INDABA MUSIC LICENSE & ROYALTY AGREEMENT
MUSIC LICENSE & ROYALTY AGREEMENT
THIS MUSIC LICENSE & ROYALTY AGREEMENT (the "Agreement") is made and entered into by and between Indaba Media, LLC, 568 Broadway, Floor 11, New York, NY 10012 ("Indaba") and the Indaba Member (“Licensor”) named on the Music Catalog License Entry Form (as defined below) associated with this Agreement. This Agreement is made as of the date set forth on such Music Catalog License Entry Form (the “Effective Date”).
Licensor is a registered Indaba Member. Licensor is the owner of a certain musical composition and sound recording embodying such musical composition, and Licensor desires to permit Indaba, on a non-exclusive basis, to make this composition and recording available to be used by identified third parties pursuant to a license granted by Indaba via the Internet and other broadcast, transmission and distribution means and media, such that Licensor will receive compensation for such use.
Licensor desires to enter into this Agreement with Indaba pursuant to which Indaba shall administer certain of Licensor’s rights based on Licensor’s interest in the master and composition listed on the Music Catalog License Entry Form associated with this Agreement (the “Licensed Song”), so that at such time as Indaba has granted a license for a particular use (each a “Licensed Use”) to one or more third parties with respect to the master and composition. Indaba shall administer and collect the revenues resulting from each such Licensed Use, excluding any and all monies paid by the relevant performing rights society or organization. As used herein, the “Music Catalog License Entry Form” means the form required to be filled out by the Licensor containing the detailed information related to the particular Licensed Song submitted by Licensor to the Indaba Music Licensing Opportunity.
Indaba possesses and will continue to develop a business network and technological facility that will permit Indaba to make the Licensed Song available to identified third parties, to be used in a specific and limited manner, on a compensation basis, and to administer and collect revenues resulting from each Licensed Use.
Licensor desires to license the Licensed Song to Indaba, and to permit Indaba to sub-license such Licensed Song to third parties, such that Licensor and Indaba shall receive compensation as a result of such sub-licenses, and to permit Indaba to administer and collect revenues resulting from each Licensed Use.
In consideration of the mutual promises and obligations set forth in this Agreement, the sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. LICENSE GRANT. Licensor hereby grants to Indaba the non-exclusive right, privilege and license, during the Term (as defined below) of this Agreement in the Territory (as defined below), to permit third parties to audition, via the Internet or otherwise, Licensor’s Licensed Song, and to provide copies of the Masters (as defined below) and the Music Catalog License Entry Form associated with the Licensed Song, via digital transmission or other prerecorded format or any other medium now known or hereafter devised, to third parties, and to grant to such third parties (hereinafter “Users”) the non-exclusive right, privilege and license, during the Term of this Agreement in the Territory, to couple and/or synchronize the Master, including the Composition (as defined below) embodied therein, and to reproduce and make copies thereof, with visual images and to use the Master and Composition as so coupled or synchronized, or to use the Master and Composition on an audio-only basis, over the Internet or in connection with any other broadcast, transmission, public performance, exhibition or distribution means or media, or media product, now known or hereafter devised, including but not limited to broadcast and cable television, motion pictures, Internet and websites, as part of advertising, promotion, information or entertainment services, or program material, or as so-called “ring tones”, “master tones”, “ringback tones” or similar audio segments in connection with wireless devises for a period of time agreed to by Indaba and User in the limited manner and on the terms and conditions set forth in this Agreement and/or a separate agreement between Indaba and said third party Users. Notwithstanding anything to the contrary herein, Indaba may grant rights to a User on an exclusive basis after Indaba has received express consent of Licensor.
As used herein, the territory (“Territory”) subject to the grant of rights provided in this Agreement shall be the world, including the known universe.
As used herein, the following terms shall have the meanings set forth below:
(a) “Composition” – a single musical composition, irrespective of length, including all spoken words and bridging passages and including a medley written by one (1) or more members of Licensor listed on the Music Catalog License Entry Form associated with this Agreement and provided to Indaba pursuant to this Agreement.
(b) “Master”- each recording of sound, by any method and on any substance or material, embodying a performance by one (1) or more members of Licensor, of a Composition identified on the Music Catalog License Entry Form associated with this Agreement and provided to Indaba pursuant to this Agreement.
