In consideration of the monthly subscription fee (the “Subscription”) or pay per track use (the “Per Track Fee”) (as applicable and set forth in Exhibit “A” attached hereto and hereby incorporated by reference) paid by Client in connection with www.Playtunesmusic.com (the “Site”), and upon payment thereof we, Playtunes Music, Inc., a California corporation (“Licensor”), grant you (referred to alternatively herein as “Licensee” and / or “Client”) subject to the limitations set forth herein below the non-exclusive right to license the sound recordings and underlying musical compositions (each one individually, the “Track” and collectively, the “Tracks”) that are featured on the Site during the time period in which Licensee pays the Subscription or Per Track Fee, as applicable and set forth in Exhibit “A” attached hereto and hereby incorporated by reference, subject to the following terms of this agreement and Exhibit “A” attached hereto and hereby incorporated by reference as a part of this agreement (collectively, the “Agreement”):
1. Term: The term of the license granted by Licensor to Licensee for use of a limited number of Tracks and for a limited number of Uses (as set forth in paragraph 2 herein below) (the “Term of Use”) shall be as set forth in Exhibit “A” attached hereto and hereby incorporated by reference.
2. Licensed Use: To be used in any commercial, television, radio or motion picture project of the Licensee other than adult films (collectively, the “Media”) (individually, each separate commercial, television, radio or motion picture project is referred to herein as the “Project” and collectively as, the “Projects”); provided that Licensee may not manufacture albums, CDs or offer digital downloads embodying any Tracks; provided further that Licensee’s rights herein are non-transferable; provided further that Licensee’s use is subject to the following limitations:
a. If Licensee uses one (1) Track in one (1) Project that is considered one (1) use (“Use”). With one
(1) Use Licensee has an unlimited number of “needle drops” or “plays” in that one (1) Project. If Licensee wishes to use the same one (1) Track in three (3) different Projects, then this is considered to be three (3) Uses.
b. Licensee has the right to the number of “PT Credits” (defined herein as the weighted unit of credit assigned to any accepted “Licensable Work” (defined herein as existing master recordings and musical compositions submitted by artists that are licensable by Licensor to others) according to the following schedule: (i) 1
PT Credit for each Licensable Work consisting of all synthesized material, all sampled instruments or all instrumental;
(ii) 2 PT Credits for each Licensable Work consisting of live instruments mixed with sampled instruments and instrumentals; and (iii) 3 PT Credits for each Licensable Work consisting of vocals and instrumentals or all live instruments without vocals) for Uses of Tracks as set forth in Exhibit “A” attached hereto and hereby incorporated by reference as a part of this Agreement.
c. All rights not herein specifically granted by Licensor to Licensee are reserved by Licensor.
d. Use of the Track or Tracks, as applicable, is strictly limited to the number of Uses set forth in Exhibit “A” attached hereto and hereby incorporated by reference as a part of this Agreement, the Media, and the Term of Use, Territory and any other restrictions specified in Exhibit “A” attached hereto and hereby incorporated by reference as a part of this Agreement. Use of the Track or Tracks, as applicable, shall not be illegal or contrary to any provision set forth in Exhibit “A” attached hereto and hereby incorporated by reference as a part of this Agreement.
e. All rights granted herein may be subject to rights held by the performing, mechanical, or other
rights society (e.g., ASCAP, BMI, SESAC, GEMA, GVL, SGAE, AIE, SOCAN, SACEM, MCPS, PRS, PPL) that collects and administers royalty payments on behalf of music publishers, writers and music performers (collectively, the “Societies”). Licensee acknowledges and agrees that certain uses of the Track or Tracks , as applicable, may require additional payment to the Societies and, if required, Licensee shall be solely responsible for such payments.
3. Cue Sheet: Licensee shall complete a cue sheet for each and every Use of any Track and shall transmit such cue sheet to Licensor within a reasonable time period for Licensor’s administrative purposes. Licensee fully acknowledges, accepts and agrees that any and all public performance royalties and other ancillary royalties paid for the use of musical compositions as embodied in the Track or Tracks shall be paid to Licensor. Licensor is
responsible for the facilitation thereof by Licensor’s registration of the underlying musical composition or compositions embodied in the Track or Tracks with BMI, ASCAP or SESAC as well as the overseas agency or agencies of Licensor’s choice.
4. License Fee: Licensee shall pay Licensor the fees set forth in Exhibit “A” attached hereto and hereby incorporated by reference as a part of this Agreement.
5. Warranty: Licensor represents and warrants that it has the right to enter into this Agreement. Licensee represents and warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) if licensing the Track or Tracks, as applicable, on behalf of a third party, Licensee is authorized to act as an agent on behalf of that third party and has full power and authority to bind the third party to this Agreement and Licensee shall be bound and liable for any failure of such third party to comply with the terms of this Agreement.
