1 - Definitions
1.1) “End User” means any individual who lawfully accesses the Services solely for individual consumer use.
1.2) “Store” means any of Titanium Digitals’s Licensees online video services that enables individuals who are not Subscribers Users to purchase individual Downloads or Streams.
1.3) “Subscriber” means an End User on whose behalf Titanium Digitals’s Licensees has received or is owed payment for at least one month of access to any of the Subscription Services.
1.4) “Track” means each individual sound, audio and/or video recording in the Catalog as electronically coded in one of Label’s compact discs or DVDs or video tapes and indicated as a separate selection on the package and/or the liner notes thereof, or as otherwise delivered to Titanium Digitals and designated by Label as an individual video master.
1.5) “Catalog” consists of all copyrighted sound and video recording, including audio and/or video clip recording created during Term, in which Label has or will have during the Term of this Agreement the right to license digital performances, reproductions and distributions through the Services in the Territory, which, as of the date hereof, includes those sound identified on Schedule A, and which shall be deemed to include, throughout the Term, all Tracks on every video tape, CD and DVD Label releases or delivers to TITANIUM DIGITALS (including via electronic delivery), unless Label specifically notifies Titanium Digitals otherwise in writing.
1.6) “Subscription Services” means any of Titanium Digitals’s Licensees online music, video services that are generally made available to End Users in consideration for a fee.
1.7) “Service” means any online digital music and video service(s) operated by any of Titanium Digitals’s Licensees throughout the Term enabling End Users to access part or all of (i) a Webcasting Service, (ii) a Subscription Service, (iii) a Store, The “Service” includes all co-branded and syndicated versions thereof, provided that the Tracks are hosted by Titanium Digitals’s Licensees (or their duly authorized hosting agents), and may be made available through any device that is capable of receiving data transmitted in whole or in part by IP Protocol or by ADSL Protocols or any similar wire line or wireless protocol.
1.8) “Download” means a digital reproduction of a Track delivered to an End User through a Service and fixed into a digital audio/video file, which file is renderable as music audio and/or video without a simultaneous active connection to the Internet or to mobile networks or to xDSL networks. To “Download” or “Downloading” means the act of creating a Permanent Download or Conditional Download.
1.9) “Play” means each instance in which either a Track in the Catalog is Streamed through the Service or a Conditional Download is played, but shall specifically exclude: (a) plays that are thirty (30) seconds or less; (b) plays of Tracks to which Titanium Digitals has a pre-existing license; (c) plays made in connection with the Webcasting Service, provided that Titanium Digitals or its Licensee which provide the Service pays for such plays pursuant to its compulsory licenses or other legal means; and (d) due solely to technological limitations, plays of a Conditional Download made during a period of up to thirty (30)-days following the last authorization by the Service of such Conditional Download.
1.10) “Webcasting Service” means that part of Titanium Digitals’s Licensees Service that consists of non-interactive wire line or wireless Internet, xDSL transmissions (i.e. those eligible for the compulsory license under 17 U.S.C. §114 of the U.S. Copyright Act or any successor provision thereto or any similar alien domestic regulations).
1.11) “Permanent Download” means a Download which is fixed into a permanent digital audio/video file, including a digital audio/video file delivered from TITANIUM Digitals’s Licensees servers directly onto a recordable compact disc (a CD-R or CD-RW) or onto a recordable writable video disc (a DVD-R or DVD-RW), and which may be digitally reproduced by the End User.
1.12) “Conditional Download” means a Download which is fixed into a time-limited or playcount-limited digital audio/video file that (i) can not be burned onto a compact disc or a DVD disc, and (ii) will be disabled or deleted from the End User’s storage device no later than thirty (30) days after the expiration of the End User’s subscription or free trial period, as applicable, if time-limited, or when the authorized play-counts have been depleted, if play-countlimited.
1.13) “Whole Movie Download” means a multi-Track set of Downloads packaged and sold together, for example, as such Tracks might appear on compact disc, cassette tape, LP or a digital video disc, of the same name.
1.14) “Stream” or “Streamed” means the digital audio/video transmission of a Track by means of the Internet or any similar wireline or wireless network that (i) is substantially contemporaneous with a public performance and (ii) does not produce a fixed file embodying such performance that can be rendered as music audio and/or video without a simultaneous active connection to the Internet or any similar wireline or wireless network other than a temporary file created solely to render such contemporaneous performance as in the form of a data buffer or cache copy.
1.15) “License Fee For Plays” means a fee paid per Play to Titanium Digitals “titanium digitals” by any of its Licensees.
1.16) “License Fee For Download” means a fee (based on the PPD) for Permanent Download paid to Titanium Digitals “titanium digitals” by any of its Licensees.
1.17) “Territory” means the entire world, except if Territory is specifically identified on Schedule A.
1.18) “Clips” means a preview of up to thirty (30) seconds of any Track in the Catalog, which End Users may Stream on-demand through a Service free of charge and without any royalty payment to Label.
1.19) “Fee Report” means any report required to be provided by Titanium Digitals to Label pursuant to Section 10.
1.20) “Titanium Digitals’s Licensee ”titanium digitals” a person, firm, corporation or other entity with which Titanium Digitals has a contractual relationship pursuant to which such entity provides Service to End-Users.
1.21) “Term” means the definition set forth in Section 9.1.
1.22) “Metadata”: means Label Metadata.
1.23) “Album” means a particular compilation of Masters and/or Tracks that have been granted by the Label for license as a single unit.
1.24) “Artwork” means, with respect to any Master or Movie, a digital file embodying artwork associated with such Master or Movie.
