Title: Vendor Licensing Agreement - RadioSparx-Only

The intent of this document is to formalize the terms of license of your music for use strictly as background listening music, for both commercial and non-commercial clients. Please note that the RadioSparx service and website still rely on many essential software features which are built into the AudioSparx website such as, for example, track uploading and configuration, playlist development, reporting, revenue posting, artist payments, and more, which are all features that are currently present only within the AudioSparx website. Your participation in the license below, while requiring utilization of the AudioSparx website for these various essential software features, does not in any way permit us to display your music on AudioSparx to license it for any kind of production use such as film, TV, commercials, software apps, etc.

RadioSparx Content License Agreement

This agreement (hereafter “Agreement”) is made on this date [Date] (effective date), by and between Navarr Enterprises, Inc. dba RadioSparx, (hereafter “Licensee”) with its principal place of business at 2800 N. 6^th St, Saint Augustine, FL  32084, and [Licensor Name], (hereafter “Licensor”) with its principal place of business at [Licensor Address].
 

RECITALS 

WHEREAS, Licensor is involved in the composition, production, and/or aggregation of music; 

WHEREAS, Licensee is involved in the aggregation, licensing, sub-licensing, marketing, and distribution of music to its clients (hereafter “Clients”) and resellers/distributors (hereafter “Distributors”) worldwide for the purpose of providing background music service, also known as environmental ambient music or streaming music service. 

WHEREAS, Licensee desires to obtain a non-exclusive right to utilize Licensor’s Works, as more fully described below, and will pay Licensor at the times and in the amounts as set forth in this Agreement;
 

NOW, THEREFORE, in consideration of the foregoing, and of the covenants and promises contained herein, the parties agree as follows:

1.   Grant of Rights  -  Licensor grants Licensee the non-exclusive right to market, offer for license, license, and sub-license, throughout the world and the universe (hereafter “Territory”), as described more particularly below, any Works provided by Licensor to Licensee and/or uploaded to Licensee’s AudioSparx or RadioSparx websites and any related or similar service-oriented websites (hereafter the “Websites”), as may be revised, amended, or supplemented from time to time.  “Work” or “Works” shall mean the sound recordings and the underlying musical compositions, as well as any associated video content, which Licensor owns, controls, administers or otherwise may legally provide to Licensee for the purposes contemplated herein, and all musical, artistic, and literary material and all other intellectual property contained in or used in connection therewith; and shall also include all related metadata, photographs, graphics, imagery, and likenesses of the recording artist(s) and/or songwriter(s) provided by the Licensor, as well as the Licensor’s name and trademark. This grant of rights shall include a comprehensive set of rights necessary for Licensee to fully license and sub-license the Works for the types of commercial and non-commercial uses as detailed below, including master sound recording use rights, mechanical rights, streaming rights, public performance rights, ephemeral rights, and related rights (also known as neighboring rights) to utilize the copyrights in the Works in a non-exclusive manner for the various types of permitted exploitations of the Works as listed below: 

a)   Background Music.  The right to enter into licensing agreements with Clients and Distributor sub-licensees for both streaming and store-and-forward (i.e. locally-stored) playback of the Works for both non-commercial B2C consumer listening and commercial B2B uses as background music in business venues including within stores, shopping malls, restaurants, theme parks and all other types of public and private venues requiring background music.  This shall include licensing and sub-licensing of the Works via both royalty-inclusive direct-licensed service (hereafter “Direct-Licensing”), as well as via royalty-based public performance rights licensing through collective management organizations (“CMOs”), generating society-paid royalty earnings (hereafter “Society-Licensing”).

b)   Hotel In-Room Entertainment Uses.  The right to enter into licensing agreements with Clients and Distributor sub-licensees for both interactive and non-interactive playback of the Works for in-room entertainment in hotels, resorts, and all types of consumer lodging via both Direct-Licensing and Society-Licensing.

c)   Transportation Uses.  The right to enter into licensing agreements with Clients and Distributor sub-licensees for both interactive and non-interactive playback of the Works on airlines, trains, buses, and all other types of public transportation systems, hubs, stations, and similar interconnect points, via both Direct-Licensing and Society-Licensing.

d)   Digital Transmissions.  The right to license and sub-license the playback of the Works via both online streaming, as well as via cable, wireless, satellite, and all other forms of digital streaming and broadcasting communications for both private and public performances via both non-interactive and interactive services, via both Direct-Licensing and Society-Licensing.

e)   Locally-Stored Playback.  The right to license and sub-license the playback of the Works for so-called store-and-forward downloading as well as in jukebox mode for local storage of the Works on music player devices for local playback at client sites strictly in association with the providing of background music services.

