WEB SITE
MUSIC PERFORMANCE AGREEMENT
AGREEMENT, made on January 23, 2002, by and between BROADCAST MUSIC, INC.
("BMI"), a New York corporation with its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and iQuest Networks Inc. d/b/a Jackalope Audio
("LICENSEE"), a Wyoming (State)
(check one)
X corporation
partnership
limited liability company
individual d/b/a _______________________________
(complete if applicable) with its principal offices at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Agreement").
IT IS HEREBY AGREED AS FOLLOWS:
1. TERM
The Term of this Agreement shall mean the period from either January 1, 2001 or
March 1, 2001 (date after January 1, 2001 on which audio was launched),
whichever is later, through December 31, 2003 and continuing on a year-to-year
basis thereafter. Either party may terminate the Agreement upon 60 days' prior
written notice at the end of December of any year beginning with December 31,
2003. BMI shall have the right to cancel this Agreement along with the
simultaneous cancellation of the Agreements of all other licensees of the same
class and category as LICENSEE as of the end of any month during the initial
term or any subsequent renewal term, upon 60 days' prior written notice.
2. DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Allocation of Run-Of-Site Revenue" shall mean Run-Of-Site Revenue
multiplied by a fraction the numerator of which is the total Music Page
Impressions for the reporting period, and the denominator of which is the total
Page Impressions for the reporting period. (Run-Of-Site Revenue x (total Music
Page Impressions total Page Impressions))
(b) "Direct Music Area Revenue" shall mean the total of: (1) In-Stream
Advertising Revenue; (2) Music Page Banner Advertising Revenue; (3) Music
Subscriber Revenue; and (4) Other Music Revenue.
(c) "Gross Revenue" shall mean all revenue, including all ▇▇▇▇▇▇▇▇ on behalf
of, and all payments made to, LICENSEE, or as authorized by LICENSEE, its
employees, representatives, agents or any other person acting on LICENSEE's
behalf, and all ▇▇▇▇▇▇▇▇ on behalf of, and payments made to, any person,
company, firm or corporation under the same or substantially the same ownership,
management and control as LICENSEE for: (1) access to and/or use of the Web Site
or portions thereof, including online time, subscriptions, and other
transactional charges (excluding revenue generated by LICENSEE for the direct
sale of manufactured products), including commissions from third parties on
transactions; (2) advertising (including sponsor "hot links") on the Web Site,
including ▇▇▇▇▇▇▇▇ to and payments received from sponsors, less advertising
agency commissions not to exceed 15% actually incurred to a recognized
advertising agency not owned or controlled by LICENSEE; (3) the provision of
time or space on the Web Site to any other person or company; (4) donations; (5)
the fair market value of merchandise, services or any thing or service of value
which LICENSEE may receive in lieu of cash consideration for the use of the Web
Site (i.e. trade and barter); and (6) LICENSEE's proprietary software used to
access the Web Site, or download any aspect thereof. Gross Revenue shall include
such payments as set forth in (1) through (6) above to which LICENSEE is
entitled but which are paid to a parent, subsidiary, or division of LICENSEE or
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any third party, in lieu of payment to LICENSEE, for LICENSEE's Web Site.
LICENSEE may deduct from Gross Revenue any bad debts actually written off during
a reporting period which are related to any ▇▇▇▇▇▇▇▇ previously reported, but
shall increase Gross Revenue by any recoveries thereof.
(d) "In-Stream Advertising Revenue" shall mean that portion of Gross Revenue
as defined in Paragraph 2(c)(2) and 2(c)(5) which is derived from advertising
embedded in audio or audiovisual programming on the Web Site which contains
music.
(e) "Music Area Revenue" shall mean Direct Music Area Revenue plus the
Allocation of Run-Of-Site Revenue.
(f) "Music Page" shall mean a Web Page which presents one or more icons or
hyperlinks that may be clicked on to access performances of music or at which
music is played upon loading the Web Page.
(g) "Music Page Banner Advertising Revenue" shall mean that portion of Gross
Revenue as defined in Paragraph 2(c)(2) and 2(c)(5) which is derived from
advertisements appearing on or in connection with Music Pages or portions
thereof on the Web Site.
(h) A "Music Page Impression" shall mean a transfer request for a single
Music Page.
(i) "Music Subscriber Revenue" shall mean that portion of Gross Revenue as
defined in Paragraph 2(c)(1) which is derived from granting access to
performances of music or Music Pages or portions thereof on the Web Site.
