Licensor may be referred to as “You” or “you,” and Licensee may be referred to as RBE Global. Each may be referred to as a “Party” or collectively “the Parties.”

 

1. Term and Territory.

a. The term of this Agreement shall be for One Year (365) days (the “Initial Term”). The Initial Term shall automatically renew for successive One Year (365) day periods (each a “Renewal Term”) unless terminated by either Party subject to the provisions of Paragraph 10 below. The Initial Term and Renewal Term(s), if any, are collectively referred to as the “Term.”

b. The territory for this Agreement shall be the universe (the “Territory”).

 

2. Content.

a. Sound Recordings. You own and/or control one hundred percent (100%) of the sound recordings delivered to RBE Global by you or others that you may authorize via Label Access or through any other means as well as the copyrights in and to the sound recordings (the “Masters”). “Label Access” is an online dashboard that EMPIRE will provide RBE Global access with in order to monitor your account with EMPIRE.

 

b. Compositions. You either:
 

i. own and/or control the compositions embodied on the Masters (the “Compositions”) as well as

the copyrights in and to the Compositions; or

 

ii. have mechanical licenses and all other permissions required to use the Compositions as contemplated in this Agreement.

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c. You may have other works whether audiovisual, visual or otherwise which you would like RBE Global to include in this Agreement (“Additional Works”).

 

d. In this Agreement, the Masters and the Compositions and the Additional Works, if any, are collectively referred to as the “Content.”

Grant of Rights. You hereby grant RBE Global , during the Term and in the Territory, the exclusive electronic, digital, and mobile rights in the Content to create digital and/or electronic copies and compilations, to distribute, to sell, and to publicly perform the Content via all electronic, digital, and mobile platforms owned and/or controlled by third parties with whom RBE Global has or enters into agreements with during the Term (“EMPIRE Partners”). These rights include, but are not limited to, the right to:

 

a. perform the Content in streaming format on RBE Global’s or EMPIRE Partners’ websites, services, and platforms;

 

b. publicly display and make available for download as part of the sale of the Masters the lyrics of the Compositions;

 

c. collect monies payable by SoundExchange and other organizations for neighboring rights to the owner of the Masters. For clarity’s sake, where applicable, this collection right is only for the so-called “Rights Owner’s Share” of your Masters and not the so-called “performers’ side.”

 

d. with prior written approval from you, include the Content in audio and/or audiovisual compilation(s) for sale via physical distribution, and in such cases, to manufacture, make copies of, distribute, and sell physical embodiments of the Content;

 

e. release, advertise, and sell electronic files or equivalent electronic form(s) of the Content and to permit others to do so under the trademark “EMPIRE Distribution” or under any trademark used by RBE Global;

 

f. sub-license the rights granted by you to RBE Global in this Agreement as necessary to EMPIRE Partners, solely to fulfill the purposes of this Agreement including but not limited to those rights necessary to promote, market, advertise, distribute and sell the Content to consumers. RBE Global’s grant of rights to EMPIRE Partners for use of the Content shall always be subject to the terms and limitations of this Agreement; and

 

g. subject to your prior approval in each instance, enter into a master use license for the synchronization of the Masters with moving pictures, including, but not limited to, for film, television, video games, etc. (“Synchs”) and to collect the master license fee for all such Synchs. RBE Global shall have the right to grant Synchs that extend past the Term.

 

h. In order to maximize monetization and marketing on your behalf, RBE Global shall have the right to ‘roll up’ your pre-existing YouTube Channel and SoundCloud Profile (each referred to as an “Account”) underneath RBE Global’s YouTube Multi-Channel Network and SoundCloud partnership. In

 

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order to allow RBE Global to administer your Accounts, upon RBE Global’s request, you shall provide your username and password for each Account and accept RBE Global’s request to manage your SoundCloud account within the service. You will remain fully in control of your Accounts, and RBE Global will not upload or delete content other than the Content without explicit approval from you, and you may opt-out of RBE Global’s network at anytime. Notwithstanding anything to the contrary, in the event that you do not have a pre-existing Account, RBE Global shall have the right, but not the obligation, to create an Account on your behalf (“New Account”). As between the parties, RBE Global shall remain the sole owner of such New Accounts, and you shall claim no intellectual property rights in such New Account. RBE Global shall additionally have the right to issue blanket licenses for the synchronization of the Masters with user-generated moving images to EMPIRE Partners, e.g., YouTube’s ContentID program.

