handling) of each individual package sold. For tickets sold using the Artist Tools and Services, Topspin shall retain a Sales Fee of fifteen percent (15%) (including credit card transaction fees) of the face value (excluding shipping and handling) of each ticket sold using the Artist Tools and Services. Sales Fees will be calculated on each transaction after deducting shipping and handling. Topspin will deduct its Sales Fees prior to remitting the Payment Obligation. The Sales Fees are non-refundable (except as provided in Sec. 6.3), provided, however, that Topspin will not earn Sales Fees on authorized customer returns.
10.3 Sales Taxes.
"Sales Tax" means any sales, goods, use or value added tax, or any similar tax or fee. "U.S. Sales Tax" means any Sales Tax imposed by any U.S. state or territory or any political subdivision of any U.S. state or territory. "Other Sales Tax" means any Sales Tax that is not a U.S. Sales Tax. For Products we sell to customers in the U.S. located in states where Topspin has a legal obligation to collect any U.S. Sales Tax (as determined by Topspin), Topspin shall be solely responsible for the collection and remittance of any and all applicable U.S. Sales Tax. To the extent that Topspin has a legal obligation to collect any U.S. Sales Tax, any U.S. Sales Tax collected by Topspin will not be placed into your account, but will be remitted to the appropriate government authority or authorities in accordance with the applicable tax law and regulations. Topspin is not responsible for the collection and remittance of any Other Sales Tax. You will be solely responsible for the collection and remittance of (i) any Sales Tax imposed on your sale or licensing of Products to Topspin and (ii) any Other Sales Taxes imposed on the sale of any Products by Topspin acting as your agent. Except for taxes or fees passed on to the customer, (e.g., import duties or taxes owed by the customer in certain foreign jurisdictions), you agree to reimburse us for any amounts Topspin has paid, or, alternatively, we will deduct such amounts from the Payment Obligation, at Topspin's discretion.
10.4 Third Party Licensing Fees.
We are not responsible for clearing rights or licensing your Products, and we do not deduct or reserve fees to account for such payments unless they are imposed upon us or we reasonably determine you will not pay them. Topspin may be required to pay third party licensing fees, such as MP3 licensing fees to Thomson for digital distribution using the MP3 format, or other similar fees. We will deduct the actual cost of any such fees from the Payment Obligation. You are responsible for securing all rights in your Products and paying the appropriate royalties (if any) to others, e.g. ASCAP/BMI, Harry Fox, etc.
10.5 Fraudulent Activity.
We are not obligated to pay you any amounts that are connected with any activities deemed fraudulent or criminal. We will determine, at our reasonable discretion, the existence or possibility of fraud or criminal activity, and we may make any inquiries and investigations we deem appropriate. Topspin may deduct from the Payment Obligation any amounts attributable to Chargebacks (a "Chargeback" is a refund that occurs when a credit card processor or bank revokes a prior transaction, which may be done for such reasons as fraud, suspected fraud, or customer complaint), orders which Topspin determines to be fraudulent or criminal, or orders fulfilled upon receipt of a valid merchant bank payment authorization that is subsequently suppressed and cancelled prior to settlement by Topspin or the bank.
10.6 Our Right to Suspend Payments.
We strive to treat customers fairly, so if we receive significant numbers of complaints about Product quality, your time-based membership programs, or other unusual circumstances, we may notify you and suspend access to your Artist Account and/or withhold a reserve or suspend payments to you until you have resolved those issues. If those circumstances are not quickly resolved, we may refund some payments to your customers (even if your user terms or other applicable agreement with your customers provides otherwise). We also respect intellectual property rights and we know you do too. If we receive claims, demands, lawsuits, subpoenas or inquiries from others, we will notify you and may suspend payments to you until you have demonstrated to our reasonable satisfaction that you have secured and paid for all rights necessary to distribute and sell your Products. We will withhold payments until the issues are resolved, at which time we shall promptly remit such funds and interest to you. We will not release those payments to any third party unless a court orders us to do so or you instruct us to do so. If there are insufficient funds in your Artist Account after Deductions have been made for two consecutive months, then Topspin may suspend payments to you until funds in your Artist Account exceed our minimum payment threshold set forth in Section 9.2.
11. What Are the Sales Fees for Customer Memberships or Sponsorships?
You may sell time-based services (such as an annual membership) for which customers pay a fee that allows them to use or receive a particular service or Product for a set period of time. Because there may be no payment for individual Products, you agree to pay Topspin the appropriate percentage of Sales Fees with respect to such time-based services.
