License Agreement
This Agreement (the “Agreement”) contains the material terms between you (the “ALive Creator”, “you”, or “your”), and ALive Loops v.o.f., and its successors and assigns (the “Company,” “we,” or “us”) for your non-exclusive production services in relation to one or more master recordings composed by the ALive Creator.
Producer and Company agree to the following:
Services. ALive Creator shall perform all services in relation to the creation of one or more musical recordings (the “ALive Loops Pack”) embodying the performances of ALive Creator, performing the musical Loops(s), as listed on Schedule 1 (the “Loops”), as are customarily performed by ALive Creators in the recording industry (the “Services”). The Services will not be deemed completed until you have delivered the ALive Loops Pack in a form which is both commercially and technically satisfactory for the sale and digital exploitation of the Loops, in our complete and sole discretion (the “Delivery”). ALive Creator acknowledges Company may place the ALive Loops Pack on Company’s (or Company’s affiliates, partners, or third-party designees) websites, platforms, or applications, now known or later devised (the “Properties”), for the purposes of licensing or selling the ALive Loops Pack to third parties (“Purchasers”) on a non-exclusive basis for their commercial usage of the ALive Loops Pack. The term of this Agreement will commence on the effective date above and will continue until the Services have been completed. For clarity, the terms of this Agreement are only applicable to the Loops listed on Schedule 1. ALive Creator and Company shall enter into a separate agreement (under the same terms and conditions as this Agreement) for additional recordings of ALive Loops Pack as applicable. Company shall make the ALive Loops Pack available for either license or sale (on either a paid or free basis), non-exclusive, to third parties, such as producers, artists, composers, video makers, (“Purchasers”). ALive Creator agrees and acknowledges Company may advertise the ALive Loops Pack to Purchasers as being considered ‘royalty and copyright free’ with respect to their usage of the ALive Loops Pack where limitations will apply such that the rights to the ALive Creator as part of this Agreement will not be affected.
Royalties. In consideration of the Services and grant of rights under this Agreement, we shall pay you a fee of €0,25,- (twenty five cents) for each ALive Loops Loop sold and/or licensed by us to Purchaser (the “Royalty”) and €0,20,- (twenty five cents) for each ALive Loops Loop sold in a bundle. Your Royalty shall be calculated on our Net Receipts, meaning our gross receipts pertaining to the sale or license of the particular ALive Loop Pack minus applicable VAT and taxes (if any). It is understood that we are fully entitled to offer certain package deals (such as: “buy two, receive one for free”) of any of the ALive Loop Pack(s) as delivered by you to us. The Royalty is the full and complete payment for all of your services and grant of rights under this Agreement and no additional compensation or royalties (apart from those payable to you by third party performance rights organizations (neighbouring rights), if any and only if directly attributable to you and confirmed by Purchaser) will be due to you under this Agreement in connection with the ALive Loops Pack. Note: All ALive Loops discount promotions will not effect the amount that the ALive Creator will receive.
Accounting. Company shall issue written statements of account to you semi-annually, within three (3) months of the close of each semi-annual period ending June 30 and December 31 in which the ALive Loops Pack is exploited commercially. Company shall not be required to pay you compensation pursuant to the statements as mentioned in this paragraph 3, in the event the aggregated royalty earnings for the applicable accounting period payable to you are €50 (Fifty Euro) or less. Such statement(s) will be rendered and royalties paid with the first subsequent Statement reporting earnings in excess of €50 (Fifty Euro) in total. Company shall be deemed to have fulfilled its commitment to send statements if the statements are sent to the ALive Creators e-mail address. Company shall send statements to such other e-mail addresses as reasonably required by you. Each such statement shall be followed by the payment of such sum as may be due to you hereunder, subject to the receipt by Company of an invoice therefore. Company will pay you the Royalty within 30 (thirty) days as of receipt of invoice.
