Underground Sound: Mobile Video Channel Licensing

Posted by:  Versaly Entertainment

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Summary

Underground Sound is offering the chance for artists to get their videos (and these videos can be live performances, studio videos, backstage interviews, video blogs by the band, unplugged sessions etc), into a music video channel, programmed and produced for distribution via mobile phones, handheld devices, IPTV and the Internet. At least 24 Sonicbids artists are guaranteed to be featured.

The company will choose a maximum of 30 artists to feature each month, as they need a continuous stream of bands. Artists can visit http://m.vmbc.tv on their mobile phone now to see the bands that have made the cut so far. Underground Sound is available to indie fans for downloadable videos, free streaming video, and ringtones all on their mobile phone, they can watch their favorite live set from a festival, or download the music video of their favorite band.

Bands that have already been featured include Barcelona, Mudhoney, New Pornographers, Moby, Kaiser Cartel, Ready Goes, Lucinda Black Bear, The World Fair, Kills, Little Boots, The Futureheads, Amanda Palmer, and more. The Underground Sound mobile video channel garners around 20,000 views per month and nearly a quarter-million views per year. Viewers are from around the world.

Compensation Information
Underground Sound is a channel for the consumer to discover new bands and as such is primarily a promotional channel. When revenues are received from the phone carriers, then artists are paid 40% of the net revenue based on viewership of their video within the channel. These terms would be included in our standard terms and conditions contract that any band would have to accept and sign prior to being accepted. The contract is non-exclusive. Underground Sound can also generate value for any band by creating ringtones, ring-back tones, full track downloads, and wallpapers (i.e. graphics of a band’s logo, or promo shot of the band made into an image sized just for mobile phones). This is a service that is offered for free to selected bands that are getting the most video views and those that are releasing content in the near future to help support any marketing efforts.

Further Submission Requirements
Selected artists must accept Underground Sound’s non-exclusive standard terms and conditions. Video submissions only. Submitted videos must be of a certain standard quality so that both the video and audio are clear. Foul language must be either bleeped out, or excluded altogether (there are moral guidelines when broadcasting material across mobile handsets). If submitting live performances, please break down to the best three or four songs. Complete live sets are far too long to go through and will be rejected. Final video specs must be met and will be discussed at a later date.

About Versaly Entertainment
Underground Sound is a trademark of Versaly Entertainment. Versaly Entertainment is a mobile media and entertainment company. Versaly produces, aggregates, distributes and markets wallpapers, themes, ringtones, and video content to mobile device users all over the world. As experts in the selection and programming of niche content that resonates with the consumers, Versaly provides mobile carriers with energetic, dynamic and in-depth content targeted toward their key demographics.

Terms And Conditions

CONTENT DISTRIBUTION AGREEMENT

THIS CONTENT DISTRIBUTION AGREEMENT (this Agreement) is made and is effective as of the date above, (the Effective Date), by and between Versaly Games, Inc. d/b/a Versaly Entertainment, a Delaware corporation (Licensee), with an office at 555 116th Ave. NE, Bellevue, WA 98004 and (you) (Licensor), with the business address listing above; herein referred to individually as a Party or collectively as the Parties.

WHEREAS, Licensor owns and/or has the right to license certain content created, produced, and/or licensed by Licensor, as identified in Exhibit A (the Content), and desires to license such Content to Licensee;
WHEREAS, Licensee is a mobile entertainment company and desires to license the Content from Licensor for distribution to mobile phones and wireless devices; and
WHEREAS, both Parties hereto warrant that they have full and complete rights and authority to enter into this Agreement.
NOW, THEREFORE, for valuable consideration, receipt of which is acknowledged, and other good and valuable consideration, including the mutual covenants hereinafter set forth, the Parties agree as follows:
1. Grant of License.

1.1 During the Term, Licensor hereby grants to Licensee and its authorized distribution partners (Distributors) a limited, non-assignable, non-transferable, non-exclusive license (the License) as set forth herein and in the attached Exhibits A and B, in the Territory as defined in the attached Exhibit A (the Territory), to use, store, copy, reproduce, republish, reformat, transmit, publicly display, market, sell, distribute and promote the Content, to be used in a way consistent with personal entertainment included in Exhibit A (the Wireless Entertainment Use). This license grants to Licensee and its Distributors and their end users the non-exclusive right, during the Term and in the Territory, to use the Content only for Wireless Entertainment Use as set forth according to the terms and conditions in this Agreement. This license shall not restrict Licensors use, exploitation or licensing of the Content for any other use so long as said use does not infringe on, or impair Licensees rights under this Agreement. Licensor acknowledges that, for Content properly distributed according to this Agreement, Licensee has no control over the end-users actions and cannot limit use of previously downloaded and/or saved Content.

