TERMS AND CONDITIONS OF LICENSE THIS LICENSE AGREEMENT (this “Agreement”), made and entered into on [current_date], is by and between 8 Count Music LLC, with offices at 146 Cardinal Cove Rd, Irmo, SC 29063
( “8 Count Music” or “Licensor” ), and the person or entity digitally signing, submitting or agreeing to these unmodified terms (the “Licensee”). Parties shall mean Licensor and Licensee and Party shall mean either of the Parties.
The songs and tracks that are provided to you, whether by download or otherwise each mix, a Licensed Work , are licensed to you, not sold to you. All rights not expressly granted to you below are reserved by Licensor. The copyright retained by Licensor includes all sounds, samples, loops and/or vocals contained in the Licensed Works.
The term Master shall mean the original composition created by 8 Count Music for licensing to third parties and shall be transmitted to the Licensee on a phonographic or digital format chosen by 8 Count Music. At all times 8 Count Music shall retain all ownership of the Master, together with the performances embodied on the phonograph and all copyrights therein and thereto. 8 Count Music hereby grants a non-exclusive, nontransferrable, non-sublicensable, mechanical license to the Licensee which shall be explicitly revoked upon the termination of the License Term (as defined below).
The rights granted by 8 Count Music to Licensee hereunder shall be for the cheer season commencing May 15 of the current year through and including May 14 of the following year (the “License Term”) for each music product purchased.
The territory covered by this license shall be the world (the “Territory”).
Upon execution of this Agreement, Licensee shall pay 8 Count Music a fee the License Fee as set forth on 8 Count Music’s website (www.8 Count Musicmusic.com) or decided through written agreement. Payment shall be made by credit card, PayPal, money order, or check, as agreed by the Parties.
Licensee expressly agrees that the rights to access the 8 Count Music Website and use the Licensed Works hereunder shall be valid only so long as Licensee has made payment of the License Fee to 8 Count Music and such payment has cleared. Any use by Licensee of the License Work without payment of the License Fee shall constitute a material breach of this Agreement, entitling 8 Count Music to all available remedies under the laws of the state of South Carolina. In the event that any Licensed Works shall be publicly exploited by Licensee such public exploitation shall be permitted only if the Licensee paid 8 Count Music for the License Term during which the public exploitation occurred.
[Licensee shall pay and be responsible for all taxes and levies connected to the use of the Licensed Works according to the conditions of this agreement.]
(a) 8 Count Music is engaged in the business of providing music mixes and tracks to its licensees for cheerleading, dance, gymnastics and physical performances at competitions, practices and other events as agreed upon by the Parties.
(b) Notwithstanding the foregoing, Licensee shall use the Licensed Works for any and all of the
purposes set forth in Paragraph 5(a) above, subject to the terms and conditions hereunder.
Notwithstanding the foregoing, Licensee shall have no right to resell, publicly perform, transfer or hypothecate the unaltered version of the Licensed Work.
(a) Any public performance by Licensee of the Licensed Works is subject to the clearance of the
applicable public performance rights in force from time to time applied by the performing rights society in each part of the Territory in accordance with their respective prevailing terms and conditions.
(b) Licensee shall attribute and credit the Licensed Works in all exhibition and exploitation of the
Project.
(c) Licensee may not alter or modify the Licensed Work, including but not limited to Licensee’s
remix, addition or change of any recordings or lyrics. 8 Count Music shall have no responsibility regarding any suchalteration or modification.
(d) Licensee acknowledges and agrees that all rights in and to the Licensed Works, whether now
known or hereafter in existence, that are not granted to Licensee hereunder are specifically reserved by 8 Count Music. Licensee acknowledges that it shall have no right or access to the Master and may only use the phonographic or digital copy provided by 8 Count Music as enumerated herein. 8 Count Music retains all ownership and rights to the Master and does not hereby grant any right, except the non-exclusive right of the Licensee to use the Licensed Works for its purposes relating to the Cheer, Dance and Gymnastics competitions, practices and public not-for-profit performances.
(e) Licensee acknowledges and agrees that its use of the Licensed Works shall be solely for non-profit use and only in connection with the public performance by Licensee of the Licensed Work for Cheer, Dance and Gymnastics competition, practice and other not-for-profit performances. Additionally, Licensee shall have the right to use the Licensed Works for personal, noncommercial uses.
(f) Licensee and its assigns shall have the non-exclusive right to reproduce up to 35 copies in total of the Licensed Works or any portions thereof exclusively for copies distributed to Licensee’s teammates or as reasonably required in connection with Cheer and Dance performances.
