AGREEMENT between Intimate Guitar Suites, 7424 SE Insley St., Portland, OR 97206 (“IGS”) and the person
or persons (“Licensor”) named on the Licensor Information and Confirmation Sheet attached hereto and
made a part hereof. This Agreement is made as of the date set forth on said Licensor Information and
Confirmation Sheet (the “Effective Date”).
WHEREAS, Licensor is the owner of certain musical compositions and sound recordings embodying said
compositions, and Licensor wishes to permit IGS, on a non-exclusive basis, to make these compositions
and recordings available to be used by identified third parties pursuant to a license granted by IGS via
the Internet and other broadcast, transmission and distribution means and media, such that Licensor will
receive compensation for such use; and
WHEREAS, Licensor wishes to enter into an agreement with IGS pursuant to which IGS shall
administer certain of Licensor’s rights based on Licensor’s interest in those Masters and Compositions
listed on the Submission Schedule attached hereto, so that at such time as IGS has granted a license for
a particular use (each a “Licensed Use”) to one or more third parties with respect to a Master and
Composition (each Composition subject to a Licensed Use, hereinafter a “Licensed Song”), IGS shall
administer and collect those revenues resulting from each such Licensed Use, including any and all monies
(other than the so-called “writers share”) paid by the relevant performing rights society or organization; and
WHEREAS, IGS possesses and will continue to develop a business network and technological facility
that will permit IGS to make Licensor’s recordings 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; and
WHEREAS, Licensor wishes to license certain musical compositions and sound recordings to IGS, and
to permit IGS to sub-license said compositions and sound recordings to third parties, such that Licensor
and IGS shall receive compensation as the result of such sub-licenses, and to permit IGS to administer
and collect revenues resulting from each Licensed Use:
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, it is
hereby agreed by the parties hereto as follows:
- Grant of Rights. Licensor hereby grants to IGS the exclusive right, privilege and license,
during the Term of this Agreement in the Territory, to permit third parties to audition, via the Internet or
otherwise, Licensor’s sound recordings, and to provide copies of the Masters, as defined in Paragraph
15(d) below and identified on the Submission Schedule attached hereto, 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 Masters, including the Composition(s)
embodied therein, and to reproduce and make copies there of, with visual images and to use the Masters
and Compositions as so coupled or synchronized, or to use the Masters and Compositions 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 devices, for a period of time
agreed to by IGS and User in the limited manner and on the terms and conditions set forth in this
Agreement and/or a separate agreement between IGS and said third party Users. The rights granted to
IGS herein may be exercised by third-parties acting on IGS’s behalf. Notwithstanding anything to the contrary
herein, IGS may grant rights to a User on an exclusive basis after IGS has received the express approval of Licensor. The territory (“Territory”) subject to the grant of rights provided for in this Agreement
shall be the world.
- IGS’s Right to Administer. Effective upon execution hereof, IGS shall have the exclusive
right, but not the obligation, subject to granted interests, to administer and permit the exploitation of
Licensor’s entire interest in each Licensed Song and related Master pursuant to the subject Licensed Use
throughout the world, to publish, use and license the Licensed Song and related Master, including public
performance, 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 IGS 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 the so-called “writer’s share”
of publishing monies from public performance fees), 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. IGS
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 “writer’s share”) relating to that Licensed
Use. Nothing contained herein shall grant to IGS the right to administer any use of any Composition,
including a Licensed Song and related Master, other than in connection with a Licensed Use.
- Term and Termination. This Agreement shall commence on the Effective Date and shall continue
until IGS receives written notice from
Licensor that this Agreement is to be terminated (“Termination Notice”). Upon effective termination, the
Tracks will be promptly removed from IGS’s catalogue of sound recordings. Upon termination of this Agreement, IGS shall no longer have the right to grant a new license with respect to any Track. 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 IGS with respect to Licensed Uses. The term of any Licensed Use shall be as set forth in the
respective license governing the Licensed Use, and is separate and apart from the Term of this
Agreement.
- Reservation of Rights. All rights which are not expressly granted by Licensor to IGS pursuant to
this Agreement are specifically reserved by Licensor. Notwithstanding the foregoing, nothing contained in
this Agreement shall be deemed to permit IGS or any designee, assignee or licensee of IGS to
manufacture Records embodying one or more of the Masters.
- Retention of Ownership in Masters and Compositions. Except as expressly set forth in this
Agreement, nothing contained herein shall be deemed to convey to IGS or to any designee, assignee or
licensee of IGS any interest, including copyright, in or to the Masters or the Compositions, and the
Masters and the Compositions shall be the sole property of Licensor or members of Licensor.