 

4. Promotional & Other Rights.

 

a. Unless otherwise instructed in writing by you, RBE Global shall have the non-exclusive right, in its sole discretion and in line with customary practices, to market the Masters and other Content as applicable, for promotional purposes and without compensation to you.

 

b. In order for RBE Global to provide marketing and licensing services under this Agreement, you grant RBE Global the right to:

 

i. publicly perform the Masters (and other Content as applicable) on RBE Global’s websites, services, or platforms and permit EMPIRE Partners to publicly perform the Masters on their websites, services, or platforms on a gratis basis for the purposes of promoting the sale of the Content. You hereby acknowledge that RBE Global and EMPIRE Partners shall be exempt from any payments of performance royalties otherwise due to owners of sound recordings for digital performances of the same if the use is for promotional purposes.

 

ii. print, publish, disseminate, and otherwise use and permit others to use the “NIL Materials” (defined below) for the purposes of trade, advertising, and other exploitations solely in connection with the marketing, sale, and exploitation of the Content. The “NIL Materials” are defined as the approved likeness, approved biography, approved photos, and other approved promotional material provided by you, including the name, both legal and professional, whether presently or hereafter used by you, and name(s) of others whose work is embodied on the Content including the “Performer” (as defined below). All NIL Materials provided by you to RBE Global shall be deemed approved. All material provided by you to RBE Global may be edited to fit the format of the specific use without further approval from you. RBE Global shall have the right to permit EMPIRE Partners, successors and designees the right to use the approved NIL Materials as outlined in this subparagraph. “Performer(s)” as used in this Agreement means any person whose musical, vocal or production services are embodied on the Content.

 

iii. grant gratis licenses to synchronize the Masters with user-generated moving images solely for the purposes of promoting the Content.

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5. Payment.

a. RBE Global shall pay you the percentages of “Revenue” as outlined on Revenue Shares attached to this Agreement and forming a part of it.

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b. “Revenue” means income actually received by or credited to RBE Global that is derived solely from the exploitation of the Content. Income received by RBE Global may be subject to taxes, surcharges or fees imposed by government agencies or EMPIRE Partners before payment is sent to RBE Global. RBE Global shall have no obligation to pay you Revenue which RBE Global has not actually received until such time as RBE Global receives such Revenue.

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c. Subject to receipt of accurate and complete payment and tax information, Revenue shall be paid monthly on the 15t h of each month or the following business day if such date occurs on a weekend or holiday. Each payment will be accompanied in Label Access by a detailed statement showing all sales and other Revenue-generating exploitations of the Content. If you have not received payment or a statement indicating that no payment is due by the 20t h day of the month, you shall promptly advise RBE Global that you have not received payment or a statement. RBE Global shall investigate the situation and assure that payment and/or a statement are sent to you. In no event shall RBE Global be deemed in breach of its payment obligations under this Agreement if you have not received payment or a statement on the 15t h of the month. However, RBE Global may be deemed in breach of its payment obligations if RBE Global fails to make payments or provide a statement thirty (30) days after receiving notice from you as outlined above.

 

d. No payment shall be made to you in any month when less than Three Hundred U.S. dollars ($300) is due and payable to you. In the event payment is not made to you for this reason, such amounts below Three Hundred U.S. dollars ($300) will accrue to your account and shall be paid in the first month in which your account reflects a balance greater than Three Hundred U.S. dollars ($300) as applicable.

 

e. All payments to you from RBE Global under this Agreement shall be made via paper check, ACH, or Paypal as selected by you on Exhibit A attached hereto.

 

f. You hereby acknowledge that in the United States among the ways that mechanical royalties for digital sales are customarily paid include: (i) payment directly to the publishers/writers by the music services/retailers, and (ii) an all-in payment as part of the fee paid by the music services/retailers to RBE Global and are not paid separately to the publishers/writers of compositions. In those instances when RBE Global receives what is considered the mechanical royalty as part of the fee from EMPIRE Partners, the portion deemed the mechanical payment shall be included in Revenue paid to you. You shall be fully and solely responsible for paying the mechanical royalty to the appropriate publishers/writers for use of the Compositions under this Agreement.

