This Rights Holder License Agreement constitutes a mechanical license from the Rights Holder identified above to MultiTracks Music LLC ("MTM") in regard to the musical recordings listed above ("Songs"), and granted to allow MTM to adapt, reproduce, sell and distribute the Songs in the format of MTM's MultiTracks App, which is a digitally recorded music delivery system for iOS and other mobile devices, and which provides the customer ("End-User") with a musical recording in eight separate but synchronized tracks that the end-user can play or mute individually or together in any combination, while also adjusting the volume of each audible track with fader controls ("MTMApp").
This Agreement is made by MTM and Rights Holder (each a "Party" and collectively "Parties") in accordance with the following agreed provisions:
Rights Holder warrants and represents that Rights Holder either owns the copyright in the Songs or owns a sufficient copyright interest rights in the Songs to grant the license described below to MTM. Further, Rights Holder warrants and represents that the Songs do not infringe the intellectual property rights of any third party, and that Rights Holder has executed no agreements or granted any licenses to third parties which would conflict with, impair, or inhibit MTM's ability to exercise its rights licensed under this Agreement.
- 1.1.1 Prior Royalties Obligations. Rights Holder understands and acknowledges that Rights Holder is responsible for paying any royalties obligations required by any other parties having an ownership interest in the Songs and arising under this Agreement, and Rights Holder warrants and represents that it shall fulfill all such obligations.
- 1.1.2 Loss of Rights. Rights Holder understands and acknowledges that Rights Holder has the obligation to provide immediate notification to MTM if Rights Owner experiences any change or loss of ownership rights which will affect the Songs, but that this Agreement shall be binding upon all successors and assigns of Rights Holder and that, unless terminated pursuant to the provisions of this Agreement, a change or loss of ownership rights shall not affect MTM's ability to exercise its rights under this Agreement.
As of the Effective Date, and in any and all electronic media for any and all wired or wireless devices, now known or yet to be developed, Rights Holder hereby grants to MTM a non-exclusive, worldwide license to use the Songs, in whole or in part, in the following ways solely within the MTMApp format ("License"):
1.3 Sub-License to End-Users.
- 1.2.1 to adapt and format the Songs;
- 1.2.2 to reproduce the Songs;
- 1.2.3 to publish and distribute the Songs;
- 1.2.4 to sell reproductions of the Songs;
- 1.2.5 to license reproductions of the Songs;
- 1.2.6 to advertise and perform the Songs publicly in MTMApp format;
- 1.2.7 to sublicense the reproduction right, provided that such sublicensing is limited solely to allowing End-Users to use the MTMApp.
The License granted herein includes the right to sub-license the reproduction right to End-Users, pursuant to an End-User License Agreement attached to this Agreement as Exhibit , solely for the following purposes:
- 1.3.1 to allow End-Users to save copies of a remixed versions Songs for personal use only; and
- 1.3.2 to allow End-Users to create their own tracks and combine the End-User tracks with remixed versions of the Songs and to save copies for personal use.
In consideration of the License granted herein, MTM hereby grants Rights Holder 50% of gross sales revenue directly received from the sales of each Song.
Rights Holder will receive payments on a quarterly basis, within thirty (30) days after the end of the previous quarter. In all cases, MTM shall pay Rights Holder through the end of the Term, as defined below, as determined by the date of termination.
2.2 Sales Reports.
- 2.1.1 No Minimum Sales Obligation. Rights Holder understands and acknowledges that nothing in this Agreement obligates MTM to exercise the License or to make a minimum sales revenue threshold per Song.
Rights Holder will receive a sales report for each Song, which will, in MTM's discretion, either accompany the quarterly payment in hardcopy or be accessible online.
2.3 Audit Rights.
Rights Holder shall have the right, once in any calendar year, to audit MTM's books in regard to Rights Holder's Songs. Such audit will take place after reasonable advance notice from Rights Holder, will be performed at MTM's facility during normal business hours and at Rights Holder's expense. If any audit reveals an error constituting an underpayment of more than five hundred dollars ($500.00) below what is due to Rights Holder during that calendar year, then MTM will pay the underpayment and also Rights Holder's reasonable costs for the audit.
