EMUQ tech Inc
CONTENT DISTRIBUTION AGREEMENT
BY CLICKING THAT YOU AGREE TO THE AGREEMENT, YOU UNCONDITIONALLY CONSENT TO BE BOUND BY AND BECOME A PARTY TO THESE TERMS, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, A GROUP OR A CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THESE TERMS, CLICK THE “CANCEL” BUTTON. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “AGREE” BUTTON BELOW.
RIGHTS GRANTED: The Licensor hereby grants to the Licensee for the Term a non-exclusive but unlimited, and unrestricted license to store, copy and distribute your Content to any consumer and B2B digital music stores, distributors and other third-party services available to you through the Service (“Third Party Music Services”). To the extent necessary for Distributor to facilitate the distribution to Third Party Music Services authorized by you, you hereby grant to Distributor the right and authorization to distribute, license, sell, stream, transmit, synchronize (as applicable, only with visual images embodied within videos on YouTube), perform, promote, and otherwise exploit such Content and any and all rights in and to the sound recording(s) and the underlying composition(s) in such Content, throughout the world, in any and all media or formats now known or hereafter devised, including without limitation by: permanent digital downloads; temporary digital downloads; interactive streaming; non-interactive streaming; interactive radio; and non-interactive radio (DMCA compliant, compulsory license); semi-interactive radio (voluntary license); the servicing of any and all “existing” and “to be” developed digital and mobile delivery methods. You authorize Distributor to sub-license any rights granted by you under this Distribution Agreement to any Third Party Music Services, as required to provide the service hereunder. Distributor does not guarantee placement of the Content with any Third Party Music Services and reserves the right to remove any Content from its service and reject distribution of any content in its discretion. With respect to the foregoing, Licensor hereby represents and warrants that Licensor is the sole and exclusive copyright owner of the Content. Licensor assumes all responsibility for securing all of the Intellectual Property Rights and copyrights necessary for the distribution of the Content in accordance with this Agreement and Indemnifies the Licensee and its affiliates and licensees from any liability concerning intellectual property, content copyrights and clearances, including, but not limited to audio, and clearances and publishing rights, if any by any third party. Notwithstanding anything to the contrary contained herein, for any Content which Licensee distributes on any particular Platform during the Term (as hereinafter defined), (i) the rights granted hereunder by Licensor to Licensee shall then become exclusive for such Content thereafter; and (ii) with respect the any musical composition embodied in the sound recordings in any such Content (“Compositions”), Licensee shall become the exclusive copyright owner and publisher thereof in accordance with the Exhibit A publishing agreement attached hereto as if such language therein was embodied herein and made a part hereof. In furtherance of the foregoing, with respect to any such Compositions embodied in the Content, Licensee hereby assigns all right, title and interest in and to the copyright in such Composition to Licensee for the duration of the life of the copyright in each such Composition in accordance with the terms and provisions of Exhibit A which shall be deemed incorporated herein in full; Licensee shall be authorized to collect any and all income arising out of or related to the use and exploitation thereof, throughout the universe, and Licensee shall account for and pay to Licensor 50% of the Net Revenues collected by Licensee from such Compositions in accordance with the provisions of paragraph “4” hereof; provided, however, that the foregoing rights shall not be otherwise effected or limited by the conclusion of the Term hereof or any termination of this Agreement, and shall remain in full force and effect, except as specifically provided herein.
TERM: The initial term of this Agreement shall begin upon the Effective Date and continue for five (5) years. At the end of the initial term, Licensee shall have the irrevocable option to extend this Agreement for an additional five (5) years. It is understood and agreed that Licensee shall be permitted to enter into licensing agreements which extend past the term of this Agreement. Further, if a third party licensee approaches Licensee with a request to renew its licensing agreement subsequent to the termination of the term hereof, Licensee may renew that licensing agreement, at any time, upon Licensee's option. Notwithstanding anything to the contrary contained here, Licensee shall be entitled to a period of four (4) years after the term ends to sell off any and all remaining Content on a non-exclusive basis through the various Platforms onto which Licensee has distributed such Content.
