Licensing

SONG AND STORY MUSIC LICENSE AGREEMENT

THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN LICENSEE AND SONG AND STORY PUBLISHING, LLC. (“SONG AND STORY”). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE AND, IF APPLICABLE, PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
Last updated April 16, 2012
1. Definitions. The following terms have the stated meanings:
1.1 “Audio Products” means any product in any format or media now known or hereafter devised, embodying the Licensed Material alone, including, without limitation, compact discs (CDs), cassettes, phonograph records and digital downloads.
1.2 “Breach” means any breach of, or failure to comply with, any representation, warranty, covenant or agreement made or undertaken in this Agreement.
1.3 “Broadcast” means to cause or permit others to cause the performance, telecast, broadcast, transmission, streaming, exhibition or distribution of the Synchronized Licensed Material.
1.4 “Collection Societies” means any performing, mechanical, or other rights society (e.g., ASCAP, BMI, SESAC, SOCAN, SACEM, MCPS, PRS, PPL, GEMA, GVL, SGAE, AIE) that collects and administers royalty payments on behalf of music publishers, writers and performers.
1.5 “Copy” means to duplicate or otherwise make copies of the Work solely for the purpose of Broadcasting the Work.
1.6 “Edit” means use by Licensee of less than an entire Master, including the editing, looping, enhancing or modifying of the Master, provided that any such change (i) shall not alter the fundamental character of the portion of the Master being used, and (ii) shall not give rise to any ownership rights or claims, including copyright, on the part of Licensee in or to the resultant edited recording or composition.
1.7 “Licensed Material” means the sound recordings (the “Masters”) and musical compositions, including lyrics, embodied on the Masters (the “Compositions”) offered for licensing by Song and Story and selected for use by Licensee (such Masters and Compositions so selected, collectively the “Licensed Material”). Any reference in this Agreement to the Licensed Material shall be to each part of the Licensed Material and also to the Licensed Material as a whole.
1.8 “Licensee” means the person or entity purchasing a license hereunder and, if specifically identified during the purchase process or set forth in the invoice, also means the person or entity on whose behalf the license is purchased.
1.9 “Licensee Work” means the production or program embodying the Synchronized Licensed Material.
1.10 “Media” means, unless otherwise stated in the Rights and Restrictions, any and all media, now known or hereafter devised.
1.11 “Purchaser” means an entity purchasing the license hereunder on behalf of a third party Licensee.
1.12 “Rights and Restrictions” means the information available to Licensee at the time of the Licensed Material selection, either: (i) accompanying the Licensed Material on any website where the Licensed Material is offered for licensing (including all areas of the purchase process); (ii) in any invoice or order receipt; and (iii) in any other written communication accompanying the Licensed Material. Such Rights and Restrictions may include, without limitation, a description of the Licensed Material, the permitted scope of use, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material (the “License Fee”). The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
1.13 “Synchronize” means to couple and/or synchronize, arrange, record, re-record, transcribe, modify or edit the Licensed Material solely in timed relation with the intended use(s) specified in the Rights and Restrictions.
1.14 “Synchronized Licensed Material” means Licensed Material that has been coupled and/or synchronized, arranged, recorded, re-recorded, transcribed, modified or edited solely in timed relation with the intended use(s) specified in the Rights and Restrictions.

