Exhibit 10.2
BMI WEB SITE.
MUSIC PERFORMANCE AGREEMENT
AGREEMENT, made on June 1, 1999, by and between BROADCAST MUSIC, INC.
("BMI"), a New York corporation with its principal offices at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Web Audio & Radio Portal, Inc.
("LICENSEE"), a Colorado (State)
(check one) [ X ] corporation
[ ] partnership
[ ] limited liability company
[ ] individual d/b/a/ (complete if applicable)
with its principal offices at 0000 X. Xxxxxx Xx. #0000
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Xxxxxxxxx Xxxxxxx, XX 00000 (the "Agreement").
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IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions
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As used this Agreement, the following terms shall have the following
respective meanings:
(a) The "Term" of this Agreement shall mean the period from June 1,
1999 through June 30, 2000 and continuing on a year-to-year basis thereafter;
provided, however, that either party may terminate the Agreement upon 60 days'
prior written notice at the end of June of any year beginning with June 30,
2000.
(b) "Web Sire" shall mean an Internet computer service currently
registered with Internic and known as WARPRADIO 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
xxxx://xxx.xxxxxxxxx.xxx over the Internet by means of a personal computer or by
means of another device capable of receiving Internet transmissions. LICENSEE
agrees that this Agreement covers only transmissions originating from this Web
Site and URL within the Territory. LICENSEE may list additional Web Sites owned,
operated and/or controlled by LICENSEE on Exhibit A hereto. LICENSEE must comply
separately with all reporting requirements under this Agreement for each Web
Site listed on Exhibit A. References herein to Web Site shall include those
additional sites listed on Exhibit A.
(c) "Territory" shall mean the United States, its territories,
commonwealths and possessions.
(d) "Online Service" shall mean a commercial computer online
information and/or entertainment programming packaging service (including, but
not limited to, America Online, Microsoft Network, CompuServe and Prodigy) which
may offer consumers, for a fee, access to proprietary centralized databases as
well as remote sources of audio and video programming and which may provide
Internet access.
(e) "Web page" shall mean a set of associated files transferred
sequentially to and rendered more or less simultaneously by a browser.
(f) "Page impression" shall mean a transfer request for a single web
page.
(g) "Music page" shall mean a web page which presents an icon that may
be clicked on to access music or at which music is played upon loading the web
page.
(h) "Music impression" shall mean a page impression of a music page
multiplied by the number of music file titles on that page either visible by
means of an icon on that page or otherwise (e.g., a music page with five (5)
music file titles would yield 5 music impressions whenever that page is
requested).
(i) "Gross Revenues" shall mean all revenues, including all xxxxxxxx
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 xxxxxxxx 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, payments from
Internet Service Providers
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and other transactional charges, including commissions from third parties on
transactions; (2) advertising (including sponsor "hot links") on the Web Site,
including xxxxxxxx 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; (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 Sire
(i.e. trade and barter); and (6) LICENSEE's proprietary software used to access
the Web Site, or download any aspect thereof. Gross Revenues 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 any third
party, in lieu of payment to LICENSEE, for LICENSEE's Web Site.
(j) "Music Area Revenues" shall mean Gross Revenues multiplied by a
fraction the numerator of which is the total number of music impressions for the
Web Site and the denominator of which is the total number of page impressions
for the Web Site.
2 Grant of Rights
---------------
(a) BMI hereby grants to LICENSEE, for the Term of this Agreement, a
non-exclusive license to perform publicly within the Territory, 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 rights to
grant public performance licenses of which BM1 controls. This license shall
include only public performances by transmissions originating from a server
within the Territory and received by listeners 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. This license shall not include dramatic rights
or the right to perform dramatico-musical works in whole or in substantial part.
In no event shall this license include transmissions to any commercial premises
where LICENSEE's Web Site is used as a commercial music service (as that term is
currently understood in the industry) or is performed publicly; such
performances of BMI music shall be subject to appropriate separate BMI
license(s).
(b) 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, 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.
(c) The transmission by LICENSEE of a public performance licensed
hereunder may originate at any place within the Territory whether or not such
place is licensed by BMI.
(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
compositions to any person or entity that may receive and/or download or
otherwise store the transmission of musical works.
(e) This Agreement only grants to LICENSEE the right to publicly
perform musical works in which and to the extent BMI has been granted the public
performing rights.
(f) LICENSEE represents and warrants that it shall not offer
LICENSEE's Web Site for resale by a third party as a pay or premium audio
service, and that LICENSEE's Web Site shall not be packaged or included on a
tier of services for additional revenues either independently or with other Web
Sites by third parties. The license granted hereunder shall not extend to any
such use of the Web Site.
3. License Fee
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In consideration of the license granted herein, LICENSEE shall pay to BMI
for each quarter year of the Term a license fee equal to either of the following
amounts the choice between which shall be LICENSEE's;
(a) Gross Revenues Calculation
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LICENSEE shall pay to BMI 1.75% of LICENSEE's Gross Revenues generated
by LICENSEE's Web Site during each quarter year of the Term according to the
Payment Schedule set forth below ("Payment Schedule"); or
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(b) Music Area Revenues Calculation
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LICENSEE shall pay to BMI the greater of 2.5% of LICENSEE's Music
Area Revenues or 0.25% of LICENSEE's Gross Revenues generated by LICENSEE's Web
Site during each quarter year of the Term according to the Payment Schedule.