1.2 Trademarks. Also, in consideration of the license fees set forth in Section 2 below (License Fee), the Licensor further grants to Licensee a non-exclusive license to use and exploit the Trademarks designated by Licensor, solely on and in connection with the marketing and publication of the Content in the Territory. Licensee may affix, subject to the Licensors prior written approval, the Trademarks to or on all Content and to or on all packaging, advertising and promotional materials displayed, published, used or distributed in connection with the Content. Said Trademark license shall expire or terminate upon the expiration or termination of Licensees right to use the Content and related materials and reproduce, market and publish the Content as provided in Section 1.1 above. The Trademarks may only be used in association with the manufacture and distribution of the Content pursuant to the terms of this Agreement. Licensee shall not remove any Trademarks or the trademark notices from any Content or distribute the Content under any other name, sign, or logo without the prior written consent of the Licensor. Licensee shall not use the Trademarks in its business name.

1.3 Restrictions. Licensee shall not combine, split, reverse engineer or create derivative works of or from the Content, unless approved in writing by Licensor; and such act shall be deemed a material breach of this Agreement. Licensee may not use the name, likeness, performance, Trademarks, music, compositions or other elements embodied in the Content in a manner which constitutes an endorsement, advertisement or promotion of anything other than the Content as distributed by Licensee or its Distributors.

1.4 Recall. If there is a change of circumstance during the Term as a result of which Licensor knows or reasonably believes that it does not have, or no longer has, the rights necessary to authorize Licensee to use Content as provided for herein, or Licensor reasonably believes that Licensees continued use of any Content will substantially harm Licensor's relations, or violates the terms of any of Licensor's agreements, with any applicable copyright owner, artist, composer, producer, director, publisher or distributor, then Licensor will have the right to withdraw, upon ninety (90) day advanced written notice to Licensee's designated representative, authorization for the use of such Content hereunder. Within the 90-day period, Licensee may continue to market, promote, sell and distribute such Content; however, Licensee shall stop distribution of such Content at the end of the 90-day period. In addition, at the end of such period, Licensee will use commercially reasonable efforts to notify and stop Licensees distribution partners from marketing, promoting, offering for sale and distributing such Content. Licensor will use commercially reasonable efforts to clear such withdrawn Content and will promptly notify Licensee if and when such Content has been cleared and is again authorized for use by Licensee through the Content.

2. License Fee. In consideration for the license granted in Section 1, Licensee agrees to the terms and payments as set forth in the attached Exhibit B (the Royalty(ies)).

