1. Noisematch Engagement
a) Services.
Client has engaged the use of Noisematch’s Studio Facility for the proposed project. The Estimated total cost of the project includes use of Noisematch Studios’ facility and equipment as well as the inclusion of an assistant engineer for basic set up, tracking and session handling.
b) Estimated Total Cost At the Start of the Project.
Noisematch shall provide Client with an Estimated Total Cost for the Project. Client and Noisematch shall review this Estimated Total Cost and mutually approve it in writing. Notwithstanding the foregoing, Client acknowledges and agrees that there are many factors involved in completing the Project, some of which are impossible to predict in advance and are beyond the control of Noisematch. These factors may affect the amount of time it takes to complete the Project. Consequently, please be advised that the final amount due for Client’s project may vary from the Estimated Total Cost previously approved by Client and Noisematch. Client expressly agrees to compensate Noisematch in accordance with its hourly rate for additional time over the Estimated Total Cost.
c)Noisematch Promotion.
For the purposes of promoting its business activities, Noisematch shall have the following non-exclusive worldwide rights in perpetuity:
i. Client shall give Alex J. Campos in behalf of Noisematch, Inc. the appropriate “Recording Engineer” credit on all tangible media now known or later developed that embody any of the Masters on all cover liner notes. Client shall provide Noisematch with one (1) copy of the completed record (or other tangible media) within thirty (30) days of its completion.
ii. The right to use Client’s name (both legal and professional, and whether presently or hereafter used by Client), photographs, video or approved likeness, other identification, and biographical material concerning Client. Media produced on site (Instagram pictures, facebook posts, videos,etc) on the day of the event won’t be published by Noisematch until proposed project has finished and artist has left the premises to avoid conflict with public press and/or fan groups.
iii. The right to include any Masters, or portions thereof, recorded under this Agreement, any approved audiovisual (e.g. music videos or live performances) or other approved materials on Noisematch’s web site and on demo tapes, and for CDs and/or digital downloads (or in other configurations now known or hereafter invented) distributed by Noisematch at no charge for promotional purposes. Any materials given to Noisematch by Client under this Section 1(c)(i) shall be considered “approved” for the foregoing uses.
2. Noisematch Studios Policies and Procedures.
The following terms and conditions apply to all services provided by Noisematch. Prior to beginning work on the Project, Client or an authorized representative of Client or Client’s company has acknowledgment and is in agreement with these terms.
Use of Noisematch Studios
i. Technical Difficulties and Delays. In the course of recording, minor delays due to technical difficulties relating to Noisematch’s equipment sometimes occur (“Technical Delays”). Technical Delays of less than thirty (30) minutes shall be considered a reasonable part of a session Client shall be billed for time spent addressing them. Notwithstanding the foregoing, Client shall not be billed for any Technical Delay in excess of thirty (30) minutes.
ii. Cost of Recording Media. Client will be responsible for paying the cost of any recording media used in the Project (e.g., magnetic tape, DAT, CD-Rs, project dedicated hard drives, USBs or mp3 players/iPods purchased specifically for the Project etc.) If Client would like to purchase media itself and bring it in for use in Client’s recording sessions, please contact Noisematch first to insure that Client purchased the appropriate media. In the event that Client does not purchase its own media, Noisematch generally has media on hand at the studio, thus if necessary it will be billed accordingly.
iii. Storage of Recording Media. Noisematch shall endeavor to secure all recording media (all master tapes, slaves, final mixes, DATs, CD-Rs, CDs, USBs, and all other media storage devices) owned by Client, and left or stored on Noisematch’s premises, but Noisematch shall not be responsible for the loss or damage of any of these materials. In the event of loss or damage of Client recording media due to Noisematch’s willful negligence, Noisematch shall be responsible for replacement of no more than the out-of-pocket replacement cost of the recorded media.
iv. Other Property Left on the Noisematch’s Premises. Any gear or rentals left on premises outside of the proposed project dates is subjective to a storage fee of $300 per day left one premises. Noisematch shall endeavor to secure any property other than recording media that Client leave on the premises, but Noisematch shall not be responsible for loss due to theft, fire, act of God, or any other un-named occurrence.
v. Noisematch shall not release recorded media to Client until all monies due to Noisematch have been paid in full. Any recording media left on Noisematch’s premises sixty (60) days after completion of a recording session or service shall become the property of Noisematch if all monies due have not been paid.