Sometimes Artists receive financial credit from third parties enabling Artists to distribute Products at a reduced charge or for free (e.g. give away (rather than sell) a free download, tickets to a concert, etc.) in exchange for including the brand's logo on the Artist Tools and Services or on the Artist's website ("Sponsorships"). You may not utilize the Artist Tools and Services for Sponsorships pursuant to this Agreement. If you would like to create Sponsorships using the Artist Tools and Services, you must enter into a separate agreement with Topspin. Contact firstname.lastname@example.org to do so.
12. What Rights Does An Artist Grant to Topspin for the Artist Tools?
12.1 License Grant.
Topspin will not have any ownership rights in your Products or Artwork (defined below). We need only the following license to resell your Products: you hereby grant to Topspin for as long as you are using the Artist Tools and Services, a worldwide, non-exclusive, royalty-free right to (i) use, display and otherwise perform the Artist Tools and Services on your behalf (e.g., use, display, perform, publish, and reproduce your Products along with all artistic or copyrightable works and materials you have uploaded through the Artist Tools and Services ("Artwork") for that purpose), (ii) stream, transmit, feature, promote, market, or otherwise sell and distribute the Products and Artwork to customers on or through the Artist Tools and Services; (iii) use and publicly display, and to permit others to use and publicly display, the name(s), trademarks, likeness, biographical materials and similar proprietary rights of you and all other members of your band or group, in connection with the Artist Tools and Services (but we shall not use your names or likenesses in any other context without your consent), and (iv) use all other information you provide to us.
12.2 Customer and Artist Information.
To the extent generally available using the Artist Tools and Services, Topspin will provide you access to customer data (i.e., name, address, email) for customers who purchase your Products; such customer data will be owned solely by you. However you acknowledge and agree that Topspin may (i) use customer and user data (including your data) in an aggregate, anonymous form, (ii) use, supply to third party chart reporting organizations, and publish your sales data for chart reporting purposes, and (iii) supply to other third parties with your express permission. We will not target communications to your customers without your express consent.
13. What Assurances and Commitments Does an Artist Make to Topspin?
13.1 Representations and Warranties.
You are entirely responsible for the Products and Artwork that you make available for distribution through the Artist Tools and Services, and you will ensure that you comply with any third party requirements based on the use of your Products and Artwork, including payment of any money owed to those third parties (such as royalties). You represent and warrant (and you will demonstrate to Topspin's full satisfaction upon its request) that:
You own, control, or have all licenses, rights, consents, and permissions to use and authorize Topspin to use each and every image and sound contained or embodied in the Products or the Artworks to enable use, display, and distribution of the Products and Artwork through the Artist Tools and Services.
You have the written consent, release, and/or permission to use the name or likeness of each and every identifiable individual person and to include and use such individual's name or likeness in the Products or Artwork to enable use, display, and distribution through the Artist Tools and Services.
The use, sale, or other promotion or distribution of the Products or Artwork on or through the Artist Tools and Services or otherwise does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity.
You have full authority to act on behalf of any and all owners or licensees of any right, title or interest in and to any Product or Artwork.
You will perform your obligations hereunder in compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
You will not knowingly collect personal information from children 13 years of age or younger, and if you become aware that you have inadvertently collected the personal information of a child 13 years of age or younger, you will immediately delete such information.
You are responsible for all of your activity in connection with the Artist Tools and Services. By way of example, and not as a limitation, you shall not (nor authorize anyone else to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Product, Artwork, or content on or through the Artist Tools and Services, that: is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy or tortious; infringes upon any third party's right, title or interest; contains software viruses or any other technology that is designed or intended to disrupt, damage or interfere with the proper function of any software, hardware, or telecommunications equipment, system, data or other information; circumvent or manipulate our fee structure, the billing process; impose an unreasonable or disproportionately large load on Topspin's (or its third party providers') infrastructure (if you have a major launch or distribution, please notify us so we can plan accordingly); or interfere or attempt to interfere with the proper working of or activity on the Artist Tools and Services.
You shall not (and you shall not permit anyone else to): (i) in any way reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Artist Tools and Services, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Artist Tools and Services, (iii) copy, rent, lease, distribute, or otherwise transfer any or the rights that you receive hereunder, or (iv) utilize the Artist Tools and Services in a manner that Topspin, in its reasonable discretion, deems detrimental to Topspin's business. You shall abide by all applicable local, state, national and international laws and regulations, including export laws.
