PHOENIX PRIME AND PRIME PLATINUM

PROGRAM DESCRIPTION AND AGREEMENT


Phoenix PRIME ("the PRIME Program") and PRIME PLATINUM ("the PRIME PLATINUM Program") (together, "the Programs") are membership benefit programs offered by Phoenix Entertainment Partners, LLC ("Phoenix" or "we") to karaoke operators operating within the 50 United States, specifically including the undersigned karaoke operator ("Operator" or "you"). Eligibility for membership in the Programs is based upon requirements listed in this Agreement and an application, the content of which may be found on our website at https://pep.rocks. The purpose of this Program Description and Agreement is to set the terms of your membership in the Programs, and to define the benefits you will receive as a result of your membership.
DEFINITIONS. These terms have the following meanings for purposes of the Programs and of this Program Description and Agreement:
"Anniversary Date" refers to the date on which the Operator's initial application for membership in one of the Programs was approved by Phoenix, and the same date each year thereafter, unless varied by agreement of Phoenix and the Operator or by a promotion offered by Phoenix.
"Good Standing" with Phoenix means that with respect to each part of their Operator's business operations, the Operator is:
With respect to the use of karaoke tracks bearing the SOUND CHOICE® trademark and/or related trade dress:
A Sound Choice Certified KJ, a GEM series licensee, or a HELP licensee, and in full compliance with the terms and conditions of those licensing programs and with any payment schedule associated therewith; or
A verified user of original SOUND CHOICE® CD+G discs who does not media-shift the content of those discs; or
A verified non-user of any karaoke tracks bearing the SOUND CHOICE® trademarks or related trade dress;
and
With respect to the use of karaoke tracks bearing the CHARTBUSTER KARAOKE® trademark and/or related trade dress:
A Chartbuster Registered Operator, in full compliance with the terms of the Chartbuster Registration program and with any payments required by that program; or
A Chartbuster Certified KJ, in possession of an unexpired registration certificate for that program and in full compliance with the terms of that program and with any payments required by that program; or
A verified non-user of any karaoke tracks bearing the CHARTBUSTER KARAOKE® trademarks or related trade dress.
"Membership Year" refers to each period of membership between Anniversary Dates, which is one year unless varied by agreement of Phoenix and the Operator or by a promotion offered by Phoenix.
ELIGIBILITY. Membership in the Programs is limited to any person (including natural persons and juridical entities, e.g., partnerships, limited liability companies, and corporations) who:
Is currently in Good Standing with Phoenix with respect to their use of karaoke accompaniment tracks bearing the SOUND CHOICE® and CHARTBUSTER KARAOKE® trademarks, service marks, and trade dress; and
Is not presently a party to any pending lawsuit to which Phoenix, Slep-Tone Entertainment Corporation, or Sound Choice Entertainment, LLC, is a party; and
Conducts all or substantially all of his, her, or its karaoke entertainment service operations within the 50 United States; and
Submits a complete and truthful application for membership in the manner directed by Phoenix via its website; and
Pays all fees applicable to the Program for which the Operator is applying.
Phoenix may waive any eligibility requirement at its own election. Phoenix reserves the right to refuse membership in either Program to any person for any reason.
TERMS APPLICABLE TO BOTH PROGRAMS. The following terms are applicable to both the PRIME and PRIME PLATINUM Programs.
MEMBERSHIP LEVEL. Upon applying for membership, the Operator will select a membership level, PRIME or PRIME PLATINUM.
MEMBERSHIP UPGRADES. An Operator who selects the PRIME membership level may apply at any time during the Membership Year to upgrade to the PRIME PLATINUM membership level. The upgrade fee will be calculated as the difference between the PRIME membership fee paid by the Operator and the PRIME PLATINUM membership fee in effect at the time the upgrade is requested, pro rata based on the number of months remaining in the Membership Year, but in any event not less than $10.