(j) "Online Service" shall mean a commercial computer online information
and/or entertainment programming packaging service including, but not limited to
America Online, @Home Network, Road Runner, Microsoft Network, CompuServe and
Prodigy, which offers consumers, for a fee, access to proprietary centralized
databases and remote sources of audio and video programming and which may
provide Internet access.
(k) "Other Music Revenue" shall mean that portion of Gross Revenue as
defined in Paragraphs 2(c)(1)-(6) (other than Gross Revenue defined in
Paragraphs 2(d), 2(g) and 2(i)) which is directly attributable to performances
of music or Music Pages or portions thereof on the Web Site.
(l) "Page Impression" shall mean a transfer request for a single Web Page.
(m) "Run-Of-Site Revenue" shall mean that portion of Gross Revenue as
defined in Paragraphs 2(c)(1)-(6) which is attributable to the entire Web Site,
or any part or parts of the Web Site that include one or more Music Pages or
portions thereof. Run-Of-Site Revenue shall not include Direct Music Area
Revenue or other revenue derived from targeted advertising buys where an
advertiser buys advertising banners or other opportunities on or in connection
with, or LICENSEE charges for access to, specific Web Page(s) other than Music
Page(s) or portions thereof.
(n) "Territory" shall mean the United States, its Commonwealth, territories,
and possessions, and the territories represented by non-U.S. performing rights
licensing organizations listed on Exhibit C as may be amended from time to time
by BMI during the Term of this Agreement by adding to or deleting from the list
of countries posted in the licensing section of the BMI web site located at
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/. BMI will provide notice to LICENSEE (by e-mail to the
address provided by LICENSEE on the profile attached hereto as such may be
amended in writing by LICENSEE) of the deletion of any non-U.S. performing
rights licensing organization from Exhibit C during the Term hereof.
(o) "U.S. Territory" shall mean the United States, its Commonwealth,
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territories, and possessions.
(p) "Web Page" shall mean a set of associated files transferred sequentially
from the Web Site to, and rendered more or less simultaneously by, a browser.
For purposes of this Agreement, such associated files shall include, but shall
not be limited to, 'pop-up' windows that open upon accessing the Web Page as
well as proprietary software 'players' that open when accessing an audio or
audiovisual file associated with the Web Page.
(q) "Web Site" shall mean an Internet computer service comprising a series
of interrelated Web Pages currently registered with a domain name registration
service and known as Jackalope Audio that LICENSEE produces and/or packages and
then transmits or causes to be transmitted either directly or indirectly to
persons who receive the service from the URL ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ over
the Internet by means of a personal computer or by means of another device
capable of receiving Internet transmissions. LICENSEE may license additional
Web Sites owned, operated and/or controlled by LICENSEE by listing such
additional sites on Exhibit A hereto, and may amend Exhibit A from time to time
during the Term hereof by written agreement signed by both parties. LICENSEE
must comply separately with all reporting requirements and pay separate license
fees under this Agreement, including Annual Minimum License Fees, for each Web
Site listed on Exhibit A. References herein to Web Site shall include those
additional sites listed on Exhibit A.
3. GRANT OF RIGHTS
(a) BMI hereby grants to LICENSEE, for the Term, a non-exclusive license to
perform publicly within the Territory (subject to Paragraph 3(b) below), in and
as part of LICENSEE's Web Site transmitted or caused to be transmitted either
directly or indirectly by LICENSEE over the Internet all musical works, the
right to grant public performance licenses of which BMI controls. This
Agreement shall only include public performances in the Territory of musical
works by transmissions over the Internet received via personal computers or by
means of another device capable of receiving the Internet through streaming
technologies as well as those transmissions that are downloaded by persons on
personal computers or otherwise, where such transmissions are accessed through
the Web Site simultaneous to viewing a page on the Web Site. Public
performances outside of the Territory may be subject to appropriate separate
licensing. This Agreement shall not license transmissions of musical works that
are accessed through a web site owned or controlled by a third party
simultaneous to viewing a page on the third party's web site. This Agreement
does not include dramatic rights or the right to perform dramatico-musical works
in whole or in substantial part. This Agreement also does not license public
performances in any commercial establishments, including, but not limited to,
where all or a portion of LICENSEE's Web Site is used as a commercial music
service (as that term is customarily understood in the industry); such
performances of BMI music shall be subject to appropriate separate licensing.
