Non-Exclusive License Agreement
By downloading any original recordings (“Recording(s)”) embodying original compositions (“Composition(s)”) (Recordings and Compositions, collectively, “Original Materials”) from Grauxguitarloops.com, you (“Licensee”) hereby agree to, and acknowledge, this non-exclusive license agreement as of the date you download such Original Materials (the “Effective Date”), with Sébastien Graux (“Licensor”) and the following terms and conditions.
- All licenses are non-refundable and non-transferable.
- Master Use.Licensor hereby grants to Licensee a non-exclusive license to record vocal synchronization to the Recording partly or in its entirety and substantially in its original form. Licensee shall have the non-exclusive right to exploit the Recording as part of one (1) new recording combined with other musical elements (the “New Recording”).
- Publishing Use. Licensor hereby grants to Licensee a non-exclusive license to embody the Composition into the composition of the New Recording (the “New Composition”).
- The territory covered by this license is the world (“Territory”).
- Grant of Rights. (a) Subject to the terms and conditions hereof, Licensor grants to Licensee the non-exclusive and perpetual right to embody the Recording in the New Recording, to exploit the Recording as embodied in the New Recording for the full terms of copyright and any extensions and renewals thereof, and to manufacture, reproduce, sell, transmit, publicly perform and exploit the Recording, solely as part of the New Recording, and to authorize the same in the Territory, in all configurations now known or hereinafter devised, solely as follows:
- on audio-only Records in physical format (e.g. vinyl, compact discs);
- on audio-only Records that are digitally transmitted, performed, or distributed (e.g. digital downloads, conditional downloads, streaming (whether through desktop, mobile devices, satellite, or otherwise)); and
- on so-called short-form “MTV style” video(s) limited solely to digital download, streaming, and so-called enhanced CDs exploited in connection with the sale, promotion, or marketing of the New Recording (but not in connection with the promotion, marketing or sale of any other service or product).
(b) For the purposes of this Agreement, “Records” means every form of reproduction, whether now or hereafter known, embodying sound alone or sound accompanied by visual images, graphic material, text or other materials (whether now or hereafter known and whether in an interactive format or otherwise), distributed or transmitted through any and all methods or manners, now or hereafter known (including, without limitation, by means of record, retail or other stores, television, radio, cable, satellite, digital transmission and any other distribution, transmission or other channels, now or hereafter known), for any purpose or use, whether now or hereafter known (including, without limitation, for home use, school use, jukebox use, use in computer-driven or optical media, now known or hereafter developed, use in means of transportation or any other use); Records specifically include, without limitation: compact discs, non-musical spoken-word messages or greetings, so-called “ringtones”, so-called applications or “apps”, DVDs, Blu-Ray discs, vinyl discs and all digital phonorecord delivery as defined in 17 U.S.C. § 115(e).
(c) For the avoidance of doubt, Licensee shall not have the right to exploit, or authorize the exploitation of, the Recording except as specifically set forth herein; any synchronization, soundtrack albums, NFTs (non-fungible tokens), long-form video, DVDs, or any other uses, without Licensor’s prior written consent are prohibited. Nothing in this Agreement shall grant the right to use the Recording alone (i.e., not embodied in the New Recording) or embodied in any other sound recording other than the New Recording. Licensor hereby reserves all rights not expressly granted to Licensee hereunder. All rights granted hereunder with respect to the Recording are granted on a non-exclusive basis. The Recording and all copyrights and other rights in and to the Recording shall remain the sole and exclusively controlled property of Licensor. Licensee may remix or re-edit the New Recording, provided that such remix, re-edit, or instrumental version incorporates the Recording in the same manner that it was embodied in the New Recording (i.e., any such version is not done in a manner that makes the excerpt of the Recording incorporated in the New Recording longer or more prominent), and further provided the Recording is not remixed or re-edited in any way.
- Royalty: (a) In consideration of the rights granted herein, in respect of any exploitations of the New Recording, including without limitation, on physical configurations, or by audio digital downloads, short form audio digital downloads, streams, short form video downloads, ringtones, ringbacks, and video tones sold through wireless services, Licensee shall pay Licensor a royalty of Three Percent (3%) (the “Royalty”) of the gross revenue received by or credited to the distributor by the digital service provider or retailer for each transmission or unit sold and not returned of the Record embodying the Recording in every configuration without deductions, except that the royalties concerned will be pro-rated based on the actual number of royalty bearing tracks on the Record concerned. For the avoidance of doubt, for exploitations covered by this paragraph in territories outside of the United States, the Royalty shall be applied to the revenue received “at source.”
(b) Should Licensee fail to make any payments owed pursuant to this Agreement, Licensor shall be entitled to collect all reasonable, out of pocket costs and expenses related to its efforts to collect the amounts due hereunder, including but not limited to reasonable outside attorneys’ fees.
(c) In the event Licensee fails to cure any failure to make payments within 30 days written notice from Licensor, Licensee shall pay interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, from the date due, on any required payment that is not made on or before its due date, without prejudice to any other rights Licensor may have in connection with such late payments.
(d) In the event that Licensee fails to pay the Licensor, in addition to any of Licensor’s rights and remedies, Licensor may immediately terminate this Agreement, Licensee shall promptly remove the Recording from the New Recording, and all uses of the Recording shall be considered to be unauthorized and shall constitute willful copyright infringement.