For example: Operator A is approved for a PRIME membership on January 1 for $199. On April 1, A upgrades to PRIME PLATINUM. The cost of PRIME PLATINUM on April 1 is $349. There are 9 months remaining in the Membership Year, so the upgrade fee is: $349 - $199 = $150 x 9/12 = $112.50.
MEMBERSHIP DOWNGRADES. An Operator who initially selects or upgrades to PRIME PLATINUM may only downgrade to PRIME:
With our express permission to downgrade; or
At the Operator's request made to Phoenix within seven calendar days of our approval of the Operator's membership, provided that the Operator has not made use of any PRIME PLATINUM-only services; or
At the Operator's request, if the Operator's application to become an approved provider under our National Booking program is rejected; or
as of the Operator's next Anniversary Date.
A refund of the difference between the membership fees will be made for downgrades under parts (2) and (3) above, and in our sole discretion for downgrades under part (1) above. Otherwise, no refund will be offered.
EARLY TERMINATION. At any point before our approval or within seven calendar days after our approval of the Operator's membership, the Operator may voluntarily withdraw from and terminate this Agreement and the Operator's participation in the Programs, provided that the Operator has not made use of any discounts offered to PRIME or PRIME PLATINUM members. The Operator forfeits all rebates earned, if any, upon termination under this paragraph. The Operator's membership fee will be refunded in the event of termination under this part (d).
RENEWALS. At the conclusion of the Membership Year, Phoenix may offer a renewal of the Operator's membership. Phoenix may modify the renewal terms from this Agreement in any respect, including but not limited to price, benefits, features, or eligibility. The Operator is not under any ongoing obligation to renew the membership.
MULTI-SYSTEM OPERATORS. Only one membership is needed for each commercial entity who seeks membership, regardless of the number of systems the Operator operates.
PRIME MEMBERSHIP BENEFITS. The following benefits shall be offered to members of the PRIME Program:
ADVANCE CREDITS. Upon approval of the Operator's application, and subject to the eligibility requirements of the SOUND CHOICE ADVANCE program, the Operator shall receive twenty-five (25) credits under the SOUND CHOICE ADVANCE program at no charge. These credits will expire upon the later of (1) the end of the Membership Year or (2) the making available of at least fifty (50) karaoke tracks under the ADVANCE program.
PRODUCT DISCOUNTS. The Operator shall receive a discount of five percent (5%) off the purchase price of eligible Phoenix products. It is our intent that this product discount be "stackable" with most regular discount promotions; however, from time to time, we may offer exceptional discount promotions. We will inform you before the purchase is complete if the product discount is not "stackable" with any other promotion, in which case you will receive the discount that is most favorable to you.
RETAILER DISCOUNTS AND REBATES. From time to time, we will make discount and/or rebate programs with equipment and software retailers available to you. These programs may include (i) eligibility to participate in group purchases of equipment or software, (ii) eligibility to use our credentials to obtain discount pricing for the purchase of equipment or software at your own expense, (iii) eligibility to receive special discount pricing not offered to the general public on purchases of equipment or software from us or our affiliated companies, and (iv) eligibility to receive post-sale rebates on purchases of equipment or software made through us or on our referral, based on commissions we receive from participating retailers.
MEMBERSHIP LISTING. Upon the Operator's request and completion of an information form if requested by Phoenix, Phoenix shall identify the Operator in Phoenix's online licensee directory as "PHOENIX PRIME MEMBER" (or "PHOENIX PRIME PLATINUM MEMBER," if applicable). Continuous availability of the online licensee directory is not guaranteed.
SHOW LISTING SERVICE. Phoenix, in cooperation with Sound Choice Entertainment, LLC ("SCE"), is developing a show listing service, known as SINGTONIGHT.INFO, aimed primarily at patrons of the establishments to which you and SCE provide services. As a PRIME member, you will be allowed to establish, at no additional charge, a preferred account on SINGTONIGHT.INFO, through which you may list all public karaoke and non-karaoke shows at which you are providing services. SINGTONIGHT.INFO is projected to launch on June 1, 2016, but may launch sooner. To maintain your preferred account status at SINGTONIGHT.INFO, you must maintain at least a PRIME-level membership with us, and you must follow all eligibility rules for promotion through SINGTONIGHT.INFO.