- Right to Edit and Alter Masters. Licensor hereby agrees that any User may use less than an
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 and signatory hereto accepts and agrees that with respect to any
Licensed Use, including those in a foreign territory outside of the United States, such changes or
alterations may be made without their approval.
- Mechanical License; Performance Royalties. Licensor hereby 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
Tracks by IGS or by any User in connection with auditioning of Tracks, 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 Tracks to any User by
IGS; 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 IGS shall have issued a direct license with respect to any Licensed Song and related Master.
- Compensation to Licensor.
- IGS hereby agrees to pay to Licensor, as provided in Section
11 below, fifty percent (50%) of the amount of any license use fee (“License Fee”) received by IGS
with respect to any license granted by IGS or its agent for the use of a particular Master and
Composition, with the amount to be charged to a given User to be determined by IGS in its sole
discretion. For the avoidance of doubt, fees paid by Users in connection with research and music
supervision shall not be deemed part of the license fee.
- In the case of both License Fees and Administration Receipts, the amount owed to Licensor
shall be calculated net of any applicable taxes, shipping and insurance charges, advertising sales
commissions, fulfillment fees paid to third parties, and amounts paid to or deducted by subpublishers,
sublicensees, agents, collection agencies and performing and mechanical rights societies.
- IGS shall not be responsible for the payment of any third party payments, including but not
limited to songwriter royalties, with respect to any subject Licensed Song and related Master, and Licensor
shall only look to those payments from IGS specifically provided for herein.
- Warranties and Representations of Licensor. Licensor, and each member of Licensor, and each
signatory hereto, warrants and represents that:
- They have all necessary rights and authority to enter into and perform this Agreement, and to grant the rights granted hereunder.
- IGS shall not be required to make any payment of any nature for, or in connection with, the acquisition, exercise or exploitation of rights by IGS pursuant to this Agreement, except as specifically provided herein.
- Neither the Tracks, the “Materials” nor any use of the Tracks or Materials by IGS or any User will violate or infringe upon any common law or statutory rights of any third party, including, without limitation, contractual rights, copyrights and rights of privacy or publicity. No Person other than Licensor or members of Licensor or Persons who are signatory parties to this Agreement has or have any right, title or interest, including copyright, in or to the Tracks, the Materials or any component thereof. Every Track provided to IGS hereunder identified on the Submission Schedule hereto and subject to this Agreement is original material, and no Person other than one (1) or more members of Licensor wrote, or owns or controls, any of the Tracks. “Materials” as used in this subparagraph means any biographic materials, images, footage, artwork, literary materials, ideas and other intellectual properties, furnished by Licensor to IGS.
- The Tracks were not recorded under the jurisdiction of a union or collective bargaining agreement, and all performers on the Track, including but not limited to singers and musicians, consent to the use of their performance by IGS and its Users. Neither Licensor nor any performer on the Track shall be entitled to any benefits under any collective bargaining agreement that may arise out of any license
issued by IGS and any related usages thereof (including but not limited to residuals, reuse fees, pension,
health, and welfare benefits, etc.).
- All of Licensor’s and the members of Licensor’s and signatory Persons’ representations
and warranties shall be true and correct upon execution of this Agreement and throughout the Term
of this Agreement.
- During the Term, neither Licensor nor any member of Licensor shall enter into any
agreement which would interfere with or prohibit the exercise by IGS of the rights granted hereunder.
- Each party hereto gives the other the equal benefits of any warranties which it has
obtained or shall obtain under any agreement affecting any Track, including songwriters’ contracts.
- Neither Licensor nor any member of Licensor shall communicate with any User or any of
its agents, including advertising agencies, in connection with any Composition or Master.
- Promotional Rights. Licensor hereby grants to IGS the right to use and the right to permit
others to use the names, likenesses of, and biographical materials concerning the performers who
recorded the Masters, and the writers or composers of a Licensed Song, as well as the Materials and all or
a part of the Masters and Compositions, in connection with the promotion of Licensor, IGS and/or its
artists, without any payment to Licensor.
- Statements and Payments.
