We Are The Hits – License Agreement
This agreement (the "Agreement") is made as of DATE between We Are The Hits LLC, 101 W. 23rd St. #247, New York, NY 10011 ("WATH"), and NAME ("Artist") in connection with the exploitation of videos on digital platforms.
This Agreement constitutes a legal and binding contract between Artist and WATH. By using this service, Artist agrees to be bound by these terms.
- WATH is a digital platform and service in the business of, inter alia, aggregating, administering, claiming and monetizing original, short-form videos featuring artists performing musical compositions ("WATH Service").
- WATH has entered into agreements with various music publishers granting WATH the right to perform, claim, and monetize videos containing compositions owned and/or controlled by such publishers (the "Compositions"). To the extent that Artist has written, co-written, owns or controls any underlying composition or part thereof, such compositions may be referred to as "Controlled Compositions."
- Artist has or controls the rights to the audio-visual recordings ("Artist Videos") listed on Schedule A attached hereto, as well as the audio-only version of the Artist Videos (the "Masters") (the Artist Videos, Masters, and Controlled Compositions may be collectively referred to as "Artist Content"). Artist Videos may be added to Schedule A as rights are acquired and/or Artist Videos are created upon mutual agreement between Artist and WATH.
- WATH may create videos that visually feature the lyrics of the Compositions or Controlled Compositions ("Lyric Videos").
- Considering that WATH operates a service on YouTube – by agreeing to our terms, our users are agreeing to be bound by the Terms of service of YouTube which can be found here (https://www.youtube.com/t/terms).
- The Term of this agreement (the "Term") shall commence on the date of this Agreement and shall continue for a period of one (1) year. The Term shall automatically continue on a month-to-month basis unless and until either party sends a termination notice to the other no less than twenty days (20) prior to the expiration of the then-current month. WATH shall have the right to refuse, remove, cancel or suspend an Artist account, or any specific Artist Video and/or Lyric Video at any time and for any reason.
- The territory of this agreement (the "Territory") is the World.
Grant of Rights:
- Artist hereby grants WATH (1) the following exclusive rights with respect to Artist Videos and Lyric Videos embodying Compositions licensed by WATH and (2) the following non-exclusive rights with respect to Artist Videos and Lyric Videos embodying Controlled Compositions:
- Encode, store, reproduce and stream Artist Videos and Lyric Videos via the WATH Service (A) as on-demand (or "interactive") streams available for playback at the selection of the end user, (B) as part of playlists in a sequence designated by WATH, a third party platform or service, or the end user; and/or (C) on a linear, pre-programmed basis where the end user can neither skip, fast forward or rewind content.
- Make Artist Videos and Lyric Videos available on all third party internet destination sites and through a WATH branded embedded player, and across other IP-connected devices and applications, including, without limitation, personal computers, mobile/smart phones, connected media players and IPTV. The WATH Service may be offered to end users on a free-to-user, advertising supported basis and/or on a paid subscription basis.
- Display separate images (e.g., thumbnails) of video stills in connection with the promotion and marketing of the WATH Service and the availability of Artist Videos thereon. WATH shall also have the right to allow end users of the WATH Service to access Artist Videos and Lyric Videos offline via caching or similar technology.
- Create Lyric Videos embodying Artist’s Masters (and the right to synchronize Controlled Compositions in connection with Artist Videos and Lyric Videos);
- Claim and match Artist Videos and Lyric Videos posted and performed on digital platforms, networks, and channels; and
- Sell advertising space to third parties for advertisements, commercials and marketing promotions of any nature before, concurrently with, or after the Artist Videos and/or Lyric Videos as performed on any digital platform, networks, and channels.
- Artist further grants to WATH the non-exclusive right and license to use and publish, and permit others to use and publish, Artist’s name and likeness in connection with the Artist Videos and the WATH Service.
- Upon the expiration or termination of the Term all of the rights granted by Artist to WATH hereunder shall terminate, and WATH shall promptly remove all Artist Videos from the WATH Service and withdraw its claims to the Artist Videos.
- The applicable music publisher reserves all rights in and to the Compositions, including but not limited to, the right in its sole discretion to restrict or rescind the use of any Composition by giving notice to WATH.
- For avoidance of doubt, nothing contained herein shall obligate WATH to make any Artist Video available on the WATH Service at any time during the Term hereof.
- In consideration of the rights granted pursuant to this agreement, WATH shall pay to Artist a royalty equal to WATH’s "Per Video Income" multiplied by (i) forty percent (40%) with respect to Artist Videos embodying Compositions; (ii) eighty percent (80%) with respect to Artist Videos embodying Controlled Compositions; or (iii) twenty-five percent (25%) with respect to Lyric Videos (collectively, the "Royalty"). Per Video Income shall mean the actual income received by or credited to WATH in connection with and allocated to Artist Videos (or Lyric Videos) less any third party costs or deductions incurred by or charged to WATH including, without limitation, third party distribution fees, commissions and ad service costs.
- In the event that WATH receives a claim with respect to any Artist Video, then WATH shall have the right to withhold payment of Royalties in connection with such Artist Video or Lyric Video until such claim has been resolved.