LICENSE FEE/ ROYALTIES: In exchange of grant of these license rights, Licensee shall pay to Licensor Fifty percent (50%) of Net Revenue generated for Content provided under this Agreement in a prompt manner after deduction of the operator shares and the applicable withholding taxes (if any). License Fee/Royalty percentages for all third party royalty payments shall be the sole responsibility of Licensor. These include master licensing fees, publishing license and moral right fees, if applicable, and any other fees, which are applicable to use the Content. Licensor shall be solely responsible for (a) all record royalties due to artists, producers and other persons who performed in the making of the Content and other royalty participants, (b) all royalties due to any party as a result of samples included in the Content (c) all payments that may be required under collective bargaining agreements applicable to you and your affiliates, and (d) all music publishing licenses and royalties. For digital download sales in the United States, your payment typically includes the mechanical royalty on the underlying composition. In the case of the iTunes Match service, your payment includes a publishing portion that covers both the mechanical and public performance royalties. If you do not own or control the underlying composition(s) in your sound recording(s), it is your obligation to pay these publishing royalties to the person or entity that does.
ACCOUNTING/REPORTING: Licensee shall provide quarterly accounting statements to Licensor within forty-five (45) calendar days from end of each calendar quarter (except that statements may be rendered on an annual basis if any accounting shall reflect earnings of less than one hundred dollars). All statements rendered shall be binding on Licensor and not subject to any objection for any reason unless specific written objection, stating the basis thereof, is received by Licensee within one (1) year of the date such statement should have been rendered, in which event such statements shall be binding in all respects except those specifically objected to as aforesaid. Neither party shall have any right to commence any legal action concerning the foregoing unless specific written objection has been made within the timeframes specified above.
REPRESENTATIONS AND WARRANTIES: Licensor represents and warrants that it has the full authority to act on behalf of any and all owners of any right, title and interest in and to the Content. Each party represents and warrants that it has full authority to enter into this Agreement and to fully perform its obligations hereunder and has obtained all necessary third-party consents, licenses and permissions necessary to enter into and fully perform its obligations herein. In furtherance of the foregoing, Licensor agrees to execute any and all additional documentation as maybe be necessary or expedient for Licensee to use and exploit all of the rights granted to Licensee hereunder, and in the event Licensor fails to timely execute such documentation Licensor hereby grants Licensee a power of attorney to execute such document for and on behalf of Licensee, and such power is hereby coupled with an interest. Each party represents and warrants that it owns or controls the necessary rights in order to make the grant of rights, licenses and permissions herein, and that the exercise of such rights, licenses and permissions by the other party hereto shall not violate or infringe the rights of any third party. Each party represents and warrants that it shall not act in any manner which conflicts or interferes with any existing commitment or obligation of such party, and that no agreement previously entered into by such party will interfere with such party's performance of its obligations under this Agreement. Each party represents and warrants that it shall perform in compliance with any applicable laws, rules and regulations of any governmental authority.
DEFINITIONS: “Content” shall mean any and all audio and audio/visual recordings delivered by Licensor to Distributor hereunder including any and all Intellectual Property Rights arising out of or related thereto. “Confidential Information” means any data or information disclosed hereunder (whether written, oral or graphical) that relates to the disclosing party's products, financial information, technology, research, development, customers or business activities, and which is confidential or proprietary to or a trade secret of the disclosing party, provided that either the information is marked or identified as confidential at the time of disclosure, or that it is reasonably apparent to the recipient that the information is confidential. “Effective Date” shall mean the date upon which Licensor signs the Agreement. “Force Majeure” shall mean any earthquake, volcanic eruption, act of war, sabotage, strike(s) as are not limited to the establishments of the Parties, acts of terrorism, invasion, revolution, event of military or usurped power, civil war, riot, civil commotion or disorder, acts of Government, sanctions imposed by the authority, natural calamity or any other event mutually agreed by the party as being beyond the reasonable control of the defaulting Party. “Intellectual Property Rights” shall mean all vested, contingent and future intellectual property rights including but not limited to goodwill, reputation, rights in confidential information, copyright, trademarks, logos, service marks, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, design rights, patents, know how, trade secrets, inventions, get up, database rights (whether registered or unregistered) and any products or registrations for the protection of these rights. “Net Revenue” shall mean the revenue received by Licensee from Customers earned from the Content less all amounts paid or payable by Licensee to third parties relating to the Content including, without limitation, expenses, commissions, royalties, percentage sharing, discounts, refunds, rebates, charge backs, taxes, duties, customs, and all other fees paid to carriers and others for payment processing, carriage, platform licensing and/or related services. “Content” shall mean any and all Intellectual Property Rights arising out of or related to the sound recordings and the musical compositions embodied therein of Licensor including, but not limited to, the sound recording/master recording, the underlying musical composition, the Artists’ names, likenesses, album art, lyrics, trademarks, logos, etc.