- IGS shall compute and pay royalties due to Licensor
hereunder within sixty (60) days following June 30 and December 31, respectively, in each case with
respect to license fees and Administration Receipts actually received by IGS during the immediately
preceding six (6) month period. Such payments shall be accompanied by a statement setting forth the
source of such royalties. IGS shall be under no obligation to render any statement or make any payment
until such time as the royalties due Licensor hereunder equal or exceed Fifty Dollars ($50.00), or upon
request at the close of the fourth accounting period following receipt, whichever occurs first. Licensor
acknowledges that, with respect to blanket licenses (i.e., those allowing use of multiple Tracks to be
selected by a User and reported back to IGS), IGS is dependent on Users submitting cue sheets to
IGS in order to calculate royalties owed to Licensor and that in some cases, royalty payment will be
delayed pending IGS’s receipt of such cue sheets. IGS will use reasonable commercial efforts to
collect cue sheets, but in situations where cue sheets are not provided by Users or IGS is otherwise
unable to attribute revenue to particular Tracks or artists, IGS reserves the right to allocate payment in an
equitable manner, as determined in IGS’s sole discretion, amongst Tracks and/or artists. IGS shall
have the right to deduct or withhold income or other similar tax from sums payable to Licensor hereunder
pursuant to the laws of the relevant territory of a Licensed Use, provided that IGS shall, where readily
available, furnish to Licensor, with each statement, any necessary information which shall enable Licensor,
upon presentation of such, to endeavor to obtain income tax credit from the United States Internal Revenue
Service or local revenue service for tax so withheld.
- IGS shall maintain true and complete books and records concerning payments due to
Licensor hereunder. At any time within one (1) year after any royalty statement is rendered to Licensor
hereunder, Licensor shall have the right to give IGS written notice of Licensor’s intention to examine
IGS’s books and records with respect to such statement. Such examination shall be commenced within
three (3) months after the date of such notice, at Licensor’s sole cost and expense, by any certified public
accountant or attorney designated by Licensor, provided he (or any member or associate of the firm within
which he is affiliated) is not then engaged in an outstanding examination of IGS’s books and records on
behalf of a Person other than Licensor. Such examination shall be made during IGS’s usual business
hours at the place where IGS maintains the books and records which relate to Licensor and which are
necessary to verify the accuracy of the statement or statements specified in Licensor’s notice to IGS and
the examination shall be limited to the foregoing. Licensor’s right to inspect IGS’s books and records
shall be only as set forth in this Paragraph 13(b) and IGS shall have no obligation to produce such books
and records more than once with respect to each statement rendered to Licensor.
- Notices. All notices hereunder shall be in writing and shall be sent by registered mail or certified
mail, return receipt requested, postage prepaid and with receipt acknowledged, or by hand (to an officer if
the party to be served is a corporation), or by telegraph, facsimile or e-mail, all charges prepaid, at the
respective addresses set forth above, or on the attached Information Sheet, or such other address or
addresses as may, from time to time, be designated in writing by either party; provided, that royalty
payments may be made by means of regular mail. The date of making of personal service or of mailing or
of deposit in a telegraph office or transmission via facsimile, or transmission via e-mail, whichever shall be
first, shall be deemed the date of service, except that notice of change of address shall be effective only
from the date of its receipt.
- Assignment. This Agreement shall not be assignable by either party hereto during the Term,
except that IGS may assign this Agreement to a corporation or other entity of which a majority interest is
owned, or which is controlled, by IGS, or succeeds to IGS’s interests; and Licensor may assign this
Agreement to any corporation or other entity of which a majority interest is owned, or which is controlled, by
Licensor.
- Indemnity. Licensor will at all times defend, indemnify and hold harmless IGS and each and
every User of a Master or a Licensed Song from and against any and all claims, damages, liabilities, costs
and expenses, including legal expenses and reasonable counsel fees, arising out of any alleged breach or
breach by Licensor of any warranty, representation or agreement, express or implied, made by Licensor
herein. Licensor will reimburse IGS and/or User on demand for any payment made at any time in respect
of which IGS or User is entitled to be indemnified. Without limiting any of its other rights or remedies,
upon the making or filing of any claim, action or demand arising out of any such alleged breach or breach
by Licensor, IGS 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 IGS’s decision in
connection with the defense or settlement of any such claim, action or demand shall be final.
- Definitions. As used in this Agreement, the following terms shall have the meanings set forth
below:
- “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 Submission Schedule attached hereto.
- “Licensed Song” - a Composition with respect to which IGS has issued a license to a
third party for a specific use of the subject Composition.
- “Licensed Use” - the particular use or form of exploitation of a Licensed Song and
Master by a third party pursuant to a license granted by IGS.
- “Master Recording” or “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 Submission Schedule attached hereto and provided to IGS pursuant to this
Agreement.
- “Person” and “Party” - any individual, corporation, partnership, association or other
organized group of persons or legal successors or representatives of the foregoing.
- “Records,” “Phonograph Records” and “Recordings” - all forms of reproductions, whether
now known or hereafter devised, manufactured or distributed primarily for home use, school use or juke box
use, embodying sound alone (not including synchronized material and not including non-retail CDs).
- “Term” - the period of time during which this Agreement is in effect, commencing with
the date of this Agreement and ending on the June 30 or December 31, whichever occurs first, following
sixty (60) days after the date of delivery of a Termination Notice to IGS, which Termination Notice may be
delivered at any time subsequent to one (1) year after the date of this Agreement.
