This License Agreement (hereinafter defined) shall constitute an agreement between you (“You”, “Licensor”) and Make Music Count, Inc. (“Company”, “Licensee”). By submitting music to the Make Music Count Application, you agree to the terms of the License Agreement, Privacy Policy, and Terms and Conditions. The Make Music Count Application enables music creators and users of the Application (“Licensors”) to license to Company certain sound recordings (each individually, a “Master” and collectively, the “Masters”) and underlying musical compositions embodied therein (each individually, a “Composition” and collectively, the “Compositions”) for streaming and other educational purposes. The Masters and Compositions, shall be collectively referred to hereunder as “Musical Content”. Notwithstanding anything to the contrary contained herein, where applicable, one (1) or more separate agreement(s) between Licensor, on the one hand, and Licensee, on the other hand (each, an “Collateral Agreement”), shall control the licensing of any Music Content licensed by Licensors to Licensee on the Application. For the avoidance of doubt, Make Music Count does not grant any licenses or other rights to any users of the Application, and any and all further rights shall be governed by the terms of Collateral Agreement(s), if applicable.
Grant of Rights
For good and valuable consideration, Licensor grants to Make Music Count a non-exclusive, worldwide and perpetual license, free of charge or royalty (except as expressly agreed to herein or a Collateral Agreement or other agreement between Licensor and Licensee) to exploit the Musical Content to: (a) host the applicable Music Content (subject to the terms of any Collateral Agreement(s)), to host, reproduce, distribute, make available for streaming, download, and/or perform (publicly or otherwise) all Masters and Compositions on the Application, including full-length versions of sound recordings that may be used for promotional purposes as authorized herein; (b) Publicly perform, publicly display, communicate to the public, and otherwise make available Musical Content, by means of digital audio transmissions (on an interactive or non interactive basis) through the Website, Application, a Licensee website, or via another Make Music Count platform either now known or hereafter devised, without the payment of any fees or royalties to (i) any songwriter, composer, or any co-publisher owning any rights in and to Musical Content; (ii) any performing artist (including non-featured vocalists and musicians) on Musical Content; (iii) any other person involved in the creation of or owning any portion of Musical Content, including, but not limited to a record label, distributor, and (iv) any of its designees, assignees, or agents for any of the foregoing, including, without limitation, performing rights organizations, unions or guilds, whether U.S.based or internationally; (c) distribute Musical Content in accordance with any applicable Addendum to this Agreement; or (d) Place or embed Musical Content in Make Music Count’ advertisements, and any and all other media, whether now known or hereafter devised, but expressly excluding television and movies, to promote the Make Music Count’ Application; (e) use Musical Content and metadata as may be reasonably necessary for Company to exercise its rights under this Agreement; (f) broadcast, stream and/or perform (publicly or otherwise) the Masters and/or Compositions in any and all media in connection with the advertisement and promotion of the Masters, Compositions and/or the Application; (g) use, publish and display Licensor’s name, approved image, approved likeness and approved biographical materials in any and all media in connection with the advertisement and promotion of the Masters, Compositions and/or the Application. Licensor shall have the right to submit any image and/or biographical materials for Company’s use, and Licensor’s submission of the same shall be deemed approval. Further, Licensor shall grant Licensee the right to License any of the rights granted to Make Music Count hereunder to third parties as reasonably necessary to perform its obligations hereunder or to otherwise effectuate the purpose of its Terms and Conditions.
Streaming Rates
For the avoidance of doubt, Licensors with paid subscriptions shall be subject to payment of Company’s streaming rates (“Streaming Rates”) in connection with any exploitation of the Musical Content submitted to the Application by the Licensor.
Representations and Warranties
Licensor hereby represents and warrants: (a) there are and there shall be no liens, encumbrances or other charges against the Master(s) and/or the Composition(s), including, without limitation, any samples incorporated therein by Licensor and/or any third party engaged by Licensor; (b) no selections, materials, ideas, or other properties furnished by Licensor and embodied or contained in the Master(s) or the Composition(s), nor the exercise by Make Music Count of any of its rights hereunder, will violate or infringe upon any law or statutory right of any third party; (c) Licensor has the full right, power and authority to agree to , grant the rights conveyed to Make Music Count hereunder, and perform Licensor’s material terms and obligations hereunder; and (d) Licensor has not entered into and shall not enter into to any agreement with any third-party record company, distributor, music publisher, or any other person or entity that would conflict, inhibit, restrict or impair the rights granted to Make Music Count hereunder or the performance of Licensor’s obligations under these terms.