CONFIDENTIALITY: Neither party may disclose the terms of this Agreement to any third party without the other party’s prior written consent. Notwithstanding the foregoing, each party may disclose the Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law; provided, however that the party required to so disclose the Confidential Information of the other party shall use commercially reasonable efforts to minimize such disclosure and shall provide written notice of such disclosure and consult with and assist the other party in obtaining a protective order prior to such disclosure or (ii) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.
INDEMNIFICATION: Either Party shall defend, indemnify and hold harmless to the other party from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or relating to the breach of any representation or warranty on its part under this Agreement. In consideration of Distributor’s entering into this Agreement, you covenant and agree, in respect to the Content not to bring, assert, pursue, maintain, join in or directly and/or indirectly support, assist, fund, lend resources to, or otherwise participate in any litigation, involving or asserting any claim based upon or alleging any form of copyright infringement arising from Distributor’s or any Third Party Music Service’s exploitation of the rights licensed by you to us herein through the operation of our service, and in accordance with this Agreement, that you have, had or may have against Amuse prior to the Effective Date or during the Term. In addition, where you have authorized Distributor to distribute the Content to and on YouTube, you covenant not to sue any user of the YouTube service who synchronizes any Content in a video uploaded to the YouTube website, to the extent your claim is based on the alleged infringement of rights granted by you to Distributor herein.
WAIVER: The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect a party’s right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
SEVERABILITY: If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor and purpose to the stricken provision as is legally possible.
SURVIVAL: Except as otherwise specifically provided herein termination of this Agreement for any reason shall not release any Party hereto in respect of any act or omission prior to such termination, nor shall any such termination hereof affect in any way the survival of any right, duty or obligation of any such Party hereto which is expressly stated elsewhere in this Agreement or by necessary implication should operate to survive termination hereof including, without limitation the provisions of conditions relating to confidentiality, intellectual property rights, provisions relating to warranties, liquidated damages.
GOVERNING LAW: This agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed entirely in the State of New York. Any dispute arising out of the interpretation and/or the implementation of this Agreement shall be finally settled by arbitration in the State of New York, in accordance with the laws and customs of the State of New York, and its leading arbitration associations. No waiver of any provision of or default under this agreement nor any failure to exercise any party's rights hereunder shall prejudice the rights of either party thereafter, nor shall it be a precedent for the future. The parties hereto expressly agree that, at all times, only the arbitrators located within the State and city of New York shall have jurisdiction to hear and determine any and all matters arising out of or related to this Agreement, and the parties consent to such jurisdiction and venue and consent to the granting of such legal and equitable relief as is deemed appropriate only by such arbitrators (and the court(s) located within such jurisdiction, as applicable).
FORCE MAJEURE: Neither Party shall be liable to the other if, and to the extent, that the undertaking or performance or delay in undertaking or performance of any of its activities, duties, obligations or functions under this Agreement is prevented, restricted, delayed or interfered with, due to circumstances beyond the Party's reasonable control, including Force Majeure.