Royalties payable pursuant to this Agreement to you shall only be due and payable on all monies actually received by Company (or credited to Company) which are directly and identifiably attributable to the exploitation of the ALive Loops Pack. Monies arising from the exploitation of the ALive Loops Pack outside the Netherlands shall be computed in the national currency of the country where such monies arise and shall be payable in the euro equivalent at the rate of exchange applicable on the date when Company shall have received payment or have been credited with payment in the Netherlands.
Company shall maintain accurate books and records of account concerning the sale and exploitation of the ALive Loops Pack within the Territory. You shall have the right to inspect the books and records of Company insofar as they relate to the sale and exploitation of the ALive Loops Pack upon thirty days (30) advance notice, during normal business hours and at such location where such books and records are kept in the normal course of business of Company. Such inspections shall not occur more than once in any calendar year, nor more than once per statement and shall be conducted by a certified public accountant, a licensed auditor (who shall enter into a reasonable non-disclosure agreement provided by Company) and at your sole expense. In the event any such inspection reveals an underpayment, then – save where Company reasonably disputes the inspection results – Company shall immediately pay the underpaid amount to be increased with legal interest. In the event the inspection reveals an underpayment of 5% (five percent) or €1.000 (one thousand euro) (which ever the greater), then – save where Company reasonably disputes the inspection results – Company shall pay over the amount due regarding your actual and reasonable out-of-pocket audit costs, excluding travel, accommodation and catering expenses and limited to a maximum amount of €3.000 (three thousand euro).
You shall be deemed to have consented to all accountings rendered hereunder as binding and not subject to objection or suit for any reason unless specific objection, in writing, stating the basis thereof is given to Company within 2 (three) years of the date such statement was rendered. You shall not have the right to sue Company in connection with any royalty accounting, unless You commence the suit within 3 (three) years of receipt of the applicable statement.
All amounts stated in this Agreement to be payable by Company are exclusive of value added tax or any similar tax properly chargeable in respect of supplies under this Agreement and Company will pay all taxes of that nature together with those amounts. In respect of any income tax deductions or withholdings required to be deducted in respect of payments from Company to you, Company shall on request use its best reasonable endeavours to provide you with a certificate or other evidence of such deduction or withholding and shall on your reasonable request further provide you with such assistance as may be reasonably necessary for you to reclaim such deductions or withholding or obtain a tax credit for it.
Performing Rights Organizations, SENA, GVL, PPL, SoundExchange, etc. When ALive Loops Pack is used and incorporated in a resulting composition by the Purchaser (each a “Master Release”), Company will make all applicable ALive Creator information available to the Purchaser in order to allow the Purchaser to register the Master Release with performing rights organizations, crediting ALive Creator in such a way that ALive creator will be able to claim its legitimate portion as a session musician through said performing rights organizations (such as SENA, GVL, PPL and SoundExchange) provided however, Company’s failure to do so shall not be considered a breach of this Agreement. Company shall not be responsible for ensuring or enforcing such registrations. For the avoidance of doubt: ALive Creator understands, warrants, and guarantees that he/she will not be entitled to claim and/or vest any rights as a composer in the underlying composition of the Master Release, since the ALive Loops Pack as being used by Purchaser lacks copyright. Neither ALive Loops shall be allowed to claim and/or vest any copyright in the underlying composition of the Master Release as derived from the use of the ALive Loops Pack as licensed to Purchaser.
