LIVE365, INC. LICENSE AGREEMENT WITH MUSIC ARTISTS
This license agreement, including Schedule A
attached hereto (collectively, the "Agreement") is made by and between Live365, Inc., which includes its affiliates, successors, parents, subsidiaries, assigns, and designees (collectively, "Live365") and you ("Artist," as identified below).
WHEREAS, Live365 owns and/or controls the websites found at http://www.Live365.com and http://www.Athena365.com, as well as certain other websites (collectively, the "Live365 Websites");
WHEREAS, Live365 provides Internet-based radio services, including, but not limited to, transmitting and distributing streaming audio content through its distribution network, which includes all end-user interfaces now or hereafter known (including, without limitation, the Live365 Websites, third party websites and widgets) and devices capable of receiving streaming transmissions from Live365 servers, including, without limitation, transmissions via the Internet and/or via mobile/wireless technologies (collectively, "Live365's Distribution Network");
WHEREAS, Artist intends to submit sound recordings owned by Artist and contained within Artist's catalog to Live365 as set forth in Schedule A ("Artist's Sound Recordings") for transmission through Live365's Distribution Network and inclusion in "Live365's Music Library" (a library of sound recordings that Live365's broadcasters can preview and add directly to their playlists);
WHEREAS, Artist owns all or sufficient rights, title and interest in Artist's Sound Recordings such that Artist is permitted to lawfully waive any royalties associated with the digital performance of the Artist's Sound Recordings and to grant Live365 a royalty-free license to transmit, use, reproduce or otherwise exploit Artist's Sound Recordings through Live365's Distribution Network;
NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises and agreements set forth in this Agreement, the parties hereto agree as follows:
REPRESENTATIONS AND WARRANTIES
1. Artist represents and warrants as follows with respect to each of Artists' Sound Recordings to be included within Live365's Distribution Network and Live365's Music Library:
(a) Artist owns or controls all or sufficient rights, title and interest in and to Artist's Sound Recordings such that Artist is permitted to lawfully waive royalties (including all applicable statutory royalties) related to the digital performance of Artist's Sound Recordings;
(b) Artist owns or controls all or sufficient rights, title and interest in and to Artist's Sound Recordings contained in the Artist's catalog to lawfully grant Live365 a royalty-free, worldwide license to transmit, use, reproduce or otherwise exploit Artist's Sound Recordings through Live365's Distribution Network;
(c) Artist's Sound Recordings do not infringe upon the copyright or any other statutory or common law intellectual property rights (including without limitation trademark, service mark, and trade name rights), proprietary rights (including without limitation trade secrets), or rights of privacy or publicity of any third party;
(d) Artist has not sold, assigned, transferred, or otherwise encumbered any part of his/her right, title, and interest in and to Artist's Sound Recordings in a manner that would interfere or conflict with his/her right to grant the license to Live365 contained in this Agreement. For avoidance of doubt, Artist warrants that s/he has the full right, power, and authority to grant all rights conferred upon Live365 under this Agreement; and
(e) Other than the license and rights provided in this Agreement, no other licenses need to be obtained by Live365 from any other person, firm, corporation or other entity in any country or territory of the world — including, without limitation, any domestic or foreign performance right organization, mechanical royalty collection organization or society (including the Harry Fox Agency and NMPA), music publisher, administrator, record label or other company — in connection with: (i) Live365's transmission, distribution, reproduction and/or other use of any of Artist's Sound Recordings through Live365's Distribution Network; or (b) any other rights granted by Artist to Live365 in this Agreement.
GRANT OF RIGHTS
2. In consideration of the inclusion of Artist's Sound Recordings into Live365's Distribution Network and Live365's Music Library and/or the promotion of Artist's catalog to Live365's users, Artist hereby grants Live365 a royalty-free, non-exclusive, worldwide, perpetual license to:
(a) Use, transmit, reproduce, perform publicly, display publicly, perform digitally, and distribute by any means and any medium now known or hereafter devised, Artist's Sound Recordings (in whole or in part) through Live365's Distribution Network for any and all purposes (including, without limitation, in connection with the exploitation, marketing, advertisement or promotion of Live365 and/or Live365's Distribution Network), to the full extent permitted by law;
(b) Use any trademarks, service marks or trade names incorporated in Artist's Sound Recordings or associated with any artists, producer or other individuals whose performances are embodied in Artist's Sound Recordings — to the extent deemed necessary by Live365 and in its sole discretion — in connection with the transmission, distribution, reproduction and/or other use of Artist's Sound Recordings through Live365's Distribution Network and/or the advertising, promotion and marketing of Live365 and the services provided by Live365 as related to the license or use of Artist's catalog; and
(c) Use the name and likeness of any artists, producers or other individuals whose performances are embodied in Artist's Sound Recordings — to the extent deemed necessary by Live365 and in its sole discretion — in connection with the transmission, distribution, reproduction and/or other use of Artist's Sound Recordings through Live365's Distribution Network and/or in connection with the advertising, promotion and marketing of Live365 and the services provided by Live365 as related to the license or use of Artist's catalog.
3. Artist acknowledges, agrees and grants Live365's users — e.g., those who create their own programs for transmission or distribution via Live365's Distribution Network — the right to make the same uses of Artist's Sound Recordings through Live365's Distribution Network that Live365 is permitted to make pursuant to the terms of this Agreement. Artist agrees and acknowledges that Live365 shall not be liable for any uses of Artist's Sound Recordings by end users of Live365's Distribution Network or any other third parties that are beyond the scope of the uses explicitly authorized by Live365.
