Terms & Conditions
a. Two (2) years, automatically renewable for successive one (1) year periods unless one party notifies the other party in writing ninety (90) days prior to the expiration of the Term. Either party may terminate this Agreement during the Term subject to the provisions outlined below.
a. Sound Recordings Licensor owns or controls the sound recordings as well as the copyrights in and to the
sound recordings listed on the attached Exhibit A (the “Masters”) and each successive update of Exhibit
A submitted by Licensor during the Term.
b. Compositions Licensor either: (i) owns and/or controls the compositions embodied on the Masters
(the “Compositions”) as well as the copyrights in and to the Compositions or; (ii) has mechanical licenses
and all other permissions required to use the Compositions as contemplated in this Agreement. In the event
Licensor does not have mechanical licenses or the rights to use the Compositions as contemplated in this
Agreement, Licensor will indicate this on Exhibit A when Licensor submits the “Content” containing Compositions.
c. Music Videos Licensor owns all right title and interest in and to the music videos listed on Exhibit A
(“Music Videos”) including the rights to synchronize, the master recordings and the underlying compositions
with visual images (collectively the “Music Video Components”) and the rights to manufacture, copy, distribute
and sell the Music Video Components and the Music Videos. If Licensor does not have all rights in and to the
Music Video Components and the Music Videos, Licensor shall indicate which rights it does not have on Exhibit A
and on each successive update of Exhibit A..
d. Film Master Licensor owns all right, title and interest in and to the films listed on Exhibit A
(“Films”) including: the right to use the likeness of all persons appearing in the Film, locations, trade marks,
trade names and all other identifiable material appearing in the Film.
e. In the Agreement the Masters, the Compositions, the Music Video Components, the Music Videos and the Films are referred to collectively as the “Content.”
3. Grant of Rights
Licensor agrees to license the Content to Licensee for distribution and exploitation of the Content as follows:
a. The worldwide electronic, digital and mobile rights in the Content to create digital and/or electronic copies,
distribute, sell, and publicly perform the Content via all electronic, digital and mobile platforms, now known or
hereafter invented, (using the Internet, mobile platforms or otherwise). Licensor may not distribute, sell, provide
or otherwise make the Content available to any electronic, digital or mobile platforms without Licensee’s prior
written consent. Licensor shall list on Exhibit D attached to this Agreement all electronic, digital and mobile
platforms and services which Licensor excludes from this Agreement. Licensor may at anytime choose to grant Licensee
rights to distribute specific Content to a service excluded from this Agreement for a specific project or opportunity by providing Licensee notice in writing. Licensor may also update Exhibit D as Licensor deems necessary to exclude additional services or add previously excluded services from this Agreement. Licensor must give Licensee thirty (30) written notice for the updates to Exhibit D to become effective.
b. The worldwide right to perform the Content in streaming format on the Licensee’s website or other websites owned and/or controlled by Licensee’s partners, assigns or licensees (individually and collectively referred to as “Licensee’s Partners”);
c. Licensee shall have the right to enter into agreements with third parties and to assign any or all of the rights granted by Licensor to Licensee in this Agreement to such third parties without further approval from Licensor. Under such third party agreements, Licensee’s Partners may release, advertise and sell the Content as contemplated in this Agreement.
4. Promotional & Other Rights
In order for Licensee to provide services hereunder, Licensor grants Licensee the right to:
a. Market the Content for promotional purposes and without compensation to Licensor, provided the same is in line
with customary practices;
b. Permit third parties to publicly perform up to sixty seconds (00:60) of the Content on a gratis basis for the
purposes of promoting the sale of the Content. Licensor hereby acknowledges and agrees that Licensee shall be under
no obligation to actively market and promote the Content under the terms of this Agreement. Licensor hereby acknowledges and agrees that if Licensor does not own and control 100% of the Composition(s), Licensor is solely responsible for obtaining the relevant publisher’s permission to use the Compositions for promotional purposes according to this paragraph 4. Licensor expressly agrees to advise Licensee prior to any promotional use if Licensor does NOT have the publisher’s permission;
c. Print, publish, disseminate and otherwise use and permit others to use the approved likeness, approved biography, approved photos and other approved material provided by Licensor, including the name (both legal and professional, whether presently or hereafter used by the “Performer” as defined below) collectively referred to as the “NIL Materials.” Licensee may use the NIL Materials for the purposes of trade, advertising, and other exploitations in connection with the sale and exploitation of the Content. “Performer(s)” as used in this Agreement means any person whose musical, vocal, production services, visual images, acting, dancing or other performances are embodied on the Content. All material provided by Licensor to Licensee is deemed approved. All material provided by Licensor to Licensee may be edited to fit the format of the specific use without further approval from Licensor. Licensee shall have the right to grant Licensee’s Partners the right to use the approved NIL Materials as granted in this subparagraph.
