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HomeMy WebLinkAboutKiller Tracks; 2013-11-19;PAGE 1 OF 5 MILLER T R A C M S ANNUAL AGREEMENT Master and Synchronization Agreement This Renewal Agreement (the "Agreement") is made this /•£""* day of fJovonber2010 by and between Killer Tracks, a unit of Universal Music - MGB NA LLC, 9255 W. Sunset Blvd., Suite 200, Los Angeles, California 90069 (hereafter referred to as KT) and City of Carlsbad, 1200 Carlsbad Village Drive , Carlsbad, CA, 92008 (hereafter referred to as COMPANY). Whereas, KT is the owner or administrator of certain rights in and to the musical compositions and sound recordings (hereafter referred to as COMPOSITIONS) in the PRODUCTION MUSIC LIBRARIES as listed in Exhibit "A" (hereafter referred to as LIBRARIES). For the avoidance of doubt, the term "CD," as used throughout this Agreement, shall mean a physical compact disc and/or a digital-file equivalent. Whereas, COMPANY desires to license the music in the LIBRARIES for the purpose of synchronization with COMPANY'S productions. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, KT HEREBY GRANTS TO COMPANY THE FOLLOWING RIGHTS: 1. The non-exclusive right, license and authority to synchronize and embody those COMPOSITIONS in the LIBRARIES with COMPANY'S productions, to make copies of such embodiments and to distribute such copies throughout the TERRITORY (as defined in paragraph two (2) below) subject to the terms and conditions of this Agreement. COMPANY may continue to distribute such copies in perpetuity, even after termination or expiration of this Agreement, so long as the production is not altered in any way (either its audio or visual parts) provided it embodies the COMPOSITIONS in the manner set forth in paragraph 4 herein. Upon expiration of this Agreement by either party, COMPANY'S ability to download (if applicable) the musical COMPOSITIONS from the WEBSITE and COMPANY'S ability to possess, control, use or exploit any of the COMPOSITIONS from the LIBRARIES will terminate. To that effect, COMPANY shall, within ten (10) days of either (i) COMPANY'S receipt of KT's notice of termination, or, (ii) expiration of this Agreement, within ten (10) days of COMPANY'S issuance of a termination notice, destroy all electronic files of the COMPOSITIONS in its possession, return to KT an executed Affirmation of Destruction and return any physical CD's in a commercially acceptable condition, all at COMPANY'S expense. 2. The TERRITORY covered by this license is COMPANY'S location noted above as it relates to synchronization and the World as it relates to distribution. 3. The Term of this license is for a period of Three (3) Year(s), commencing on the 1st day of November, 2010 and ending on the 31st day of October, 2013. A. COMPANY agrees that use of the productions embodying such COMPOSITIONS from LIBRARIES will be limited to the following clearance(s): * BROADCAST (FREE TV/RADIO/BASIC CABLE) Programs, promos, commercials, infomercials and PSAs limited to COMPANY'S location(s) licensed under this agreement as specified above. DOES NOT INCLUDE EPISODIC SERIES OR THEMES. * INTERNET - Free digital downloads/streaming. Does not include episodic/series productions or themes. For purpose of this Internet Clearance, the territory is considered to be the World. * NON-BROADCAST - Audio, video, and digital media, corporate intranet, and closed circuit communications. Production not for sale to the general public. PAGE 2 OF 5 Productions requiring any clearances other than those noted above must be licensed separately from this Agreement at the prevailing rate card rates. All rights not specifically granted above are reserved to KT. License application forms will be supplied upon request. COMPANY acknowledges that any further or different uses of the COMPOSITIONS in the LIBRARIES are infringements of KT's copyrights. Unless otherwise stated herein, this Agreement specifically does not include internet rights. 