vi. Receipt of Recording Media. At the end of the Project, upon full payment of all amounts due, Noisematch shall provide Client with one (1) copy of Client’s files via Digital Delivery, if an audiovisual work (additional copies to be charged at rate specified in Section 2(a)(ii)). Noisematch will also, upon request, provide Client with a data CD containing the computer data files related to the Project (excluding any trade secrets, software or other intellectual property owned by Noisematch). Additional replication of CDs shall be at Noisematch’s hourly rate and cost of CDs/DVDS in Section 2(a)(ii). Client’s receipt of finished recording media from Noisematch constitutes Client’s acknowledgment to Noisematch that the quality of all services rendered by Noisematch are satisfactory to Client and such receipt shall release Noisematch from any and all liability regarding said recording media and services rendered.
vii. Damage to Noisematch Property. During the time Client utilizes Noisematch’s facilities, Client shall be responsible for any loss or damage to Noisematch’s property incurred by Client, Client’s employees, guests, or agents acting under Client’s instruction as a result of misuse, negligence, or carelessness.
viii. Third Party Samples. Client shall be solely liable and responsible for obtaining all “sample” clearances for any and all “samples” as such term is understood in the music industry, and for any and all costs or damages, which may be incurred by or on behalf of Noisematch, should any samples be embodied on any recordings made by Noisematch.
ix. Cancellation of a Recording Noisematch Session. In the event that Client needs to cancel a scheduled recording Noisematch session, Client shall give Noisematch at least twenty-four (24) hours notice of Client’s intent to do so. In the event that Client fails to give NOISEMATCH twenty-four (24) hours notice, Noisematch reserves the right, at its sole discretion, to bill Client for the scheduled time.
x. No illegal activities. Client warrants and represents that he or she will not possess, use, or allow to be used, any illegal drugs or carry on illegal acts on Noisematch’s premises, nor will he or she create or allow to be created any illegal, infringing, or defamatory recordings. Client acknowledges and agrees it shall be SOLELY responsible for abiding by this clause and enforcing it among any third parties Client or its guests directly or indirectly invites or allows onto Noisematch’s premises. Please note Section 8(b)(2) and Client’s indemnity to Noisematch, should Client breach this or any other clause in this Agreement.
xi. Afterhours Billing. Noisematch Studios business hours are 10 a.m. to 10 p.m monday through friday (except some saturdays or sundays, approved in writing by Noisematch to suit Client needs). As a courtesy we offer 8am setups on the initial project date. Any required operation after 10 p.m. during any given project date shall be subject to a non-negotiable afterhours operation fee of $250 /hour.
xii. Catering & drinks. No food or drinks are allowed inside of the property, with the exception of supplied complementary beverages, We have an outdoor patio that can be used for catering purposes as well as many convenient solutions in adjacent businesses. Any catering setup must be approved in writing by Noisematch prior to the commencement of project.
xiii. Smoking. Smoking is prohibited inside the studios.
3. Payments Terms
General Payment Terms.
Payment for services engaged is due as follows: (A) a deposit equal to fifty percent (50%) of the Estimated Total Cost is due upon booking; and, (B) the remaining balance payed according to the following schedule: (B1) a first payment equal to twenty five percent (25%)of the project’s total fifteen (15) days from the initial payment and (B2) a second payment of the remaining twenty five (25%) due thirty (30) daysafter initial payment. Upon payment of the remaining balance due, Noisematch shall release finished master files to Client. If payment is not received according to this Section 3(a)(i) then sessions will halt until payment is received. Noisematch shall have the right, at its sole discretion, to cancel any project if the complete payment of fifty percent (50%) of the Estimated Total Cost is not made and cleared 24 hours prior to the start of the session.
Cancellation of the Project.
In the event Client needs to cancel the Project Noisematch will refund Client the balance of Client’s deposit, less the cost of any Noisematch time spent and media used; provided, and also, in the event that such cancellation is made less that twenty-four (24) hours before a scheduled recording Noisematch session, Noisematch shall have the right, at its sole discretion, to add to the cost fifty (50%) for the services scheduled for that time. Please note this billing policy is distinct and separate from the billing policy in Section 2(a)(x), which relates to Noisematch cancellations during an ongoing Project, and Section 3(c)(v), Inactive Status.
Other issues relating to Billing.
i. Authority to Engage. If Noisematch provides services to a privately held company, Client represents that Client is the owner of or is authorized to contract for recording Noisematch services on behalf of the company and its owners or partners. Owners and partners jointly and severally personally guarantee the payment of all fees incurred in the name of the company, in the event that the company is not financially able to do so on a timely basis.
ii. Invoices. Noisematch will issue Client invoices on an as needed basis, at Client’s request. Unless otherwise specified, payment is due and payable in full on receipt.
iii. Questions about Invoices. If Client has questions about Client’s invoices or statements or wish to dispute any charge, Client must call or provide Noisematch with written notice detailing the problem, within three (3) days of receipt of the Invoice. If Client does not object within that time, the Invoice shall be considered correct and due accordingly.
