LICENSE AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into on today, is by and between CheerSounds Music and Training LLC, with offices at 6195 N. Wickham Rd. STE 203, Melbourne, FL 32940 (hereinafter referred to as "Music Service"), and the person or entity digitally signing, submitting or agreeing to these unmodified terms (hereinafter referred to as "Licensee").
WHEREAS Music Service has rights to a vast library of audio recordings and original works, to which they may grant licenses to both master recordings and the underlying musical compositions to third parties, and is engaged in the business of providing the limited, non-exclusive right to use their catalog of recorded music for a variety of purposes as set forth below, and
WHEREAS Licensee is a customer who desires to access the catalog of music and original works available online via Music Service's website in order to use said recordings and underlying musical compositions for as desired by Licensee, including but not limited to such possible usages as inclusion in Licensee's cheerleading, dance and gymnastics events, practices, performances and other performing arts performances, subject to the terms, conditions, and restrictions of this Agreement, as set forth below.
In consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1. Licensed Works. The musical compositions (the "Compositions"), covered by this Agreement are all those available on Music Services website (www.Cheersounds.com) (hereinafter referred to as the "Website"), incorporated by this reference. The particular Compositions which are the subject of this license shall be referred to collectively as the "Licensed Works".
2. Master. The term “Master” shall mean the original composition created by the Music Service for licensing to third parties and shall be transmitted to the Licensee on a phonographic or digital format chosen by the Music Service. At all times the Music Service shall retain all ownership of the Master, together with the performances embodied on the phonograph and all copyrights therein and thereto. The Music Service hereby grants a non-exclusive mechanical license to the Licensee which shall be explicitly revoked upon the termination of the Term as that term is defined hereinafter.
3. Term. The rights granted by Music Service to Licensee hereunder shall be the 365 consecutive days following the date the music file is delivered to the Licensee (the "License Term") for each music product purchased. The License Term is respective to the purchase date of each music product. The License Term, and payment therefore, shall be based on either a monthly, quarterly, semiannual, annual, number of uses of the Compositions or other basis, as mutually agreed by the parties. Once the License Term runs out, either by virtue of the length of time or number of uses of the Licensed Works, this license shall cease.
4. Territory. The territory covered by this license shall be the world (the "Territory").
5. License Fee. Upon execution of this Agreement, Licensee shall pay Music Service a fee (the “License Fee”) as set forth on the CheerSounds Website or decided through written agreement. The License Fee shall consist of the price of the individual components of the Licensee’s chosen musical arrangement and plus additional charges, as set forth on the Website, for added musical components and add-ons. For ecommerce purchases, the Website’s “Checkout” section shall provide the final dollar amount of the License Fee. The Licensee hereby agrees to pay the License Fee as set forth in the “Checkout” section of the Website or set forth through written agreement, and shall abide by the terms and conditions set forth on the Website. Payment shall be made by credit card, PayPal, money order, or check, as agreed by the parties. Licensee expressly agrees that the rights to access the Website and use the Licensed Works hereunder shall be valid only so long as Licensee has made payment of the License Fee to Music Service and such payment has cleared. Any use by Licensee of the License Work without payment of the License Fee shall constitute a material breach of this Agreement, entitling Music Service to all available remedies under Florida law. In the event that any Licensed Works shall be publicly exploited by Licensee such public exploitation shall be permitted only if the Licensee paid Music Service for the License Term during which the public exploitation occurred. Licensee shall pay and be responsible for all taxes and levies connected to the use of the Compositions according to the conditions of this agreement.
6. Purpose.
(a) Music Service is engaged in the business of providing rights to its licensees to use any and all of Music Service's catalog of audio recordings and musical compositions available on the Website, for cheerleading, dance, gymnastics and physical performances at competitions, practices and other events as agreed upon by the parties.
(b) Notwithstanding the foregoing, Licensee shall use the Licensed Works for any and all of the purposes set forth in Paragraph 5(a) above, subject to the terms and conditions hereunder. Notwithstanding the foregoing, Licensee shall have no right to resell, publicly perform, transfer or hypothecate the unaltered version of the Licensed Work.
6. Grant of Rights.
(a) Any public performance by Licensee of the Licensed Works is subject to the clearance of the applicable public performance rights in force from time to time applied by the performing rights society in each part of the Territory in accordance with their respective prevailing terms and conditions.
(b) Licensee shall attribute and credit the Licensed Works in all exhibition and exploitation of the Project.
(c) Any alteration or modification by Licensee of the Licensed Work, including but not limited to Licensee's remix, addition or change of any recordings or lyrics, shall be at Licensee's sole risk, and Music Service shall have no responsibility regarding any such alteration or modification.
(d) Licensee acknowledges and agrees that all rights in and to the Licensed Works, whether now known or hereafter in existence, that are not granted to Licensee hereunder are specifically reserved by Music Service. Licensee acknowledges that it shall have no right or access to the Master and may only use the phonographic or digital copy provided by the Music Service as enumerated herein. Music Service retains all ownership and rights to the Master and does not hereby grant any right, except the non-exclusive right of the Licensee to use the Licensed Works for its purposes relating to the Cheer, Dance and Gymnastics competitions, practices and public not-for-profit performances.
(e) Licensee acknowledges and agrees that its use of the Licensed Works shall be solely for non-profit use only and in connection with the public performance by Licensee of the Licensed Work for Cheer, Dance and Gymnastics competition, practice and other not-for-profit performances. Additionally, Licensee shall have the right to use the Licensed Works for personal, noncommercial uses. Uses does permit fingerprinting, algorithmic analysis, or the file or audio content to be used in any form of machine learning.