3. Proprietary Rights. This License shall not affect, impair or alter Licensors rights, title or interest in and to the Content, and nothing in this License shall confer to Licensee any right of ownership of the Content. The Content shall remain the sole and exclusive property of Licensor (or property owner in the case of a sublicense) and Licensor shall retain all right, title and interest in the Content and the worldwide copyrights therein and all renewals and extensions thereof, including without limitation all intellectual property rights in and to the underlying songs, performances, personality and all other creative elements in the Content, including but not limited to any future record releases or merchandising. This License shall not affect, impair or alter Licensees rights, title or interest in and to Licensees platform and technology, and nothing in this License shall confer to Licensor any right of ownership in the technology. The Licensee platform, copyrights, intellectual property and related technologies shall remain the sole and exclusive property of Licensee and Licensor shall not obtain any rights, title or interest to them hereunder.
4. Copyright Notices. Licensee may, unless otherwise agreed by both Parties, have a logo and copyright notice displayed as Licensor may reasonably designate at the location visible to the viewer or some other location that is technically possible, non-intrusive and that is acceptable to both Licensor and Licensee.
5. Delivery, Acceptance and Approvals.
(a) By Licensor. Licensor shall deliver the Content to Licensee in accordance with the Delivery Date(s) as defined in Exhibit A. All Content shall be subject to prior approval by Licensor prior to distribution to any third party whether for promotional or commercial use, and such approval shall not be unreasonably withheld or delayed. Licensee shall not need approval for Content distribution which has been previously approved in an identical grouping, medium, form and function. Licensor will make available to Licensee a subset of Content on a limited exclusive basis for Licensee to promote, sell, distribute to its Distributors. Licensor and Licensee will work collaboratively to select such exclusive Content. During the Term, Licensor agrees to provide Licensee with reasonable assistance, help, answers and other feedback to general and technical questions or requests by Licensee relating to the functioning of the Content via phone calls and e-mail, at Licensors discretion, at no additional charge to Licensee. Licensor will not be required to provide support services directly to end-users of the Content.
(b) By Licensee. Licensor shall allow Licensee a 15-day Acceptance Period, during which Licensee can review, post-produce, spell check, unit test, system test, stress test, examine, run and use in any internal manner, all aspects of the Content to ensure that it meets Licensees reasonable quality and format requirements and notify Licensor of any discrepancies. Licensor shall use reasonable efforts to correct defects and re-submit the Content within a technically feasible and reasonable amount of time. Beyond the 15-day Acceptance Period, any changes, if required or requested, will be treated as a separate delivery.
6. Representations and Indemnifications
(a) Licensor Representations. Licensor represents and warrants to Licensee that Licensor has the right to enter into this Agreement, can perform the obligations hereunder and the person executing this Agreement on Licensors behalf has been authorized to do so. Licensor also represents that subject to the restrictions and limitations contained in this Agreement, Licensor warrants that it has sufficient rights to grant Licensee the limited license under this Agreement.
If Content delivered by Licensor and accepted by Licensee is or contains video, the Content, or any portions thereof, does not fall under the jurisdiction of the Screen Actors Guild (SAG), the American Federation of Television and Radio Artists (AFTRA), the Directors Guild of America (DGA), the Writers Guild of America (WGA), or any like theatrical, motion picture or television union or guild. If it does, a detailed description of such jurisdiction, control, association or other relationship shall be clearly documented and provided to Licensee at the time Content is provided.
If Content delivered by Licensor and accepted by Licensee is or includes audio, the Content, or any portions thereof, does not fall under the jurisdiction of the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), or any like music union or guild. In addition, the Content either does not, in any portion or percentage, belong to or is controlled by a third party (e.g. SONY/ATV, UMP, Warner Chapell) or can be removed and/or replaced without violating or infringing the rights of others. If it does, a detailed description of such jurisdiction, control, association or other relationship shall be clearly documented and provided to Licensee at the time Content is provided.
(b) Licensee Representations. Licensee represents and warrants to Licensor that Licensee has the right to enter into this Agreement, can perform the obligations hereunder and the person executing this Agreement on Licensees behalf has been authorized to do so. Licensee also represents that it will only use the Content in such manner as may be specifically approved in advance in writing by Licensor, in Licensors sole discretion. Additionally, Licensee represents that (i) it is organized under the laws of its jurisdiction in a corporate or equivalent form; (ii) there are no claims (current, pending on known), actions or proceedings against Licensee (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair Licensees ability to honor all legal obligations hereunder; (iii) the Agreement constitutes the valid, legal and binding obligations of Licensee, enforceable in accordance with its terms; and (iv) Licensee shall not use or grant any licenses for or provide any Content alone, or in combination with any other material, in violation of this Agreement; (v) Licensee will not accept any undisclosed consideration or favors in return for licensing the Content, will preclude such unsavory practices as the misallocation or revenue from package sales, and the receipt of hidden rebates.