A. Licensee Payment to Licensor
a. Licensee shall pay Licensor eighty percent (80%) of all download and streaming Revenues and twenty percent (80%)
on ringtone Revenues received by Licensee, paid monthly by the 20th of each month or the following business day if such date occurs on a weekend or holiday. In the event Licensor has not received payment or a statement indicating that no payment is due by the 30th day of the month, Licensor shall immediately contact Licensee and advise Licensee that Licensor has not receive payment. Upon notification, Licensee shall investigate the situation and assure payment and/or a *statement are sent to Licensor. In no event shall Licensee be deemed in breach of its payment obligations under this Agreement if Licensor does not receive payment on the 30th of the following month. Licensee may be deemed in breach of its payment obligations if Licensee fails to make payments or provide a statement sixty (60) days after Licensee receives notice from Licensor. Revenues shall mean gross cash revenues actually received by Licensee that are derived solely from the Content whether from electronic, digital or other forms created from the Content or, on another recording that embodies the Content licensed hereunder, less third party commissions, sales, excise or use taxes (if and when imposed), export duties and/or any other government taxes or surcharges imposed on Licensee and, U.S. mechanical royalties, if any.
b. No payment shall be made to Licensor in any month when less than fifty U.S. dollars ($50.) is due and payable to Licensor. In the event payment is not made to Licensor for this reason, such amounts below fifty U.S. dollars ($50) will accrue to Licensor’s account and shall be paid in the first month in which Licensor’s account reflects a balance greater than fifty U.S. dollars ($50.)Please note, no statements are sent until payment reaches threshold.
c. All payments to Licensor from Licensee under this Agreement shall be made via paper check from Licensee. In the event Licensor requests an alternative form of payment such as electronic funding, Licensor shall be solely responsible for all costs and fees associated with such alternative forms of payment. All fees and costs for such alternative forms of payment shall be deducted from the amounts payable to Licensor at the time payments are made.
d. Licensor and Licensee hereby acknowledge that in the United States mechanical royalties for digital sales are usually paid by the music services and other sellers of digital content directly to the content providers, in this case Licensee. Licensor hereby authorizes Licensee to collect mechanical royalties in the United States on Licensor’s behalf for digital sales under this Agreement. Unless otherwise notified by Licensee to Licensor, Licensee will NOT collect mechanical royalties on behalf of Licensor for digital sales under this Agreement outside of the USA. Licensor assumes full responsibility for tracking, collecting and paying mechanical royalties due to writers and publishers of the Compositions for all uses of the Content under this Agreement outside of
the United States.
6. Accountings & Audits
a. Licensee shall issue monthly statements to Licensor when payment is generated, as indicated in paragraph 5 above.
b. All statements shall be binding upon Licensor and not subject to objection by Licensor unless specific objection in writing, stating the basis thereof, is given to Licensee within two (2) years from the date the statement is rendered, viewed and/or downloaded. Licensee shall have the absolute right in accounting to Licensor to rely upon the statements received by Licensee from third parties and shall not be liable in any manner whatsoever for any error, omission or other inaccuracy of any such statement received by Licensee.
Each party to this Agreement may refer generally to the existence of this Agreement but shall not reveal the terms
and conditions of this Agreement, including without limitation the payment provisions, or other confidential information, proprietary information, business plans, business models, customers, clients, technology, products or any other information which either party identifies as confidential (collectively, the “Confidential Information”) without the prior written consent of the other party. Either party may disclose the Confidential Information to its attorneys, financial and other advisors who are under a duty of confidentiality to the disclosing party without the prior written consent of the other party, so long as those agents agree to keep confidential the terms and conditions of this Agreement. If required by law or governmental regulation, either party may disclose the Confidential Information only after it provides the other party with notice of the potential disclosure and the other party has the opportunity to narrow the information to be disclosed or dispute the disclosure. Nothing in this provision shall prohibit either party from disclosing that an agreement exists between Licensor and Licensee so long as the terms and conditions of the Agreement are not disclosed.