f)    Limited Reproduction (i.e. “Ephemeral Rights”).  The right to create and authorize limited reproductions solely for the purpose of encoding, hosting, and archival purposes or necessary ephemeral copies in association with streaming, downloading, and storage of the Works in accordance with the rights granted herein.

g)   Promotions/Demonstrations. The right to use the Works in relation to or arising from the marketing, promotions, and sales activities of Licensee and Distributors.  This right shall include, without limitation, the right to perform, broadcast, and transmit the Works for use with Licensee’s and Distributors’ materials and/or for promotional, preview, or demonstration purposes to Clients and prospective Clients.  No fees or royalties shall be payable to Licensor for such marketing utilization of the Works.

h)   Materials. The right to use, reproduce, display, distribute, and license Licensor’s trademarks, artwork, photographs, liner notes, song lyrics, metadata, and any other design elements as may be provided by Licensor in connection with the Works, with or without other materials.

i)    Sub-Licensing. The right to extend sub-marketing and sub-licensing authority of the Works to any of Licensee’s Agents, Resellers, Distributors, and Licensee-assigned entities consistent with the terms herein.

j)    Track Removals.  The right by Licensee to delete, reduce, or remove any Works or any part thereof provided by Licensor from the Websites for any reason and Licensee shall have the right to not use any Works which it deems unacceptable for any reason.

k)   Track Corrections. The right by Licensee to correct, adjust, extend, resample, equalize, repair, or otherwise adjust individual Works as necessary to ensure that they are compatible with our services and licensing standards.  

2.   Term  -  Non-Perpetual: The term of this Agreement shall be non-perpetual and revocable. Withdrawal of any or all of Licensor’s Works from this Agreement shall be effective six (6) months from the end of the calendar quarter in which withdrawal notice is provided by Licensor to Licensee.  Any such notice must be provided in writing via email.  Please note that this clause does not affect nor apply to any license, should any exist, of the Works to AudioSparx, nor provide any take-down rights for any Works licensed to AudioSparx. 

3.    Proprietary Rights  -  The parties agree that Licensor owns or controls all proprietary rights, including copyrights, in and to the Works and that this Agreement does not transfer ownership from or extinguish any of these rights belonging to Licensor.  The parties agree that Licensee owns all proprietary rights, including copyrights, in and to all elements and capacities of its Websites, documentation, playlists, metadata, and proprietary software and hardware. 

4.   Representations of Licensor  -  Licensor represents and warrants that for each and every Work made available to and through Licensee:

a)   Licensor owns or controls 100% of all worldwide copyrights (including all extensions and renewals) in and to the Work(s) which are subject to this Agreement;

b)   Licensor has all rights, power and authority necessary to enter into and to fully perform this Agreement and to grant the rights herein granted;

c)   All Works have been or will be written or created in accordance with the rules of all unions having jurisdiction, and Licensor holds the authorization from all contributing artists, musicians, producers, songwriters, lyricists, and other rightsholders or their representatives to exploit the Work(s) as contemplated herein;

d)   None of the Works, delivery materials, identifying materials, artwork or other material or information supplied by Licensor hereunder will violate any law or infringe upon the rights, including so-called moral rights (droit moral) of any person or entity when used by Licensee as contemplated hereunder;

e)   Licensor has or will provide Licensee with correct and complete information about contributing authors (composers and lyricists), artists, performers, and those holding any and all rights in and to the Works (including neighboring rights), including society affiliation information, as applicable;

f)    Licensor holds the rights in and to the name and likeness of the pictures, covers, videos and other visual images, as well as texts, provided to Licensee by Licensor in the course of its performance under this Agreement;

g)    Licensor shall not require, obligate, nor seek to impose any duty on Licensee to pay or to provide for payment to any contributing artist, producer, composer, performer, lyricist, licensee, sub-licensee, or any other party who contributed to the Works.  This warranty extends to any payment to any party who is purportedly entitled to be paid royalties of any type (including performance, mechanical, and neighboring rights royalties), as well as union new use or reuse fees, or is otherwise paid from performing rights organizations (hereafter “PROs”), collective management organization (hereafter “CMOs”), or unions.  Without limiting the foregoing, Licensor shall be solely responsible for making all payments due all artists, performers, producers, writers, lyricists, composers, unions and all other rights-holders in connection with the exploitation of Work(s) hereunder except for any such earnings payable from PROs, CMOs, and unions as may be applicable. 

5.    Representations of Licensee  -  Licensee represents and warrants that it is free to enter into and perform its obligations under this Agreement and is not under any restrictions or obligations, contractual or otherwise, which would impair Licensee’s full performance and Licensor’s full enjoyment of all rights granted herein.  Licensee shall use its best efforts to exploit and monetize the Works as licensed herein, and to obtain warranties that Clients will complete and submit all necessary and appropriate reports and forms to any applicable PROs or CMOs as may be required by law or agreement.