2. License Grant and Restrictions. Subject to the terms of this Agreement:
2.1 Song and Story grants to Licensee a non-exclusive, non-sublicensable and non-assignable right to use, Edit and Synchronize the Licensed Material, and to Copy and Broadcast the Synchronized Licensed Material. This right may be exercised by subcontractors of Licensee (including Purchaser) for preparation of the Licensee Work, provided that such subcontractors agree to abide by the terms of this Agreement. As further described in Section 4, below, the rights granted herein may be subject to rights held by Collection Societies.
2.2 Use of the Licensed Material is strictly limited to the use, media, term of use, territory and any other restrictions specified in the Rights and Restrictions. Licensee may utilize the Licensed Material in any production process as may be necessary for the intended use specified in the Rights and Restrictions, including as set forth in Section 2.1 above. Licensee may license and/or transfer ownership of any Licensee Work (but not any Licensed Material contained therein) as part of any distribution process as may be necessary or appropriate for the intended use specified in the Rights and Restrictions solely as part of the distribution process contemplated in the Rights and Restrictions in connection with the intended use specified therein.
2.3 While efforts have been made to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material, Song and Story does not warrant the accuracy of such information.
2.4 Licensee may use the Synchronized Licensed Material as part of the Licensee Work to advertise or promote the Licensee Work, provided that the Licensed Material is not separated from the original Licensee Work. Any use of Licensed Material apart from the Licensee Work requires a separate license.
2.5 Nothing contained in this Agreement shall be deemed to grant Licensee the right to manufacture, distribute or sell Audio Products.
2.6 Nothing contained in this Agreement shall be deemed to grant Licensee the right to use any Licensed Material as the theme song for a program or other production; any such use may only be made upon negotiation and payment to Song and Story of an additional fee.
2.7 Licensee shall not make the Licensed Material available in any medium in a manner intended to allow or invite a third party to download the Licensed Material alone or extract the Licensed Material from the Licensee Work.
2.8 Licensed Material shall not be incorporated into a logo, trademark or service mark, without obtaining the prior written consent of Song and Story.
2.9 Defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. Licensee shall also comply with any applicable regulations and/or industry codes.
2.10 Licensed Material shall not be used contrary to the Rights and Restrictions.
2.11 Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section 2.11 shall excuse Purchaser’s obligation to make payment to Song and Story of the License Fee.
2.12 Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a work that derives a substantial part of its artistic components from the Licensed Material.
2.13 If the Rights and Restrictions allow Copying or Broadcast of the Licensee Work on a website, Licensee shall post terms and conditions on its permitted websites that prohibit downloading, republication, retransmission, reproduction or other use of the Licensed Material as a stand-alone file.
2.14 If the Rights and Restrictions include use on any social media or other third party website; (i) the Licensed Material may only be Copied or Broadcast thereon as part of a Licensee Work (not in stand-alone form); and (ii) such rights shall automatically be revoked in the event that the third party website seeks to exploit purported rights to the Licensed Material contrary to the terms of the Agreement.

3. Music Credit. If Licensed Material is used in an audio/visual production where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit(s), substantially in the following form: “[Artist’s Name]/[Special Collection Reference, if any]/Song and Story” or as otherwise notified by Song and Story.

4. Collection Society Payments.
4.1 Notwithstanding Section 4.2., below, this License Agreement shall be deemed to include the direct grant to Licensee of the right to publicly perform the Licensed Material in the licensed territory, and no fee which would otherwise become due and payable as a result of a public performance of the Licensed Material as contemplated by this License Agreement shall be due to Song and Story or its contributors, nor shall this License Agreement require Licensee to report usage of the Licensed Material to any Collection Societies. In furtherance of the foregoing, Song and Story has used reasonable efforts to ensure that it holds all rights in the content necessary to issue direct licenses, inclusive of all performing rights, mechanical or any other similar rights, without need for payment of further royalties to any Collection Society. However, in certain jurisdictions outside of the United States (for example, France and Spain), Licensee may be required to pay royalties to Collection Societies due to exploitation of the Licensed Material in that jurisdiction (regardless of whether any contributor of the Licensed Material is a member of the applicable societies). Licensee must determine if such requirements exist in the applicable jurisdiction and is solely responsible for any such fees.
4.2 Except as set forth above in Section 4.1., nothing contained herein shall be deemed to constitute a waiver of any fee which, as a result of the use of the Licensed Material contemplated by this Agreement, shall become due and payable to the relevant Collection Society or pursuant to union or collective bargaining requirements. Licensee agrees to submit, and to instruct any third party acquiring rights to the Work to submit, to all relevant Collection Societies, in any part of the Territory in which the Work is to be Broadcast or reproduced, such filings, including so-called “cue sheets,” and further agrees to take such actions as are necessary, in keeping with common industry practice, to enable such Collection Societies to monitor and administer those performing and mechanical rights fees payable to the copyright owners of the Licensed Material embodied in the Work.

5. Warranty and Limitation of Liability.
5.1 Song and Story warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (ii) it has all necessary rights and authority to enter into and perform this Agreement; and (iii) Licensee’s use of the Licensed Material in its original form, and when used in accordance with this Agreement, will not infringe upon the rights of any third party, including copyrights and rights of privacy or publicity.
5.2 SONG AND STORY DOES NOT MAKE ANY OTHER 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. SONG AND STORY SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF SONG AND STORY 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. SONG AND STORY SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.

