Total Media Tracks Music License
This Agreement Is Made Effective by and between:
JAG Media Group Inc. (dba Total Media Tracks), a corporation Existing under the Laws of British Columbia, Canada (“Licensor”)
A User of Licensed Music Accessible from www.totalmediatracks.com (“Licensee”)
(collectively, Licensor and Licensee are referred to as the “Parties”)
WHEREAS Licensor is the owner or license holder of copyrights in the Licensed Music accessible for Licensee to download from the www.totalmediatracks.com (the “Website”);
AND WHEREAS Licensor, upon receipt of payment from Licensee, is prepared to grant the Licensee a limited, non-exclusive license to use the Licensed Music available through the Website in accordance with the terms of this Agreement and subject to the Licensee complying at all times with the terms and conditions detailed in this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:
1.1 “Copyrights” means the copyright in the Licensed Music.
1.2 “License Definer” means the pop up form completed by the Licensee in order to obtain access to the Licensed Music within the Subscription service only.
1.3 “Licensed Music” means any music file available in any computer readable, audio file format which is available for Licensee to download from the Website in accordance with the terms of this Agreement.
1.4 “Project” means the project in which the Licensed Music will be used by the Licensee.
1.5 “License” has the meaning set out in Section 2.2
1.6 “License Fee” means the license fee per track or per Subscription of Licensed Music.
1.7 “Streaming” means the transference of multimedia data online on websites, social media channels and all other similar internet placements.
1.8 “Website” means the website accessible at www.totalmediatracks.com.
1.9 “Subscription” means the annual membership permitting unlimited downloads for a 12-month period subject to a annual fee payable at the onset of the subscription period.
2. Music License
2.1 Subject to the terms of this Agreement, Licensor grants and Licensee, by paying the Licensor a License Fee, accepts either: (i) a single use, single site, non-transferable and non-exclusive license; or (ii) a non-transferable and non-exclusive license via Subscription, to download and use the Licensed Music for synchronization within the Licensee’s Project.
2.2 Licensor and Licensee agree that the following additional terms apply to the License:
Licensee agrees that the Licensed Music will only be used in association with other production elements and will not be used in a stand-alone format;
Licensee agrees that any use of the Licensed Music in a computer or Internet-based multimedia presentation must be embedded, to the best of its ability, so that no third party can subsequently download the Licensed Music;
Licensee shall not (i) share with or transfer or sell the Licensed Music, in whole or in part to, a third party; (ii) copy, modify, edit, or otherwise use the Licensed Music in its downloaded form, except as specified herein; or (iii) claim ownership of the Licensed Music (or otherwise make it available) through YouTube’s Content ID or other similar content copyright tracking system, even when synchronized with Licensee’s Project;
The terms of this Agreement are limited to the use of the Licensed Music in synchronization with the Project and subject in all respects to the restrictions set forth therein and the Licensee may not use the Licensed Music: (i) for any illicit activity including pornography, hatemongering, libel, defamation, fraudulent or infringing activities or illegal violence or in any manner or any means which may be viewed as being detrimental to the Licensor and/or to the copyright owner(s) of the Licensed Music, including gratuitous violence, or political content (supporting or opposing any government policy, action or official or candidate running for office); (ii) on phonorecords, and/or (v) in any manner not specifically set out under the grant of the License; and
The Licensee shall not (i) without the express and prior written permission of the Licensor, alter, in any way, any of the following components of the Licensed Music: melody, harmony, bass line, tempo, lyrics and/or key, and the Licensee shall not add any lyrics to the Licensed Music; (ii) parody the music or the lyrics of the Licensed Music; (iii) make any adaptations and/or foreign translations of the music and/or lyrics of the Licensed Music; (iv) depict the Licensed Music dramatically or use the story of the Licensed Music; or (v) use the title of the Licensed Music or the name of the artist except as set out herein. The Licensee expressly acknowledges and agrees that no right of public performance of the Licensed Music is granted under this Agreement and that the Licensee shall be responsible for securing all necessary public performance licenses, if required, from the relevant performance rights organization and paying all public performance fees, as needed, to the relevant performance rights organization;
Licensee acknowledges that Licensee does not, at any time, acquire any ownership rights, including any copyright, or any other licensed rights in the Licensed Music other than the rights specified herein. Any use of the Licensed Music other than as specified herein may constitute copyright infringement (collectively, paragraphs 2.1 through 2.3 herein are referred to as the “Standard License”).
(collectively, Sections 2.1 and 2.2 are the “License”)
2.3 Licensee acknowledges that Licensee does not, at any time, acquire any ownership rights, including any copyright, or any other licensed rights in the Licensed Music other than the rights specified herein. Any use of the Licensed Music other than as specified herein may constitute copyright infringement.
3.1 All Licensees who have purchased the right to download the Licensed Music from the Website, according to a License, should acknowledge where possible, by way of a visible or audible credit that the Licensed Music used in accordance with the terms of this Agreement has been provided by Licensor. Credit should be stated as follows: “Track Title” by “Artist’s Name” licensed by Total Media Tracks, with the term “Track Title” being substituted by the name of the track used on the Website.
4. Cue Sheets
4.1 If the Licensee uses or intends to use any Licensed Music, registered by a member of a Performance Rights Organization (PRO) if indicated as such on the Website, on broadcast television, broadcast radio, or in a movie shown in a movie theater, then prior to the Licensed Music being broadcast, the Licensee shall submit to the PRO of the Licensee’s country of residence an appropriate cue sheet downloaded or obtained either from the PRO of the Licensee’s country of residence or the Website. Licensee shall also promptly submit a copy of such cue sheet to Total Media Tracks. Instructions and a sample cue sheet can be found at www.totalmediatracks.com.