6.    Compensation to Licensor  -  Licensee shall pay Royalties to Licensor in the amount of 40% of gross licensing revenue attributable to the licensing of the Works by Clients, Distributors, and Sub-Licensees. This shall apply to all revenue earned internally, via license sales to clients, as well as to any revenue earned via any external opportunities as set forth above in Section 1, (a) – (e). 

a) Gross Revenues shall be defined as all fees and payments actually received by Licensee or credited to Licensee’s accounts for agreements made via Licensee for Client’s use of the Work(s), excluding any delivery charges, shipping charges, and any custom work or services provided by Licensee to Clients and Distributors. 

b) Except as set forth above, Licensor shall not be entitled to any other or additional compensation from Licensee arising under this Agreement. Licensee shall not charge Licensor any special fees for the placement, audio encoding, promotion, sales and marketing of the Works unless otherwise pre-agreed in writing. 

c) Licensor specifically and affirmatively acknowledges that Compensation paid by Licensee to Licensor includes full and just equitable remuneration for the exploitation of the Works to and for any and all rights-holders including, but not limited to, artists, performers, producers, writers, lyricists, composers, and unions.
 

7.    Commissions Payments  -  Within 15 days after the end of each calendar quarter, Licensee shall email Licensor a quarterly royalty statement detailing the earnings for each of the Works. Once Licensor's accumulated royalties are equal to or greater than $25.00, Licensee shall disburse payment to Licensor within 45 days after the end of each calendar quarter. Licensee requires Licensor to utilize a PayPal account to receive payment.  By using PayPal for payment disbursements, payment can be completed by Licensee in a timely manner and avoids potential delays and problems that can occur with mailed checks.  Please visit www.PayPal.com to set up a free account. AudioSparx uses PayPal's MassPay service to make payments. US-based Licensors are not charged a transaction percentage or fee by PayPal to receive payment in this way – Licensors receive the full commission earnings from AudioSparx with no offsets or withholds. For Licensors based outside the US, a fee of 2% (maximum $20) is deducted from quarterly payments to cover the fee charged by PayPal to make international payments. For Licensors located in a country which does not accept PayPal payments, wire transfers may be used instead, however, the payment threshold for such payments is $400 (instead of $25) and a $40 fee per payment disbursement is charged to Licensor to cover the bank fee that Licensee must pay to disburse payment via wire transfer.

8.     Limitation of Liability

8.1 Licensor shall defend, indemnify and hold harmless Licensee from and against any and all liabilities, suits, claims, losses, damages or judgments, and shall pay all costs, including reasonable attorney’s fees, and damages arising from or in any way related to:

a)  any breach or alleged breach by Licensor of any warranty or representation made by it in this Agreement;

b)  any claim that any act or omission of Licensee in the performance of this Agreement with respect to any Work(s) made available by Licensor constitutes any infringement or violation of any right, interest or law, including applicable copyright laws, of any third party in or to such Work(s); 

c)  any failure or inadequacy by or on behalf of Licensor with respect to any registration or filing of any right or entitlement related to any Work(s); 

d) any claim by any person or entity for any royalty or other compensation arising from use or licensing by Licensee, consistent with this Agreement, of any Work(s) provided by Licensor.
 

8.2 Licensee shall defend, indemnify and hold harmless Licensor from and against any and all liabilities, suits, claims, losses, damages or judgments, and shall pay all costs, including reasonable attorney’s fees, and damages arising from or in any way related to any breach of any warranty, representation or agreement of Licensee set forth in this Agreement. Without limiting the foregoing, LICENSOR ASSUMES THE RISK OF USING LICENSEE’S WEBSITE AND/OR SERVICES. In no event shall Licensee be liable to Licensor for any indirect, special or consequential damages, including but not limited to loss of anticipated profits, in connection with or arising out of this Agreement or the performance, marketing, licensing or other activity related to this Agreement.  Licensee shall not be liable to Licensor for any loss, damages, claims or liabilities arising from or related to any software program or data errors or digital transmission errors or failures, regardless of cause.  

In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs.  The indemnified party may, at its own expense, assist in the defense, provided that the indemnifying party shall control such defense. FURTHER, THE INDEMNIFYING PARTY SHALL CONTROL

all negotiations relative to the settlement of any such claim. any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.

9.    Relationship of the Parties  -  This Agreement does not create a joint venture, partnership or association.  Neither party has the right or power to obligate or bind the other except to the extent expressly authorized hereunder.

