5. Individual Track Fee: For and in consideration of the rights granted herein, Licensee shall pay to EM, simultaneously with Licensee's execution of this Individual Track Agreement, the following fee(s) (the "Individual Track Fee(s)"):
The license granted herein shall be of no force and effect unless Licensee shall pay the Individual Track Fee as specified hereof.
6. Licensee/Restrictions/Warranties/Representations.
6.1 Licensee agrees to complete and deliver to EM a Usage Report, in the form attached hereto, prior to Licensee's use of the Individual Track(s) licensed hereunder. The license granted herein shall be of no force and effect unless Licensee shall deliver to EM a completed Usage Report as specified hereof.
6.2 Licensee acknowledges that certain of the Individual Tracks may be restricted from use with respect to the subject matter of Licensee's production and/or medium for Licensee's production, and, with respect thereto, Licensee warrants and represents that in the event any such restricted Individual Track is the subject of this Individual Track Agreement, Licensee shall fully comply with all such applicable restrictions.
6.3 Licensee acknowledges and agrees that neither the Individual Track licensed herewith nor copies thereof shall be used, sold, licensed or otherwise distributed apart from the Production(s), and that Licensee will not make any use of the Individual Track (or underlying Composition) following the end of the Period of Use, but Licensee shall have the right to retain copies of all Productions produced hereunder for file and reference purposes only.
6.4 Licensee will indemnify and hold EM harmless from any and all claims, liabilities, losses, damages, and expenses, including all reasonable attorney's fees, arising from any breach or alleged breach of Licensee's warranties, representations, or covenants under this Agreement, or in any way resulting from or connected with Licensee's use of the Individual Track.
7. EM's Warranty. EM warrants only that EM owns and/or controls the Individual Track(s) licensed hereunder and has the right and authority to grant the license specified herein. EM will indemnify and hold Licensee harmless against any and all claims, liabilities, losses, damages, or expenses actually incurred by Licensee by reason of EM's breach of said warranty, but EM's aggregate liability to Licensee shall be limited to the amount of the consideration paid by Licensee to EM hereunder. Licensee accepts this Individual Track Agreement without any other warranty or representation by EM or recourse against EM.
8. Exclusivity. Licensee acknowledges that the Individual Track(s) are being licensed to it on a non-exclusive basis, and that other entities which may be competitors of Licensee may presently or in the future also possess the right to use all or part of the Individual Track in the Territory or elsewhere.
9. Editing. Licensee shall have the right to arrange, re-arrange, edit and adapt the Individual Track, including the underlying Composition, at its own expense, in order to synchronize or customize the Individual Track to suit the needs of the Production. EM may be available and may be retained to provide arranging, re-arranging, sweetening (adding additional musical instrument or vocal performances to the recording) and editing services in consideration for additional service fees.
10. Public Performance Rights.
10.1 No right of public performance is granted hereunder, such right being licensed by ASCAP and/or BMI or other owners of the performing rights in the compositions contained in the Individual Tracks.
10.2 Promptly after completion of the broadcast or exhibition of the Productions for an entire cycle, Licensee shall furnish EM with a report of all uses by Licensee of any Individual Tracks, including, without limitation, the names and addresses of any stations or systems over which the Productions are broadcast/exhibited, time, date, isci code, programs, and type of usage (i.e., original/vocal, instrumental) thereof.
11. Miscellaneous.
11.1 This Agreement shall terminate immediately upon notice to Licensee in the event of a material breach of Licensee's obligations hereunder, provided EM shall notify Licensee of any such breach and Licensee shall have thirty (30) days from the date of the notice to cure such breach. Any such termination shall be without prejudice to any other remedies EM may have against Licensee, and, notwithstanding such termination, EM shall have the right to retain all sums paid by Licensee to EM hereunder, free of any claim by Licensee.
11.2 This Individual Track Agreement may be transferred or assigned by EM, but may not be transferred or assigned by Licensee, in whole or in part, without EM's prior written consent.
11.3 Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall be determined and settled by arbitration in the State of New York, pursuant to the rules then pertaining of the American Arbitration Association, and any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, State or Federal, having jurisdiction. The parties will share equally the administrative costs of such arbitration proceeding. This Agreement and all matters or issues collateral thereto shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed entirely therein.
11.4 This document is a complete and exclusive statement of the terms hereof and may not be changed orally but only in a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