5. Term and Termination
5.1 Subject to the terms of the Agreement, and subject to Licensee’s absolute compliance with all terms of this Agreement, the Licensee may use the Licensed Music.
5.2 Notwithstanding Section 6.1, this Agreement may be terminated at any time and at the sole discretion of the Licensor including, but not limited to: (i) any breach of this Agreement by the Licensee; or (ii) any termination of any agreement by which Licensor obtains or obtained rights in any of the Licensed Music; or (iii) any change of control of the Licensor upon seven (7) days’ notice being given in accordance with Section 7.1 herein.
5.3 In the event of any breach (or threatened breach) of this Agreement by the Licensee, the Licensor may terminate this Agreement at its sole discretion. The Licensee hereby acknowledges that any breach by the Licensee of this Agreement constitutes irreparable harm to the Licensor. Accordingly, the Licensee hereby agrees that upon the breach or threatened breach of any terms of this Agreement, the Licensor shall be entitled to an injunction enjoining any breach of this Agreement, as well as any other rights and remedies available at law or in equity for such a breach.
6.1 With respect to any notice to be given pursuant to this Agreement, such notice shall be addressed in accordance with the particulars set forth below:
JAG MEDIA GROUP, INC.
D/B/A/ Total Media Tracks
Suite 990 - 1085 Howe Street
6.2 The Licensee hereby agrees and acknowledges that the Licensor may give notice to the Licensee using either the e-mail address provided by the Licensee at the time the Licensee downloads the Licensed Music from the Website or by publishing the notice on the Website, all at the sole discretion of the Licensor.
7. Third Party Infringements
7.1 Licensee hereby agrees to inform Licensor promptly in the event that Licensee becomes aware of any unauthorized use or infringement of the Licensed Music or Copyrights.
7.2 If Licensee is subject to any claim regarding unauthorized use of the Licensed Music or infringement by the Licensed Music or Copyrights of a third party’s rights, Licensee’s sole recourse shall to pursue the creator of the Licensed Music. Licensee acknowledges and agrees that Licensor shall not be liable for any losses or damages that may result from Licensee being subject to a third party claim regarding unauthorized use of the Licensed Music or infringement by the Licensed Music or Copyrights of a third party’s rights.
8. Liability and Indemnification
8.1 Licensee shall defend Licensor its affiliates, and their respective offices, directors, employees, agents and assigns (“Licensor Indemnitees”) against any claim, demand, suit, or proceeding (“Claim”) made or brought against Licensor by a third party and shall indemnify the Licensee Indemnitees for any and all damages, losses, fines, judgments and expenses (including reasonable attorney’s fees) incurred by, a Licensor Indemnitee in connection with any Claim arising out of or relating to: (i) Licensee’s negligence or willful misconduct; (ii) any breach of any obligations, representation or warranty in this Agreement; or (iii) Licensee’s use of the Licensed Music.
8.2 Licensor, its officers, directors, partners, shareholders, employees, representatives and agents shall have no liability or responsibility to Licensee or to any other person or entity with respect to any liability, loss or damage caused or alleged to be caused directly or indirectly by (i) the Licensed Music; (ii) the Copyrights; or this Agreement.
9.1 The Licensee hereby agrees not to assign its rights and obligations under this Agreement. The Licensor shall retain the right to assign its rights and obligations at its sole discretion. This Agreement shall enure to the benefit of the Licensor and its respective successors and assigns.
10. Disclaimer of Warranties
10.1 Licensor uses reasonable commercial efforts to clear the title of Licensed Music and its availability for licensing. Notwithstanding the foregoing, Licensor disclaims any and all warranties as to the Licensed Music and the Copyrights, whether express or implied, including but not limited to, any implied warranties of merchantability, infringement, satisfactory quality, title, accuracy or fitness for a particular purpose and all warranties arising from any dealing with the Licensor or usage, directly or indirectly, of the Website, the Licensed Music, or the Copyrights. In no event will Licensor be liable to Licensee or any third party (whether based in contract, tort, strict liability or any other legal theory) for any direct, indirect, incidental, special or consequential damages arising out of any dealing with the Licensor or usage, directly or indirectly, of the Website, the Licensed Music or the Copyrights. In any event, the total liability of Licensor under this Agreement arising from Licensee’s use of any Licensed Music shall be limited to the license fee paid by Licensee for such Licensed Music. Licensee hereby agrees that this license is granted to Licensee without any other warranty or recourse.
11.1 In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such term or provision shall be severable from this Agreement and shall not affect the validity of the remaining terms or provisions of this Agreement.
12.1 In addition to those provisions of the Agreement which by their nature survive the termination or expiry of the Agreement, the following Sections shall survive termination of the Agreement: Sections 2.3, 8, 9, 11, 14 and 15.
13. Choice of Law and Venue
13.1 This Agreement shall be governed by and construed in accordance with the laws of British Columbia (and the applicable federal laws therein) and the Parties agree to accept and submit to the exclusive jurisdiction of the courts of the Province of British Columbia and the Federal Court of Canada, where applicable and as governed by the federal laws of Canada.
14. Entire Agreement
14.1 This Agreement constitutes the entire agreement between the Parties and shall supersede and replace any and all prior agreements between the Parties. This Agreement may be amended at any time by the Licensor and at the sole discretion of the Licensor.
15.1 The headings of the several sections of this Agreement are inserted for convenience of reference only and are not intended to affect the meaning or interpretation of this Agreement.
15.2 The language in this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties. Any rule of construction that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement. The Parties hereby acknowledge that the preamble forms an integral part of this Agreement. Unless the context requires otherwise, words importing the singular include the plural and vice versa. In this Agreement, “including”, “include” and “includes” means “including without limitation”, “include without limitation”, and “includes without limitation”, respectively.