13.5 Customer Communication.
You are responsible for your communications with customers, including communications through the Artist Tools and Services, and for providing us with accurate and complete customer information so that the Artist Tools and Services operate properly and efficiently. You agree that the information you provide will be generated from your interactions with your customers and will be maintained and updated by you (or someone you have authorized). You shall not use the Artist Tools and Services (and shall not authorize anyone else) to take any action that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (e.g., running Maillist, Listserv, or any form of auto-responder) ("spamming").
13.6 Website Terms.
14. How Long Does this Agreement Last, and How Can It Be Terminated?
14.1 Twelve Month Term.
This Agreement is effective from the Effective Date on the Order Form and shall continue for an initial term of twelve (12) months, and shall automatically renew for additional twelve (12) month terms, unless either you or Topspin notifies the other party in writing at least thirty (30) days prior to the end of the then-current term.
14.2 Right to Terminate.
At any time, either party may terminate your Artist Account and this Agreement for any reason (or no reason) upon ninety (90) days written notice to the other party. Topspin may also terminate or suspend your Artist Account and your access to all or any part of the Artist Tools and Services at any time if you breach this Agreement, but Topspin will notify you in advance if we intend to do so.
14.3 Moving Your Products.
Upon termination or expiration of this Agreement pursuant to Section 14.2, you will have sixty (60) days to port your Products, Artwork, and other content you have uploaded, and, with respect to Products which were sold using Topspin Fulfillment, to remove your physical Products from our possession, at your cost. At the end of that 60-day period, Topspin will send you a final notice, after which Topspin may, in its discretion and without liability, destroy or otherwise dispose of all information associated with your Artist Account and, if you were using Topspin Fulfillment, return your physical Products in our possession at your expense. We will continue to fulfill orders for your Products still in our possession during that sixty (60) day period, and for fulfillment of customer orders (including, without limitation, subscriptions and packages) that continue beyond the termination of the Agreement. You agree that Topspin shall receive its Sales Fees for any purchases attributable to the Artist Tools and Services during such sixty (60) day period. We also will refund to your customers any unaccrued customer membership fees unless you have provided another location through which the customers can access the membership services. For the avoidance of doubt, this Section 14.3 shall not apply to termination of this Agreement pursuant to Section 14.5.
14.4 Payments Owed.
If Topspin owes you any Payment Obligation at the time of termination, Topspin will remit those funds to you the next payment cycle. We will pay the Payment Obligation in the same manner and with the same reservations and any withheld payment as described above in Section 10.6.
14.5 Termination in the Event of Dissolution of PlatformNotwithstanding the foregoing, in the event Topspin determines in its sole and absolute discretion to dissolve and wind up Topspin and/or its platform, the parties shall be subject to the procedures set forth herein this Section 14.5. In the event Topspin determines to dissolve its platform, this Agreement shall be terminated upon ninety (90) days written notice to you, wherein all such services provided hereunder shall cease (the “90 Day Notice Period”).
Upon notice of termination, you will immediately notify your customers that they will no longer be able to purchase Products under this Agreement after the 90 Day Notice Period, and you will have until the end of the 90 Day Notice Period to port your Products, Artwork, and other content you have uploaded (which shall include but not be limited to all of your products and content maintained on our platform owned by you, including all digital assets, transaction data, marketing materials, audio/video files, customer information and e-mail lists), and with respect to Products which were sold using Topspin Fulfillment, to remove your physical Products from our possession, at your sole cost, expense and liability. Please note that porting your Products, Artwork, and other content you have uploaded may require substantial time as Topspin does not allow for bulk exporting via zip files, access to ftp or any other similar methods. Additionally, such ported material shall be in the form currently maintained by Topspin, which may differ from your view of such material on the platform.You are solely responsible for the porting of all such material. During the 90 Day Notice Period, you may either request removal and return of your physical Products, or request that we destroy or otherwise dispose of all physical Products in our possession. In the event you do not send Topspin a request for the return of, or destruction and disposal of, your physical Products, then Topspin shall have the right to destroy or otherwise dispose of all such physical Products without any liability to you or any third party after the 90 Day Notice Period.
Topspin will continue to fulfill orders for your Products still in our possession during the 90 Day Notice Period; however, no orders will be accepted or processed after the 90 Day Notice Period, and, subject to applicable law and unless otherwise set forth in this Section 14.5, no orders will be refunded or returned after the 90 Day Notice Period. You agree that Topspin shall continue to receive its Sales Fees for any purchases attributable to the Artist Tools and Services during such 90 Day Notice Period. We will also refund to your customers any unaccrued customer membership fees unless you have provided another location through which the customers can access the membership services. Additionally, you shall be required to fulfill any and all other obligations contained in this Agreement, including but not limited your requirements to pay certain fees, refunds, and shipping. Notwithstanding any contrary terms provided herein this Agreement, Topspin shall endeavor to provide you a final Artist Statement and pay you its final Payment Obligation within sixty (60) days after the end of the 90 Day Notice Period
All provisions of the Agreement that by their nature should survive termination shall survive, including without limitation, the material terms of this Agreement, dispute resolution (Sec. 15.4), termination (Sec.14), warranty disclaimers (Sec. 15.3), indemnity (Sec. 15.1), and limitations of liability (Sec. 15.2).