Licensor hereby represents and warrants that, to the extent you are the songwriter of any or all of the musical works embodied in Musical Content, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any PRO, whether based in the United States or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to Make Music Count and its Licensees for the public performance and communication to the public of Musical Content, that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the use of the musical works in Musical Content when publicly performed, communicated or otherwise transmitted by Make Music Count or its Licensees.
Licensor hereby represents and warrants you have not assigned any of the rights in an to the sound recordings embodied in Musical Content to any third party (e.g., a record label) that obtained exclusive rights in and to such sound recordings. Licensor hereby represents and warrants that if it is ever determined that you have acted contrary to any other agreements you have in place, you shall cause any and all of your respective PRO (Performing Rights Organizations), CMOs (Collective Management Organization), publishing administrators, agents, Entities, their parent company and subsidiaries, or their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns, as applicable, to license to Make Music Count and/or Make Music Count’ publishing administrators, agents, Make Music Count’ parent company and subsidiaries, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns the rights in any of the Composition pursuant to the terms and conditions of this agreement. Licensor shall issue or shall cause the necessary above parties in this paragraph) to issue a non-exclusive, worldwide, and perpetual royalty-free licenses for use of the Composition in connection with any Master(s), Composition(s), Derivative Master(s) and/or Derivative Composition(s) hereunder, including, without limitation, any unauthorized commercial exploitation thereof.
Licensor forever releases and covenants not to sue Make Music Count and/or any of the Make Music Count’s designees, agents, and/or assigns from any and all claims arising out of or in connection with any act or omission of any third party in connection with any Master(s) and/or Composition(s) hereunder, including, without limitation, any unauthorized commercial exploitation thereof.
Indemnification
You agree to indemnify, defend and hold harmless Make Music Count, Inc., its officers, directors, employees, agents, assigns, and third parties, for any losses, costs, liabilities and expenses (including reasonable actual attorney's fees) relating to or arising out of your use of or inability to use the Application or services, any user postings made by you, your violation of any representations and/or warranties made herein, or any violation of the terms of this Agreement, or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. Make Music Count, Inc. reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Make Music Count, Inc. in asserting any available defenses. In the event of a claim of copyright or intellectual property infringement, your indemnity obligation shall be immediate.
Removal
Licensors must request removal of Musical Content from the Application in writing. All requests for removal shall be remitted to info@makemusiccount.com. Make Music Count shall not be responsible for and shall have no liability for any inadvertent, non-repetitive delays in removing Musical Content from any websites or Applications, provided that upon receipt of written notice of any such failure to remove Musical Content, Make Music Count shall promptly cause such Musical Content to be removed from the Application. You shall promptly notify Make Music Count of your receipt of a takedown notice (in the event such notice is received by you) or following the termination of any rights granted to you by any third parties.
The expiration or termination of the Agreement will not relieve either you or Company from our respective obligations incurred prior to the effective date of your termination of the Agreement. In addition, provisions of this Agreement intended to survive the termination of this Agreement shall survive termination.
Payments to You
You will also be subject fees and charges as more fully explained on the Application, including, but not limited to, subscription fees and administrative fees (as applicable). Such fees and charges may be updated by Make Music Count from time to time, and you are responsible for reviewing those fees and charges. Your acceptance of this Agreement is an acceptance of the Make Music Count’ fees and charges as set forth in this Agreement and on the Website, each as revised by Make Music Count from time to time as set forth in this Agreement. As a paid subscriber Licensor (“PSL”), you are responsible for the following to include, but not limited to: (i) delivering the Musical Content; and (ii) identifying and complying with any copyright restrictions with respect to the distribution of Musical Content.