NOTICE: All notices under the agreement shall be in writing and will be given by certified mail with return receipt or by an international courier, at the respective addresses shown above or such other address as either party shall designate. Only notices given specifically in accordance with the foregoing shall be deemed effective.
ENTIRE AGREEMENT: This Agreement supersedes all prior agreements, arrangements and understandings; whether oral or written, between both parties in relation to the matter dealt with herein and constitutes the entire agreement and understanding between both parties. In the event that any provision of this Agreement or part thereof shall be held void, illegal or unenforceable, it shall be rendered invalid to that extent but shall in no way affect or prejudice the remaining provision or other provisions of this Agreement. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. The Licensee shall have the right to assign all rights, title, benefits and obligations of this Agreement to any third party
Each party hereto has had access to legal counsel of its choice, been advised of the opportunity to avail itself of same, and has done so or knowingly and willingly waived such right.
Publishing Agreement by and between EMUQ Tech, Inc. of 1000 5TH Street , Suite 200 , Miami Beach FL 33139, United States of America (“the Publisher”) and the Licensor (Licensor and any and all Participants and owners of the copyrights in the Compositions, and their successors & assigns, shall hereinafter be referred to individually and collectively as “Participant”) under the Content Distribution Agreement of even date herewith to which this Exhibit A is attached to and made a part thereof.
- “Composition(s)” shall mean each musical composition embodied in a sound recording or other audio/visual element which is subject to the “Agreement” of even date herewith;
- “Cover”: means any form of exploitation of the Compositions obtained through the efforts of the Publisher’s administrator(s), sub-publishers and/or its agents and/or its representatives;
- “Deductions”: means (a) sales taxes; (b) standard collection society commissions; (c) monies paid to arrangers and adaptors; (d) fees deductible by the Publisher’s administrator(s), sub-publishers and/or its agents and/or its representatives and (e) fees paid to synchronisation agents;
- “Territory”: means the Universe
The Participant agrees to promptly deliver to the Publisher in respect of the Compositions: (a) a lead sheet or demo recording; (b) a lyric sheet; and (c) full details of any co-writer and their respective song-writing interests. The Publisher hereby acknowledges that they have received the above Compositions.
GRANT OF RIGHTS:
- For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the other fees and royalties payable to the Participant, the Participant assigns with full title guarantee to the Publisher any and all rights and copyrights of whatsoever nature in the Compositions for the Publisher including the Sound Recordings to hold the same absolutely throughout the Territory for the Exploitation Period;
- The Publisher shall have the sole and exclusive right to use and exploit the Compositions by any and all means and authorise others to exercise any and all of these rights;
- The Participant waives all moral and like rights which may now or in the future vest in the Participant in respect of the Compositions;
- The Participant consents to the use by the Publisher of the Participant’s approved name, likeness and biography in the promotion and/or of the Compositions and/or of the Publisher’s catalogue.
The Participant warrants and undertakes that:-
- He is entitled to enter into this agreement and grant the rights to the Publisher;
- the Compositions are new and original, will not infringe the rights of third parties, nor will its exploitation or performance thereof;
- the Participant is not a minor;
- the Participant has not received any fees, royalties and/or other monies prior to the date hereof in respect of any exploitation of the Compositions in the Territory;
- this Agreement is to be regarded as the certificate for the purposes of Rule 1(o) of the rules of the Performing Right Society Limited or in such other performing rights organisation (for example by the terms of a writer’s membership thereof) authorising the Society to treat the Publisher as exploiting the Compositions and that, subject to the rights of the Performing Right Society Limited, the Publisher shall be entitled to collect 50% (fifty percent) of all performance fees and 100% (one hundred percent) of all other monies arising from the exploitation of the Compositions prior to or during the Exploitation Period.
- The Publisher hereby represents and warrants that they will use all reasonable endeavours to exploit the Compositions.