(c) EXCEPT AS SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE.
(d) Licensor Indemnity. Licensor will defend, indemnify and hold Licensee and its affiliates (and their respective officers, directors and employees), officers, employees and directors harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable outside attorneys fees) associated with any third party claim brought against Licensee or its affiliates in connection with or related to any allegation that the Content when used, sold or distributed by Licensee as permitted hereunder infringes any copyright or U.S. trademark or patent rights of any third party, defames or invades any right of publicity or privacy of any third party or otherwise infringes any other third party intellectual property rights; or (ii) a breach of any warranty, representation, covenant or obligation of Licensor under this Agreement.
(e) Licensee Indemnity. Licensee will defend, indemnify and hold Licensor and its members, officers, directors, employees and affiliates (and their respective officers, directors and employees) harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable outside attorneys fees) associated with any third party claim brought against Licensor in connection with or related to (i) any claim involving the actions of Licensee relating to this Agreement, and in connection with or related to any allegation that the Licensee platform or technology (excluding the Content) infringes any copyright or U.S. trademark or patent rights of any third party, defames or invades any right of publicity or privacy of any third party or otherwise infringes any other third party intellectual property rights; or (ii) a breach of any warranty, representation, covenant or obligation of Licensee under this Agreement.
(f) Conditions to Indemnity. The obligations of either party to provide indemnification under this agreement shall be contingent upon the party seeking indemnification (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying partys expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim without the indemnified partys prior written consent (which shall not be unreasonably withheld or delayed) in the event such settlement places any liability or obligation on the indemnified party.
7. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A PARTYS INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6, NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Confidentiality. During the Term of this Agreement and for a period of two (2) years thereafter, each party will use and reproduce the other partys Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other partys Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other partys Confidential Information to any third party (other than such consultants/independent contractors) without the prior written approval of the other party. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or other governmental investigation or proceeding, provided the other party has been given prior notice and the disclosing party has sought all available safeguards against widespread dissemination prior to such disclosure. As used in this Agreement, the term Confidential Information refers to the following, whether disclosed orally or in writing, and whether or not labeled as Confidential: (i) any information or matters relating to the terms and conditions of this Agreement or any exploitation of the Content by Licensee; (ii) each partys trade secrets, business plans, strategies, methods and/or practices; and (iii) any other information relating to either party or its business that is not generally known to the public, including but not limited to information about either partys personnel, products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, Confidential Information specifically excludes (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other party; (B) information that is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such partys written records, and which was not acquired, directly or indirectly, from the other party; (C) information that either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (D) information independently developed by either partys employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.
9. Term and Termination. The term of this Agreement shall be defined in Exhibit A (the Term), unless terminated by either party earlier as provided herein.
(a) Either party may terminate this Agreement in writing with immediate effect if: (i) the other materially breaches any term under this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice; (ii) the other ceases to conduct business; or (iii) the other files for bankruptcy, reorganization or insolvency, or if a similar proceeding for the benefit of its creditors is commenced.
(b) Except as provided in 9(c) below, following the expiration or termination of this Agreement, the rights and license granted herein to Licensee shall automatically terminate and Licensee shall no longer have the right to use Licensors Content in any manner. Licensee shall not distribute any Content thereafter, but Licensor agrees the Content already distributed to Licensees distribution partners or its distribution partners end-users shall not be affected.