 

g. You hereby consent, and shall obtain the consent of all payees, to receive electronic 1099s.

 

6. Accountings & Audits.

 

All statements shall be binding upon you and not subject to objection by you unless specific objection in writing, stating the basis thereof, is given to RBE Global within three (3) years from the date the statement is rendered, viewed, and/or downloaded. You shall have three (3) years

 

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from the date each statement is rendered, viewed and/or downloaded to conduct an inspection of RBE Global’s books and records specifically relating to your sales and payment activity. Such inspection shall take place at the location where RBE Global normally keeps such books and records and shall be conducted during normal business hours. All such inspections shall be made upon prior written notice to RBE Global at least thirty (30) days prior to the date you intend to conduct such inspection. You may only inspect records relating to each statement once and may only conduct such an inspection once a year. RBE Global shall have the absolute right in accounting to you to rely upon the statements received by RBE Global from third parties and shall not be liable in any manner whatsoever for any error, omission, or other inaccuracy of any such statement(s) or information received by RBE Global. However, if RBE Global knows or has a reliable business reason to know of an error, omission or other inaccuracy in such third party statement or information, RBE Global shall promptly act to correct it and when corrected, RBE Global shall appropriately correct your statement and Revenue.

 

7. Confidentiality.

 

The Parties shall keep the terms and conditions of this Agreement confidential both during the Term and thereafter and shall not disclose any information concerning the terms and conditions of this Agreement to any other person or entity. Each Party may refer generally to the existence of this Agreement but shall not reveal the terms of this Agreement, including but not limited to the payment provisions, other confidential information, proprietary information, business plans, business models, customers, clients, technology, products, or any other information which either Party identifies as confidential (collectively, the “Confidential Information”) without the prior written consent of the other Party. Either Party may disclose the Confidential Information on a “need to know” basis to its attorneys, financial, and other advisors who are under a duty of confidentiality to the disclosing Party without the prior written consent of the other Party so long as those agents are informed of this Confidentiality provision and agree to be bound by it and maintain the Confidential Information confidential. If required by law or governmental regulation, either Party may disclose the Confidential Information only after it provides the other Party with notice of the potential disclosure and the other Party has the opportunity to narrow the information to be disclosed or dispute the disclosure. Nothing in this provision shall prohibit either Party from disclosing that an agreement exists between you and RBE Global so long as the terms and conditions of this Agreement are not disclosed.

 

8. Warranties and Representations.

 

a. You explicitly warrant, represent, and agree that:

 

i. unless otherwise noted, you possess all rights in and to the Content to enable RBE Global to use the Content as contemplated in this Agreement. In the event you do not possess all of the full and exclusive rights to the Content, you shall inform RBE Global upon delivery of the Content which right(s) you do not own or control. You shall provide RBE Global with any documentation requested by RBE Global evidencing rights to use the Content intended under this Agreement;

 

ii. You have the full right, power, and authority to enter into and fully perform this Agreement and all of your obligations under this Agreement and to grant RBE Global the rights granted in this Agreement. You have not granted and will not grant or attempt to grant to any other person, firm, corporation or entity, rights of any kind which are inconsistent with the grant of rights to RBE Global

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or which would in any way impair the rights granted to RBE Global under this Agreement during the Term;

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iii. the Content contains NO unauthorized “Samples.” “Samples” as used herein means any portion(s) or interpolation(s) of third party master recording(s) and/or composition(s), video(s) and/or other material(s), or portions thereof whether musical, lyrical or otherwise, not owned and/or controlled by you. You explicitly warrant and represent that the Content, the sale, distribution, and exploitation of the Content, or any uses of the Content contemplated herein shall not violate any law or infringe upon any common law or statutory rights of any person, corporation, or entity, including without limitation contractual rights, copyrights, trademarks, and rights of privacy or publicity;

 

iv. as required for use of the Compositions contemplated under this Agreement, except for those Compositions subject to 5(f)(i) above, you have obtained mechanical licenses for all Compositions and that you shall administer and pay all mechanical royalty payments to the publishers/writers of the Compositions; and

 

v. You shall make any and all payments, which may be due to artists, producers, musicians, Performers, writers and publishers when not otherwise addressed in this Agreement and all others whose work and/or performances are embodied on the Content and/or all artwork submitted by you.

