HomeMy WebLinkAboutChamber Music Society of Lincoln Center; 2020-10-06;Page 1 of 4
NATIONAL MEMBER CONTENT LICENSE AGREEMENT
DATE: As of ________________________, 2020
LICENSOR:THE CHAMBER MUSIC SOCIETY OF LINCOLN CENTER (“CMS”)
70 Lincoln Center Plaza, 10th Floor New York, New York 10023-6583 Attn: Kari Fitterer
LICENSEE (organization): City of Carlsbad
Street address: 1775 Dove Lane
City, St, Zip Carlsbad, CA 92011
Attn (name, title) Suzanne Smithson, Library & Cultural Arts Director
Tel: 760-602-2011 Email: Suzanne.Smithson@carlsbadca.gov
CONTENT: Any full program with all of its component parts, which LICENSEE selects from the CMS Front Row: National library pursuant to the separate SELECTION FORM.
LICENSED USE: Streaming of the CONTENT solely via LICENSEE’S own website, solely for the PURPOSE and the TERM agreed upon herein.
PURPOSE: LICENSEE may use the CONTENT for the following non-commercial purposes consistent with CMS’s not-for-profit status and mission. By way of clarification but not limitation, LICENSEE may not charge anyone to watch the CONTENT, whether directly or through a paywall.
FEE-FREE:There is no fee for the LICENSED USE of the CONTENT for the PURPOSE set forth herein.
TERM: CMS intends to distribute the CONTENT and any parts thereofin its discretion without limitation except as follows: online CMS plans initially to livestream the CONTENT and subsequently make it available for viewing on its website and other online platforms for an additional period of 3-7 days, in its discretion, as such period may change from time to time for different CONTENT (CMS FIRST ONLINE VIEWING PERIOD). The TERM for LICENSEE shall be five (5) days beginning on the broadcast date requested by Licensee and agreed to by CMS in its discretion in writing. LICENSEE shall receive CONTENT within 5-7 business days prior to its TERM. CMS agrees not to stream the CONTENT from its website and/or other online platforms for a period of six (6) months following the end of the CMS FIRST ONLINE VIEWING PERIOD, but it is specifically understood and agreed, without limiting any of CMS’s rights hereunder, that CMS may license other third parties to stream the CONTENT from their websites during the TERM and at any other time, and may itself stream parts of the CONTENT on its website and other platforms as separate component parts, without limitation.
If for any reason LICENSEE should want to amend the agreed upon TERM in the 20-21 season, it must give written notice to CMS no less than 5 business days prior to the new TERM requested, and CMS will have a right of approval which will not be unreasonably withheld.
EXCLUDED: Use of the CONTENT must be in its entirety without any editing, and use other than specified above or for any PURPOSE other than specified above, or outside the TERM, is specifically excluded.
(1) Grant of LicenseSubject to the terms and conditions set forth herein, CMS hereby grants LICENSEE, a non-exclusive and non-
transferable license to stream the CONTENT from LICENSEE’s own website only for the LICENSED USE set forth
DocuSign Envelope ID: 99EA2CEA-5619-4924-9009-56AEE634BB08Debbie Jo McCool Megan Gilby Richard SchultzDebbie Jo McCool Suzanne Smithson
Ed GarboOctober 6,
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above for the TERM, using a link which CMS will provide for LICENSEE’s embedding on their website, only for the PURPOSE and in the manner specified herein (“this License”). CMS represents and warrants that it has the right to grant the rights pursuant to this LICENSE, subject to LICENSEE’s PERFORMING RIGHTS PAYMENTS obligations below. (2)Reservation of Rights LICENSEE acknowledges that CMS owns all rights of copyright in and to the CONTENT throughout the universe in perpetuity and LICENSEE’S use of the CONTENT will not affect or impair CMS’s continued and separate sole copyright ownership of the CONTENT or the copyright ownership of the program or works from which the CONTENTwas taken. (3) Non-Exclusivity CMS and LICENSEE agree and acknowledge that this agreement is not an exclusive agreement that binds CMS’s right to use or distribute CONTENT, except as specifically limited under TERM above. Accordingly, CMS may otherwise engage in contracts to distribute CONTENT in its sole discretion.
