Controlled by ASCAP Members and specifically exclude the value of any rights and interests in such Musical Works that are owned and/or controlled by any other third party rights holder, including Broadcast Music, Inc., SESAC Inc. and Global Music Rights. Licensee agrees that neither ASCAP nor any ASCAP Member shall be required to account to any third-party rights holder in any Musical Work in the ASCAP Repertory for the rights granted to Licensee, and as between ASCAP and Licensee, Licensee shall be responsible for any such accounting.6.5 . During the Term, and for a period of three years thereafter: (a) Licensee shall maintain and keep complete and accurate records Audit in accordance with generally accepted accounting principles consistently applied and sufficient to verify compliance with Licensee’s obligations hereunder; and (b) ASCAP shall have the right, by its authorized representatives and/or third party designees, at any time during customary business hours, and upon 30 days written notice, to examine the books and records of account of Licensee to verify the Eligibility Requirements and any other information provided by Licensee. In the event any such audit shows Licensee to have underpaid the Fees, Licensee shall pay a finance charge on the additional Fees due of one and one half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, from the date(s) the additional Fees were due, and, if the underpayment is five percent (5%) or more of the total amount due for the period in question, then Licensee shall also reimburse ASCAP for ASCAP’s reasonable costs actually incurred as a result of the audit.Article 7. . Term and Termination7.1 . This License Agreement shall commence on the Effective Date set forth on and shall continue thereafter for a Term Schedule A period of five years, unless earlier terminated in accordance with the terms and conditions set forth herein (the “ ”). Thereafter, Initial Term this License Agreement shall automatically renew for additional, successive five-year periods (each, a “ ”), unless either Party Renewal Term provides the other with written notice of termination at least 30 days prior to the expiration of the Initial Term (or any Renewal Term, as applicable) (the Initial Term and each Renewal Term shall be collectively referred to herein as the“ ”). Term7.2. . In the event that the fees and charges set forth on a Rate Schedule for any applicable calendar year exceed Termination by Licensee the corresponding fees and charges set forth in the then-current Rate Schedule by ten or more percent, Licensee may terminate this Licensee Agreement effective as of the end of the then-current Contract Year by providing notice to ASCAP at least 30 days before the end of the then-current Contract Year. In addition, subject to and without limiting the terms and conditions of , Licensee may immediately Section 6.4 terminate this License Agreement upon notice to ASCAP in the event that Licensee discontinues the public performance of all music via the Licensed Service for a period of no less than 30 consecutive days.7.3 . If Licensee breaches any provision, term or condition of this License Agreement, ASCAP may (reserving Termination for Breach cumulatively all other remedies and rights pursuant to this License Agreement and in law and in equity) immediately terminate this License Agreement, in whole or in part, by providing at least 30 days’ notice to Licensee; , however, that such termination shall not be provided effective if Licensee’s breach has been cured prior to the expiration of such 30-day period.7.4 . ASCAP may immediately terminate this License Agreement in the event that Licensee (a) admits in Termination for Insolvency writing its inability to pay its debts as they become due, fails to satisfy any enforceable, final and material judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets, (e) makes a general assignment for the benefit of creditors other than in the ordinary course of financing its ongoing operations, (f) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (g) files a petition seeking to take advantage of any other law providing for the relief of debtors, (h) acquiesces to, or fails to have dismissed, within 30 days, any petition filed against it in any involuntary case pursuant to such bankruptcy laws or (i) takes any action for the purpose of effecting any of the foregoing.7.5 . ASCAP may terminate this License Agreement, in whole or in part, immediately upon notice to Termination for Change of Control Licensee in the event Licensee undergoes a change in control where control is acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of Licensee’s assets are acquired, by any entity, or company is merged with or into another entity to form a new entity. Licensee shall notify ASCAP of a change of control immediately upon any such change of control. In the event that ASCAP terminates this License Agreement solely pursuant to this , as of the effective date of such termination, Licensee Section 7.5 shall be deemed to have applied to ASCAP for a license, pursuant to Section IX of the Second Amended Final Judgment entered in United to perform publicly in the Territory, the Musical Works in the ASCAP Repertory via the Licensed Service.States v. ASCAP 7.6 Except as otherwise set forth in , upon any termination or expiration of this License Agreement for Effect of Termination. Section 7.5 any reason, all rights and licenses granted by ASCAP to Licensee herein shall immediately terminate.Article 8. . Representations and Warranties Licensee represents, warrants and covenants that: (a) all information provided by it in connection with this License Agreement, including the Eligibility Requirements, is true and correct and (b) during the Initial Term and each Renewal Term, if any, Licensee does not reasonably expect the Licensed Service to exceed the Service Thresholds set forth on . Schedule A Article 9. . Indemnification; Limitation of Liability Licensee agrees to defend and handle at its own cost and expense any claim or action against ASCAP, its affiliates9.1. Indemnification. and the ASCAP Members, and each of their respective officers, directors, employees, representatives and agents (each an “ASCAP ”) based upon or in connection with (a) any actual or alleged breach of Licensee’s