CO-PROMOTION MATERIALS. Phoenix may, from time to time, make available to you certain co-promotion materials, including without limitation hangable banners, song slips, printed materials, and electronic graphics. These co-promotion materials will be provided to you for a charge that is at or below our raw cost, including design charges, production charges, shipping and handling charges, and any applicable taxes.
TRAINING COURSES. Phoenix may, from time to time, make available to you training courses, materials, and workshops, in written, electronic, audiovisual, or live format, which are relevant to aspects of running a professional karaoke operation, including without limitation sound engineering principles, software training, equipment selection, accounting, promotion and social media, and the like. These courses will be made available free of charge or at a cost, depending on the type of information being offered. Phoenix may also provide you with preferred access to a knowledgebase or community support forum that covers these and other topics.
OTHER BENEFITS. We may, from time to time, offer additional benefits to our PRIME members, at no charge or at an additional charge. If there is a potential benefit you believe would be useful to you or to other members, you are encouraged to request it. Our goal is to be responsive to your needs.
PRIME PLATINUM BENEFITS. The following benefits shall be offered to members of the PRIME PLATINUM Program:
PRIME BENEFITS. Each of the benefits listed above as benefits of the PRIME Program will be extended to members of the PRIME PLATINUM Program.
ADDITIONAL ADVANCE CREDITS. Subject to SOUND CHOICE ADVANCE program eligibility requirements, the Operator will receive an additional twenty-five (25) credits, for a total of fifty (50) credits, in the SOUND CHOICE ADVANCE program.
ADDITIONAL PRODUCT DISCOUNT. The Operator shall receive an additional discount of five percent (5%) off the purchase price (for a total of ten percent (10%) off the purchase price) of eligible Phoenix products. It is our intent that this product discount be "stackable" with most regular discount promotions; however, from time to time, we may offer exceptional discount promotions. We will inform you before the purchase is complete if the product discount is not "stackable" with any other promotion, in which case you will receive the discount that is most favorable to you.
ADDITIONAL RETAILER DISCOUNTS AND REBATES. We may, from time to time, offer you additional retailer discounts and rebates not offered to PRIME members.
ACCESS TO NATIONAL BOOKING PROGRAM. Phoenix, in cooperation with SCE, is engaged in the development of a national booking program in which we seek to book karaoke and non-karaoke entertainment shows and "preferred provider" status with local and national accounts including chain restaurants, corporate and conference events, and large private gigs. The national booking program is seeking qualified operators to supply services to SCE in connection with these bookings. The PRIME PLATINUM Program is designed, in part, to assist us in identifying qualified operators. Your PRIME PLATINUM membership entitles you to apply for approved provider status. However, approved provider status is granted based on our evaluation of your equipment, skills, and professionalism, in our sole discretion. Approved provider status is not a guarantee that you will receive any bookings, but your status as an approved provider will be used to help us identify those geographical areas in which to seek booking opportunities. If you apply for approved provider status and are rejected, we will, at your request, downgrade your membership to PRIME and issue a refund of the difference between the membership fees, at which point you will no longer be eligible for the additional PRIME PLATINUM benefits. You are welcome to remain a PRIME PLATINUM member even if you are not an approved service provider.
OTHER BENEFITS. We may, from time to time, offer additional benefits to our PRIME PLATINUM members, at no charge or at an additional charge. If there is a potential benefit you believe would be useful to you or to other members, you are encouraged to request it. Our goal is to be responsive to your needs.
BENEFITS NOT GUARANTEED. Except where we directly provide the PRIME or PRIME PLATINUM benefits listed above, benefits may be limited or unavailable at times based upon provider participation, our ability to negotiate discounts or services, changes in materials costs, force majeure, or for other reasons beyond our control.