(4) Non-Transferability LICENSEE may not assign, delegate, sublicense or transfer this agreement or any or all parts of its rights or
obligations hereunder. (5) Representations and Warranties
(a) LICENSEE represents, warrants and agrees that it has the full right, title and authority to enter into this agreement, to make the commitments herein and that it will stream the CONTENT without alteration or edit. (b)LICENSEE represents, warrants and agrees that the CONTENT will be used only for the LICENSED USE for the PURPOSE agreed upon herein on its website only and for the TERM as specified herein and for no other use or purpose. (c) LICENSEE represents, warrants and agrees that any content that LICENSEE provides/distributes/publishes in connection with streaming the CONTENT hereunder and any use thereof shall not be: (a) derogatory to nor critical of CMS, or any officer, director, employee or agent or any performance produced or presented by CMS; or (b) scandalous or indecent in nature or in violation of applicable laws. (d) LICENSEE represents, warrants and agrees that it will secure rights in all copyrighted music embodied
in the CONTENT, if any, and assume liability for and pay all fees (PERFORMING RIGHTS PAYMENTS) due to the appropriate copyright holder or collecting body in respect of the use of such copyrighted musical works, including, without limitation, any license, privilege and authority required to exercise the rights granted hereunder.
(e) LICENSEE acknowledges that if CMS becomes aware that all such necessary PERFORMING RIGHTS PAYMENTS, have not been made or obtained, CMS shall have the right, but not the obligation, to terminate this License in its sole discretion and to further require that all CONTENT be removed from LICENSEE’S website. LICENSEE furtheracknowledges that CMS shall have the right to seek injunctive relief to effectuate the provisions of the preceding sentence. The foregoing provisions of this paragraph 5 are an express condition of this License and any breach of this paragraph 5 shall render thisLicense herein granted null and void.
(6) Trademarks LICENSEE shall use the name and/or logo CHAMBER MUSIC SOCIETY OF LINCOLN CENTER FRONT ROW: NATIONAL and CHAMBER MUSIC SOCIETY OF LINCOLN CENTER in the form(s) provided to it in connection with the CONTENT and any promotion, publicity and/or marketing thereof. In addition, LICENSEE shall not otherwise use the names, logos, trademarks, service marks or images of CMS, including, without limitation, for any purposes in connection with the advertising or publicizing of the CONTENT or the
DocuSign Envelope ID: 99EA2CEA-5619-4924-9009-56AEE634BB08
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distribution, advertising or publicizing of the CONTENT or LICENSEE, without first obtaining CMS’s prior written consent in each instance, as applicable, which may be granted or withheld in CMS’s sole discretion.
(7) Indemnification LICENSEE shall at all times indemnify, defend by counsel reasonably satisfactory to CMS, and release and hold CMS, its officers, directors, employees and agents harmless from and against any and all losses, liabilities (including vicarious and contributory liability), deficiencies, obligations, claims, actions, judgments, settlements, damages, penalties, interest, fees, taxes, fines, costs, charges and expenses, including, without limitation, reasonable attorneys' fees and disbursements whatsoever, which any of them may suffer, incur or pay out (or which may be asserted against any of them) arising out of, based upon or in connection with LICENSEE’S use of the CONTENT or out of breach by LICENSEE of any representation, warranty or other provision hereof. LICENSEE’S indemnity hereunder shall survive the expiration, sooner termination or nullification of the agreement. CMS shall at all times indemnify, defend by counsel reasonably satisfactory to LICENSEE, and release and hold LICENSEE, its officers, directors, employees and agents harmless from and against any and all losses, liabilities (including vicarious and contributory liability), deficiencies, obligations, claims, actions, judgments, settlements,
damages, penalties, interest, fees, taxes, fines, costs, charges and expenses, including, without limitation, reasonable attorneys' fees and disbursements whatsoever, which any of them may suffer, incur or pay out (or which may be asserted against any of them) arising out of, based upon or in connection with LICENSEE’S use of the CONTENT as licensed
and in accordance with the LICENSE hereunder, or out of breach by CMS of any representation, warranty or other provision hereof. CMS’S indemnity hereunder shall survive the expiration, sooner termination or nullification of the agreement.
(8) Force Majeure Neither party shall have any liability hereunder for any delay, interruption, annoyance or cancellation arising out of the actions of any public authority or on account of responses to any strike, lockout, pandemic, epidemic, or other labor difficulties, act of war or terrorism, force majeure, or other events beyond such party's control nor for any special, indirect or consequential damages or other losses arising out of or relating to this Agreement. (9) General Provisions Each party shall obtain and maintain, and upon request of the other party, provide evidence of, insurance in amounts sufficient to provide coverage for any liabilities which may reasonably arise out of or result from its obligations under this Agreement. Neither CMS nor LICENSEE shall violate any laws, statutes, ordinances, or governmental rules or regulations applicable to its performance of its obligations under this Agreement.
(10) Entire Agreement It is hereby agreed by both parties that this agreement and its terms are the sole terms existing between the parties,
superseding any and all prior understandings, statements or representations, whether written or oral, with respect to the subject matter hereof and any modification, amendment or waiver thereof shall only be binding on CMS and LICENSEE if put into writing and signed by both CMS and LICENSEE.