15. What Other Legal Terms Apply to the Artist Tools and Services?
If legal actions are taken against Topspin because you made a misrepresentation or breached any part of this Agreement, you (and not Topspin) are responsible for the damages. You shall be fully responsible and shall indemnify and defend Topspin and all of its agents, customers, affiliates and suppliers and employees, from all liabilities and expenses resulting from third party claims, including reasonable outside attorneys' fees, that arise from or relate to (a) an actual or claimed violation of any intellectual property and proprietary rights of any person or entity, including without limitation, rights of publicity, by you or any person you authorize or permit to use your Artist Account; and (b) your actual or claimed violation of any applicable laws, rules, regulations or your contractual obligations; and (c) your Products. Topspin reserves the right at any time to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Topspin in asserting any available defenses.
15.2 Limitation of Liability.
Topspin cannot guarantee the identity or information of any users with whom you interact in the course of using the Artist Tools and Services. You will not hold Topspin responsible for actions or inactions of unaffiliated users, including anything they individually or collectively post. In no event shall Topspin, nor its directors, employees, agents, suppliers or customers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Artist Tools and Services or any other subject matter of this Agreement (i) for any lost profits, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever or (ii) for any direct damages in excess of (in the aggregate) the Sales Fees actually retained by Topspin as a result of your sale of Products during the three (3) month period immediately preceding the date the claim for such damages was first asserted. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.
15.3 Warranty Disclaimer.
The Artist Tools and Services and all other services provided by Topspin are provided "as is" and "as available" and are without warranty of any kind, express or implied, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, non-infringement or other warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
15.4 Dispute Resolution.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by final, binding arbitration in Los Angeles County, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable outside attorneys' fees and costs) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For the foregoing purposes, the parties consent to exclusive jurisdiction and venue in the United States District Courts for the Central District of California.
15.6 Waiver of Right to Jury Trial.
THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS AGREEMENT.
This Agreement is the entire agreement between you and Topspin with respect to the Artist Tools and Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Topspin with respect thereto. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Topspin shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Topspin's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). The Agreement is personal to you, and is not assignable, transferable or sub-licensable by you except with Topspin's prior written consent. Topspin may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. All notices under the Agreement will be deemed to have been duly given and received when: (a) if personally delivered or sent by certified or registered mail, return receipt requested, when delivered or with receipt of delivery; (b) if transmitted via facsimile or email, when such notice is sent to the last known address of you or to Topspin at email@example.com, with no failure to deliver notification returned to the sender; (c) if sent for next-day delivery by recognized overnight delivery services, when delivered with receipt of delivery. You agree that Topspin may list you as a client in its marketing materials, including Topspin's website and blog, and in press releases. You agree to keep confidential all of the terms of this Agreement and not to disclose any terms, including without limitation, pricing, to any third party, except when required to do so by operation of law. We reserve the right, in our sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Artist Tools and Services following the posting of any changes to this Agreement constitutes acceptance of those changes. You agree to keep confidential all of the terms of this Agreement and not to disclose any terms, including without limitation, pricing, to any third party, except when required to do so by operation of law.
Attachment A: Customer Policies
The following "Customer Support Guidelines" for customers will be posted as a link in the customer purchase flow and the Topspin Platform and shall be subject to change by Topspin at any time. All terms used herein shall have the meaning set forth in the Artist Agreement.
Customer Support Guidelines
Topspin shall be responsible for providing the following customer service to purchasers or recipients of Products.
Hours of Availability. Customer support shall be available in all regions Monday through Friday, 8am – 5pm, PST (excluding statutory holidays).
Method of Contact. Topspin will maintain a web based email form of communication for customers writing in requesting assistance at firstname.lastname@example.org and Topspin will respond via email.
Inquiry Limitations. Topspin places no limit to the number of support requests that a customer can generate.
Limitations of Policies. These Customer Support Guidelines are subject to change at the discretion of Topspin, without notice to you. All changes made to any agreement will be effective 5 business days after the published date.