8. Warranties and Representations
Licensor warrants, represents and agrees that:
a. Licensor possesses all rights in and to the full and exclusive ownership and/or control of the Content, the copyrights in and to the Masters, the Compositions, the Music Videos and the Films and, any copyright or similar property right recognized or created by law in master recordings, compositions, music videos and/or films in the United States of America and the other countries to which the rights granted to Licensee hereunder extend. If Licensor does not possess all rights and/or and exclusive ownership of the Content as outlined above, Licensor expressly warrants and represents that Licensor will inform Licensee upon delivery of the Content which rights it does not own and/or control. Licensor shall provide Licensee with any documentation requested by Licensee evidencing rights to use the Content as intended under this Agreement;
b. Licensor has the full right, power and authority to enter into and to perform this Agreement, and Licensor has not granted and will not grant or attempt to grant to any other person, firm, corporation or entity, rights of any kind which are inconsistent with the grant of rights contained herein or which would in any way impair the rights granted to Licensee hereunder during the Term, and;
c. Licensor explicitly warrants and represents that the Content contains NO unauthorized “Samples.” “Samples” as used herein shall mean any portion(s) or interpolation(s) of third party master recording(s) and/or composition(s), videos and/or materials or portions thereof whether musical, lyrical, visual or otherwise, not owned and controlled by Licensor. Licensor explicitly warrants and represents that is has all rights and clearances to use the likeness and image of all persons, places and identifiable material contained in the Music Videos and Films. Licensor further warrants and represents that the Content, and the various components comprising the Content, the sale, distribution and exploitation of the Content or any uses of the Content contemplated herein shall not violate any law or infringe upon any common law or statutory rights of any person, corporation or entity including without limitation, contractual rights, copyrights, trademarks and rights of privacy or publicity.
d. Licensor explicitly warrants and represents that: (i) Licensor has obtained mechanical and/or synchronization licenses from the publishers/writers of the Compositions for use of the Compositions in the same way that the Content is used under this Agreement and, (ii) Licensor has obtained synchronization licenses from the owners of the Masters embodied on the Music Videos and/or Films for use of the Content in the same way that the Content is used under this Agreement. Licensor further
warrants and represents that Licensor shall: (i) make all mechanical royalty payments due to the writers/publishers of the Compositions for use of the Compositions as granted to Licensee under this Agreement; (ii) make all synchronization payments due to the writers/publisher of the Compositions as well as all owners of the Masters which are embodied on Music Videos for use the Compositions and Masters as granted to Licensee under this Agreement. Licensor explicitly indemnifies Licensee from and against any and all actions, demands or claims brought against Licensee for non-payment or insufficient payment of mechanical royalties and/or synchronization licenses.
e. Licensor explicitly warrants and represents that Licensor has obtained permissions and waivers from publishers and/or writers of the Compositions for promotional uses of the Compositions under this Agreement, if any, and that Licensor has obtained permissions and waivers from owners of the Masters, Music Videos and Films for promotional use of the Content under this Agreement.
f. Licensee warrants, represents and agrees that it has the right power and authority to enter into and fully perform this Agreement and all of its obligations under this Agreement.
Each party, (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party and its affiliates, their respective officers, directors, employees and agents (“Indemnified Party”) from and against any and all losses, liabilities, claims, obligations costs and expenses (including reasonable attorney’s fees) which result from or arise in connection with or are related in any way to a breach by the Indemnifying Party of any of its representations and warranties in this Agreement. If a third party asserts a claim or allegation which, if proven, would constitute a breach by the Indemnifying Party of any of its representations and warranties set forth in this Agreement, the Indemnified Party shall promptly notify the Indemnifying Party. The Indemnifying Party shall have the right, at its own expense to participate in the defense thereof with counsel of its own choosing, provided however, that the Indemnified Party’s decision in connection with the defense or settlement of any such claim or demand shall be final. No Indemnified Party shall without the prior written consent of the Indemnifying Party effect any settlement of any pending or threatened proceeding with respect to which indemnity could have been sought under this Agreement by the Indemnified Party, unless such settlement includes an unconditional release of such proceeding and of the Indemnifying Party.