(b) Notwithstanding the foregoing, the territorial scope of the grant of
rights with respect to any musical works which are affiliated with BMI through a
non-U.S. performing rights licensing organization not listed on Exhibit C hereto
is limited to public performances in the U.S. Territory. Public performances of
such musical works outside of the U.S. Territory may be subject to appropriate
separate licensing.
(c) Nothing herein shall be construed as the grant by BMI of any license in
connection with any transmission which is not part of LICENSEE's Web Site
transmitted or caused to be transmitted by LICENSEE and nothing herein shall be
construed as authorizing LICENSEE to grant to others (including, but not limited
to, third party web sites, Online Services, cable television system operators
and open video systems (acting as other than Internet service providers)) any
license or right to reproduce or perform publicly by any means, method or
process whatsoever, any of the musical compositions licensed hereunder.
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(d) This Agreement grants only public performing rights to LICENSEE, and
does not grant any reproduction, distribution, performance right in sound
recordings or any other intellectual property right(s) in any musical works to
any person or entity that may receive and/or download or otherwise store the
transmission of musical works.
(e) In the event that all or a portion of LICENSEE's Web Site is offered for
resale by a third party as a pay or premium audio or audiovisual service, or is
packaged or included on a tier of services by a third party for additional
revenue, either independently or with other web sites, LICENSEE shall
immediately notify BMI in writing of any such arrangements. BMI and LICENSEE
expressly agree that any such uses are not licensed under this Agreement and
shall be subject to appropriate separate licensing.
4. LICENSE FEE
In consideration of the license granted herein, LICENSEE shall pay to BMI for
each calendar quarter of the Term hereof a license fee in accordance with the
following rate calculations at LICENSEE's option:
(a) Gross Revenue Calculation
LICENSEE shall pay to BMI 1.75% of LICENSEE's Gross Revenue generated by
LICENSEE's Web Site during each quarter year of the Term according to the
Payment Schedule below (Gross Revenue X 1.75%); or
(b) Music Area Revenue Calculation
LICENSEE shall pay to BMI the greater of: (1) 2.5% of LICENSEE's Music Area
Revenue generated by LICENSEE's Web Site during each quarter year of the Term
according to the Payment Schedule below (Music Area Revenue X 2.5%); and (2)
total Music Page Impressions during each quarter year of the Term according to
the Payment Schedule below divided by 1,000 and multiplied by $0.12 ((Music Page
Impressions 1,000) X $0.12).
(c) Payment Schedule: LICENSEE may elect between the Gross Revenue
Calculation and Music Area Revenue Calculation upon filing each of its Financial
Reports for each immediately preceding calendar quarter of the Term in
accordance with Paragraph 6 according to the following Payment Schedule:
PAYMENT SCHEDULE
QUARTER PERIOD ENDING PAYMENT DUE DATE
First March 31 April 30
Second June 30 July 31
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Third September 30 October 31
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Fourth December 31 January 31
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5. ANNUAL MINIMUM LICENSE FEE
For each calendar year of the Agreement, LICENSEE shall pay to BMI an Annual
Minimum License Fee as follows:
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(a) Upon signing this Agreement, LICENSEE shall estimate its annual Gross
Revenue and shall pay to BMI an estimated Annual Minimum License Fee in
accordance with the Minimum Fee Table below prorated based on the number of
months remaining in the first calendar year covered by the Agreement.
Thereafter, LICENSEE shall pay to BMI any additional amount that may be due
based on actual Gross Revenue upon filing its Financial Reports in accordance
with Paragraph 6. Annual Minimum License Fee payments are credited against any
additional license fees that LICENSEE shall owe to BMI in the same year to which
the Annual Minimum License Fee shall apply. Overpayments shall be credited to
LICENSEE's account. Web Sites paying only Annual Minimum License Fees must
still submit Financial Reports under Paragraph 6.
(b) The Annual Minimum License Fee due for 2001 is specified in the Minimum
Fee Table below. For each year of this Agreement after 2001, the Annual Minimum
License Fee shall be adjusted to reflect the increase (or decrease) in the
United States Consumer Price Index (National, All Items) between October 2000
and October of the year preceding the year subject to the minimum fee, and shall
be rounded to the nearest dollar amount.