 

b. RBE Global warrants, represents, and agrees that:

 

i. RBE Global has the right, power, and authority to enter into and fully perform this Agreement and all of its obligations under this

Agreement;

 

ii. RBE Global shall, at its sole cost and expense, deliver the Content to EMPIRE Partners.

 

9. Actions and Indemnity.

 

a. RBE Global shall have the right, but not the obligation, to prosecute, defend, settle and compromise all suits and actions respecting the Content, and generally to do and perform all things necessary concerning such activities and the copyrights therein, and to prevent and restrain the infringement of copyrights or other rights with respect to the Content. In the event of the recovery by RBE Global of any monies, such monies shall be divided between RBE Global and you in the same shares as provided in Revenue Share, below, after first deducting all outside costs and expenses, if any, of obtaining such monies.

 

b. Each Party (the “Indemnifying Party”) will indemnify, defend, and hold harmless the other Party and its affiliates, their respective officers, directors, employees, and agents (“Indemnified Party”) from and against any and all losses, liabilities, claims, obligations, costs, and expenses (including reasonable attorney’s fees) which result from or arise in connection with or are related in any way to a breach by the Indemnifying Party of any of its representations and warranties in this Agreement. If a third party asserts a claim or allegation which, if proven, would constitute a breach by the Indemnifying Party of any of its representations, warranties, covenants and or obligations under this Agreement, the Indemnified Party shall promptly notify the Indemnifying Party in writing. The Indemnifying Party shall have the right at its

 

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own expense to participate in the defense thereof with counsel of its own choosing, provided however that the Indemnified Party’s decision in connection with the defense or settlement of any such claim or demand shall be final. No Indemnified Party shall effect any settlement of any pending or threatened proceeding with respect to which indemnity could have been sought under this Agreement by the Indemnified Party without the prior written consent of the Indemnifying Party.

 

c. Upon receipt of a claim which, if true, would represent a breach of any of your warranties or representations in this Agreement, RBE Global shall have the right to withhold your Revenue payments until such claim has been resolved.

 

10. Termination.

 

a. After the Initial Term, you may terminate this Agreement upon thirty (30) days’ written notice to RBE Global and RBE Global must confirm in writing receipt of such notice. Upon termination or expiration of this Agreement, the rights granted to RBE Global hereunder shall automatically revert to you. Additionally, you may, upon thirty (30) days’ written notice to RBE Global, terminate this Agreement with respect to any particular Master, Composition or Additional Work without affecting this Agreement for the remaining Masters, Compositions and/or Additional Works.

 

b. After the Initial Term, RBE Global has the right to terminate this Agreement upon thirty (30) days’ written notice to you. Regardless, should RBE Global file for chapter 7 or chapter 11 bankruptcy proceeding, termination of this Agreement is immediate and all Content shall be returned to you.

 

c. Upon termination or expiration of this Agreement for any reason, RBE Global shall cease all use and distribution of the Content and shall demand that EMPIRE Partners cease all use and distribution of the Content. RBE Global shall promptly delete all forms of the Content from its websites, services, and platforms and demand that EMPIRE Partners delete all forms of Content from their websites, services, and platforms within sixty (60) days of termination of this Agreement.

 

d. Survival of Revenues. Upon expiration or termination of this Agreement, all Revenues received by RBE Global for the Content shall continue to be subject to the payment provisions outlined in paragraph 5 above for so long as RBE Global receives such Revenues.