3. Per-Song Processing Fee.
Unless a written waiver is executed in advance by MTM, Rights Holder agrees to pay MTM a one-time non-refundable processing fee of $9.95 per Song for preparing and formatting each Song within the MTMApp format ("Processing Fee").
4. Term and Termination.
This Agreement shall be effective as of the Effective Date and shall continue for one (1) year ("Initial Term"). On the anniversary of the Effective Date, the Agreement shall thereafter renew automatically for subsequent renewal terms of one (1) year ("Renewal Term(s)") until terminated (collectively, the Initial Term and any Renewal Term(s) are herein referred to as the "Term")
This Agreement may be terminated in the following ways:
4.3 Continuing Post-Sale Use by End-Users.
- 4.2.1 By MTM at any time and for any reason.
- 4.2.2 By Rights Holder, by providing written notice of termination to MTM at least sixty (60) days in advance of the end of the Initial Term or any Renewal Term; and, pursuant to this sub-section, Rights Holder shall also have the right of partial termination for any specific Song by providing MTM with written notice of termination in regard to a specific Song at least sixty (60) days in advance of the end of the Initial Term or any Renewal Term.
- 4.2.3 In the event of a breach of this Agreement by MTM, by Rights Holder upon written notification if the breach remains uncured for sixty (60) days after MTM has received written notice of the breach from Rights Holder.
In the event that Rights Holder terminates or partially terminates this Agreement, Rights Holder understands and acknowledges that while MTM shall cease to sell Rights Holder's Songs in compliance with the termination or partial termination, End-Users who have purchased Song prior to the date of termination shall retain their right to use the Songs within the MTMApp pursuant to the sub-license delineated in this Agreement.
5. Confidential Information.
MTM and Rights Holder acknowledge that pursuant to this Agreement, Rights Holder may be gaining access to materials and ideas which contain information of a special and unique nature and value to MTM, and MTM may be gaining access to materials and ideas which contain information of a special and unique nature to Rights Holder. Therefore, the Parties hereby agree to the following in regard to such information:
The term "Confidential Information" shall mean any information not generally known to the public about a Party, its respective products, services, finances, trade secrets, concepts, inventions, discoveries, designs, formulas, recipes, procedures, software, computer programs, manuals, financial costs and sales data, supply sources and contracts, business opportunities for new or developing business, confidential reports, customer lists and contracts, the techniques used in completing customer projects, research and development data and information, processes, engineering, materials, brochures, marketing plans or techniques, marketing materials, organization or operation. Additionally, the term "Confidential Information" shall mean any statement, content, materials, or information which a Party identifies as being Confidential Information during its dealings with the other Party under this Agreement.
5.2 Obligations regarding Confidential Information.
Rights Holder and MTM covenant and agree not to use or disclose, directly or indirectly, for any purpose whatsoever, any Confidential Information that either Party has obtained or that has been disclosed to a Party as a result of its dealings with the other Party for so long as the Confidential Information remains confidential and is not generally available to the public. Each Party must use a reasonable degree of care (and in no event less than the degree of care with which it treats its own confidential information) to protect Confidential Information disclosed pursuant to this Agreement, and to prevent any unauthorized use or disclosure of Confidential Information. A Party shall not copy or reproduce any materials or documents containing Confidential Information without obtaining the other Party's written permission in advance. In no event will a Party disclose Confidential Information to any third party without the other Party's prior written consent.
In the event of a violation or threatened violation by a Party of any of its obligations regarding Confidential Information in this Agreement, the Parties agree that the injured Party shall be entitled to a temporary and permanent injunction in order to prevent or restrain any such violation or threatened violation by the disclosing Party and its agents, representatives, employees, affiliates and any person directly or indirectly acting for or with the disclosing Party. These remedies shall be in addition to any other rights or remedies to which the injured Party is or may be entitled at law, in equity, or under this Agreement.
5.4 Upon Termination.
Upon termination of this Agreement, each Party shall promptly return to the other Party all Confidential Information in its possession within seven (7) days.
6. Intellectual Property Rights Ownership.
The phrase "Intellectual Property Rights" means any and all rights belonging to a Party and existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity and privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and Confidential Information. Except as expressly set forth herein, this Agreement does not grant either Party any rights of ownership, implied or otherwise, in the other Party's Intellectual Property Rights.