Grant of Rights in ALive Loops Pack. All worldwide exploitation rights in the ALive Loops Pack (including the copyright in the underlying musical composition embodied in such ALive Loops Pack, if any (since not, see per clause 3)) will be exclusively licensed to us in perpetuity. All ALive Loops Packs, including the performances and the recordings contained within and derived from the ALive Loops Pack (including the copyright in the underlying musical composition embodied in such ALive Loops Pack, if any (since not, see per clause 3)), will, from inception of their creation and upload to us, be entirely licensed to us in perpetuity throughout the world, free of any claim whatsoever by you. Without limiting the generality of the preceding, we and our designees will have the exclusive, unrestricted and perpetual right, throughout the universe, in our sole discretion, to use, distribute, sell and/or exploit each such ALive Loops Pack in any and all media now known or hereafter devised, by any and all methods and formats, and Purchaser obtains the right to alter, change, modify, rearrange, or edit each such ALive Loops Pack, and to hire any other producer, mixer or remixer for additional production or other services with respect to each such ALive Loops Pack or to re-edit, mix or remix each such ALive Loops Pack and any records and reproductions made from such, and, in this regard, you irrevocably and unconditionally waive all moral and similar rights of authors. You agree not to make, support, maintain or permit any claim against us or any person authorized by us (incl. Purchaser) to exploit any such ALive Loops Pack, based on such moral or similar rights. Without limiting the generality of any of the preceding, we (and any Purchaser we assign these rights to) will have the exclusive right to publicly perform, reproduce, synchronize and otherwise to utilize recordings under this Agreement in connection with audiovisual recordings for promotional and commercial purposes. Nothing contained in this Agreement will be deemed to create any obligation on the part of us or third parties to exploit any such ALive Loops Pack in any manner.
Termination. ALive Creator is entitled to terminate this Agreement and/or withdraw certain ALive Loop Pack(s) as previous delivered under Agreement by ALive Creator, by giving ninety (90) days written notice. All ALive Loop Packs as sold or licensed by us prior to the effective date of any such termination, shall be deemed to have been secured by us during the Term. Termination of this Agreement and/or partially withdrawing certain ALive Loop Pack(s) will not affect any previous sales and licenses to Purchasers and/or the underlying exploitation rights of Purchasers regarding the use of said ALive Loop Pack(s) in certain Master Release(s).
Credit. With respect to a Master Release, we shall suggest Purchaser to credit ALive Creator in a form as: ‘Certain Loops as used in the recording are Produced by: ______’ (or similar equivalent) display in the liner notes of any record containing a Master Release, including the back cover of the packaging (if any) and any “single” embodying the Master Release, on metadata in connection with electronic transmissions and in all print ads placed or controlled by Purchaser of one-half (1/2) page or larger featuring the Master Release. The failure by Purchaser to provide such credit will not be deemed to be a breach of this Agreement. In the event ALive Creator provides us written notice that such credit has not been provided, Company will use reasonable efforts to have Purchaser or other applicable third parties to prospectively cure any such credit failure. In no event shall ALive Creator be entitled to an injunction in connection with a breach of these credit provisions.
Name and Likeness. Company, and each third party designated by us, will have the perpetual right throughout the universe to use, and to permit others to use, ALive Creator’s name(s), likeness(es), biographical and photographic material(s), and trademark(s) (the “ALive Creator Image”) in connection with the ALive Loops Pack and each Master Release, on any marketing materials and on the Properties, for the purposes of trade, advertising, publicity, marketing, promotion, in any manner and in any medium now known or later devised. ALive Creator agrees to cooperate with Company in furtherance of Company’s usage of the ALive Creator Image, including providing a bio and photographs for Company to use, upon Company’s request.
Samples. You shall not use or furnish any samples or interpolated Loops on the ALive Loops Pack. By entering into this Agreement, you are warranting and representing to us that you are the sole creator of the ALive Loop Pack and that you are not violating the rights of any third party. If you fail to comply with the terms of the preceding sentences, then, without limiting the rights and remedies available to us and/or Purchaser, you shall be: a) solely liable for all royalties or other monies which shall be due any person or entity whose master recordings or Loops are sampled or interpolated on the ALive Loops Pack; and b) solely responsible for any copyright interests and rights that are required to be transferred, conveyed, or assigned to the owner or licensor of any sample or interpolated composition embodied on the ALive Loops Pack.
Re-Recording Restriction. ALive Creator agrees and acknowledges it will not produce, coproduce, or mix any other version(s) of any musical composition or other selection that is embodied in the ALive Loops Pack for any person or third party, other than Company, prior to the date ten (10) years after the execution of this Agreement.