- “Termination Notice” - written notice from Licensor to IGS notifying IGS that this
Agreement is to be terminated pursuant to paragraph 3 above.
- “Territory” – means the world.
- “Track” – means a Master and the Composition embodied on such Master.
- “User” - a Person who, pursuant to a written agreement with IGS, is granted the nonexclusive,
or in some instances exclusive, right, privilege and license to couple and/or synchronize one or
more Masters with visual images and to use the Masters as so coupled or synchronized, or on an audioalone
basis, over the Internet or in connection with any other broadcast, transmission, exhibition or
distribution means or media, or media product, including but not limited to broadcast and cable television,
as part of advertising, promotion, information or entertainment services, or program material, in the limited
manner and on the terms and conditions set forth in such written agreement.
- Entire Agreement, Severability. This Agreement contains the entire understanding of the parties
hereto relating to the subject matter hereof and cannot be changed except by an instrument signed by
Licensor and an officer of IGS. A waiver by either party of any term or condition of this Agreement in any
instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any
subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in
this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right,
undertaking, obligation or agreement of either party. In the event that any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if one or more of
the provisions contained in this Agreement shall be held to be excessively broad as to duration, scope,
activity or subject, such provisions shall be construed by limiting and reducing them so as to be
enforceable to the maximum extent allowed by applicable law.
- Governing Law. This Agreement shall be deemed entered into in the State of Oregon, and the
validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of Oregon applicable to contracts entered into and performed entirely within the State of Oregon, with respect
to the determination of any claim, dispute or disagreement which may arise out of the interpretation,
performance, or breach of this Agreement. The parties agree that any action, suit or proceeding based
upon any matter, claim or controversy arising hereunder or relating hereto shall be brought solely in the
State Courts of or the Federal Court in the State and County of Oregon. The parties hereto irrevocably
waive any objection to the venue of the above-mentioned courts, including any claim that such action, suit
or proceeding has been brought in an inconvenient forum. Any process in any action or proceeding
commenced in the courts of the State of Oregon or elsewhere arising out of any such claim, dispute or
disagreement may, among other methods, be served upon Licensor or IGS by delivering or mailing the
same via registered or certified mail, addressed to Licensor or IGS, as the case may be, at the address
first above written or such other address as Licensor or IGS may designate. Any such delivery or mail
service shall be deemed to have the same force and effect as personal service within the State of Oregon or the jurisdiction in which such action or proceeding may be commenced.
- Paragraph Headings. Paragraph headings used herein are for convenience only, and shall not
affect the interpretation of nor be deemed to be a part of this Agreement.
- Delivery of Masters. Within ten (10) days of the Effective Date, Licensor shall deliver to IGS,
at Licensor’s sole expense and to the address and as otherwise directed by IGS, a copy of each Master
identified on the Submission Schedule hereto, such copy to be in 16 bit, 44.1khz audio CD format, or such
other audiophile format as may become available in the recording industry and requested by IGS. Said
copies of Master shall become the property of IGS and IGS shall be under no obligation to return said
Master copies to Licensor upon the termination of this Agreement.
- Acceptance and Rejection of Masters. Notwithstanding anything to the contrary contained in
this Agreement, IGS shall be under no obligation to make any or every Track provided by Licensor
available for audition and use by Users. IGS may, in its sole discretion, select those Tracks to be made
available to Users.
- No Guarantee of Use or Compensation. IGS makes no representation or guarantee as to the
number of uses, if any, of any Tracks, or the amount of compensation, if any, that will become payable to
Licensor as the result of Licensor entering into this Agreement.
- Credits for Licensor. IGS will use its reasonable efforts to cause any User of one or more
Tracks, to the extent possible, to include in the materials incorporating the Track a credit identifying the
writers and performers of the relevant Composition and Master; provided, however, that each member of
Licensor and each signatory hereto accepts 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.
- Legal Representation. Each party acknowledges and agrees that they have been represented
by independent legal counsel or have had the unrestricted opportunity to be represented by independent
legal counsel of their own choice for purposes of being advised in connection with the negotiation and
execution of this Agreement.
The provisions and information set forth below shall be deemed to be a part of the License Agreement (the “License Agreement”), between Intimate Guitar Suites ("IGS") and the person or persons set
forth below (“Licensor”). By completion and execution of this Licensor Information and Submission Schedule, Licensor represents and warrants that Licensor has read and understood the License Agreement, and agrees to be bound by its terms and conditions. Licensor further represents and warrants
that they are authorized on behalf of all of the performers on the submitted material to enter into the
License Agreement providing for the commercial exploitation of said material.