10.  Confidentiality  -  During the full term of this Agreement and for three years after the date of termination, Licensor shall maintain confidentiality with respect to all information concerning Licensee and this agreement, including, but not limited to, the Licensee’s pricing, commissions, and the technical information relative to the development, database, search, security or personalization systems used by Licensee, including the Websites, provided, however, that: (i) either party shall have the right to disclose such terms to its parents, subsidiaries and/or affiliated companies, and/or their officers, directors, employees, representatives (collectively, the “Representatives”), and successors in interest solely for the purpose of exercising the rights or obligations hereunder and/or to administer this Agreement and subject always to the terms of this paragraph; and (ii) if either party or its Representatives becomes legally compelled (by deposition, interrogatories, requests for documents, subpoena, civil investigative demand or similar process) to disclose any such terms, such disclosure pursuant thereto shall not be deemed a breach of this paragraph (provided, further, however, that the party legally compelled to make such disclosure shall promptly notify the other party hereto of such fact prior to making such disclosure).

11.  Governing Law  -  This Agreement is governed by the laws of the State of Florida, United States of America.  All disputes arising hereunder shall be settled by binding arbitration, conducted in accordance with the rules of the American Arbitration Association, said arbitration to be heard in Saint Augustine, Florida, or in the nearest location to Saint Augustine with appropriate jurisdiction.  Judgment on any award rendered as a result of any such arbitration may be entered into any court having competent jurisdiction, or any application may be made to any such court for judicial acceptance of the award and for an order of enforcement thereof, as the case may be. The prevailing party in any dispute arising hereunder shall be entitled to an award of reasonable attorney’s fees and costs. The parties shall choose one (1) arbitrator in accordance with the rules of the American Arbitration Association or as they may otherwise later agree to in writing.  The arbitrator shall be a music industry professional or an individual with music industry experience or expertise.  The parties shall choose the arbitrator no later than fifteen (15) days after notice is received by the parties from the American Arbitration Association that a demand for arbitration has been filed with it.

12.   Notices  -  Legal notices shall be transmitted between the parties via use of the wetransfer.com file transfer service, which provides email notifications to the sender and receiver for each transmitted file.  The email address to be utilized for sending notices to each party shall be the email address included on the signature page of this Agreement.  Notices shall be considered transmitted successfully once they are uploaded to the wetransfer.com website with the proper destination email address provided for the transmission.

13.   Amendment  -  This Agreement may be amended only in writing signed by all of the parties hereto or their successors or permitted transferees at the time of such amendment.
 

14.  Assignment  -  This Agreement and all rights and obligations hereunder shall be binding upon and shall inure to the benefit of the successors, licensees and assigns of each party. Licensor shall execute and deliver to Licensee any and all further documents or instruments and do any and all further acts which Licensee, or its sub-licensees, successors and assigns, may request in order to confirm or perfect the licensed rights during the Term.
  

15.  Severability  -  If any provision of this Agreement is determined to be unenforceable for any reason, the validity of the remaining provisions shall not be affected thereby and shall remain in full force and effect.

16.  Headings  -  The headings in this Agreement are solely for the convenience of the parties, and are not intended to and do not limit, construe or modify any of the terms and conditions hereof.  

17.   Waivers  -  The waiver by either party, or the failure by either party to claim a breach, of any provision of this Agreement shall not affect the right to require full performance thereafter, nor shall it constitute a waiver of any subsequent breach.
 

18.   Acceptance of Agreement

a) By clicking on the online acceptance option and completing an online artist application on Licensee's website, and/or signing this Agreement, Licensor agrees and accepts to be bound by its terms for himself/herself as well as for Licensor’s company (if Licensor is a company) and on behalf of any and all third parties whom Licensor represents, all of which shall be duly bound by the terms of this Agreement. Further, by accepting this Agreement, Licensor acknowledges having read the Agreement and any other Agreements and/or Terms referenced and incorporated herein, and that Licensor understands the Agreement and has had the opportunity to have the Agreement reviewed by independent legal counsel before accepting and signing it. 

b) If the Person (hereafter, “You”) accepting the Agreement is not the Licensor and does not have the right, power, and authority to accept the Agreement on behalf of the Licensor, and the Licensor claims that You accepted the Agreement without right, power, and authority to do so, You shall be jointly and severally liable with Licensor under the terms set forth in Section 8 above. If You are the Person accepting the Agreement and, in fact, do not have the right, power, and authority to do so, or you do not accept these terms, do not accept the Agreement and do not upload or submit an application nor upload or submit anycontent to Licensee’s websites.
 

19.   Entire Agreement  -  This Agreement constitutes the entire agreement between the parties with respect to its purpose, and it supersedes any prior contract or agreement, whether written or oral, between the parties herein.

This Agreement does not supersede, modify, or in any way replace any existing Agreements between Licensor and Licensee d/b/a AudioSparx and its subsidiaries or affiliated websites.