MINIMUM FEE TABLE
Gross Revenue 2001 Annual Minimum Fee
Up to $12,000 $ 259.00
12,001 to $18,500 $ 388.00
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18,501+ $ 517.00
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6. FINANCIAL REPORTS AND AUDIT
(a) LICENSEE shall submit to BMI separate Financial Reports as to Gross
Revenue generated by LICENSEE's Web Site as follows:
(i) For each calendar quarter of this Agreement, a report, certified by an
authorized representative of LICENSEE, for the Web Site, in the form
substantially the same as the Web Site Music Performance License Quarterly
Report Form annexed to this Agreement as Exhibit B. LICENSEE's Financial
Reports are due at the same time as the applicable quarterly license fee,
including the Annual Minimum License Fee, as set forth in Paragraph 4. LICENSEE
agrees to use commercially reasonable efforts to use software which BMI may
provide to LICENSEE to prepare and deliver such reports electronically, or such
other commercially reasonable alternative method upon which the parties agree.
LICENSEE's Financial Reports shall be treated as confidential. BMI will not
disclose the contents of such reports except as may be required by law or legal
process; provided, however, that nothing contained herein shall limit or
preclude BMI from providing affiliated or represented songwriters, composers,
music publishers, and/or non-U.S. performing rights licensing organizations with
itemized royalty statements and responding to inquiries from such affiliates or
non-U.S. organizations related thereto.
(ii) BMI shall have the right to estimate the fees due for a given quarter
year on the basis of the highest quarterly fee during the previous twelve (12)
months and ▇▇▇▇ LICENSEE therefor in the event that LICENSEE fails to report as
required. Neither BMI's estimation of the fee for a reporting period nor
anything else shall relieve LICENSEE of the obligation to report and make actual
fee payments for the reporting period. If BMI's estimate was less than the
actual license fee due, LICENSEE shall pay BMI, at the time the report is
rendered, the difference between the actual fee due and the estimated fee paid.
If LICENSEE's report reflects that the actual fee for the quarter year was less
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than the estimated fee paid, BMI shall credit the overpayment to LICENSEE's
account. If LICENSEE has submitted all contractually required prior reports and
payments to BMI and this Agreement is terminated, BMI shall refund the
overpayment to LICENSEE.
(b) BMI shall have the right to require that LICENSEE provide BMI with data
or information sufficient to ascertain the license fee due hereunder.
(c) BMI shall have the right, at BMI's sole cost and expense, once with
respect to each year of the Term (or portion thereof), by its duly authorized
representatives, at any time during customary business hours and upon thirty
(30) days' advance written notice, to examine the books and records of account
of LICENSEE necessary to verify any and all statements, accounting and reports
rendered and/or required by this Agreement and in order to ascertain the license
fee due BMI for any unreported period. The period for which BMI may audit
LICENSEE shall be limited to three (3) calendar years preceding the year in
which the audit is made; provided, however, that if an audit is postponed at the
request of LICENSEE, and BMI grants such postponement, BMI shall have the right
to audit for the period commencing with the third calendar year preceding the
year in which notification of intention to audit was first given by BMI to
LICENSEE. In the event that an audit reveals a deficiency of ten percent (10%)
or greater, BMI shall have the right to audit one (1) additional calendar year,
for a total of four (4) calendar years preceding the year in which the audit is
made. This limitation on the period for which BMI may audit LICENSEE shall not
apply if: (i) LICENSEE fails to file its Financial Reports due under Paragraph
6(a)(i) in a timely manner; and/or (ii) LICENSEE fails or refuses after written
notice from BMI to produce the material books and/or records of account
necessary to verify any report or statement required under the Agreement. BMI
shall treat as confidential all data and information coming to its attention as
the result of any such examination of books and records, and shall not use any
such information other than in connection with its administration of this
Agreement.
(d) In addition to any other remedy that BMI may have, in the event that BMI
conducts an audit under Paragraph 6(c) and such audit reveals that LICENSEE has
underpaid license fees to BMI, LICENSEE shall immediately pay the amount
LICENSEE owes BMI and, in addition, if such underpayment amounts to ten percent
(10%) or more of LICENSEE's annual fees for the audited period, LICENSEE shall
pay BMI a late payment charge in the amount of one and one-half percent (1 1/2%)
per month of all monies owed commencing on the actual date such monies were due.
7. LATE PAYMENT CHARGE
BMI may impose a late payment charge of one and one-half percent (1 1/2 %) per
month from the date payment was due on any quarterly payment that is received by
BMI more than ten (10) days after the due date.