(a) Licensee warrants and represents that: (i) it has the right to enter into this Agreement and has not entered into any other agreement that would interfere with your grant of rights hereunder; (ii) not under any disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to execute this Agreement; (iii) all information provided by Licensee herein and during the Term hereof shall be accurate, complete and not misleading in any material respect; (iv) it shall only use the Licensed Works for the purposes set forth in Paragraph 5 above, as determined by Licensee, in accordance with the terms of this Agreement; (v) it shall not, except to the extent allowed by 8 Count Music hereunder and solely in connection with its authorized use of the 8 Count Music Website, copy or otherwise duplicate directly or indirectly any portion of the 8 Count Music Website including without limitation, any of the information, trademarks, logos, designs, graphics, systems, Mixes or otherwise contained therein for any purpose, and shall not use any software that enables the copying or duplication of such materials; (vi) it shall abide by all copyright notices, information, or restrictions applicable to any of 8 Count Music’s materials or otherwise published on the Site; (vii) Licensee will comply with all requirements of the applicable performing rights societies as set forth hereunder; (viii) no usage by Licensee shall encourage or be associated with illegal or illicit activities allowed; and (ix) Licensee agrees to not transfer its rights in any Licensed Works licensed under this agreement to third parties without the express written consent of 8 Count Music.
(b) 8 Count Music warrants and represents that: (i) it has the right to enter into this Agreement and has not
entered into any other agreement that would interfere with your grant of rights hereunder; (ii) it is
under no disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to execute this Agreement and to grant the rights granted hereunder; (iii) it has obtained from the owner and publisher of the original compositions used in the Licensed Works (and has obtained rights to arrangements of public domain compositions) sufficient to grant the rights to Licensee hereunder; and (iv) no original composition nor any other selections, materials, ideas or other properties contained in the Licensed Works shall violate or infringe upon any common law or statutory right of any person, firm or corporation, including, without limitation, contractual rights, copyrights, trademarks and rights of privacy.
(a) Licensor will defend, indemnify and hold harmless, Licensee, its affiliates and their respective officers, directors, shareholders, employees, subcontractors, agents, consultants, representatives and suppliers from and against any and all third party claims, suits, demands, liabilities, costs, losses, damages, judgments, penalties or expenses (including reasonable attorney’ss fees and court costs that may be obtained against, imposed upon or suffered by any of them as a result of a breach of any warranty or representation contained in this License and arising from or in connection with any uses of the Licensed Works permitted herein. Licensee shall notify Licensor within five (5) days of any such claim, demand, or action against Licensee. Licensee shall have the right, at its sole expense, to participate in the defense thereof with counsel of its choice, provided, however, Licensor shall have the right at all times, in its sole discretion, to retain and resume control of such action and proceedings.
(b) Licensee agrees to defend, indemnify, and hold harmless, Licensor, its affiliates and their
respective officers, directors, shareholders, employees, subcontractors, agents, consultants,
representatives and suppliers (collectively, the Licensor Parties from and against any and all claims, suits, demands, liabilities, costs, losses, damages, judgments, penalties or expenses (including reasonable attorney’s fees arising out of or relating to (i) Licensee’s breach of any provision of this License Agreement; (ii) Licensee’s activities or other conduct of its business; (iii) the violation by Licensee of any statutory or regulatory obligation; or (iv) any claim or action for personal injury, death, property damage or other cause of action in connection with Licensee’s activities. 8 Count Music shall have the right to participate in the defense of any claim, demand, or action with counsel of its choice, at its sole cost and expense.
Any and all notices that the Parties are required or desire to be sent hereunder shall be in writing and sent to the addresses first indicated above or at such other addresses as the Parties may indicate by depositing same, registered or certified mail, return receipt requested, postage prepaid, in an official depository under the exclusive care and control of the United States Postal Service. Notices shall be deemed given when sent except for notice of change of address, which shall only be effective from the date of receipt thereof.
8 Count Music shall have the right to assign this Agreement to any party with whom they shall merge, consolidate, or which acquires a substantial, interest in the assets of Music Service’s business. Licensee shall have the limited right to assign this Agreement to any party with whom they shall merge, consolidate, or which acquires a substantial, interest in the assets of Licensee’s business, provided such person or form shall continue to pay the License Fee for the subscription service hereunder, or a flat fee (“buyout’) for the right to use any specific Licensed Work for a particular purpose.
In interpreting the terms of this Agreement, the Parties agree that the laws of the state of South Carolina shall be applicable, without giving effect to the conflicts of law provisions. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement.
Each Party:
(i) agrees that any action arising out of or in
connection with any dispute, claim, question, cause of action, defense or disagreement of any kind between the Parties each, a Dispute shall be brought solely in courts of the state of South Carolina, or the United States District Court for the District of South Carolina; and
(ii) hereby irrevocably consents to the sole and exclusive venue and jurisdiction of the courts of the state of South Carolina and the United States District Court for the District of South Carolina. In the event any Dispute is resolved within the courts of law, the prevailing party shall be entitled to reasonable attorney’s fees and associated costs.
The Parties intend that this be the final expression of their agreement and a complete and exclusive statement of its terms, and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding involving this Agreement. This license is binding upon and shall inure to the benefit of the respective successors or assigns of the Parties hereto.
This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by the Parties. Music Service shall not be deemed to be in breach of any of the obligations hereunder unless and until they shall have been given specific written notice from Licensee by certified or registered mail, return receipt requested, of the nature of such breach and shall thereafter fail to commence the cure of such breach within thirty (30) days after receipt of such written notice.
If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect.