Notices. All notices must be in writing and sent to the corresponding party via certified mail (return receipt requested). Except as otherwise provided in this Agreement, such notices will be deemed mailed, except that notices of change of address will be effective only after the actual receipt. A copy of all notices to Company must also be sent via email to Company at info@aliveloops.com.
Representations and Warranties. You warrant, represent and agree that: a) you are not under any disability, restriction, or prohibition, whether contractual or otherwise, with respect to your right to sign this Agreement, to grant the rights granted by you under this Agreement, to perform each and every term and provision found in this Agreement, and to cause to provide the services of any third party party who may have assisted you in performing the
Services (“ALive Creator Personnel”) (if applicable) in connection with the ALive Loops Pack. You specifically warrant and represent that no selection produced, recorded, or written by you, or any ALive Creator Personnel (if applicable), is or will be subject to any restrictions pursuant to any other agreement to which you, or any ALive Creator Personnel (if applicable), are otherwise bound; b) your, and ALive Creator Personnel’s (if applicable), contributions to the ALive Loops Pack will be recorded in accordance with the rules and regulations of all labor unions having jurisdiction over the recording of such ALive Loops Pack; c) no selections, materials, ideas, or other properties furnished or selected by you, or any ALive Creator Personnel (if applicable), and embodied or contained in or used in connection with the ALive Loops Pack (including the musical Loops embodied within), or the packaging, sale, distribution, advertising, publicizing or other exploitation of such, will violate or infringe on any common law or statutory right of any person, firm or corporation, including, without limitation, contractual rights, copyrights, and rights of privacy; d) you have a valid and binding agreement with ALive Creator Personnel (if applicable) that grants you the right to furnish the Services in accordance with the terms of this Agreement; e) you will be solely responsible for and will pay any ALive Creator Personnel (if applicable) all royalties or other sums that may be payable to any such ALive Creator Personnel in connection with the Services; and f) you will be solely responsible for and will pay any withholding, employment, or other taxes required in connection with your, and ALive Creator Personnel (if applicable), Services and will indemnify and hold us and Purchaser harmless against any loss, damage, or expense arising against any loss, damage, or expense arising out of your failure to withhold or pay any or all such taxes.
Indemnification. You (and any ALive Creator Personnel, if applicable) agree to indemnify, defend, and hold us, Purchaser, our affiliates, successors, assigns, agents, distributors, designees, licensees, agents, contractors, and employees (together, the “Indemnified Parties”), harmless from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees and costs actually incurred) which may be suffered or incur by the Indemnified Parties in connection with any claim, demand or action by a third party arising out of any breach of or alleged breach of any agreement, representation, grant, or warranty made or assumed by you under this Agreement or otherwise arising with respect to the rights granted to us as per this Agreement and the exercise of such rights.
Notwithstanding anything to the contrary contained in this Agreement, we will have the right to settle, without your consent, any claim involving sums of $50,000 or less (or involving claims of ownership or exploitation of intellectual property), and this indemnity will apply in full to any claim so settled; if you do not consent to any settlement proposed by us for an amount in excess of $50,000, we will have the right to settle such claim without your consent, and this indemnity will apply in full to any claim so settled, unless you obtain a surety bond from a surety acceptable to us in our sole discretion, with us as a beneficiary, assuring us of prompt payment of all expenses, losses and damages (including attorneys’ fees) which we may incur as a result of said claim. On the making or filing of any such claim, action or demand, we will be entitled to withhold from any amounts payable under this
Agreement (if any), such amounts as may be reasonably necessary to protect the
Indemnified Parties, and as are reasonably related to the potential liability in issue; provided, however, that we will release any amounts so withheld by us within one (1) year following the date on which such amounts are initially withheld if no formal action has been commenced on the claim in respect of which such amounts are initially withheld. Further, you will have the right to post a bond in form, amount, and duration, and with a bonding company reasonably satisfactory to us in our discretion, and if you so post such a bond, we will no longer withhold any monies under this Agreement in connection with the applicable claim in respect of which such bond is posted. You will be given prompt written notice of all such claims and will have the right to participate in the defense of such, at your own cost and expense. You will reimburse us and Purchaser, as applicable, on demand, for any payment made by us or the Purchaser, as applicable, at any time after the date of this Agreement (including after this Agreement terminates) in respect of any liability, loss, damage, cost or expense to which the above indemnity relates. You, at our request, will cooperate fully with us in any controversy which may arise with third parties or litigation which may be brought by third parties concerning this Agreement or any of our rights under this Agreement.