8. MUSIC USE REPORTS
(a) LICENSEE shall provide BMI, in electronic form, quarterly Music Use
Reports which shall contain detailed information from LICENSEE's Web Site usage
logs concerning the transmission of all musical works on LICENSEE's Web Site.
Such information shall identify each musical work by title, composer/writer,
author, artist, record label, any unique identifier (e.g. ISWC, ISAN), length,
type of use (i.e., theme, background or feature performance) and manner of
performance (i.e. instrumental or vocal) (or any other methodology agreed to by
BMI and LICENSEE) and specify the number of times each musical work was
transmitted and whether such transmission was streamed or downloaded. In the
event that a charge was made for an on-demand transmission where the user chose
to access a particular work and paid a fee to LICENSEE for such service,
LICENSEE shall include the gross price that the end user was charged to receive
such transmission(s). With respect to transmissions of audiovisual works, such
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information shall also include the title of each audiovisual work, and the
primary author, director, and principal actor(s) of the audiovisual work. With
respect to on-demand transmissions where users are able to access transmissions
of specific works upon request, such information shall also include the country
where the end-user received such transmission. LICENSEE shall request reports
from its licensors or outside producers with respect to all content provided by
others and transmitted by LICENSEE as part of LICENSEE's Web Site. LICENSEE
shall notify BMI immediately in the event that LICENSEE is unable to obtain such
reports, and BMI shall use commercially reasonable efforts to secure any missing
reports from LICENSEE's licensors or outside producers, but nothing contained
herein shall relieve LICENSEE of its obligation to deliver the reports to BMI in
the event that BMI is unable to obtain such reports.
(b) LICENSEE shall deliver to BMI Music Use Reports on or before the
thirtieth day following the end of such quarter pursuant to the Payment Schedule
set forth in Paragraph 4. LICENSEE agrees to use commercially reasonable efforts
to use software which BMI may provide to LICENSEE to prepare and deliver such
reports electronically, or such other commercially reasonable alternative method
upon which the parties agree.
(c) BMI shall not disclose, other than as individualized music use
information accompanying royalty statements, any specific music performance data
contained in the Music Use Reports without LICENSEE's prior written consent.
Nothing contained herein shall preclude BMI from using the music use information
as part of aggregated, publicly disseminated market data, so long as the source
of such information is not specifically identifiable as coming from LICENSEE, or
disclosing any such data as may be required by law or legal process.
9. INDEMNIFICATION
Provided that LICENSEE has not failed to cure a breach or default within thirty
(30) days of receiving notification from BMI thereof under the Agreement, BMI
shall indemnify, save and hold harmless and defend LICENSEE and its officers and
employees from and against any and all claims, demands and suits alleging
copyright infringement that may be made or brought against them or any of them
with respect to the public performance within the Territory of any musical works
licensed hereunder; provided, however, that such indemnity shall be limited to
those claims, demands or suits that are made or brought within the U.S.
Territory, and provided further that such indemnity shall be limited to works
which are BMI-affiliated works at the time of LICENSEE's performance of such
works. This indemnity shall not apply to transmissions of any musical work
performed by LICENSEE after written request from BMI to LICENSEE that LICENSEE
refrain from performance thereof. BMI shall, upon reasonable written request,
advise LICENSEE whether particular musical works are available for performance
as part of BMI's repertoire. LICENSEE shall provide the title and the
writer/composer of each musical composition requested to be identified. LICENSEE
agrees to give BMI immediate notice of any such claim, demand, or suit, to
deliver to BMI any papers pertaining thereto, and to cooperate with BMI with
respect thereto, and BMI shall have full charge of the defense of any such
claim, demand, or suit; provided, however, that LICENSEE may retain counsel on
its behalf and at its own expense and participate in the defense of such claim,
demand or suit.
10. WARRANTY; RESERVATION OF RIGHTS
This Agreement is experimental in nature. BMI and LICENSEE recognize that the
license granted herein covers certain transmissions originating from and/or
received in certain territories outside of the U.S. Territory pursuant to
experimental agreements with certain non-U.S. performing rights licensing
organizations around the world, and that this Agreement is broader in
geographical scope than BMI's previous Internet licenses. Notwithstanding, BMI
is offering this Agreement at the same rate as its previous Internet license on
an experimental and non-prejudicial basis for the sole purpose of evaluating
such international licensing initiatives. Nothing contained in this Agreement
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is intended to reflect BMI's position with respect to the reasonable value of
the license granted herein; BMI hereby expressly reserves its right to
re-evaluate the appropriateness of the fees and terms herein, including, but not
limited to, the reasonable value of a license that covers transmissions beyond
the U.S. Territory, for periods following the Term.