5. COMPANY agrees to pay KT for the rights granted herein the sum of Four Thousand Three Hundred Seventy Four US Dollars ($4,374.00), and is based on a non-binding estimate of One Hundred Twenty Eight (128) music uses for the term of the Agreement. Paid as follows: Three equal payments of One Thousand Four Hundred Fifty Eight US Dollars ($1,458.00) paid on or before November 1, 2010, November 1, 2011, and November 1, 2012. If at any time COMPANY'S account becomes past due by more than ninety (90) days, and after notice of such status by KT, KT may, at its sole discretion, and in addition to any other remedies that KT may be entitled to, enlist a third party to collect monies due here under and COMPANY will be responsible for any and all actual legal or collection fees incurred by KT, in addition to any other monies KT may be entitled to under the law. 6. KT shall make available to COMPANY the music in the LIBRARIES in the form of 269 compact discs and/or digital equivalent (CD) recordings, and any automatic updates as listed in EXHIBIT "A", which are on loan to COMPANY during term hereof. Upon termination of this Agreement, if COMPANY possesses any physical CDs, all CDs must be returned in good condition within thirty (30) days, to KT at COMPANY'S expense. COMPANY agrees to reimburse KT in the amount of Seventy-Five US Dollars ($75.00) for each missing or damaged physical CD. Any temporary copies of the COMPOSITIONS made by COMPANY during the course of normal production must be returned or destroyed. 7. Upon COMPANY'S request, COMPANY may preview additional CDs not listed in EXHIBIT "A" ("Preview CDs"), at anytime during the term of this Agreement, for a period of thirty (30) days from receipt of Preview CDs. In the event COMPANY would like to add any Preview CDs to this Agreement, each additional Preview CD will be invoiced at a rate of One Hundred US Dollars ($100.00) per Preview CD for the balance of the term of the Agreement. If COMPANY does not wish to retain the Preview CDs, all electronic or digital versions of the COMPOSITIONS contained on the Preview CDs must be destroyed and COMPANY shall submit to KT an Affidavit of Destruction within ten (10) days following the conclusion of the preview period. If the Affidavit of Destruction for the COMPOSITIONS contained on the Preview CDs is not returned to KT within the ten (10) day return period, and no other arrangements have been made, COMPANY will be billed at the aforementioned rate, regardless of whether or not COMPANY has actually used the Preview CDs. All terms of this license shall apply to any additional Preview CDs retained by COMPANY during the term of this Agreement. 8. At the end of each calendar quarter (March. June. September and December) COMPANY agrees to supply KT with a listing of each music title used on Quarterly Music Registration Forms and/or Cue Sheets, indicating pertinent usage information for the COMPOSITIONS used in productions produced both in house and out of house during the quarter. The suggested form for such reporting is attached as EXHIBIT "B". Additional copies of this form will be supplied by KT to COMPANY as requested. Any use of music not reported on a Music Registration Form or facsimile will be a material breach of this Agreement and will be considered unlicensed and not be afforded indemnification as provided for in paragraph twelve (12). 9. The LIBRARIES are granted by the Agreement to COMPANY solely for its benefit and usage. COMPANY agrees that it shall not make any copies of the COMPOSITIONS other than for COMPANY'S use as permitted by this Agreement. COMPANY shall not sell, lease, lend, give, physically convey, or otherwise transfer, the KT compact discs, to any person, firm or corporation without KT's prior written consent. Upon KT's request, COMPANY agrees to supply KT with an audio-video copy in a mutually agreed upon format of a specific production(s) produced by COMPANY utilizing KT's Music Library solely for the purpose of promoting its music library. 10. KT represents and warrants that it has the full right, power and authority to make this Agreement and grant the rights granted herein. Other than such limited rights of synchronization and uses designated in Paragraph four (4) herein, KT reserves to itself all rights and uses of every kind and nature whatsoever in and to the LIBRARIES including, without limitation, the mechanical and the grand and small performing rights. All other rights or uses shall be negotiated separately with KT. With respect to the performing rights, COMPANY shall negotiate directly with KT or with the appropriate performing rights society. PAGE 3 OF 5 11. In the event that COMPANY violates this Agreement or breaches any of its covenants contained herein, COMPANY, upon written notice from KT, shall have a period of thirty (30) days to materially cure such claim. If claim is not resolved during such period, the license hereunder may be terminated at KT's sole discretion. KT shall thereafter be under no obligation to license to COMPANY the use of the LIBRARIES or any COMPOSITIONS contained therein for any purpose whatsoever. In addition to any other remedy available to KT, should COMPANY be unable to cure such claim during the thirty (30) days, KT shall thereupon be entitled to seek an injunction to enjoin COMPANY from any new use of said LIBRARIES produced before or after notification of breach. 