4. Artist hereby grants Live365 — in its sole discretion — the right to market or make other public announcements or statements relating to this Agreement or Artist's Sound Recordings through various marketing channels, including, but not limited to, the Live365 Websites, newsletters and electronic mail.
OTHER TERMS AND CONDITIONS
5. Artist's Obligations. Artist shall: (a) provide complete track information (as delineated in Schedule A), upon executing this Agreement, for each of Artist's Sound Recordings to be included in Live365's Distribution Network and Live365's Music Library; (b) promptly provide to Live365, upon Live365's request, any and all documents and other evidence related to his/her rights in and to Artist's Sound Recordings, including, without limitation, copyright registration certificates, assignments, licenses, administration agreements, releases, recording agreements, producer agreements, and other agreements; (c) provide Live365 with prompt (i.e., less than 10 days) written notice of any of Artist's Sound Recordings for which Artist no longer has the right to waive digital performance royalties, for example if such Artist's Sound Recordings are no longer part of the Artist catalog; (d) take all actions and execute all documents as may be necessary or desirable to carry out or implement and give full effect to the provisions and intent contemplated herein; (e) immediately provide to Live365, upon executing this Agreement, the data records (based on an agreed upon protocol for the transfer of data and metadata) for all of Artist's Sound Recordings to be included in Live365's Distribution Network and Live365's Music Library; and (f) work with Live365 to create song previews for each of Artist's Sound Recordings to be included in Live365's Music Library and Live365's Distribution Network.
6. Content Approval. Live365 shall have final approval as to any and all of Artist's Sound Recordings to be transmitted through Live365's Distribution Network or included in Live365's Music Library.
7. No Agency Relationship. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employer-employee relationship or other form of joint enterprise between Artist and Live365.
8. Limitation of Liability. IN NO EVENT SHALL LIVE365 BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF LIVE365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LIVE365 PROVIDES ITS TECHNOLOGY AND SERVICES "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. LIVE365 EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY LIVE365. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DECLINED. LIVE365 DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, WHETHER AS TO ANY LIVE365 TECHNOLOGY OR SERVICES (INCLUDING ANY TOOLS) RENDERED BY LIVE365 AND/OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH. LIVE365 MAKES NO REPRESENTATION THAT THE OPERATION OR PROVISION OF ITS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND LIVE365 WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
10. Indemnity. Artist hereby indemnifies and holds harmless, and agrees to defend against any third-party claim or action brought against Live365 or any of its parent, subsidiary or affiliated companies, its or their directors, officers, employees, licensees, agents, attorneys, assigns or independent contractors, from and against any and all claims, actions, losses, liabilities, damages, costs and expenses (including attorneys' fees and costs) arising out of or relating to any claim(s) that would constitute a breach of any warranty, representation, covenant or agreement made by Artist in this Agreement ("Indemnified Claims"). Live365 shall (at Artist's expense) be entitled to participate in the defense of any Indemnified Claim with its own counsel.
11. Term; Termination. The term of the Agreement shall be for three (3) years from the date this Agreement is entered into by Artist, with automatic renewal on a year to year basis. This Agreement shall be terminated upon the provision of at least thirty (30) days written notice prior to the end of the three-year term or any of the renewal terms. Notwithstanding anything contained in this Agreement to the contrary, Live365 reserves the right to refuse to post and/or to remove any or all of Artist's Sound Recordings from its servers for any reason, including, without limitation, if, in Live365's sole opinion, Artist is in breach of any part of this Agreement or if Live365 determines that such action is necessary to comply with applicable laws, including the "notice and takedown" provisions of the Digital Millennium Copyright Act or any legislation or rule of law in any jurisdiction of the world, or if such Sound Recordings infringe or violate, or are claimed to infringe or violate, the rights of any third party or are otherwise deemed to be objectionable.
12. Assignment. Live365 may assign, directly or indirectly, all or part of its licenses, rights or obligations under this Agreement without notice to Artist or obtaining prior consent from Artist.
13. Notices. Any communication in connection with this Agreement shall be in writing and sent by fax or mail (unless the address is changed by a notice) as follows:
• To Live365: 950 Tower Lane, Suite 1550, Foster City, CA 94404, ATTN: General Counsel.
• To Artist: at the address set forth below.
14. This license shall apply, at any time during the term of this Agreement, to all of Artist's Sound Recordings that are identified in Schedule A, including those sound recordings from Artist's repertoire that may be added to Schedule A at some point subsequent to the entry of this Agreement.
15. All provisions that must survive in order to give effect to their meaning shall survive any expiration or termination of this Agreement, including, without limitation, all of Artist's representations, warranties and indemnification obligations.
16. Artist understands and agrees that the consideration recited in this Agreement is the complete consideration for the rights granted by it in this Agreement, and it shall not look to Live365 for any compensation or further consideration of any kind in connection with such rights granted by it.
18. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to implement the intent of the parties, and the remainder of the Agreement shall continue in full force and effect. This Agreement and all matters arising under it shall be governed by the applicable laws of the United States, including U.S. intellectual property laws and the laws of California applicable to contracts entered into and wholly to be performed therein, without regard to choice of law rules. The parties consent to the exclusive jurisdiction of the state courts located in San Mateo County, California and/or the federal courts located in the Northern District of California.
19. Any delay or failure on the part of either party to enforce any rights hereunder to which it may be entitled shall not be construed as a waiver of the right and privilege to do so at any subsequent time. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
This Agreement is entered into for good and valuable consideration, the receipt and sufficiency of which is acknowledged.