a. Licensee has the right to terminate this Agreement at any time and for any reason upon sixty (60) days written notice to the Licensor. Notwithstanding the foregoing, should Licensee file for chapter 7 or 11 bankruptcy proceeding in the state of California, or any other jurisdiction, termination of this Agreement is immediate and all physical copies of the Content received from Licensor shall be returned to the Licensor. *Should Licensor terminate this agreement OR request any submissions to be taken down, a $100 per title fee will be accessed to the account and either paid to us by the Licensee or reduced from future royalties. The same penalty applies should
titles be taken down by copyright infringement. *Licensor acknowledges and accepts above content removal fee(s)
b. Upon termination or expiration of this Agreement for any reason, Licensee shall immediately cease all use and distribution of the Content and shall promptly delete all forms of the Content from its website; provided however, that Licensee and any and all of Licensee’s Partners are authorized to sell, lease, license, advertise or otherwise use or dispose of existing inventory of all physical copies of the Content, if any, in existence at the time of termination or expiration of this Agreement as well as any product made available via other means for sale to the public prior to termination or expiration of this Agreement. Upon expiration or termination of this Agreement, Licensee will instruct Licensee’s Partners, in writing, to remove the Content from their respective services within ninety (90) days of Licensee’s notice. Upon expiration or termination of this Agreement, all Revenues received by Licensee for use of the Content shall continue to be subject to the payment provisions outlined in paragraph 5 above for so long as Licensee receives such Revenues. After termination or expiration of this Agreement, any royalties that come in will continue to be submitted less our fees out lined in Fee’s Section 5. (Some services only pay quarterly, annually, or bi-annualy)
a. Licensee may request but does not require Licensee’s Partners to utilize appropriate copyright protection technology when such third parties distribute the Content to consumers. Licensee makes no guarantees, warranties or representations regarding such copyright protection technologies and nothing contained herein shall make Licensee liable whether directly or indirectly for any breach of copyright protection or the failure of any third parties to use such protection.
b. Under no situation or circumstance shall Licensee be required to accept any or all Content submitted by Licensor and Licensor has none of the rights contained herein unless Licensee officially accepts Content in writing (including via e-mail). Licensee will use reasonable efforts to make the Content available for sale on third party websites and other platforms but makes no guarantee as to the timeliness of such availability or the manner in which it is presented by Licensee’s Partners to the public. Licensor hereby understands and agrees that Licensee shall not be liable for any actual or potential lost revenue due to a delay or failure to have the Content available via third party services or carriers. However, Licensee will work
with Licensor and Licensee’s Partners to facilitate as many of Licensor’s preferences as possible.
c. If any part of this Agreement shall be deemed invalid or unenforceable it shall not affect the validity or enforceability of the remainder of this Agreement, which shall remain in full force and effect as if such invalid or unenforceable provision(s) were not a part hereof.
d. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, successors in interest, and assigns.
e. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and, may only be modified, altered or amended by a written agreement signed by all parties. For purposes of this provision, a written modification, alteration or amendment shall include email transmission with proof of receipt and acceptance by the receiving party.
f. Licensor agrees that it enters into this Agreement with all knowledge of its terms, freely and voluntarily, and with a complete understanding of all the consequences of entering into this Agreement. Licensor acknowledges that it has been represented in the negotiation and execution of this Agreement by an independent attorney of Licensor’s choice who is familiar with the practices of the entertainment industry or has willingly refrained from so doing.
g. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice of law principles.
h. All notices and communication desired or required between the parties may be made via e-mail transmission provided however, that the sending party obtain proof of receipt of such communication by the recipient either by return e-mail, follow up telephone call or facsimile.
13. Mediation & Arbitration
If a dispute arises out of or relates to this Agreement, or a breach of this Agreement and the dispute cannot be settled or resolved then that dispute or breach, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The controversy or claim shall be settled by three (3) arbitrators and all hearings shall be held in San Francisco, California. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. In rendering the award, the arbitrators shall interpret this Agreement in accordance with the substantive laws of California without regard to its conflict of laws rule. Notwithstanding the foregoing, in the event a third party claim is brought against Licensee for copyright infringement, violation of rights of publicity, rights of privacy or other unauthorized use of Content under this Agreement, Licensee shall not be bound by this Arbitration provision and may defend itself and make a claim against
Licensor in a court of law.