6. Screen Credits: Licensee agrees to provide credit, where technically feasible and in accordance with customary industry practice, in the following manner: "[Artist's Name/Playtunes Music, LLC" or as otherwise notified by Licensor.
7. Indemnification. Licensee shall defend, indemnify and hold Playtunes Music, LLC and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or as a result of claims by third parties relating to: (i) Licensee's use of any Track or Tracks outside the scope of this Agreement; or (ii) any other actual or alleged breach by Licensee of this Agreement. Playtunes Music, LLC shall promptly notify the other party of such claim. At Licensee’s option, Licensee may assume the handling, settlement or defense of any claim or litigation, in which event Playtunes Music, LLC shall cooperate in the defense of any such claim or litigation. Playtunes Music, LLC shall have the right to participate in such litigation, at its expense, through counsel selected by Playtunes Music, LLC.
8. Limitation of Liability. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PLAYTUNES MUSIC, LLC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PLAYTUNES MUSIC, LLC SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF PLAYTUNES MUSIC, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
9. Assignment: This Agreement shall be assignable by Licensor. This Agreement shall be assignable by Licensee provided Licensee shall remain liable for the performance of all the terms and conditions of this license on Licensee’s part to be performed and provided further that any disposition of the Project or any copies thereof shall be subject to all the terms hereof, and Licensee agrees that all persons, firms or corporations acquiring from Licensee any right, title, interest in or to, or possession of the Project or any prints or copies thereof shall be notified of the terms and conditions of this Agreement and shall agree to be bound thereby.
10. Mediation & Arbitration: If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator within the State of California. If it proves impossible to arrive at a mutually satisfactory solution, the parties agree to submit the dispute to final, binding arbitration in Los Angeles, California, conducted on a confidential basis pursuant to: The Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall include the assessment of costs, expenses and reasonable attorney's fees and shall include a written determination of the arbitrators. Absent an agreement to the contrary, any such arbitration shall be conducted by an arbitrator experienced in music industry law. An award of arbitration shall be final and binding on the Artists and may be confirmed in a court of competent jurisdiction. The prevailing party shall have the right to collect from the other party its reasonable costs and attorney fees incurred in enforcing this Agreement.
11. General: Nothing contained in this Agreement shall be meant to establish either Licensor or Licensee as partners, joint-venturers or employees of the other party for any purpose. The Agreement may not be amended except in a writing signed by both parties. No waiver by either party of any right shall be construed as a waiver of any other right. If a court finds any provision of the Agreement invalid or unenforceable as applied to any circumstance,
the remainder of the Agreement shall be interpreted so as best to effect the intent of the parties. The Agreement shall
be governed by and interpreted in accordance with the laws of the State of California. The Agreement together with Exhibit “A” attached hereto and hereby incorporated by reference expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. Notices required under this Agreement can be sent to the parties at the addresses provided herein above.
COMPANY CLIENT AGREEMENT
1. Definitions. All terms have the definitions they are given in this Agreement, consisting of the Company
Client Agreement and the Company Client Agreement Exhibit “A”.
2. Term of Use. The Licensee may exercise the rights granted in the Agreement and this Exhibit “A”:
For a Subscription, during the period of time that Licensee pays the Licensor the License Fee on a subscription basis as set forth herein below in paragraph 3.
For a Per Track Fee, during the time period that Licensee agrees to as set forth herein below in paragraph 4 in the chart showing the type of Use licensed, the length of time of the Use licensed and the territory of the Use licensed (the “Usage Chart”).
For a “Basic Free” (defined herein individually as a Company account that gives the Company Client thirty (30) free “Credits” (defined herein individually as a unit of value determined solely by the Company assigned to each track in which each track is worth either one (1), two (2) or three (3) units of value) during the time period that Licensee agrees to as set forth herein below in paragraph 5.
3. License Fee for Subscription.
For a Subscription, Licensee shall pay Licensor the flat monthly fee agreed to by Client for the length of time agreed by Client on the “Signup” page on Company’s website. Each track may be used worldwide in perpetuity.
4. Per Track Fee.
For a per Track Fee, Licensee shall pay Licensor the Per Track Fee agreed to by Client for the length of time agreed by Client on the “Signup” page on Company’s website.
5. Basic Free
For a “Basic Free” account, Licensee shall receive thirty (30) free credits per month. Licensor reserves the right to modify the number of free credits given at any time. To purchase credits in excess of the free credits issued to a Basic Free account, Licensee shall pay Licensor the Per Credit Fee agreed to by Client on the “Signup” page on Company’s website. Each track may be used worldwide in perpetuity.