11. BREACH OR DEFAULT
Upon any breach or default of the terms and conditions of this Agreement by
LICENSEE, BMI shall have the right to cancel this Agreement, but any such
cancellation shall only become effective if such breach or default continues
thirty (30) days after LICENSEE's receipt of written notice thereof. The right
to cancel shall be in addition to any and all other remedies which BMI may have.
No waiver by BMI of full performance of this Agreement by LICENSEE in any one or
more instances shall be a waiver of the right to require full and complete
performance of this Agreement thereafter or of the right to cancel this
Agreement in accordance with the terms of this Paragraph.
12. DISCONTINUANCE OF MUSIC
In the event that LICENSEE ceases to publicly perform music in connection with
its Web Site, LICENSEE may cancel this Agreement by sending written notice to
BMI prior to the effective date of cancellation as specified in such notice by
LICENSEE. BMI will cancel this Agreement, retroactive to the effective date of
cancellation, but only if, within ninety (90) days after the effective date,
LICENSEE: (a) has submitted to BMI all reports and payments due under the
Agreement through the effective date; and (b) has not resumed publicly
performing music in connection with its Web Site. In the event that LICENSEE
fails to provide such reports and payments or resumes publicly performing music
in connection with its Web Site within the ninety (90) day period, LICENSEE's
request to cancel this Agreement shall be deemed withdrawn and this Agreement
shall remain in full force and effect for the duration of the Term in accordance
with Paragraph 1 above.
13. ARBITRATION
All disputes of any kind, nature or description arising in connection with the
terms and conditions of this Agreement (except for matters within the
jurisdiction of the BMI rate court) shall be submitted to arbitration in the
City, County, and State of New York under the then prevailing rules of the
American Arbitration Association by an arbitrator or arbitrators to be selected
as follows: Each of the parties shall, by written notice to the other, have the
right to appoint one arbitrator. If, within ten (10) days following the giving
of such notice by one party the other shall not, by written notice, appoint
another arbitrator, the first arbitrator shall be the sole arbitrator. If two
arbitrators are so appointed, they shall appoint a third arbitrator. If ten (10)
days elapse after the appointment of the second arbitrator and the two
arbitrators are unable to agree upon the third arbitrator, then either party
may, in writing, request the American Arbitration Association to appoint the
third arbitrator. The award made in the arbitration shall be binding and
conclusive on the parties and judgment may be, but need not be, entered in any
court having jurisdiction. Such award shall include the fixing of costs,
expenses, and attorneys' fees of arbitration, which shall be borne by the
unsuccessful party.
14. WITHDRAWAL OF WORKS
BMI reserves the right at its discretion to withdraw from the license granted
hereunder any musical work as to which legal action has been instituted or a
claim made that BMI does not have the right to license the performing rights in
such work or that such work infringes another composition.
15. NOTICE
All notices and other communications between the parties hereto shall be in
writing and deemed received (i) when delivered in person; (ii) upon confirmed
transmission by telex or facsimile device; or (iii) five (5) days after
deposited in the United States mails, postage prepaid, certified or registered
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mail, addressed to the other party at the address set forth below (or at such
other address as such other party may supply by written notice):
BMI: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President Licensing
with a separate copy to:
Senior Vice President and General Counsel
LICENSEE: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: President
with a separate copy to:
16. ASSIGNMENT
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns, but no assignment
shall relieve the parties hereto of their respective obligations hereunder.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties with
respect to the subject matter hereof. This Agreement cannot be waived, added to
or modified orally and no waiver, addition or modification shall be valid unless
in writing and signed by the parties. This Agreement, its validity,
construction, and effect, shall be governed by the laws of the State of New
York. The fact that any provisions herein are found by a court of competent
jurisdiction to be void or unenforceable shall not affect the validity or
enforceability of any other provisions.
BROADCAST MUSIC, INC.