(c) Following the expiration or termination of this Agreement, Licensee may Sell Off excess inventory that has been already received and/or produced, provided, however, that termination was not caused by Licensees material breach of this Agreement. Licensee shall have the non-exclusive right, following the expiration of the Term of this Agreement, to continue to sell, distribute, promote, market, provide, use and exploit Content to its distribution partners and/or subscribers in accordance with and subject to all the terms and conditions hereof, but such right shall terminate ninety (90) days following the date of the expiration of the Term. After the end of that ninety (90) day period, Licensee shall not have any rights whatsoever to sell, distribute, market, provide, use or exploit the Content in any manner, and all of Licensees rights hereunder shall cease. In the event of the early termination of this Agreement as a result of a breach by Licensee, then in such event, Licensee shall not have the rights to sell, distribute, provide, use or otherwise exploit the Content in any manner following the date of such termination.
(d) Notwithstanding anything to the contrary above, any termination by Licensor under the terms of Paragraph 9(a) shall not relieve Licensee of its obligation to pay any royalties that are due under the terms of Paragraph 2 of this Agreement. However, if termination by Licensor is prior to the end of the initial Term, Licensee may, in its sole discretion, increase the Licensee Distribution Fee by an additional ten percent (10%), from any and all outstanding revenue share payments. Any termination by Licensee under the terms of Paragraph 6(a) shall halt all payment obligations by Licensee to Licensor.
(e) Licensees duty upon expiration or termination of this Agreement shall be solely limited to notifying our distribution partners in writing. It is not Licensees obligation to ensure that its distribution partners comply with such notice and Licensor cannot initiate any legal action toward Licensee based on a 3rd partys compliance, or lack thereof, with take-down notices. It is Licensors responsibility to ensure Content is not sold in undesirable places, at Licensors sole discretion, after expiration or termination. After all Royalties have been paid to Licensor, if Licensees distribution partners continue to sell and pay Licensee for Content, Licensee will charge Licensor an administrative fee equivalent to the Licensee Distribution Fee, for a period not to exceed twelve (12) months; thereafter, the administrative fee will be 100% of monies collected.
10. Book and Records. Licensee shall keep accurate computerized books of account and records at its principal place of business, covering all transactions relating to this Agreement. Licensor and its duly authorized representatives shall have the right (at its own expense and upon ten (10) business days prior written notice) to examine all of Licensees books of account and records and all other documents and material in the possession or under the control of Licensee with respect to the subject matter in this Agreement. This right is limited to once (1) per year. If such examination reveals that, according to Licensors representative, there is a discrepancy from any payment owed to Licensor, then Licensee shall immediately pay the amount of any underpayment. If such examination reveals that, according to Licensors representative, there is a discrepancy of more than 10% from any payment owed to Licensor, then Licensee shall also immediately pay all of Licensors costs in any way associated with such examination. If Licensee disputes such discrepancy, an independent auditor reasonably approved by Licensor and by Licensee shall review the books and records at Licensees sole expense and make a final decision. All computerized books of account and records shall be kept available by Licensee for at least twenty-four (24) months after termination of this Agreement. Licensor agrees that any information obtained hereunder shall be subject to the Confidential Information requirements specified herein. In addition, the exercise by Licensor (in whole or in part, and at any time or times) of its right to audit Licensees books and records or of any other right granted herein shall be without any prejudice to and waiver of any rights and remedies of Licensor. Likewise, Licensors acceptance of any statement of deposit by Licensor of any payment tendered by or on behalf of Licensee shall be without prejudice to or waiver of any rights or remedies of Licensor and shall in no way stop, prevent, or otherwise impede Licensor from thereafter disputing the accuracy of any such statement or payment.
11. General
(a) Entire Agreement, Amendment, Waiver. This Agreement (including all Exhibits hereto) sets forth the entire agreement between the parties in connection with the subject matter hereof and it incorporates, replaces, and supersedes all prior agreements, promises, proposals, representations, understandings and negotiations, written or oral, between the parties in connection therewith and cannot be amended or any provision waived unless in writing signed by the Parties.
(b) Notice. All notices and other communications which are required under this Agreement shall be given in writing, in English, and delivered personally, via reputable overnight courier or first class mail, postage prepaid, return receipt requested, or via facsimile with acknowledgement of receipt, to the addresses or fax numbers set forth below or such other address as either party may substitute by notice hereunder and all such notices given in accordance hereunder shall be deemed given as of the date of mailing, provided it is sent prior to 4:00pm local time of sender and on a standard Business Day (defined as any day excluding Saturday, Sunday, Bank Holiday or other public holiday of the local Party), else it is deemed given on the next Business Day.