2. INDABA’S RIGHT TO ADMINISTER. As of the Effective Date, Indaba shall have the right, but not the obligation, subject to granted interests, to administer and permit the exploitation of Licensor’s entire interest in the Licensed Song and related Master pursuant to the subject Licensed Use throughout the world and known universe, to publish, use and license the Licensed Song and related Master (including synchronization and duplication uses), to execute in Licensor’s name or stead any license and global international agreements affecting the Licensed Song and related Master in connection with the Licensed Use, during the Term (as defined below) and to collect, subject to any interests of third parties, all gross receipts payable to Indaba earned by and derived from the licensed Song and related Master pursuant to or as a result of use contemplated by the Licensed Use (excluding public performance fees collected by a performance rights organization such as ASCAP, BMI, or SESAC), in perpetuity, and to assign in the normal course of business or license such rights to third parties, subject to the terms and conditions set forth herein. Indaba shall have the right to issue direct licenses, which include upfront payment of performance, mechanical, synchronization, master use and/or other related fees, in which case Licensor shall not receive any additional performance or other royalties (including the so-called “writers share”) relating to that Licensed Use. Nothing contained herein shall grant to Indaba the right to administer any use of the Composition, including the Licensed Song and related Master, other than in connection with a Licensed Use.
3. TERM. The term of the license granted under this Agreement shall commence on the Effective Date and shall continue in perpetuity (“Term”), so long as the Royalty Fee payments (as described in Section 7 below) are paid and Indaba is not in default of any terms and conditions of this Agreement.
Notwithstanding the foregoing, Licensor shall have the right to terminate this Agreement according to the following terms: Termination will be effective on June 30th or December 31st that first follows sixty (60) days after the date on which Indaba receives written notice from Licensor that this Agreement is to be terminated. Upon effective termination, the Licensed Song will be promptly removed from Indaba’s catalog of sound recordings; provided, however, that if the Licensed Song is subject to a Licensed Use, such termination shall be subject to the terms and conditions of such Licensed Use.
Upon termination of this Agreement, Indaba shall no longer have the right to grant a new license with respect to the Licensed Song. However, termination of this Agreement does not affect any rights granted to Users prior to termination, including perpetual rights, nor does it affect the administration and collection rights granted to Indaba with respect to Licensed Uses. The term of any Licensed Use shall be as set forth in the respective license agreements governing such Licensed Use, and is separate and apart from the Term of this Agreement
4. RESERVATION OF RIGHTS; OWNERSHIP OF MASTER AND COMPOSITION.
Except for the license rights granted under this Agreement, Licensor will retain all copyright and intellectual property rights, title and ownership interest to the Licensed Song.
5. RIGHT TO EDIT AND ALTER MASTER. Licensor hereby acknowledges and agrees that any User may use less than the entire Master, and may edit, loop, enhance or modify the sound recording and therefore the Composition embodied in the Master, provided that any such change shall not alter the fundamental character of the portion of the Master being used, and any such change shall not give rise to any ownership rights or claims, including copyright, on the part of the User in or to the resultant sound recording or underlying Composition. Each member of Licensor hereto accepts and agrees that, with respect to any Licensed Use, such changes or alteration may be made without their approval.
6. MECHANICAL LICENSE; PERFORMANCE ROYALTIES. Licensor0hereby waives (i) any mechanical license fee which might otherwise be payable as the result of any use, including duplication, of all or a part of the Licensed Song by Indaba or by any User in connection with auditioning of the Licensed Song, and (ii) any performing rights fee which might otherwise be payable as the result of any electronic transfer or transmission or other performance or distribution in connection with an audition of all or a part of the Licensed Song to any User by Indaba; provided, however, that nothing contained in this Agreement shall be deemed to constitute a waiver of any fee which shall become due and payable to the relevant performing or other rights society, such as ASCAP, BMI, SESAC or collection agency, as the result of any use of a Composition or Master by a User, unless Indaba shall have issued a direct license with respect to the Licensed Song and related Master.
7. ROYALTY FEES. Indaba shall pay to Licensor, in the manner described below, fifty percent (50%) of any and all Net Proceeds (as defined below) generated by Indaba from placements and releases from each Licensed Use of the Licensed Song (“Royalty Fee Payments”). Mechanical royalties owed to the Licensor will be included in the percentage listed above.
Indaba shall compute and pay the Royalty Fee Payments to Licensor within sixty (60) days following June 30 and December 31, in each case with respect to Administration Receipts actually received by Indaba during the immediately preceding six (6) month period. Indaba shall make any and all Royalty Fee Payments to Licensor by crediting the amount of the Royalty Fee Payment to the Licensor’s Inbaba Member Account and Licensor shall be responsible for any and all payments to Licensor’s members listed on the Music Catalog License Entry Form associated with this Agreement.
As used herein, “Net Proceeds” shall mean “Gross Receipts” (defined below). “Gross Receipts” shall mean the aggregate of all monies actually generated by Indaba from the exploitation and/or licensing of any rights in the Licensed Song in any and all media now known or hereafter invented throughout the Territory in perpetuity. “Gross Receipts” shall also include monies received by way of third party audits and from settlements and judgments respecting any Licensed Use (net of the actual costs of obtaining same).