12. COMPANY warrants and represents that: (i) it has the right and power to enter into this Agreement, and to fully perform in accordance with all of the terms hereof; and (ii) it shall comply with all applicable laws, rules and regulations in the performance of its obligations hereunder. COMPANY shall indemnify, defend and hold harmless KT from and against any loss or damage suffered by KT as a result of any use of any COMPOSITION that is inconsistent with the terms of this Agreement or any breach or alleged breach of COMPANY'S warranties or representations hereunder. 13. Based upon COMPANY'S full and complete performance under this Agreement and provided that COMPANY is not in breach of this Agreement, KT agrees to indemnify COMPANY and hold it harmless from and against any and all losses and damages, incurred as a result of a breach of KT's representations and warranties hereunder, provided, however, that KT's total liability for indemnification hereunder shall not exceed the amount received by KT from COMPANY under this Agreement as of the date of KT's receipt of notice of alleged breach. 14. This Agreement shall be governed by and construed in accordance with the Laws of the State of California and the jurisdiction of any dispute hereunder shall be with the United States Court, located in Los Angeles, California. 15. KT and COMPANY shall keep confidential and not disclose to any third party the terms of this Agreement without the prior written consent of the other, except that: (a) the terms hereof may be disclosed, on a confidential basis, to the respective party's employees, attorneys and accountants; (b) the terms may be disclosed in any discovery proceedings related to the lawsuits filed by or against the disclosing party, provided that commercially reasonable efforts will be made by the disclosing party to require that the terms of the Agreement be maintained as confidential; and (c) the terms may be disclosed to the extent necessary to comply with any applicable law, court order or inquiry by a taxing authority, provided that commercially reasonable efforts will be made by the disclosing party to require that the terms of the Agreement be maintained as confidential. 16. The license granted herein shall not become effective for any purpose until accepted and executed by an authorized representative on behalf of COMPANY and by an authorized representative on behalf of KT., and payments are made by COMPANY as provided herein. Notwithstanding the foregoing, this Agreement shall be binding upon full and complete execution by the parties hereto. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void, except that KT may, without the consent of COMPANY, assign this Agreement, or any of its rights or obligations hereunder, to any party controlling, controlled by or under common control with KT, to any party as part of a sale by KT of stock or a substantial portion of KT's assets or to any party with whom KT may merge or enter any other business combination. PAGE 4 OF 5 17. This Agreement constitutes the entire agreement of the parties hereto and may not be amended except by an agreement in writing executed by the parties hereto. To the extent that the terms and conditions of this Agreement conflict with another unexecuted document (i.e., purchase order, etc.) then the terms of this Agreement shall prevail. COMPANY and KT ajee that a faxed counterpart of the AGREEMENT evidencing the signature of a party shall be effective as an original > for all purpo AUTHORIZED SIGNATURE City of Carlsbad Deputy Citv Manager Maher Kawar Killer Tracks, a unit of Universal Music - MGB NA LLC Federal Tax ID 95-310-4625 TITLE CyntMg PRINT NAME DATE: November 4, 2010 FEDERAL TAX ID: 95-6004793 City of Carlsbad Information: Registered Corporation Name Partnership Name Sole Proprietorship/Individual If Individual provide SSN APPROVED AS TO FORM EXHIBIT A Libraries Available KT Updates Yes Package Description Killer Tracks #of CDs 269 TOTAL CD COUNT 269 City of Carlsbad / Shipping Contact & Email City of Carlsbad / Billing Contact & Email *Please make checks payable to Killer Tracks at address below* 15044 Collections Center Drive Chicago, IL 60693 Website: www.killertracks.com Phone: (800) 454-5537 Fax: (800) 787-2257