ROYALTIES AND ACCOUNTING:
The Publisher agrees to pay the Participant the royalties as set out below:
- Sheet Music: (a) if printed and sold by the Publisher: 10% (ten percent) of the retail selling price; (b) if the Publisher grants a license to a third party: 50% (fifty percent) of the net income received by the Publisher. (pro-rata if income is received for both the Compositions and other songs);
- Mechanical Royalties: 50% (fifty percent) of fees and royalties received by the Publisher arising from the reproduction of the Compositions by way of the manufacture of records, tapes, and all such other mechanical devices that may arise in the future, including, but not limited to, the internet, digital downloads and streaming;
- Synchronisation Fees: 50% (fifty percent) of fees and royalties received by the Publisher from the synchronisation of the Compositions with films and/or any other form incorporating visual images;
- Performance Fees: 50% (fifty percent) of the so-called “Publisher’s share” of performing fees received by the Publisher in the United Kingdom in accordance with Clause 5.1.6 in respect of the Compositions;
- Other uses: 50% (fifty percent) of all other income derived from the Compositions excluding Performance income;
The grant of performing rights to the Publisher hereunder in respect of the Compositions is subject to the rights of the Participant to the writer's share of performing fees (as defined below) being paid directly to the Participant by the Performing Right Society Limited. The Participant and the Publisher hereby agree that the Performing Right Society Limited shall be authorised and directed by the Participant and the Publisher to collect all public performance fees and royalties in respect of the Compositions and to divide such monies in accordance with the rules of such society in the following proportions:-
(i) 50% (fifty percent) to the Publisher
(ii) 50% (fifty percent) to the Participant
PROVIDED THAT if the Participant are not or cease to be a member of any such society then in each case the performing rights in the Compositions or any of them shall be administered wholly by the Publisher (subject to the Publisher's membership of such societies) and the Publisher shall divide the resultant public performance fees and royalties received by the Publisher as provided in this Clause.
- Such royalties to be calculated on 100% (one hundred percent) of the earnings received or credited to the Publisher (or on their behalf) which directly and identifiably relate to the exploitation of the Compositions in the Territory, less only the Deductions with the exception of Performance as stated in 5.1.6
- The royalties payable to the Participant shall not be due and payable until the Publisher have received in the United States of America accounting and payment from its sub-publishers administrator(s) and/or its agents and/or its representatives, which it will use its reasonable endeavours to ensure are received in a timely manner.
- The Publisher will draw up statements of account showing royalties due to the Participant in respect of the Compositions every 6 (six) months as at 30th June and 31st December in each year and will forward these statements to the Participant within 90 (ninety) days of these dates via electronic mail, unless otherwise notified to the Publisher. No payments will be made in respect of sums less than $50.00 (fifty dollars) but such amounts will be carried forward to the next accounting. All statements shall be binding on the Participant if no written objection is made by the Participant within 1 (one) year of such statements being rendered and shall be deemed accepted by the Participant and therefore not subject to audit. The Participant shall be entitled to engage independent Chartered Accountants in private practice (SAVE THAT no such representative shall act on a contingency basis), but not more than once during each year, to conduct an examination of the Publisher’s records relating to the exploitation of the Compositions.
- The Participant agrees that the Publisher has the right to use the Compositions on the Publisher’s websites and associated social media webpages, together with any such new media that may be developed in the future. The Participant agrees to provide relevant media files suitable for hosting and viewing on the aforementioned website and pages if requested by the Publisher.
- ASSIGNMENT AND LICENSING: the Publisher may license and/or assign any benefits of this agreement to a third party at its sole discretion.
- INDEMINITY: the Participant indemnifies the Publisher against any and all claims, costs, proceedings, demands, losses, damages and expenses resulting from any claim arising from the Participant’s breach of warranties and undertakings given.
- LEGAL ADVICE: the Participant hereby acknowledges that the Publisher has strongly recommended that they should obtain competent independent legal advice prior to entering into this Agreement.
- GOVERNING LAW: This agreement will be governed by and construed in accordance with the laws of the State of New York. Any dispute arising out of the interpretation and/or the implementation of this Contract shall be finally settled by arbitration in the State of New York, in accordance with the laws and customs of the State of New York, and its leading arbitration associations.