This Synchronization and Master Use License Agreement (the “Agreement”) is made as of the Effective Date between Licensee and Owner (each a “party” and collectively the “parties”), subject to the following terms and conditions:

1. BACKGROUND

Owner has created and written the musical Composition(s) listed above and the master recording(s) embodying the Composition(s) (the “Masters”), and any other deliverables (the “Deliverables”) described on the attached Schedule A (the Compositions, the Masters and the Deliverables are sometimes referred to here as the “Materials”) for the purpose of creating media messages and/or advertising for the products or services of Marketer.

2. LIMITED LICENSE GRANT 

(a) Owner grants to Licensee the nonexclusive right and license to use, reproduce, display, and distribute the Materials solely in synchronization or timed relation to the Commercial(s) during the Term in the Territory(ies) in the Media specified above to promote products in the Product Category(ies) specified above.  Notwithstanding the non-exclusivity of the grant, during the Term, Owner will not authorize any other person or entity to use the Materials to advertise or promote products or services in the Product Category(ies) listed above.  All rights not expressly granted to Licensee are reserved to Owner.

(b) Licensee acknowledges that Licensee may not create a new composition or derivative work based on the Composition(s) or the Masters, such as, for example but not limitation, by creating an audio mnemonic or a sonic branding tag (e.g., a note, series of notes or pattern of notes as a shorthand to create an immediate association in the mind of the consumer with Licensee’s brand.

3. FEES

(a) Licensee will pay to Owner the Initial Term Fee specified on page 1 above.  The Initial Term Fee will be paid by Licensee as follows:  (i) one hundred percent (100%) will be payable upon execution of this Agreement and payable no later than thirty (30) days following delivery of the Materials.  Any payment which is not paid on or before the due date thereof will bear interest at the annual rate of the prime rate as published in the Wall Street Journal on the day the payment is due (or the next business day following such day if such date falls on a weekend or holiday) plus three percent (3%), or the highest amount permissible by law.

[(b) Licensee acknowledges that it has reviewed and approved Owner’s budget for the creation and delivery of the Materials, as set forth on Schedule “B” attached hereto (the “Approved Budget”).  The Approved Budget consists of the Fee and all additional costs and expected expenses incurred or to be incurred by Owner.  In addition to the Initial Term Fee, all amounts set forth in the Approved Budget shall be paid to Owner by Licensee no later than the date on which the final payment of the Initial Term Fee is due.  In the event of any budgetary overruns that may occur, to the extent such overruns are incurred as a result of Licensee’s direction, request, or other acts and/or omissions, Licensee will be responsible for such overruns and shall pay Owner therefor.  Owner shall not be responsible for any costs incurred over and above the Approved Budget unless such cost overruns are a result of Owner’s negligence, sole acts or omissions or change in scope without the Licensee’s prior approval.] [This paragraph should be used only where additional fees tied to the budget are due]

(c) If Licensee wishes to use the Materials beyond the Initial Term, it shall pay Owner the Optional Fee for Extended Term identified above prior to the expiration of the Initial Term.  The Initial Term and any Optional Extended Term will be the “Term”.

4. REPRESENTATIONS AND WARRANTIES 

(a) Owner represents and warrants that it has the right to enter into and perform this Agreement and that the proper exercise by Licensee of the rights granted hereunder will not violate or infringe the rights of any third party.  Owner hereby disclaims any warranty or representation as to materials provided (including changes to the Composition(s) or Master(s) by or on behalf of Licensee) or concepts directed by Licensee.

(b) Licensee represents and warrants that it has the right to enter into and perform this Agreement on behalf of itself and Marketer; that the use by Owner of materials and concepts provided by Licensee or Marketer for inclusion in the Materials or changes by or on behalf of Licensee to the Composition(s) or Master(s) will not violate or infringe the rights of any third party; and that the Commercial (other than the Materials) will not infringe or violate the rights of any third party.

5. INDEMNITY; LIMIT OF LIABILITY

(a) Owner and Licensee each will indemnify, defend and hold the other and their assigns, employees, officers, directors and agents harmless from and against any loss, damage, penalty, judgments, suit, action or expense, including court costs and reasonable attorneys’ fees (collectively “Claims”), which may result from allegations which if true constitute breach by the indemnifying party of the representations, warranties and/or covenants contained in this Agreement.  The indemnified party will give the indemnifying party prompt notice of the existence of a Claim for which indemnity is sought and will allow the indemnifying party the opportunity to take over the defense of such Claim with counsel reasonably acceptable to the indemnified party.  The indemnified party will cooperate in all reasonable requests from the indemnified party in the defense of the Claim. Neither party will settle or compromise any Claim for which indemnity is sought without the approval of the other party, unless the settlement is made by the indemnifying party and involves the payment of money only.