- Within sixty (60) days after the end of each quarter-annual period ending March 31, June 30, September 30 and December 31, WATH shall render to Artist a true and detailed accounting in electronic format detailing the computation of the Royalty which will include number of plays of each Artist Video and Lyric Video as reported by the applicable third party platform and Per Video Income earned in connection therewith. All amounts payable to Artist pursuant to this Agreement are exclusive of, and shall be net of, any applicable sales, use, excise, purchase, withholding, value-added or similar taxes. Accordingly, and for the avoidance of doubt, Artist will be responsible for any taxes imposed on the amounts payable pursuant to this Agreement, including any applicable U.S. withholding taxes. Notwithstanding the foregoing, WATH shall not issue payments totaling less than One Hundred Dollars ($100.00), and any such amounts earned by Artist shall be credited to Artist’s account and paid to Artist once amounts owed exceed One Hundred Dollars ($100.00), provided that any amounts owing to Artist at the expiration or termination of the Term shall be paid to Artist.
- Payment will be sent to such address specified in writing by Artist during the Term.
- WATH shall maintain accurate and complete records and books of account containing all information needed to compute and verify the amounts payable to Artist hereunder. Artist may appoint a qualified CPA to audit those books and records with respect to a particular statement only once and within two (2) years following the date such statement was rendered. Artist may conduct such audit only once per calendar year, only during WATH’s usual business hours, at the place where it keeps the books and records to be examined, and on at least thirty (30) days prior notice.
Warranties and Representations/Indemnification:
- Artist warrants and represents that (i) the Artist Content is original and will not infringe on any third party rights, (ii) Artist is at least 18 years old and has the full right, power and authority to enter into and fully perform this Agreement in accordance with these terms and conditions, (iii) the execution and performance of this Agreement will not violate any third-party rights, (iv) nothing contained in the Artist Content is (A) unlawful, threatening, abusive, harassing, discriminating, defamatory, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of anothers privacy, (B) constitutes unsolicited or unauthorized advertising, solicitation, or promotional material, or (C) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, overburden, impair, or interfere with the proper function of any software, hardware, system or service; (v) as of the date of this Agreement and at all time during the Term, Artist owns and/or controls the rights in the Artist Videos (excluding the Compositions) throughout the Territory; (vi) no other approvals from any third party are necessary in order for Artist to grant the rights granted to WATH hereunder, nor shall Artist be required to make any payments of any nature for or in connection with the acquisition, exercise or exploitation of rights Artist has granted to WATH hereunder except as specifically provided in this Agreement; (vii) Artist will pay any and all fees, royalties and other sums due in connection with the Artist Videos including, without limitation, to any other artists which perform in the Artist Videos or create the Artist Content, but specifically excluding any payments due to the publishers of the Compositions; and (viii) Artist will not use the WATH Service for any unlawful purpose or prohibited by this Agreement.
- WATH warrants, represents and agrees that it shall have valid and enforceable licenses with respect to all aspects of its service, including, without limitation, for use of the Compositions. WATH makes no warranty or representation that the WATH Service will be secure and uninterrupted, or that any other content, videos, software, third party platforms, systems, or services will be secure and free of viruses or other harmful components.
- There may be links to other websites from the WATH website; however, these other websites are not controlled by WATH and WATH is not responsible for any content contained on any such website or any loss suffered by Artist in connection with such websites.
- Each party shall indemnify, defend and hold the other party, its successors, assigns, agents and licensees, free and harmless from and against any and all claims, demands, damages, expenses, losses or costs (including reasonable attorneys’ fees and costs), or any sums paid in settlement, arising out of or incurred as a direct result of any breach of the warranties, representations, or agreements made by the indemnifying party. For certainty, in the event that WATH receives a claim with respect to any Artist Video from a third party, WATH shall have the right to withhold payment of Royalties in connection with such Artist Video(s) until such claim has been resolved. Notwithstanding the foregoing, neither WATH, nor its directors, officers, shareholders, employees, or other representatives will be liable for damages of any kind (including, without limitation, lost profits, direct, indirect, compensatory, consequential, exemplary, special, incidental or punitive damages) arising out of Artist’s use of, or the performance of the WATH Service.
- This Agreement contains all of the terms agreed between the parties and replaces any and all previous agreements whether written or verbal concerning the subject matter hereof. No change of this Agreement will be binding upon either party unless it is made by a document signed by both parties. A waiver by either party of any provision of this Agreement in any instance shall not be deemed to waive it for the future. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy right, undertaking, obligation or agreement of either party.
- No failure by WATH to perform any of its obligations hereunder shall be deemed to be a breach of this Agreement until written notice of such failure has been sent to WATH (e-mail notice shall suffice), and such failure has not been corrected within thirty (30) days after WATH’s receipt of such notice.
- By using the WATH service, Artist consents to receive all communications, including notices, agreements, legally required disclosures, or other information in connection with the WATH service electronically at the e-mail provided by Artist. All notices to WATH shall be sent to firstname.lastname@example.org.
- WATH reserves the right, in its sole discretion, with immediate effectiveness, to change, modify, add, remove or otherwise alter these terms by posting the terms on-line. It is Artist’s responsibility to check these terms as posted on-line periodically for any changes. Artist’s continued use of the WATH Service following the posting of any changes to these terms constitutes Artist’s acceptance of such changes.
- This Agreement shall be governed by and construed in accordance with the laws of the State of New York whose courts (specifically the courts of New York County) shall have exclusive jurisdiction over any dispute arising herefrom.