Exhibit 6(iv)
Micro-W Distributing License Agreement
LICENSE AGREEMENT
AGREEMENT ("Agreement") made this 1st day of October, 1991, by and between
QRS Music Rolls, Inc. of 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000
("Licensor") and Micro-W Distributing, Inc. of 000 Xxxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000 ("Licensee").
WHEREAS, Licensor is a manufacturer and distributor of music rolls for
player pianos and maintains a library of master piano roll scores (hereinafter
referred to as "Source Material"); and
WHEREAS, Licensee is in the business of manufacturing and distributing
software compatible with electronic music devices and desires to license current
and future releases of Source Materials, whether presently existing or hereafter
developed from Licensor for use in its business;
NOW, THEREFORE, in consideration of the mutual promises made herein, the
parties agree as follows:
1. GRANT OF LICENSE.
a. Licensor hereby grants to Licensee, and any affiliated or related
companies or wholly owned subsidiaries the right, license and privilege to use
current and future releases of Source Material for the purpose of developing,
manufacturing and marketing data tapes, magnetic disks or other magnetic or
optical means of memory storage (the "Product").
b. Licensee's rights under this Agreement extend only to the duplication
and reproduction of musical content and note information contained in the Source
Material for translation onto Licensee's Product, and to the development,
manufacture, marketing, distribution, sale and use of Licensee's Product
anywhere in the world, and Licensee shall not in any way sell, transfer, modify,
improve, repackage, or otherwise alter, duplicate, reproduce or use the actual
Source Material.
c. All right, title and interest of Licensor in and to the Source
Material, including but not limited to the trade names, trademarks, musical and
mechanical reproduction rights, copyrights, ownership and other property rights
thereof and thereto, shall remain the sole property of Licensor, subject to the
rights granted to Licensee herein.
d. Included in the license granted to Licensee herein is the right to
enforce any and all rights now or in the future possessed by Licensor which are
reasonably required by Licensee during the term of this Agreement in order to
use the Source Material as provided for herein. Licensor hereby agrees to
cooperate fully with Licensee in such enforcement.
76
2. NATURE OF GRANT.
Subject to the terms and conditions of section 6 below, the grant from
Licensor to Licensee shall be an exclusive grant of the rights provided for
herein during the term of this Agreement. QRS reserves the right to use and sell
the Source Material in magnetic or optical memory form. Only QRS and Micro-W
will have the right to produce and sell Source Material in magnetic or optical
memory form. QRRS will not make available its Source Material to other
manufacturers for duplication or modification.
3. CROSS LICENSING.
Micro-W grants QRS an exclusive license to use Patent #4953039 in
conjunction with its development of a player mechanism for acoustical pianos. In
exchange, QRS grants Micro-W the right to use QRRS Source Material to produce
MIDI based music by optical or magnetic means. The duration of this cross
licensing right is for the duration of the patent.
4. ROYALTY PAYMENTS.
a. Licensee shall pay to Licensor as Royalty Payments an amount equal to
seven percent (7%) of Gross Sales. "Gross Sales" shall mean the gross amounts
actually received by Licensee from wholesale or retail sale or rental of the
Product, from services rendered utilizing the Product or from any sale, transfer
or assignment of rights in the Product; less transportation charges, normal and
customary trade, quantity and cash discounts and allowances on credits to
customers for returns or refunds.
b. The Royalty Payments shall be due and payable monthly within twenty
(20) days of the close of each month during this Agreement, at which time
License shall deliver to Licensor a statement signed by its authorized officer,
and certified by said officer as accurate, indicating the number, description,
gross sales price, sales taxes and credits for returns and refunds for each item
of the Product sold, rented or otherwise transferred for value during such
month, and a computation of the Gross Sales and the amount of Royalty Payment
payable in respect of gross Sales for such period.
c. In addition, within seventy-five (75) days of the close of each
calendar year, Licensee shall deliver to Licensor a statement prepared by an
independent public accountant, and certified by such accountant as accurate,
indicating the number, description, the gross sales price, sales taxes and
credits for returns for each item of the Product sold, rented or otherwise
transferred for value during such calendar year, and a computation of Gross
Sales and the amount of Royalty Payment payable in respect of Gross Sales for
such period.
d. A late payment charge of 1.5% per month will be added to Royalty
Payments due and not paid within the time frame set out at subsection b.,
Licensor's entitlement to the late charge shall not diminish its rights under
Section 5 herein.