(b) The aggregate liability of Owner for damages arising from an indemnifiable Claim is limited to the amount actually paid to Owner by Licensee hereunder.  In no event will either party be liable to the other for any special, punitive, indirect, incidental or consequential damages, whether or not the party has been advised of the possibility of such damages.

6.  SMALL PERFORMANCE RIGHTS ROYALTIES

 

(a) With respect to the Composition(s), Licensee acknowledges that Owner will be entitled to collect both the so-called “writer’s share” and “publisher’s share” of small performance royalties from performing rights societies throughout the world. This right is perpetual (or for so long as such right can exist) and irrevocable.

(b)Licensee shall: (i) provide Owner with a copy of the complete aired version of the Commercial(s) on which the Composition(s) are embodied; and (ii) provide Owner with documents setting forth the names and addresses of all stations and networks upon which Commercial(s) have been or will be broadcast.

(c)Owner, or a performing rights organization such as BMI, ASCAP or SESAC (such performing rights organization, a “PRO”) to which Owner belongs, will license the rights to perform the Composition(s) on television stations, radio stations, cinemas, in-store, in-flight, online and through any other channels and networks throughout the Territory (collectively “Media Outlets”).  Both parties agree that public performing rights to the Composition are not granted by this Agreement but will be granted by PROs.  In the unlikely event that Owner or the Media Outlets through which Licensee desires to broadcast the Composition(s) do not have agreements with a PRO, Owner will issue a performing rights license at Owner’s then customary rates.

(d) Upon Owner’s request, Licensee shall use its best efforts to provide Owner with as many of the items listed below as is commercially practicable:

ISCI Number(s), Key Number(s), Clock Number(s), AdCode(s), AdID information,

Domestic and/or International Airing Dates, Media Buy

7. PROVISION OF COMMERCIAL TO OWNER; RIGHTS TO USE

(a)Licensee will provide a copy of the final release version of the Commercial to Owner no later than five (5) business days prior to the planned release date of the Commercial (the “Release Date”).  Owner  will review the Commercial and shall notify Licensee in writing of any concerns Owner may have no later than two (2) business days prior to the Release Date.

(b)Licensee hereby acknowledges and agrees that Owner may copy, display, perform, transmit, and make derivative works from the Commercial solely for inclusion in Owner’s work reel and/or generally in connection with Owner’s promotion of its work to existing and potential clients.

8. PAYMENT TO PERFORMERS

Subject to payment by Licensee of the sums in the Approved Budget as set forth above, if any, Owner shall be solely responsible for payments, agreements or contracts to or with performers whose performances are contained in the Masters, provided that any use of the Materials is in compliance with the grant of rights contained herein.

9. ASSIGNMENT

This Agreement may not be assigned or transferred by Licensee, in whole or in part, without the prior approval of Owner, except to an entity controlling, under common control, or controlled by Licensee or to an entity acquiring all or substantially all of the stock or assets of Licensee or into which Licensee merges, provided than any such assignee assumes all of the obligations of Licensee hereunder.

10. COMPLETE AGREEMENT AND APPLICABLE LAW

This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, supersedes all prior agreements, and no modification, amendment, waiver, termination or discharge of this Agreement or any provision hereof shall be binding upon the parties hereto unless confirmed by a written instrument signed by authorized signatories of the parties.  No waiver of any provision of or default under this Agreement shall affect Licensee’s or Owner’s rights, as the case may be, thereafter to enforce such provision or to exercise any right or remedy under this agreement.  This Agreement is entered into in the State identified on page 1 and shall be construed in accordance with the laws of such state applicable to contracts entered into and be wholly performed therein, without regard to conflict of law principles.  The parties agree that any action, suit or proceeding based upon any matter, claim or controversy arising hereunder or relating hereto shall be brought solely in the state or the federal courts located in such state.  The parties hereby irrevocably agree to submit to the jurisdiction of such courts and waive any defenses pertaining thereto, including the defense of forum non conveniens.

11. NOTICES

All notices required to be delivered hereunder will be given to the parties at their respective address set forth above, or such other address as each party respectively may hereafter designate by notice in writing to the other.  All notices sent under this agreement shall be in writing and shall be sent by personal delivery, courier, or by registered or certified mail, return receipt requested.