Rights Holder shall indemnify and hold harmless MTM, its officers, employees, and representatives, from, and against, any liability, loss, damage, expense (including reasonable attorneys' fees and costs) or claim (collectively "Claim(s)") that MTM incurs or becomes liable for as a result of any breach by this Agreement by Rights Holder. MTM shall promptly notify Rights Holder of any Claim, and Rights Holder may, by written notice to MTM within ten (10) days after receiving notice of the Claim, elect to assume the defense thereof with counsel of its own choosing. If Rights Holder does not so elect to assume such defense or disputes its indemnity obligation with respect to such Claim, or if MTM reasonably believes there are conflicts of interest between the Parties or that additional defenses are available with respect to such defense, then MTM may retain its own counsel to defend against the Claim, at Rights Holder's expense. MTM shall have the right, at its own expense, to participate in the defense of any Claim against which it is indemnified hereunder. Rights Holder, in the defense against any such Claim, shall not, except with the written consent of MTM, consent to the entry of any judgment or enter into any settlement which does not include, as an unconditional term, a grant by the party bringing the Claim of a release of all of MTM's liabilities in respect of such Claim.
8. Limitation of Liability.
In no event will MTM's liability under this Agreement or in connection with the MTMApp or any other items or services provided by MTM hereunder, regardless of the claim or form of action, include any indirect, incidental, special, or consequential damages or claims for loss of business or profits, under contract, tort (including negligence), or other legal theory. Rights Holder understands and acknowledges that MTM's maximum aggregate liability to Rights Holder under this Agreement, regardless of the cause of action, will not exceed an amount, in aggregate, equal to the Processing Fees paid by Rights Holder in the twelve months prior to when the damages first arose.
9. No Other Warranties.
Notwithstanding anything else in this agreement, to the maximum extent permitted by applicable law, all services and items are provided by MTM on an "as-is," and "as-available" basis. MTM expressly disclaims any and all other warranties, express or implied, including, without limitation, the following: any and all implied warranties of merchantability, fitness for a particular purpose, and non-infringement; any warranty regarding results obtainable or to be obtained as a result of use of the MTMApp; and any warranty of uninterrupted or error-free operation of the MTMApp. MTM reserves the right to modify and or remove any portion of the MTMApp at any time, with or without notice. MTM does not represent, warrant, or guaranty any particular results to be achieved as a result of Rights Holder's granting the License delineated in this Agreement.
10. MTMApp Disclaimer.
MTM provides the MTMApp on an "as is" and "as available" basis, and makes no representation, warranty, promise, or guaranty that the MTMApp will be available or fully operative at any time or on an uninterrupted or error-free basis. The MTMApp may contain errors, glitches, bugs, or other defects, and Rights Holder understands and acknowledges that Rights Holder's sole and exclusive right and remedy in the event of Rights Holder's dissatisfaction with the MTMApp is for Rights Holder to terminate this Agreement at the end of the Initial or any Renewal Term.
11. General Provisions.
Except as otherwise provided, all notices, authorizations, and requests in connection with this Agreement shall be in writing and provided by email, U.S. Mail, or a nationally reputable courier service.
11.2 Entire Agreement.
This Agreement contains the entire understanding of the Parties with respect to its subject matter and supersedes all prior oral or written proposals. No modification of this Agreement is binding unless in writing and signed by authorized signatories of both Parties.
11.3 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Minnesota.
If a particular provision of this Agreement is terminated or held by a court or competent jurisdiction to be invalid, illegal or unenforceable, the Agreement shall remain in full force and effect as to the remaining provisions.
The failure of any Party hereto to enforce any provision of this Agreement, or any right with respect thereto, shall in no way be considered a waiver of such provision, right, or election, or in any way affect the validity of this Agreement.
11.6 No Partnership.
Neither this Agreement, nor any terms and conditions contained herein shall be construed as creating a partnership, joint venture, franchise or agency relationship between the Parties.
This Agreement may be executed in counterparts, each of which, when taken together, shall be construed as a complete Agreement.