8. PROMOTIONAL RIGHTS. Licensor hereby grants to Indaba the right to use and the right to permit other to use names, likenesses of and biographical materials concerning the performers who recorded the Master, and the writers or composers of the Licensed Song, as well as the all or part of the Masters and Compositions, in connection with the promotion of Licensor, Indaba and/or its artists, without any payment to Licensor.
9. REPRSENTATIONS & WARRANTIES. Licensor warrants and represents that:
(a) Licensor owns, controls, or has obtained appropriate written permissions from authorized representatives of the owner(s) of all of the rights, including but not limited to publishing rights, in the Licensed Song necessary to grant the rights granted to Indaba hereunder;
- the Licensed Song conforms in all respects to the Submission Requirements listed under the Licensing Opportunity Official Rules associated with this Agreement;
- Indaba shall not be required to make any payment of any nature for, or in connection with the acquisition, exercise or exploitation by Indaba pursuant to this Agreement, except as specifically provided herein.
10. INDEMNIFICATION. Licensor will at all times indemnify, defend and hold harmless, Indaba, its successors and assigns, Indaba’s owners, parents, subsidiaries, affiliates and all of their respective officers, directors and employees, and each and every User of the Master or the Licensed Song, from and against any claims, liabilities, damages, expenses, costs and losses (including court costs and reasonable counsel fees) arising out of or in connection with any claim arising out of Licensor’s breach of any of its representations or agreements herein. Licensor will reimburse Indaba and/or User on demand for any payment made at any time in respect of which Indaba or User is entitled to be indemnified. Without limiting any of its other rights or remedies, upon making or filing of any claim, action or demand arising out of any such alleged breach or breach by Licensor, Indaba shall be entitled to withhold from any amounts payable under this Agreement such amounts as are reasonably related to the amount of the action, claim or demand plus estimated counsel fees and costs pending the final disposition of such action, claim or demand. Licensor shall be notified of any such claim, action or demand and shall have the right, at Licensor’s own expense, to participate in the defense thereof with counsel of Licensor’s own choosing; provided, however, that Indaba’s decision in connection with the defense or settlement of any such action, claim or demand shall be final.
Indaba will indemnify, defend and hold harmless, Licensor, Licensor’s heirs and assigns, from and against any liabilities, damages, expenses, costs and losses (including court costs and reasonable counsel fees) arising out of or in connection with any claim arising out of Indaba’s breach of any of its representations or agreements herein.
11. GOVERNING LAW. This Agreement shall be interpreted in accordance with the laws of the State of New York, and any dispute arising out of this Agreement shall be subject to the exclusive jurisdiction of the courts of the State of New York, without giving effect to the principles of conflicts of law. Prior to litigation involving any dispute between the parties regarding this Agreement, the parties shall attempt to resolve such dispute by mediation.
12. NOTICES. For the purposes of this Agreement, and for the giving of any and all notices hereunder, Indaba shall use the Licensor’s Indaba Member Account and Licensor shall use the following email address located at: email@example.com.
By clicking the accept button on this Agreement, the Licensor acknowledges that he/she has read the terms of this Agreement and agrees to such terms and conditions, and that he/she agrees to be legally bound by the terms and conditions of this Agreement.
This Agreement contains all of the agreements between the parties hereto relating to the subject matter hereof and there are no agreements, representations or warranties except those herein expressly set forth. Any changes or modifications of this Agreement must be in writing and signed by the parties hereto; no other change or modification shall be enforceable. In the event of litigation between the parties, the losing party shall reimburse the prevailing party for the legal fees and expenses of the prevailing party and the legal fees required to enforce this provision.
This Agreement shall not be assignable by either party hereto during the Term, except that Indaba may assign this Agreement to an entity of which a majority of interest is owned, or which is controlled, by Indaba, or succeeds to Indaba’s interests.
The parties agree that all terms and conditions of this Agreement are and shall remain confidential and, except as permitted by this Agreement or to give effect to the terms of this Agreement, the parties shall not divulge any terms or conditions of this Agreement without the express prior written consent of the other party unless required by law or government authority.
The rights and obligations contained herein shall be binding upon and inure to the benefit of the heirs, successors, fiduciaries and assigns of the parties hereto.
Indaba will use its reasonable efforts to cause any User of the Licensed Song, to the extent possible, to include in the materials incorporating the Licensed Song a credit identifying the writers and performers of the Composition and Master; provided, however, that Licensor acknowledges and agrees that they may not receive credit in connection with each Licensed Use and that such credit is not a condition of the license granted herein.
Indaba makes no representation or guarantee as to the number of uses, if any, of the Licensed Song, or the amount of compensation, if any, that will become payable to Licensor as the result of Licensor entering into this Agreement.
The Music Catalog License Entry Form completed and submitted by Licensor is hereby incorporated and made a part hereof of this Agreement.