6. Indemnification.
6.1 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, and as Licensee’s sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in Section 5.1(ii)-(iii) above, Song and Story shall, subject to the terms of Section 5.2 above and Section 6.3 below, defend, indemnify, and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys’ fees) arising out of or as a result of claims by third parties (“Claims”) relating to any actual or alleged breach by Song and Story of its warranties set forth in Section 5.1(ii)-(iii) above. Song and Story shall have no obligation under this Section 6.1 for any Claims that arise out of or are a result of: (i) Licensee’s modification of the Licensed Material, where the Claim would not have arisen but for the modification made by Licensee; (ii) the context in which License Material is used in a Licensee Work, where the Claim would not have arisen but for such context; (iii) Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee’s continued use of Licensed Material following notice from Song and Story, or upon Licensee’s knowledge, that Licensed Material is subject to a claim of infringement of another’s right. The foregoing states Song and Story’ entire indemnification obligation under this Agreement.
6.2 Licensee shall, subject to the terms of Section 6.3 below, defend, indemnify and hold harmless Song and Story and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys’ fees) arising out of or as a result of claims by third parties relating to: (i) Licensee’s use of any Licensed Material outside the scope of this Agreement; or (ii) any other actual or alleged breach by Licensee of this Agreement.
6.3 The party seeking indemnification pursuant to this Section 6 shall promptly notify the other party of such claim. At indemnifying party’s option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may reasonably be requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

7. Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Copying. Without prejudice to Section 5.1(i) above, Song and Story shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption of in any way from its Copying.

8. License Cancellation Fee. If Licensee or Purchaser requests in writing to cancel this Agreement within 30 days of the date of receipt by Licensee or Purchaser of the Licensed Material, and such Licensed Material has not been used by Licensee, Song and Story may cancel this Agreement and issue a credit to Licensee’s or Purchaser’s account or credit card as follows: (i) an amount up to 100% of the License Fee may be credited if the request is received within 7 days of receipt of the Licensed Material; or (ii) an amount up to 50% of the License Fee may be credited if the request is received between 8 and 30 days of receipt of the Licensed Material; in each case an administration fee of US$50 (or local currency variation) will be charged. No credits are available for any cancellation request received after 30 days from receipt of Licensed Material. Nothing in this Section 8 shall apply to research, lab, service, or subscription fees which shall be payable according to the terms stated on the Invoice and shall be non-refundable.

9. Electronic Invoicing; Interest on Overdue Invoices. Licensee and Purchaser agree to receive invoices from Song and Story electronically via the email address associated with Licensee’s and/or Purchaser’s Song and Story account. If Licensee fails to pay Song and Story’ Invoice in full within the time specified in the Invoice, Song and Story may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.

10. Reservation of Rights. All rights which are not expressly granted by Song and Story to Licensee pursuant to this Agreement, including all promotional materials or any other property owned or controlled by Song and Story are specifically reserved by Song and Story. Except as expressly set forth in this Agreement, nothing contained herein shall be deemed to convey or transfer to Licensee any ownership interest, including copyright, in or to the Licensed Material.

11. Miscellaneous Terms.
11.1 Unauthorized Use and Termination. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Song and Story to exercise all rights and remedies available to it under copyright laws around the world. In addition, and without prejudice to Song and Story’ other remedies under this Agreement, Song and Story reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times Song and Story’ standard license fee for the unauthorized use of the Licensed Material. Song and Story reserves the right to terminate this Agreement in the event Licensee: (i) enteres the Agreement after having received notice of unauthorized use from Song and Story relating to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the time of entering the Agreement; (iii) fails to pay the License Fee on the due date; or (iv) otherwise breaches the terms of this Agreement. Upon termination, Licensee must immediately (I) stop using the Licensed Material; and (II) destroy or, upon the request of Song and Story, return to Song and Story the Licensed Material and, in the case of termination by Song and Story for cause, the Licensee Work in the Possession or control of Licensee.
11.2 Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Copies or Licensee Works containing Licensed Material to Song and Story, including by providing Song and Story with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Material is Copied or Broadcast. In addition, upon reasonable notice, Song and Story may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to Song and Story of five percent (5%) or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying Song and Story the amount of such underpayment, Licensee shall also reimburse Song and Story for the costs of conducting such audit. Where Song and Story reasonably believes that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at Song and Story’ request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Song and Story.
11.3 Withdrawal. Upon notice from Song and Story, or upon Licensee’s knowledge that any Licensed Material may be subject to a claim of another’s right for which Song and Story may be liable, Song and Story may require Licensee to immediately and at its own expense (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic and physical); and (iii) ensure that its clients do likewise. Song and Story shall provide Licensee with comparable Licensed Material (which comparability will be determined by Song and Story in its reasonable commercial judgment), free of charge, but subject to the other terms and conditions of this Agreement.
11.4 Governing Law/Arbitration. This Agreement will be governed in all respects by the laws of the State of Texas, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association (“AAA”). The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The prevailing party shall be entitled to recover its reasonable legal costs relating to the aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, Song and Story shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Song and Story, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitations, any arbitration proceeding shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
11.5 Severability. If one or more of the provisions contained in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
11.6 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
11.7 Entire Agreement. This Agreement is intended for business customers of Song and Story and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Song and Story and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.
11.8 Taxes. All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).

©2012 Song and Story. All rights reserved.