DISCOUNTS NOT RETROACTIVE. Except where we expressly agree, discounts offered under the PRIME or PRIME PLATINUM Programs will not apply to prior purchases.
FEES. Our current fee schedule will be published at https://pep.rocks. We reserve the right to vary fees and other aspects of the Programs for promotional purposes. As of March 28, 2016, the list price of a PRIME membership is $289 per year, and the list price of a PRIME PLATINUM membership is $499 per year.
WHAT THE PROGRAMS ARE AND ARE NOT. The Programs are membership benefit programs. They do not confer on you any licenses under any intellectual property rights owned by Phoenix or any third party. They do not constitute permission to copy, duplicate, or otherwise reproduce any content belonging to Phoenix or any third party. The Programs do not include any Covenant Not to Sue. The Programs do not expand the scope of your rights with respect to the commercial use of any intellectual property rights owned by Phoenix or any third party. The Programs are not a marketing plan, a business plan, or a franchise or business opportunity. To the extent that your participation in PRIME PLATINUM results in your being hired by any entity to provide services, such hiring will be conducted according to the terms of a separate agreement.
NOTICES. Notices to Phoenix should be directed as follows:
Phoenix Entertainment Partners, LLC
12245 Nations Ford Road, Suite 505
Pineville, NC 28134-8444

Fax: 704-588-8893
Email: customercare@phxep.com
Please note that notices sent by email and not acknowledged should be sent via a different method. Notices may be sent by Phoenix to the Operator by email or postal mail as indicated on the Operator's account. The failure to keep this information updated may result in the suspension of benefits unless and until the Operator's information is updated.
TERMINATION. You may terminate this Agreement at any time by notifying us in writing that you are terminating the Agreement. Except as provided above, no refund will be provided. We may termination this Agreement at any time by notifying you in writing that we are terminating the Agreement. If our termination is for cause—meaning that you have failed in some material respect to meet your obligations under this Agreement—no refund will be provided. Otherwise, we will provide a pro rata refund based upon the number of months remaining in the Membership Year.
FORUM SELECTION AND CHOICE OF LAWS. The parties agree to the jurisdiction of the state and federal courts sitting in Mecklenburg County, North Carolina, over any dispute arising under this Agreement, waiving all objections to personal jurisdiction and venue therein. The parties further agree that the substantive laws of the State of North Carolina shall apply to such disputes, without resort to the conflicts of laws provisions thereof. The choice of forum and choice of laws provisions hereunder are bargained-for terms of this Agreement. However, nothing in this Agreement shall be construed, by itself, to confer a general right to have all disputes between the parties decided according to the choice of forum and choice of laws provisions hereunder.
NO ASSIGNMENT. You may not assign this Agreement or your rights under this Agreement to any other party without our express written consent, which we will not withhold without a bona fide reason for doing so (for example, because the other party is ineligible to participate in the Programs). We may assign this Agreement to any third party with or without your consent.
ENTIRE AGREEMENT. This is the entire agreement between the parties on the subject matter to which it relates, and this Agreement may not be modified except as provided herein or except (a) by a writing signed by both parties, (b) by our written notice to you of a change in terms coupled with your failure to refuse the change in terms within 90 days after that notice was given, or (c) as to any non-accepted change in terms under part (b) above, upon the renewal of this Agreement.
VOID WHERE PROHIBITED; SEVERANCE. Any offer made under the Programs or this Agreement shall be void in any jurisdiction where that offer is prohibited or where any required condition precedent to the making of a legal offer has not been satisfied. Any part of this Agreement that is found by a court of competent jurisdiction to be invalid or unenforceable shall be severed herefrom and the remaining terms enforced to the greatest extent possible consistent with the aims of the Agreement.
ELECTRONIC SIGNATURE. This Agreement may be "signed" electronically by means of a "click-through" indication of assent to the terms by the Operator and by indication of approval by Phoenix.