Confidentiality. The parties agree that the terms and conditions of this Agreement between
Company and ALive Creator shall remain confidential. ALive Creator shall not discuss this Agreement terms, rates or conditions with any third party unless authorized by or requested to do so by Company.
Governing Law and Jurisdiction. If either party institutes any action, suit or proceeding based upon any matter, claim or controversy arising, or relating, under this Agreement, such action shall be brought solely in the Courts of Amsterdam, the Netherlands, and shall be governed by Dutch law. The parties submit to the jurisdiction and venue of said court, provided that notwithstanding anything to the contrary in this paragraph, if Company, or ALive Creator, is sued or joined (e.g. by joinder or impleader) in any other court or forum by a person, or entity other than ALive Creator, or Company, respectively, in respect of any matter that may give rise to a claim by or against ALive Creator, or Company, under this Agreement, ALive Creator and Company consents to the jurisdiction of such court or forum over any such claim asserted against ALive Creator or Company.
Miscellaneous. Nothing contained in this Agreement shall be deemed to obligate Company or our designees actual offer for sale or license the ALive Loop Pack(s) and/or to embody any of the ALive Loops Pack(s) on any recording or any other medium recorded, exploited or released by Company or our designees. No party will be deemed to be in breach of any of such party’s obligations under this Agreement unless and until the other party will have given written notice setting forth the nature of such breach and the breaching party will have failed to cure such breach within thirty (30) days after the effective date of such notice (reduced to fifteen (15) days for failure to pay amounts due under this
Agreement). In the event of any breach of this Agreement by Company, ALive Creator’s sole remedy shall be an action at law for damages actually incurred, if any, and, except in the case of fraud, in no event shall ALive Creator be entitled to seek equitable or other injunctive relief. It is expressly agreed that ALive Creator is acting as an independent contractor and that nothing contained in this Agreement shall constitute a partnership, a joint venture, agency or employment relationship between ALive Creator and Company. Company shall have the right, at its election, to assign any of its rights under this Agreement, in whole or in part, to any person or entity. ALive Creator shall not have the right to assign any of ALive Creator’s obligations or rights under this Agreement, absent the express consent of Company, except for the one-time right to assign payment (if applicable).
This Agreement supersedes all prior agreements between the parties pertaining to the subject matter hereof, whether verbal or written, and any further modification(s) to this Agreement shall not be binding unless in writing and signed by the parties. This Agreement may be signed in any number of counterparts, each such counterpart being deemed to be an original instrument, but all of which shall constitute one document.
Delivery of a signed counterpart of a signature page to this Agreement by facsimile or other
electronic means shall be deemed effective as delivery of a manually executed original counterpart of this Agreement. The parties acknowledge that they have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed consistent with the joint drafting of this Agreement by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. ALive Creator acknowledges and agrees that it has read this Agreement and has been advised by Company of the significant importance of retaining an independent
attorney of ALive Creator’s choice to review this Agreement on behalf of ALive Creator. ALive Creator hereby acknowledges and agrees that it has had the unrestricted opportunity to be represented by an independent attorney. In the event of ALive Creator’s failure to obtain an independent attorney or waiver thereof, ALive Creator hereby warrants and represents that it will not attempt to use such failure and/or waiver to obtain an attorney against Company or Purchaser, or any of their successors.