- Publishing. The parties acknowledge that Licensor shall own and control Twenty-Five Percent (25%) of the ownership interest in the New Composition. Licensor hereby agrees to license (and shall use reasonable efforts to cause their respective publishing designee(s) [each, a “Producer Publisher”] to license) their respective share(s), in and to the New Composition(s) to Licensee, and each of their respective designees, licensees, and assignees (sometimes referred to herein collectively as “Licensee’s Designees”) an irrevocable universe-wide mechanical license under copyright to reproduce and exploit their respective share(s) in the New Composition(s) as embodied on the New Recording at one hundred percent (100%) of the current statutory rate in the United States and Canada. For the avoidance of doubt, (i) each applicable writer / publisher shall exclusively administer his/her/its respective share of the applicable New Composition(s), and (ii) Licensor does not transfer or assign any portion of the Composition to Licensee.
- Accountings. (a) Licensee shall maintain complete and accurate accounts with respect to all copies of the New Recording manufactured, reproduced, sold, transmitted, publicly performed, distributed and otherwise exploited in the Territory, and shall furnish Licensor with a complete and accurate royalty statement of the number of New Recordings sold, streamed or otherwise exploited, and the revenues generated, within ninety (90) days after the end of each semi-annual period during which copies of the New Recordings are sold or otherwise exploited. Such statements shall be accompanied by payment of any royalties due, if any, pursuant to paragraph 6 above as a result of such sales or exploitation.
(b) Licensee shall permit Licensor or its designated agent(s), upon reasonable advance written notice to Licensee and not more than once per calendar year and not more than once per statement to audit Licensee’s applicable books and records and to make copies of portions thereof at Licensee’s principal place of business, solely as they relate to sales or other exploitations of the Recording embodied in the New Recording for which royalties are payable hereunder. Statements shall be deemed accepted by Licensor three (3) years after being rendered by Licensee. Licensor acknowledges that Licensee’s books and records contain confidential and proprietary trade information.
- Licensee shall accord, or shall instruct and cause any distributor to provide, credit to Licensor in the liner notes of any record containing the New Recording, on metadata in connection with electronic transmissions and in all print ads placed or controlled by Licensee of one-half (1/2) page or larger featuring the Recording(s) as follows: “Produced by Graux” and “Guitars by Graux”. For the avoidance of doubt, such credit shall not be “Co-produced” or “Additional Production”. Licensee shall accord, or shall instruct and cause any distributor to provide, credit to Licensor in the liner notes of any record containing the New Composition(s) as follows: “Written by Sébastien Graux”.
- Warrants and Representations. Licensee hereby warrants and represents that:
(a) Licensee shall pay and be solely responsible for all excise and other taxes for all Records embodying the New Recording that are manufactured and distributed;
(b) Licensee shall pay and be solely responsible for all copyright license fees, mechanical royalties, or other fees payable to the copyright proprietors of the composition embodied in the New Recording;
(c) Licensee shall obtain all requisite consents and permissions with respect to its use of the Recording as contemplated hereunder, and that shall pay and be solely responsible for the payments to the AFTRA Pension and Welfare Fund to the extent that Licensor may be additionally liable therefor as a result of sales pursuant to this Agreement. Licensee also shall pay and be solely responsible for all payments to the Music Performance Trust funds, the Phonograph Record Manufacturer’s Special Payments Fund, or to any similar fund, union, or guild based on sales and established by collective bargaining agreements, required to be made as a result of sales or other exploitations of the New Recording pursuant to this Agreement;
(d) Licensee has the full right, power, and authority to enter into this Agreement and fully perform its obligations hereunder;
(e) Licensee shall not license, sell, dispose of, distribute, or otherwise exploit the Recording or the New Recording, except as authorized pursuant to the terms of this Agreement.
(f) All Records embodying the New Recording shall be of superior quality and comparable to the first-class standards of the record industry, established by major record companies, in any market in which such records are sold.
- Licensee shall indemnify, defend, and hold harmless Licensor and its parents, affiliates, successors, customers, licensees, assigns, and the officers, directors, and employees of the foregoing, from and against any and all third party claims, liabilities, losses, damages, costs, demands, or expenses (including but not limited to legal expenses and reasonable attorneys’ fees and costs) arising out of (i) Licensee’s exercise of the rights granted herein; (ii) any breach or alleged breach by Licensee of any representation, warranty and/or obligation made by Licensee in this Agreement; or (iii) any other act or omission by Licensee.
- Licensor may, at its election, assign this Agreement or any of its rights hereunder. Licensee may assign or license the rights acquired hereunder for the purposes of exploitation permitted by this Agreement provided Licensee shall remain secondarily liable hereunder unless and until such assignee or licensee enters into a direct covenant with Licensor.
- Either party shall have the right to terminate this Agreement in the event of the other party’s breach of any of its material obligations hereunder which is not cured within thirty (30) days following the date of written notice to the other party.
- The provisions of this agreement are of a confidential nature and may not be revealed by you other than to your professional advisors, which will mean your attorney, accountant, manager, or auditor and will in turn not be revealed by such professional advisors to any other Person. You will enter not into any agreement or make any commitment that might interfere with your obligations under this paragraph.
- (a) This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by authorized representatives of both parties.
(b) This Agreement has been entered into in and is to be interpreted in accordance with the laws of, the State of New York without regard to choice of law principles. All disputes between the parties arising out of or related to this Agreement shall be brought only in the state or federal courts located in the State and County of New York, and each party hereby submits to the jurisdiction of such courts.
- LICENSEE ACKNOWLEDGES AND AGREES THAT THEY HAE READ THIS AGREEMENT AND HAVE BEEN ADVISED OF THE SIGNIFICANT IMPORTANCE OF RETAINING AN INDEPENDENT ATTORNEY OF THEIR CHOICE TO REVIEW THIS AGREEMENT ON THEIR BEHALF. LICENSEE WILL NOT ATTEMPT TO USE FAILURE AND/OR WAIVER TO OBTAIN AN ATTORNEY AGAINST LICENSOR.