(c) Independent Contractor. Licensee operates an independent business apart from Licensor. Nothing in this Agreement creates a partnership, employer-employee relationship, franchisee-franchisor, or a joint venture between the parties. Each party is solely responsible for the control and management of its business operations, for obtaining and maintaining all applicable business licenses and insurance, and for the timely payment of all income, payroll, and employment-related taxes, including without limitation all unemployment, workers compensation, income tax withholding, and any other taxes of any nature whatsoever related to its business, unless otherwise specified in Exhibit B (Payments). Neither party will use the name, service marks, trademarks, or trade secrets of the other party or any of its affiliates for any purpose without the other partys written consent.
(d) Assignment. Each Partys obligations hereunder may not be assigned, delegated, sublicensed or otherwise transferred without the other partys prior written consent, unless its to any affiliate or to any surviving party as part of a corporate reorganization, consolidation, merger, or sale. In the event of such assignment or attempted assignment by either party, the assigning party shall notify the other party prior to the effective date of assignment, and the other party shall have the right to terminate this Agreement immediately for a period of thirty (30) days after its receipt of notice. Subject to the limitations herein, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
(e) Choice of Law. The interpretation and enforcement of this Agreement shall be exclusively governed by the laws of the United States and the State of Washington, without recourse to its conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in the State of Washington in the United States of America for the adjudication of any and all disputes concerning the interpretation or enforcement of this Agreement.
(f) Force Majeure. If either partys performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, flood, fire, explosion or other act of nature or any other matter not within such partys reasonable control, then the date for performance shall be extended by the time of such delay; provided, however, that the party subjected thereto shall pursue with reasonable diligence the avoidance or removal of such delay if reasonably feasible.
(g) Public Announcements. Neither party will make public announcements regarding the existence of contents of this Agreement without the other partys prior written consent. The parties agree to issue a Joint Press Release (the contents of which will be mutually agreed upon) and release it through a reputable news agency.
(h) Gender and Number. Wherever the context requires, the gender of all words used in this Agreement shall include the masculine, feminine, and neuter, and the number of all words shall include the singular and the plural.
(i) Costs and Expenses. Except as otherwise provided for in this Agreement, each Party shall be responsible for and will bear all costs and expenses incurred by it in connection with the performance of its obligations under this Agreement.
(j) Currency. All currencies specified herein are in US dollars. When the royalty payment to Licensee is calculated based on a currency other than U.S. currency, the payment to Licensee will be calculated by using the free rate of exchange of such other currency to U.S. dollars as quoted by Citibank, N.A. for the last business day of the calendar quarter in which such royalties accrued. For back royalties due Licensee, royalty payment will be calculated using the exchange rate quoted by Citibank, N.A. for the last business day of the last calendar quarter.
(k) Interpretation. The headings and numbering shall not be considered or given effect in construing this Agreement. This Agreement shall be construed without regard to the party responsible for the preparation of the same, and shall be deemed to have been prepared jointly by the Parties. Any ambiguity or uncertainty existing herein shall not be interpreted against either Party, but according to the application of other rules of contract interpretation.
(l) Non-circumvent. During the term of this Agreement and for a period of six (6) months thereafter, Licensor may not sell, license or in any way distribute Content directly to Distributors, who have acquired the right to distribute the Content from Licensee, without the prior written consent from Licensee, unless there was an existing and active formal relationship between Licensor and the Distributor in question at the time of signing this Agreement. Licensor shall not enter into any separate formal or informal relationship with Distributor. If such action occurs, Licensor will pay Licensee the revenue share agreed to herein, for revenue generated from the exploitation of Content by Distributor, throughout the lifetime of such relationship between Licensor and Distributor. This Section shall be in force until six (6) months after the termination, cancellation or expiration of this Agreement, unless such termination is initiated by Licensor according to Section 9(a).
(m) Severability. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect and the affected provision shall be modified in a manner which comes closest to the intention of the parties at the time the original provision was agreed upon.
(n) Survival. The following sections shall survive termination or expiration of this Agreement: 3, 4, 6, 7, 8, 9, 10, 11 and Exhibits A and B, in addition to any other provisions which by their terms or sense are intended to survive.
(o) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Executed copies of this Agreement may be delivered by facsimile.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.
Accepted and agreed to:

LICENSOR

By:___________________________
Name:
Title:

Address for correspondence:

Phone:
Fax:
Email:

EXHIBIT A - DEFINITIONS

Term shall be defined a beginning on the Effective Date and shall continue for a period of two (2) years. The Agreement will automatically renew for consecutive one (1) year periods (each, a Renewal Term) unless either Party sends the other Party a written notice of its intent not to renew the Agreement no later than thirty (30) days prior to the expiration of the initial Term or any Renewal Term.

Content shall be defined as digital or physical forms of any or all of the following source or previously produced material: images, audio, video of musical performances as determined by Licensor which Licensor delivers and Licensee accepts. The Content may contain artist names, artist likenesses, performance venue names, still images, candid events, voice tracks, music tracks, and other elements which are all included in the license and clearances contained herein. Subject matter guidelines shall be supplied under separate document. The Content shall be delivered in a format(s) defined by Licensee under separate document after agreement execution.

Wireless Entertainment Use shall be defined as copying, reformatting, and distribution to and display or playing on wireless devices and mobile phones LCD display screens, speakers, and headsets from the audio out port, including, but not limited to, MS Smartphones, Qualcomm BREW-based phones, Palm OS-based phones, Blackberry-based phones, Symbian-based phones, J2ME phones and Motorola iDEN-based phones, during the Term within the Territory. Opportunities exist that promote, compliment and expand the marketability of Content beyond mobile distribution through and to non-wireless devices, such as the World Wide Web, public airwaves and broadcast, for displaying, listening and viewing on computers, gaming consoles, televisions and all other devices which exist today or may exist in the future. So long as any non-mobile distribution includes a mobile component, Licensor agrees to allow Licensee to distribute Content through and to such networks, devices and any such medium. Licensor allows Licensee to copy, create, store and distribute any and all formats required for the proper transport, display, playing and viewing on any such device, display medium or audio transmittor. Licensee will not develop and maintain its own non-mobile end-user destination (i.e., URL, TV channel, application) for mass consumption of Content, nor will Licensee distribute Content to a competitor of Licensor which is distributed on a similar medium to Licensors,, unless approved by Licensor in writing. Licensee shall not use the Content as the main subject in any advertisements or marketing collateral, unless approved in writing by Licensor, but may use the Content in a product list or other form as part of Licensees sales and marketing programs showing the available entertainment content on the Licensee platform and in Licensees library of product offering, in order to market and sell such content.

Territory shall be defined as (list countries or default worldwide) worldwide.

Delivery Date shall be defined as the date or dates when an acceptable amount and quality of Content needs to be delivered by Licensor to Licensee in order for Licensee to perform its proper sales and marketing activities in order to generate revenue for Royalty sharing. The Delivery Date for the Content shall be no more than 15 days after execution of this Agreement and may continue on an ongoing basis throughout the Term of this Agreement.

Trademark means any name, trademark, services mark, trade name, label, logo, design or other designation of a party, and all goodwill associated therewith.

EXHIBIT B PAYMENTS

Licensee shall pay Royalties to Licensor from what is earned from exploiting the Content within the Term, as defined below.

The monies available for Royalty payments shall be defined as follows:
a) In the case of a pay-per-download model: Revenue per Content download;
b) In the case of a subscription model: Revenue from the subscription service for the defined period (per report) multiplied by a fraction defined as the actual number of downloads or views of the Licensors Content divided by the overall number of all content downloads and views by all content providers on that subscription service during that period; or
c) In the case of an advertising-sponsored model: Revenue from advertisements on the service and program where advertisements are viewed for the defined period (per report) multiplied by a fraction defined as the actual number of downloads or views of the Licensors Content divided by the overall number of all content downloads and views by all content providers on that service during that period.

All downloads and views must be Qualified. Qualified shall be defined as the actual number of downloads and/or views which the carrier or mobile storefront reports to Licensee and pays Licensee for such activity.

Royalties shall be calculated as Revenue less the Licensee Distribution Fee.

Revenue means all monies collected by Licensee in connection with the exploitation of the Content distributed by Licensee or its Distributors for Wireless Entertainment Use, including, but not limited to revenue collected from; (a) subscriptions, sales and licenses; (b) the Licensee service; (c) Licensee pay-per-download products; and (d) advertising revenue.

The Licensee Distribution Fee shall be sixty-five percent (65%) (35/65 split) of Revenue, as defined herein. Licensee Distribution Fee includes all Licensees effort to make Content ready for distribution, including post-production, inventory management, hosting, marketing and delivery.

Royalties are calculated quarterly (calendar quarter). Payment of quarterly Royalties to Licensor will be due and payable within sixty (60) days following the quarter Licensee receives payment from the wireless carrier, distribution channel, ad agency or collection agency collecting the Revenues from use of the Content. Each payment shall be accompanied by a statement identifying the applicable period and detail for the computation of royalties and the amount thereof, and a report containing mutually agreed upon content (which will include at a minimum the total number of streams/downloads of Content).

The minimum Royalty to be paid for any given period is $500 (Five hundred US dollars). If the total Royalties owed to Licensor does not reach the $500 level, the amount will be accrued and added to Licensors share for the following period(s). If the $500 level is not met Licensor shall receive a statement showing the Royalties accrued for said period only upon request, provided that upon expiration or termination of this Agreement, Licensor will be paid all accrued Royalties even if they do not exceed $500.

Licensor agrees that its Content will be used for mostly promotional use, which Licensee does not get compensated for, and therefore, Licensor will not be paid or anyway compensated for that use of its Content.