representations, warranties and covenantsIndemnitee contained in this License Agreement and (b) the Licensed Service, but specifically excluding any claim or action caused by or based upon Licensee’s use of the ASCAP Repertory as specifically permitted pursuant to this License Agreement. Licensee agrees to indemnify and hold the ASCAP Indemnitees harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) associated with any such claim or action. Licensee shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise; , , that (i) that no settlement or compromise affecting the financial or legal provided however obligations of any ASCAP Indemnitee shall be entered into or agreed to without the applicable ASCAP Indemnitee’s prior written approval and unless such settlement contains an unconditional release by the claimant or the plaintiff of the ASCAP Indemnitee, its officers, directors, employees, representatives and agents from all liability in respect of such claim or action and (ii) each ASCAP Indemnitee has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests. . THE MUSICAL WORKS IN THE ASCAP REPERTORY AND ALL OTHER PRODUCTS,SERVICES AND9.2. DISCLAIMER RIGHTS PROVIDED OR OTHERWISE MADE AVAILABLE BY OR ON BEHALF OF ASCAP ARE BEING PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING AS TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, QUIET ENJOYMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND ASCAP HEREBY EXPRESSLYDigital1 (UnderThreshold) – 04052017 5
DISCLAIMS ALL SUCH REPRESENTATIONS AND LICENSEE'S EXPLOITATION OF ANY MUSICAL WORKS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS WILL NOT VIOLATE ANY INTELLECTUAL PROPERTY RIGHT OR OTHER PROPRIETARY RIGHT OWNER OR CONTROLLED BY ANY THIRD PARTY. . LICENSEE UNDERSTANDS AND AGREES THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ASCAP,9.3. WAIVER ITS AFFILIATES AND MEMBERS, AND THE RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS OF THE FOREGOING, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING OUT OF THIS LICENSE AGREEMENT AND/OR FROM USE OF THE ASCAP REPERTORY, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT ASCAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES. Article 10. . Notices All notices and other communications required or permitted pursuant to this License Agreement shall be in writing and transmitted via email to the applicable Party at the addresses set forth on , unless, by notice, a Party changes or supplements Schedule A the addressee and addresses for giving notice; provided, however, that ASCAP shall also have the right to provide notice and other communications to Licensee hereunder in writing that are delivered personally, mailed via certified mail, postage prepaid, or via a nationally recognized overnight courier. All notices shall be deemed given on the date personally delivered, when placed in the mail as specified above or when transmitted via email. Article 11. .Arbitration Any dispute arising out of or related to this License Agreement shall be subject to final binding arbitration between the Parties as provided herein. The arbitration shall be conducted pursuant to the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the request for arbitration is made (the “Arbitration Rules”), and in accordance with the Expedited Procedures in those Arbitration Rules, including Rules 16.1 and 16.2 of those Arbitration Rules, except as modified herein. The arbitration shall take place in New York, New York before a single neutral arbitrator (the “Arbitrator”) selected in accordance with the Arbitration Rules. Each Party shall pay its own costs and expenses for the arbitration, with the cost of the Arbitrator to be divided equally between the Parties. Any award or decision in arbitration shall be final and binding upon the Parties and shall be enforceable by judgment of any court of competent jurisdiction. The Parties further agree to the exclusive jurisdiction of the state courts in New York, New York, for purposes of any pre-arbitral injunctive relief, including any application for a preliminary injunction or order compelling arbitration, and waive any objection to laying venue in any such action or proceeding in such courts, or that such courts are an inconvenient forum or do not have jurisdiction over such Party. Neither the Parties nor the arbitrators may publicly disclose the existence, content or results of any arbitration hereunder without the prior written consent of both Parties. Article 12. . Miscellaneous This License Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns, except that Licensee shall not be permitted to assign, convey, transfer or subcontract this License Agreement or any of its rights or obligations hereunder, in whole or in part, without ASCAP’s prior written consent (which may be withheld in ASCAP’s sole and absolute discretion) and any purported assignment without such consent shall be void and of no force and effect. Each Party is ab initio an independent contractor and neither Party’s personnel are employees or agents of the other Party for federal, state or other tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in this License Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one Party an agent of the other Party. There are no third party beneficiaries, actual or intended, pursuant to this License Agreement. This Agreement shall be governed by the law of the State of New York and you irrevocably submit to the jurisdiction of the courts of New York State, situated in the City, County and State of New York. Except as specifically set forth herein, all consents, requests and approvals to be given under this Agreement shall be in writing and not be unreasonably withheld. If any provision of this Agreement is held to be invalid, the remaining provisions hereof shall remain in full force and effect. This Agreement constitutes the entire agreement between you and ASCAP and supersedes any prior agreements, written or oral with respect to the subject matter hereof. The provisions of , , Section 3.4 Section 6.4 , , , , , and this shall survive the cancellation, expiration orSection 6.5 Section 7.6 Article 8 Article 9 Article 10 Article 11 Article 12 termination of this License Agreement.Digital1 (UnderThreshold) – 04052017 6
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