(f) Licensee and its assigns shall have the non-exclusive right to reproduce up to 40 copies in total of the Licensed Works or any portions thereof exclusively for copies distributed to Licensee’s teammates or as reasonably required in connection with Cheer and Dance performances.
8. Warranties and Representations.
(a) Licensee warrants and represents that: (i) it has the right to enter into this Agreement and has not entered into any other agreement that would interfere with your grant of rights hereunder; (ii) not under any disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to execute this Agreement; (iii) all information provided by Licensee herein and during the Term hereof shall be accurate, complete and not misleading in any material respect; (iv) it shall only use the Compositions for the purposes set forth in Paragraph 5 above, as determined by Licensee, in accordance with the terms of this Agreement; (v) it shall not, except to the extent allowed by Music Service hereunder and solely in connection with its authorized use of the Site, copy or otherwise duplicate directly or indirectly any portion of the Site including without limitation, any of the information, trademarks, logos, designs, graphics, systems, Tracks or otherwise contained therein for any purpose, and shall not use any software that enables the copying or duplication of such materials; (vi) it shall abide by all copyright notices, information, or restrictions applicable to any Music Service's materials or otherwise published on the Site; (vii) Licensee will comply with all requirements of the applicable performing rights societies as set forth hereunder; (viii) no usage by Licensee shall encourage or be associated with illegal or illicit activities allowed; and (ix) Licensee agrees to not transfer its rights in any Compositions licensed under this agreement to third parties without the express written consent of Music Service.
(b) Music Service warrants and represents that: (i) it has the right to enter into this Agreement and has not entered into any other agreement that would interfere with your grant of rights hereunder; (ii) it is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to execute this Agreement and to grant the rights granted hereunder; (iii) it has obtained from the owner and publisher of the original Compositions (and has obtained rights to arrangements of public domain compositions) identified in the Checkout section of the Website sufficient to grant the rights to Licensee hereunder; and (iv) no Composition nor any other selections, materials, ideas or other properties contained in the Licensed Works shall violate or infringe upon any common law or statutory right of any person, firm or corporation, including, without limitation, contractual rights, copyrights, trademarks and rights of privacy.
9. Indemnity.
(a) Music Service shall indemnify, save and hold Licensee harmless from any and all damages, liabilities, costs, losses and expenses directly related to any claim, demand or action which is inconsistent with the warranties, representations or covenants made by Music Service hereunder, which such claim results in a final, non-appealable judgment in a court of competent jurisdiction or which is settled with Music Service's consent. Notwithstanding the foregoing, Licensee shall notify Music Service within five (5) days of any such claim, demand, or action against Licensee. Licensee shall have the right, at its sole expense, to participate in the defense thereof with counsel of its choice, provided, however, Music Service shall have the right at all times, in its sole discretion, to retain and resume control of such action and proceedings.
(b) Licensee shall indemnify, save and hold Music Service, its licensees, successors, assigns, employees, officers, directors and representatives harmless from any and all damages, liabilities, costs, losses and expenses (including costs and reasonable attorney's fees) arising out of or connected with any claim, demand or action which is inconsistent with any of the warranties, representations or covenants made by Licensee hereunder. Music Service shall have the right to participate in the defense of any claim, demand, or action with counsel of its choice, at its sole cost and expense.
10. Limitation on Liability. Notwithstanding the foregoing, Music Service shall not be liable for any indirect, special or consequential damages including but not limited to loss of anticipated profits, in connection with or arising from this Agreement and shall not be liable for any loss, damage, claim or liability arising from or related to any software program, data errors, digital transmission errors, failures, interruptions or delays, regardless of cause. In no event shall Music Service 's total liability exceed the License Fee paid by Licensee hereunder. Licensee shall hereby indemnify, save and hold Music Service, its licensees, successors, assigns, employees, officers, directors and representatives harmless from any damages in excess of the License Fee.
11. Notices. Any and all notices that the parties are required or desire to be sent hereunder shall be in writing and sent to the addresses first indicated above or at such other addresses as the parties may indicate by depositing same, registered or certified mail, return receipt requested, postage prepaid, in an official depository under the exclusive care and control of the United States Postal Service. Notices shall be deemed given when sent except for notice of change of address, which shall only be effective from the date of receipt thereof.
12. Assignment. Music Service shall have the right to assign this Agreement to any party with whom they shall merge, consolidate, or which acquires a substantial, interest in the assets of Music Service's business. Licensee shall have the limited right to assign this Agreement to any party with whom they shall merge, consolidate, or which acquires a substantial, interest in the assets of Licensee's business, provided such person or form shall continue to pay the License Fee for the subscription service hereunder, or a flat fee ("buyout') for the right to use any specific Licensed Work for a particular purpose.
13. Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by binding arbitration in Florida. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association. Each party shall bear its own attorneys fees and expenses. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this subsection shall be construed as precluding the bringing of an action for injunctive relief or other equitable relief.
14. Miscellaneous. The parties intend that this be the final expression of their agreement and a complete and exclusive statement of its terms, and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding involving this Agreement. This license is binding upon and shall inure to the benefit of the respective successors or assigns of the parties hereto. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by the parties. Music Service shall not be deemed to be in breach of any of the obligations hereunder unless and until they shall have been given specific written notice from Licensee by certified or registered mail, return receipt requested, of the nature of such breach and shall thereafter fail to commence the cure of such breach within thirty (30) days after receipt of such written notice. If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect. The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the law of the State of Florida.