By: "▇▇▇▇▇▇▇ ▇▇▇▇▇▇"
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(Signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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(Print Name of Signer)
VP Marketing & Business Development
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(Title of Signer)
Please return signed agreement together with minimum fee to :
BMI
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Web Site Licensing
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PLEASE COMPLETE ALL OF THE FOLLOWING:
LICENSEE's main offices are located in the U.S. Territory
YES___X__ NO_____
The majority of LICENSEE's employees are located in the U.S. Territory
YES___X__ NO_____
LICENSEE's annual accounts are audited in the U.S. Territory
YES_____ NO__X___ - Canada but in accordance with US GAP
iQuest Networks Inc., d/b/a Jackalope Audio
------------------------------------------------
(LICENSEE)
By: "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇"
-------------------
(Signature)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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(Print Name of Signer)
President
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(Title of Signer)
WEB SITE
MUSIC PERFORMANCE AGREEMENT
EXHIBIT A
WEB SITE NAME URL
Jackalope Audio ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
EXHIBIT B
WEB SITE MUSIC PERFORMANCE AGREEMENT
GROSS REVENUE CALCULATION
QUARTERLY FINANCIAL REPORT FORM
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SAMPLE
Jan. 1 - Apr. 1 - July 1 - Oct. 1 -
Report For Calendar Quarter: Mar. 31 June. 30 Sept. 30 Dec. 31 ___YEAR
Company Name: ___________________________________________________
Address: ___________________________________________________
___________________________________________________
Telephone No.: ___________________________________________________
Name of Web Site: __________________________________________________
URL: ___________________________________________________
YOUR GROSS REVENUE
1. Subscriber Revenue (including commissions on third party
transactions) $ _____________________
2. Advertising Revenue (less agency commissions) $
_____________________
3. Provision of Space or Time $ _____________________
4. Donations $ _____________________
5. Trade or Barter $ _____________________
6. Proprietary Software $ _____________________
TOTAL GROSS REVENUE (add lines 1 through 6) $ _____________________
TOTAL GROSS REVENUE $ _______________ X 1.75% = $ ____________________
LICENSE FEE
TOTAL PAYMENT DUE = $ ____________________
I hereby certify on this __________ day of _______________, _______ that
the above is true and correct.
BY: _________________________ Please return report and payment to:
(SIGNATURE)
Web Licensing
______________________________ BMI
(PRINT NAME OF SIGNER) ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
______________________________
(TITLE OF SIGNER)
Please e-mail any questions to ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------
EXHIBIT B
---------
WEB SITE MUSIC PERFORMANCE AGREEMENT
MUSIC AREA REVENUE CALCULATION
QUARTERLY FINANCIAL REPORT FORM
-------------------------------
SAMPLE
Jan. 1 - Apr. 1 - July 1 - Oct. 1 -
Report For Calendar Quarter: Mar. 31 June. 30 Sept. 30 Dec. 31 ___YEAR
Company Name: ___________________________________________________
Address: ___________________________________________________
___________________________________________________
Telephone No.: ___________________________________________________
Name of Web Site: __________________________________________________
URL: ___________________________________________________
MUSIC AREA REVENUE
DIRECT MUSIC AREA REVENUE
1. In-Stream Advertising $____________ less agency commissions $____________
$____________________
2. Music Page Banner Advertising $___________ less agency commissions
$___________ $____________________
3. Music Subscriber Fees $____________________
4. Other Music Revenue $____________________
5. DIRECT MUSIC AREA REVENUE (add lines 1 through 4)
$____________________
ALLOCATION OF RUN OF SITE REVENUE
6. Subscriber Revenue (including commissions on third party transactions)
$____________________
7. Advertising Revenue $____________ less agency commissions $____________
$____________________
8. Provision of Space or Time $____________________
9. Donations $____________________
10. Trade or Barter $____________________
11. Proprietary Software $____________________
12. RUN OF SITE REVENUE (add lines 6 through 11) $____________________
13. ALLOCATION OF RUN OF SITE REVENUE
_________________ x (_____________________
RUN OF SITE REVENUE (TOTAL MUSIC PAGE IMPRESSIONS)
Divided by _____________________) $____________________
(TOTAL PAGE IMPRESSIONS)
14. TOTAL MUSIC AREA REVENUE (add lines 5 and 13) $____________________
MUSIC AREA LICENSE FEE
(the greater of A and B)
A. TOTAL MUSIC AREA REVENUE B. MUSIC PAGE IMPRESSIONS
$_________ x 2.5% = $________ _____________ 1,000 x $0.12 = $__________
(from Line 13) Total Music Page Impressions
MUSIC AREA LICENSE FEE $ _________________
I hereby certify on this _______ day of ______________, _______ that
the above is true and correct.