iv. Cost of Collections. Client shall be liable for any costs Noisematch incurs in collecting on Client account if it is overdue. Such costs include, but shall not be limited to, postage, time spent by Noisematch collecting on Client account (such charges to be billed at Noisematch’s standard hourly rate), attorney’s fees, and court costs.
v. Project Deadlines/Inactive Status. At the start of Client project, Noisematch will endeavor to establish a deadline with Client for when Client’s project will be completed. Noisematch will make its best efforts to honor this deadline, subject to the provisions of Section 2(a)(i). However, Client acknowledges and agrees that Noisematch cannot honor deadlines without Client’s help. If Client cancels sessions or arrive unprepared, it makes it difficult to meet deadlines. Therefore, if Client cancels a session and Client fails to reschedule it within thirty (30) days, Noisematch reserves the right, at it’s sole discretion, to place Client’s project on Inactive Status. When Client project is placed on Inactive Status, all mutually established deadlines shall be deemed canceled. Subsequently, if Client desire to make the Project active again, Client must first pay any unpaid balances related to the project as of the date it was placed on Inactive Status along with a reactivation fee of $150.00 or 15% of the estimated cost of the project, whichever is greater. Following the tender of these payments the parties shall mutually agree on a new deadline(s) for the Project.
vi. Overages. Sometimes a project takes significantly longer to complete than the parties anticipated at the outset of work. In the event that Client time in the Noisematch has exceeded the Estimated Total Cost by more than twenty percent (20%), Noisematch may, at its sole discretion, request that Client pay in full the outstanding balance due for work already completed to that point before additional work on Client project commences.
4. Copyright Ownership and Transfer
Upon full payment to Noisematch, and along handing over physical and/or digital copies of all master files, Noisematch shall transfer all rights, title and interest (including copyright ownership) in the sound recordings (masters) to Client. Notwithstanding the foregoing, Client shall at all times own and retain copyright ownership in the original musical works Client chooses to record at Noisematch, including the music, melody and lyrics.
5. Warranties and Indemnifications
Warranties.
Client warrants and represents that Client is under no restriction to execute and perform this Agreement, to grant the rights granted hereunder, and to perform every term and provision hereof. Specifically, and not by way of limitation, Client has cleared any licenses or rights held by third parties as may be necessary to fully convey these rights, including compulsory licenses or master use licenses for samples. Client further warrants and represents that neither the Materials nor any use of the Materials by Noisematch will violate or infringe upon the rights of any person or entity. “Materials” as used in this Section 4 means any musical, artistic and literary materials, ideas, and other intellectual properties, furnished by Client and contained in or used in connection with the Project or the packaging, sale distribution, advertising, publicizing, or other exploitation of the Project.
Indemnity.
Client shall indemnify, save, and hold Noisematch and Noisematch’s employees, agents, licensees, transferees, assignees and successors and hold them harmless for any and all claims, losses, expenses (including reasonable attorney’s fees), damages, judgments and liability which may arise as a results of or in connection with the warranties, representations or Client’s breach of any other term of these terms of use.
Accurate Information.
All information provided by Client to Noisematch shall be accurate, complete, true and not misleading in any respect.
6. Notices
All notices permitted or required under these terms of use may be delivered by any of the following methods: 1) to an email address provided by the receiving party, which was working and accurate at the time it was given; 2) US mail if sent to an address provided by the receiving party which was accurate at the time it was given; 3) facsimile with confirmation to sender.
7. Breach, Cure and Termination
If one party believes the other has materially breached these terms of use, it shall send Notice of such breach to the allegedly breaching party. Such breaching party shall have thirty (30) days to cure said breach, or to object and begin Dispute Resolution procedures. If the allegedly breach party does not sure or initiate Dispute Resolution procedures, this Agreement shall be deemed termination and the parties shall have no further obligations to one another. Notwithstanding the foregoing, Noisematch may IMMEDIATELY terminate this Agreement, without Notice or Cure, for Client’s violation of Section 2(a)(x) of this Agreement.
8. Dispute Resolution and Choice of Law
The parties agree to mediate any dispute arising out of this Agreement before taking any other action (legal, equitable or otherwise). This mediation shall be conducted by a third person mutually acceptable to both parties. The mediator’s role shall be to help us arrive at a solution, not to impose one upon us. If our good faith efforts to arrive at our own solution with the help of a mediator are fruitless, the parties shall be referred to a single arbiter chosen by mutual agreement of the parties and resolved by binding arbitration under the rules of the American Arbitration Association. This Agreement shall be interpreted under the laws of the State of Florida, jurisdiction in Miami-Dade County.
9. No Joint Venture or Partnership
Nothing in this agreement shall constitute a partnership, employment situation, joint venture or any other relationship that would create an agency relationship between the parties or render Noisematch liable or responsible for Client’s actions or obligations under this Agreement.