77
5. INSPECTION.
a. Licensee agrees to keep accurate, complete and timely books of account
and records covering all transactions relating to the Product and other
financial aspects of the license hereby granted. Licensor, or its duly
authorized representative, has the right, at its own expense and during normal
business hours upon reasonable notice, to examine such books and records and to
copy or make extracts therefrom.
b. Receipt by Licensor of statements or Royalty Payments hereunder shall
not preclude Licensor from questioning the accuracy thereof at any time within
18 months after the close of the calendar year in which such was received. In
the event that inconsistencies or mistakes are discovered in such statements or
payments, they shall be immediately rectified and the appropriate adjustments
and payments made by the responsible party.
6. DEFAULT.
a. If Licensee should fail to perform any of the obligations in this
Agreement on its part to be performed, and such failure is not cured within
sixty (60) days after written notice thereof is sent to Licensee, then, and in
such event, the Licensor may elect to terminate this Agreement forthwith.
b. In the event that Licensee files a petition in bankruptcy, or is
adjudicated a bankrupt, or if a petition in bankruptcy is filed against Licensee
and not discharged within thirty (30) days from such filing, or if Licensee
becomes insolvent or makes an assignment for the benefit of its creditors or any
arrangement pursuant to the bankruptcy law, or if Licensee discontinues its
business, or sells its business, or if a receiver is appointed for it or its
business, the Licensor may, at its sole option, by written notice to the
Licensee, terminate this Agreement and the license and other rights hereunder
forthwith.
c. Notwithstanding any termination in accordance with the foregoing, both
parties shall have, and hereby reserve all the rights and remedies which they
have or which are granted to them by operating of law or equity for breaches of
this Agreement on the part of the other party.
7. TERM OF AGREEMENT
This Agreement shall commence November 1, 1991, and end on August 228,
2007, provided, however, that Licensee pays to Licensor minimum Royalty Payments
of at least $12,000 for the first license year, at least $15,000 for each
successive year.
8. MISCELLANEOUS.
a. CHANGES. This Agreement may not be changed, modified or otherwise
extended except by a written agreement signed by Licensor and Licensee.
78
b. ASSIGNMENT, SUBLICENSING AND SUCCESSION. Licensee may not grant any
sublicense without the prior written consent of Licensor and without Licensor's
being a party to any negotiations with a prospective sublicensee. This Agreement
shall inure to the benefit of and shall be binding upon the parties hereto,
their successors and their permitted assigns.
c. NO PARTNERSHIP, JOINT VENTURE OR AGENCY. Nothing contained in this
Agreement shall be construed to constitute the parties as continuing partners or
joint venturers, or one as the agent of the other.
d. ARBITRATION AND GOVERNING LAW. All disputes, differences and
controversies, or any nature whatsoever, arising under or in connection with
this Agreement shall be settled and finally determined by arbitration in the
City of Buffalo, New York under the then existing Rules of the American
Arbitration Association, provided, however, that any monetary dispute arising
hereunder where the amount in controversy is $20,000.00 or less shall be heard
before one (1) arbitrator. Judgment upon the award so rendered by the arbitrator
may be entered in any court having jurisdiction thereof.
e. This Agreement cancels and supersedes all previous agreements between
the parties, both verbal and written, and it embodies the entire understanding
between the parties. There are no prior representations or warranties between
the parties relating to the subject matter hereof, and this Agreement is
executed and delivered upon the basis of this understanding.
f. WAIVER. No waiver of any breach or failure to perform under this
Agreement shall be binding upon the parties unless it is in writing, and such
waiver shall be for one time only.
This Agreement will be governed by and interpreted in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the parties have duly execute this Agreement as of the
day and year first above written.
QRS MUSIC ROLLS, INC.
By:
----------------------------------
Title:
-------------------------------
MICRO-W DISTRIBUTING, INC.
By:
----------------------------------
Title:
-------------------------------
79