Make Music Count uses third parties to facilitate the receipt of payments from subscribers and other parties and to forward those payments to You, net of fees, charges, taxes, duties, VAT and other amounts allowed under this Agreement or required by applicable law. You hereby appoint us as your agent/merchant of record to deliver information and instructions on your behalf to any third party processor (“Third Party Processor”) with which we contract. Notwithstanding any terms to the contrary in this Agreement, to the extent in the course of providing the Applications any funds are placed in an account in Make Music Count’ possession, custody or control, You hereby appoint Make Music Count as Your non-exclusive authorized agent for the limited purpose of accepting on Your behalf payments from Make Music Count customers for the use of the Application and streaming of Musical Content and other amounts owed to You. You acknowledge and agree that Make Music Count is not a bank, a payment institution, or money Applications business. You may be required to enter into Terms of Application and to agree to Privacy Policies of our Third Party Processors. Those Terms of Application and Privacy Policies apply to the processing of payments for Musical Content.
We reserve the right to change the Third Party Processors at any time.
You are solely responsible for the security of your user login and password for the Third Party Processors’ systems. You must not permit any unauthorized third party to access any such accounts. In order to receive the payments as applicable under this Agreement you must agree to be paid in the manner(s) offered by the Third Party Processors. You assume sole and exclusive responsibility for Your interactions with Third Party Processors and for Transactions to the extent within your control. Make Music Count or the Payment Third Party Processor may add or remove one or more types of Payment Networks or Cards, in their sole discretion, at any time, without prior notice to you. Make Music Count will use its commercially reasonable efforts to provide you with customer support to help resolve issues relating to your payments. Make Music Count will provide reasonable assistance in liaising between you and the Third Party Processor.
You have sole and exclusive responsibility to determine what, if any, taxes apply to the sale of your goods and Applications and/or the payments you receive in connection with transactions (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority, whether in customers’ jurisdictions, your jurisdiction or elsewhere. We are not obligated to determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any Transaction. Make Music Count retains the right, but not the obligation, at its sole discretion, to calculate, collect, report, or remit any Taxes to any tax authority, to complete and file tax or related reports with tax authorities regarding Transactions in those jurisdictions where Make Music Count deems such reporting necessary. You hereby indemnify and hold Make Music Count harmless from and against any and all liability related to Taxes and filings made by Make Music Count in respect thereof. If You believe Make Music Count has erroneously calculated, charged, collected or remitted any Taxes in error You must promptly notify us (at ) in writing detailing the errors. If we determine to provide You with statements regarding Your Taxes, You agree to receive all statements regarding Your Taxes in an electronic format and acknowledge that paper tax statements will not be provided. When possible, Make Music Count will notify You when an electronic statement is available by posting a notice in Your Account or emailing it to the email address listed in Your Account.
You agree to refrain from surcharging any purchases of Musical Content without the express written permission of Make Music Count and the applicable Third Party Processor.
You acknowledge that we will use third party financial institutions and financial Application providers to hold balances for our users until balances is a minimum of $100.00. Your balance is not insured by the Federal Deposit Insurance Corporation. Prior to disbursing funds to you, your balance may be combined in accounts with the funds of other users of the Applications (or of similar Applications we offer). You will not receive interest or any other earnings on your Balance.
Miscellaneous
YOU ACKNOWLEDGE THAT UNLESS EXPRESSLY SET FORTH ON THE APPLICATION AS PART OF A SUBSCRIPTION OFFERING, MAKE MUSIC COUNT DOES NOT LICENSE MUSIC CONTENT DIRECTLY OR FUNCTION AS A MUSIC DISTRIBUTOR. THE APPLICATION MAY BE USED BY TO PUBLICY PERFORM MUSICAL CONTENT FOR EDUCATIONAL PURPOSES. YOU AGREE THAT MAKE MUSIC COUNT HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY MUSIC CONTENT LICENSED THROUGH THE USE OF THE APPLICATION, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. MAKE MUSIC COUNT MAKES NO REPRESENTATION THAT THE MUSIC COUNT MUSICAL CONTENT MADE AVAILABLE ON THE APPLICATION BY LICENSORS HAS BEEN AUTHORIZED BY ANY THIRD PARTY RIGHTS HOLDERS. LICENSOR SHALL SECURE ALL THIRD PARTY RIGHTS NECESSARY TO SUBMIT MUSIC CONTENT AND TO PERMIT MAKE MUSIC COUNT TO EXPLOIT ANY SUCH CONTENT IN CONNECTION WITH THE RIGHTS GRANTED HEREIN.