BY: ______________________________ Please return report and payment to:
(SIGNATURE) Weblicensing
______________________________ BMI
(PRINT NAME OF SIGNER) ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
______________________________ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(TITLE OF SIGNER) Please e-mail any questions to
▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
EXHIBIT C
LAST UPDATED: 7/23/01
PERFORMING RIGHTS ORGANIZATION COUNTRY
AEPI Greece
------------------------------ ---------------
AKM Austria
------------------------------ ---------------
APRA Australia
------------------------------ ---------------
ARTISJUS Hungary
------------------------------ ---------------
▇▇▇▇ The Netherlands
------------------------------ ---------------
CASH Hong Kong
------------------------------ ---------------
COMPASS Singapore
------------------------------ ---------------
GEMA Germany
------------------------------ ---------------
IMRO Ireland
------------------------------ ---------------
JASRAC Japan
------------------------------ ---------------
KCI Indonesia
------------------------------ ---------------
KODA Denmark
------------------------------ ---------------
MACP Malaysia
------------------------------ ---------------
MUST Taiwan
------------------------------ ---------------
PRS United Kingdom
------------------------------ ---------------
SABAM Belgium
------------------------------ ---------------
SACEM France
------------------------------ ---------------
SACM Mexico
------------------------------ ---------------
SADAIC Argentina
------------------------------ ---------------
SCD Chile
------------------------------ ---------------
SGAE Spain
------------------------------ ---------------
SIAE Italy
------------------------------ ---------------
STIM Sweden
------------------------------ ---------------
SUISA Switzerland
------------------------------ ---------------
TEOSTO Finland
------------------------------ ---------------
UBC Brazil
------------------------------ ---------------
WEB SITE
MUSIC PERFORMANCE AGREEMENT
WEB SITE PROFILE
Please complete and return with your signed agreements
so we can service your account properly
SITE URL: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------
SITE NAME: JACKALOPE AUDIO
----------------
CORPORATE NAME: IQUEST NETWORKS INC.
----------------------
CORPORATE CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ TITLE: PRESIDENT
----------------- ---------
CORPORATE ADDRESS: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------
TELEPHONE: ▇▇▇.▇▇▇.▇▇▇▇ FAX: ▇▇▇.▇▇▇.▇▇▇▇
------------ ------------
E-MAIL: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-------------------------
FINANCIAL CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TITLE: CFO
--------------- ---
If different from above
BILLING ADDRESS: ____________________________________
If different from above
TELEPHONE: ▇▇▇.▇▇▇.▇▇▇▇ FAX: ▇▇▇.▇▇▇.▇▇▇▇
------------ ------------
E-MAIL: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------
MUSIC
USE REPORTS CONTACT: _______________ TITLE: ________________
If different from above
TELEPHONE: ______________ FAX: _________________
E-MAIL: ______________________________________
QUESTIONS? PLEASE VISIT OUR WEB SITE AT
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Marketing& Business Development
Media Licensing
January 16, 2002
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President
IQuest Networks Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: BMI Web Site Music Performance Agreement
---------------------------------------------
Dear ▇▇▇▇▇:
In connection with the BMI Web Site Music Performance Agreement between BMI
and Jackalope Audio ("LICENSEE") executed on even date herewith for the public
performance of BMI music on LICENSEE's Web Site, and reflecting the unique
business structure of LICENSEE, it is hereby further agreed as follows:
1. Notwithstanding anything to the contrary contained in the Agreement, the
term Territory shall mean the United States, its Commonwealth, territories, and
possessions. Accordingly, all references to the Territory in the Agreement
shall be limited thereto, and Paragraph 3(b), and the reference to Paragraph
3(b) in Paragraph 3(a), are hereby deleted.
2. This letter agreement is experimental in nature and both parties reserve
the right to reevaluate the appropriateness of the fees and terms herein for
periods following the expiration of the Term.
If you agree with the foregoing, please so indicate by signing in the space
provided below.
Sincerely,
"▇▇▇▇▇▇▇ ▇▇▇▇▇▇"
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Accepted and Agreed to:
IQuest Networks, Inc. d/b/a Jackalope Audio
By: "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇"_
---------------------------------
Authorized Signatory
▇▇▇▇▇ Desrosiers_
----------------------------------
Print Name
President
------------------------------
Title