LICENSEE shall select either the Gross Revenues Calculation or the
Music Area Revenues Calculation at the time LICENSEE submits its first report
pursuant to Paragraph 5 herein. LICENSEE may elect to change between the Gross
Revenues Calculation and Music Area Revenues Calculation at the end of any
quarter according to the Payment Schedule below:
Quarter Period Ending Payment Due Date
------- ------------- ----------------
First March 31 April 30
Second June 30 July 31
Third September 30 October 31
Fourth December 31 January 31
4. Minimum Fee
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Upon signing this Agreement, LICENSEE shall pay to BMI an initial minimum
fee of $500.00 multiplied by a fraction the numerator of which is the number of
months remaining in the current year (including the current month) and the
denominator of which is 12. Thereafter, LICENSEE shall pay the annual $500.00
minimum fee at the beginning of each calendar year by no later than January 31.
The minimum fee payment will be credited against any additional fees LICENSEE
shall owe to BMI above the minimum fee in the same year to which the minimum
fee shall apply. Web Sites paying only the minimum fee must still furnish
financial reports under Paragraph 5 per the schedule set forth above.
5. Financial Reports and Audit
----------------------------
(a) LICENSEE shall submit to BMI separate reports as to all Gross
Revenues generated by LICENSEE's Web Site as follows:
(i) For each quarter year to which this Agreement applies, a
quarterly 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, due at the
same time as the applicable quarterly license fee on or before the thirtieth
(30th) day after the end of the quarter year in accordance with the Payment
Schedule set forth above in Paragraph 3. LICENSEE agrees to use software which
BMI may provide to LICENSEE to prepare and deliver such reports electronically.
(ii) In the absence of timely filed quarterly reports as set
forth above, 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 xxxx LICENSEE therefor. However, neither BMI's estimation
of the fee for a reporting period nor anything else shall relieve LICENSEE of
the obligation to report and make appropriate actual fee payment for the
reporting period. If said quarterly estimate in the absence of a timely
completed report reflects that LICENSEE's total estimated license fee for said
quarter year was less than the actual license fee, LICENSEE shall pay BMI, at
the time the report is rendered, the difference between the actual fee due and
the estimated fee paid. If said report reflects that the actual fee for said
quarter year was less 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 no longer in
effect, BMI shall refund the overpayment to LICENSEE.
(b) BMI shall have the right to require that LICENSEE provide BMI with
data or information as may be necessary to ascertain the license fee due
hereunder.
(c) BMI shall have the right, 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 arid/or required
by this Agreement and in order to ascertain the license fee due BMI for any
unreported period. BMI shall treat as confidential all data and information
coming to its attention as a result of any such examination of books and
records.
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(d) In the event that BMI conducts an audit under Paragraph 5(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 town percent (10%) or more of LICENSEES 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.
6. 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 payment that is received
by BMI more than thirty (30) days after the due date,
7. Music Use Reports
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Upon BMI's request, LICENSEE shall provide BMI with separate detailed
information in electronic form from LICENSEE's log and statistics about the
transmission of all musical works on LICENSEE's Web Site. Such information shall
identify the musical works by title, composer/writer, author, artist, record
label, 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
is transmitted and whether such transmission is streamed or downloaded. 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 deliver to BMI all reports with respect to such data
covering programs transmitted by LICENSEE during each calendar quarter year on
or before the thirtieth day following the end of such quarter pursuant to the
schedule set forth in Paragraph 3 herein. LICENSEE agrees to use software which
BMI may provide to LICENSEE to prepare and deliver such reports electronically.
8. Indemnification
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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 that may be made or brought against them or any of them with respect to
the public performance within the Territory of any Works licensed under this
Agreement; provided, however, that such indemnity shall be limited to those
claims, demands or suits that are made or brought within the 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.
9. Warranty; Reservation of Rights
--------------------------------
(a) LICENSEE shall use its best efforts to ensure that its
transmissions of musical works by means of LICENSEE's Web Site are digitally
encoded to prevent the recipient of the transmission from digitally copying or
transmitting the works to others.
(b) This 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.
10. 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 iii
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.
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11. Arbitration
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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 Americaii 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.
12. Withdrawal of Works
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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.
13 Notice
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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 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: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx: 10019
Attn: Xxxx Xxxxxx
Senior Vice President Licensing
with a separate copy to;
Xxxxxx X. Xxxxxxxx, Esq.
Senior Vice President and General Counsel.
LICENSEE: Web Audio & Radio Portal, Inc.
0000 X. Xxxxxx Xx #0000
Xxxxxxxxx Xxxxxxx, XX 00000
with a separate copy to:
14. Assignment
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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.
15. Entire Agreement
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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,
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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 MUST, INC. Web Audio & Radio Portal, Inc.
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(Licensee)
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
---------------------------- -------------------------------
(Signature) (Signature)
Xxxxxxx Xxxxxx
Vice President
Marketing & Business Development
Media Licensing Xxxxxx Xxxxxx
---------------------------------- ------------------------------
(Print Name of Signer) (Print Name of Signer)
---------------------------------- ------------------------------
(Title of Signer) (Title of Signer)
PLEASE COMPLETE SHADED AREA ONLY
Please return signed agreement together with minimum fee to:
BMI
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: Web Site Licensing
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EXHIBIT A
WEB SITE NAME URL
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WARPRADIO xxxx://xxx.xxxxxxxxx.xxx
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