(11) Governing Law This agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts wholly made and performed in New York (without giving effect to any conflict of laws principles under New York law), and shall be subject to the sole and exclusive jurisdiction of the State and Federal courts located in New York, New York and each of the parties hereby consents and submits to the exclusive jurisdiction thereof, consents
to the venue thereof, waives and agrees not to assert any claim that it is not subject to the personal jurisdiction of the foregoing courts or that such court is an inconvenient forum. (12) Headings The headings to the paragraphs and sections of this agreement are for convenience only and shall not be considered part of this agreement or be used in determining the intent of the parties.
DocuSign Envelope ID: 99EA2CEA-5619-4924-9009-56AEE634BB08
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AGREED TO AND ACCEPTED: CHAMBER MUSIC SOCIETY OF LINCOLN CENTER LICENSOR
Signed: Signed:
Print Name: Suzanne Davidson Print Name: Kari Fitterer
Title: Executive Director Title: Director of Artistic Planning and Touring
Date:_____________________ Date:
LICENSEE
CITY OF CARLSBAD A municipal corporation of the State of California
By:
SUZANNE SMITHSON Library & Cultural Arts Director, As Authorized by the City Manager
Approved as to Form
For Celia Brewer, City Attorney
Signed: Print Name: ALLEGRA FROST
Deputy City Attorney, City of Carlsbad, CA
Date:
Please return signed contract to David Rowe Artists:
By email: david@rowearts.com
By Fax: 781-639-2680
Or contact us to discuss any questions: 781-639-2442
DocuSign Envelope ID: 99EA2CEA-5619-4924-9009-56AEE634BB08
9/29/2020 9/29/2020
Audra Mahoney
10/5/2020
Audra Mahoney
Tamara R. McMinn for
DAVID ROWE ARTISTS 24 Bessom St., Suite 4 / Marblehead, MA 01945 tel 781.639.2442 fax 781.639.2680 email David@rowearts.com www.davidroweartists.com
The Chamber Music Society of Lincoln Center
Front Row: National program selection form
Instructions: please fill in the below fields for each program you wish to broadcast, along with the remaining fields, and return this form to our office. OR: you may phone or email us to place your order, or if you have any questions.
After we have received your selection and your donation (see attached) to CMSLC per below
instructions, we will be able to schedule your Air Date for each program.
Program # Program Title (see the Program Library page for pgm # and title info)
__________ ___________________________________________________________
__________ ___________________________________________________________
__________ ___________________________________________________________
__________ ___________________________________________________________
__________ ___________________________________________________________
__________ ___________________________________________________________
__________ ___________________________________________________________
__________ ___________________________________________________________ If you wish to broadcast more than 8 programs, please use an additional form. You will have authorization to host each program for 5 days beginning on your Air Date for each program.
Total number of programs I am selecting to broadcast: ____________
Donation to CMS Lincoln Center: $1600+$4 City of Carlsbad license fee = $1604
(refer to attached donation scale, and please consider an increased donation if possible)
Please make your check (USD only) payable to Chamber Music Society and mail directly to:
Attn: Kari Fitterer Chamber Music Society of Lincoln Center 70 Lincoln Center Plaza, 10th Floor New York, NY 10023
Enter “Front Row National” in the memo line of your check. (If you wish to pay by another method, contact us.)
Please return a copy of this form to our office.
______________________________________ ________________________________ Organization name (please type/print) Your name (please type/print)
Email:________________________________ Phone:___________________________
(see following page for donation schedule)
2
3
4
5
10
11
12
14
Artist Series: David Shifrin (clarinet)
Artist Series: Alessio Bax & Lucille Chung (pianos)
Artist Series: Gilbert Kalish (piano)
Artist Series: Cho-Liang Lin (violin)
Summer Evenings II
Summer Evenings III
Summer Evenings IV
Summer Evenings VI
City of Carlsbad Megan Gilby
megan.gilby@carlsbadca.gov 805-587-4941
EXHIBIT "A"
DocuSign Envelope ID: 99EA2CEA-5619-4924-9009-56AEE634BB08
Chamber Music Society of Lincoln Center
Front Row: National National Broadcast Sponsorship levels
Level 1 (authorization to broadcast any single program from the library): $300
Level 2 (any 2 programs): $550
Level 3 (any 3 programs): $800
Level 4 (any 4 programs): $1,000
Level 5 (any 5 programs): $1,200
Level 6 (any 6 programs): $1,350
Level 7 (any 7 programs): $1,500
Level 8 (any 8 programs): $1,600
(For more than 8 programs, please use an additional Selection Form) Please note: we have deliberately kept the donation scale low to allow organizations of
any size & budget to participate, while also enabling CMSLC to provide a modest income to their extensive roster of world-class musicians during these uniquely challenging
times. We encourage those of you with larger budgets to consider higher
donations if you have the capacity.
DocuSign Envelope ID: 99EA2CEA-5619-4924-9009-56AEE634BB08