 

11. Mediation & Arbitration.

 

If a dispute arises out of or relates to this Agreement, or if there is a breach of this Agreement, and the dispute cannot be settled or resolved, then the dispute or breach shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The controversy or claim shall be settled by three (3) arbitrators, and all hearings shall be held in San Francisco, California. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. In rendering the award, the arbitrators shall interpret this Agreement in accordance with the substantive laws of California without regard to its conflict of laws rule. Notwithstanding the foregoing, if a third party claim is brought against RBE Global for copyright infringement, violation of rights of publicity, rights of privacy, or other unauthorized use of Content which is contrary to the rights granted by you to RBE Global in this Agreement, RBE Global shall not be bound by this Arbitration provision and may defend itself and make a claim against you in the appropriate court of law and/or equity.

 

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12. Miscellaneous

 

a. Under no situation or circumstance shall RBE Global be required to accept any or all Content submitted by you. You have none of the rights granted under this Agreement unless RBE Global officially accepts Content in writing (including via e-mail) or otherwise exploits or distributes such Content. RBE Global will use reasonable efforts to make the Content available for sale on third party services, carriers, websites, services, and other platforms but makes no guarantee as to the timeliness of such availability or the manner in which it is presented by EMPIRE Partners to the public. You understand and agree that RBE Global shall not be liable for any actual or potential lost revenue due to a delay or failure to have the Content available via third party services, carriers, websites, or other platforms. However, RBE Global will work with you and EMPIRE Partners to facilitate as many of your preferences as possible.

 

b. If any part of this Agreement is deemed invalid or unenforceable, it shall not affect the validity or enforceability of the remainder of this Agreement, which shall remain in full force and effect as if such invalid or unenforceable provision(s) were not a part hereof.

 

c. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, successors in interest, and assigns. RBE Global shall have the right without your consent to assign this agreement in whole or in part to any subsidiary, parent company, sister company, joint venture partner, or to any third party acquiring a substantial portion of RBE Global’s assets or stock.

 

d. In entering into and performing this Agreement, you and RBE Global each have the status of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture between the parties and neither is the other’s partner or employee.

 

e. This Agreement, the attached Exhibits and any Addendums contain the entire understanding between the parties with respect to the subject matter hereof and may only be modified, altered, or amended by a written agreement signed by all parties. For purposes of this provision, a written modification, alteration, or amendment shall include e-mail transmission with proof of receipt and acceptance by the receiving Party.

 

f. You agree that you enter into this Agreement with all knowledge of its terms, freely and voluntarily, and with a complete understanding of all the consequences of entering into this Agreement. You acknowledge that you have been represented in the negotiation and execution of this Agreement by an independent attorney of your choice who is familiar with the practices of the entertainment industry or you have willingly refrained from so doing.

 

g. This Agreement shall not be construed more strictly against one Party than the other merely by virtue of the fact that it has been prepared initially by counsel for one of the Parties, it being recognized that both Parties and their respective counsel, as applicable, have had a full and fair opportunity to negotiate and review the terms and provisions of this Agreement and to contribute to its substance and form.

 

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h. Subject to and in accordance with Paragraph 11 above, this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice of law principles.

 

i. All notices and communication desired or required between the parties may be made via e-mail transmission, provided however that the sending Party obtain proof of receipt of such communication by the recipient either by return e-mail, follow up telephone call, or facsimile. Notices that pertain to any claim referenced in paragraph 9 shall be given in writing and delivered in any of the following ways: personally, via a commercial carrier which provides proof of delivery whether or not such delivery is made overnight with the postage prepaid.

 

j. This Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall constitute one and the same instrument. In addition, a signed copy of this Agreement transmitted by facsimile or scanned into an image file and transmitted via email shall, for all purposes, be treated as if it were delivered containing an original manual signature of the Party whose signature appears thereon and shall be binding upon such Party as though an originally signed document had been delivered.

 

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Revenue Shares

RBE Global shall pay you the following percentage of “Revenue” as defined in the Agreement:

For Revenue received for full Master downloads and for “Streaming” of Masters: Eighty Percent (80%)

For Revenue received for Music Videos. Eighty Percent (80%)

For Revenue received for Ring Tones, True Tones and Ring Back Tones: Eighty Percent (80%)

For Revenue received for synchronization licenses procured by EMPIRE: Eighty Percent (80%)

For all other sales not included above:
(by way of example only, “wallpapers” or images, sponsorship opportunities and other Revenue generated as a result of strategic partnerships)