1.25) “Master” means a Digital Master whose license has been granted, or that is available to be granted, in the by, and in the name of, Label, it being understood and agreed that a Label either owns and controls the musical and/or video work embodied in each Master, or the Label has obtained an effective license from the copyright proprietor or administrator of such musical and/or video work to permit license granting.
1.26) “Digital Master”: a digital file embodying a specific sound recording of a musical or video work.
1.27) “Composition(s)”: one (1) or more non-dramatic musical works or other dramatic, literary or other works embodied in Digital Masters and digitally transmitted or intended to be digitally transmitted in a Digital Master (or, with respect to albums, coupled together as the physical counterpart of such Albums as were released by Label, or as is otherwise designated by Label for such Albums), irrespective of length, including all spoken words and bridging passages, including any portion of public domain works claimed by an author, writer or music publisher or their respective designee.
2.1) Label hereby grants to Titanium Digitals and to any of Titanium Digitals’s Licensees or to any of its distribution partners, during the Term, subject to the limitations set forth below, an exclusive license in the Territory :
(a) to publicly perform, reproduce and distribute digitally the sound and/or video masters in the Catalog to the extent reasonably necessary (i) to operate the Services and enable End Users to Stream and Download sound or video recordings of the Catalog through the Services, and (ii) to Stream Clips through the Services free of charge to End Users and to Titanium Digitals and to Titanium Digitals’s Licensees, all of which rights shall include, but shall not be limited to, the right to make transmissions, permanent reproductions, server and database copies in multiple bit rates and formats, backup copies, and any incidental, ephemeral, buffer and iDPD copies of the sound or video recordings which may be required;
(b) with respect to the album containing Label’s Catalog, to reproduce, display and exhibit the so-called “movie cover artwork” on the Services and in connection with any online, off-line or email promotion of any Track or album in the Catalog by Titanium Digitals or any of its Licensees or any of their distribution partners; and to reproduce and deliver a digital reproduction of the “album cover artwork” to End Users who purchase a Download of a Track on such album; and to reproduce and deliver to End Users who purchase a Download of a Track the metadata associated with such Track;
(c) to reproduce, display and exhibit on the Services and in any promotions thereof (including online and offline promotions undertaken by Titanium Digitals or any of its Licensees or any of its distribution partners) any promotional materials provided by Label to Titanium Digitals, photographs, images and likenesses of Label’s artists, and the names of the artists, album and Tracks in the Catalog, provided that Titanium Digitals or any of its Licensees or any of its distribution partners shall not use any Label artist’s name or image to endorse the Services without prior written approval from Label, Label’s artist or the applicable authority; and
(d) to reproduce, distribute, deliver and use in connection with the Services, all data, metadata, copyright notices, parental advisory notices, videos, and/or other copyrightable works provided by Label to Titanium Digitals, including via electronic delivery, for use in connection with this Agreement.
2.2) The licenses granted in this Agreement extend to Titanium Digitals or any of its Licensees or any of its distribution partners to use in connection with all or any part of the Services, whether the Services is distributed through a website or software application owned or controlled by Titanium Digitals or any of its Licensees or any of its distribution partners or by any third-party authorized by any Titanium Digitals’s Licensees to distribute all or part of the Services. Titanium Digitals or any of its Licensees or any of its distribution partners may syndicate, co-brand, private label and/or distribute the Services through third-parties, provided that only Titanium Digitals or Titanium digitals’s Licensees Us (or their duly authorized agents) may host and serve the Catalog to End Users through the Services.
2.3) Any of Titanium Digitals’s Licensees or any of its distribution partners shall have the right to sell all Tracks in the Catalog through the Services on both an individual-Track basis and on a Whole album Download basis or video clip basis.
3 - Limitation of Rights
3.1) The license granted in Section 2 above is limited to the use of the Catalog solely in the manner set forth in this Agreement, and does not grant to Titanium Digitals nor to any of its Licensees any copyright ownership in any sound recording or video recording or musical composition. All rights in and to the Catalog not granted or licensed hereunder are specifically reserved by Label.
3.2) Titanium Digitals or any of its Licensees shall not edit, modify or otherwise alter sound or video recordings in the Catalog (other than as necessary to create unique digital audio or video files and Clips of each Track in the Catalog and otherwise incorporate the Catalog into the Services) and shall not create any derivative work from any Track in the Catalog.
3.3) Titanium Digitals or any of its Licensees shall not, and shall not permit any distributor or syndicator of the Services to, target any promotions or marketing of the Services specifically to individuals who reside outside of the Territory.
3.4) Titanium Digitals or any of its Licensees shall be responsible for obtaining all blanket public performance licenses from performing rights societies (e.g. ASCAP, BMI and SESAC) required to Stream the musical and/or video compositions embodied in each Track of the Catalog in the Territory.
4 - Content Delivery: Compact Discs, DVDs or Electronic Delivery of Audio or Video Files
4.1) Label agrees to provide to Titanium Digitals, free of charge, with respect to each Track and each video clip in the Catalog:
(a) one free copies of compact discs or DVDs containing each Track and/or video clip in the Catalog (including CD or DVDs released throughout the Term, which shall be provided, where possible, no less than twenty (20) days prior to the release date); or (b) one digital master (betanum,Betasp,Dvpro), for the purposes of encoding the sound or video clip recording; (c) descriptive metadata file(s) with obligatory code upc and Isrc, and delivered via FTP to secure site designated by Titanium, in accordance with Titanium Digitals’s then-effective technical specification.
4.2) Label shall deliver such CD, DVDs, electronic audio and videotapes and metadata files to TITANIUM DIGITALS for use on the Services as soon as reasonably possible after the Effective Date, and for Tracks, album and/or video clip cleared by Label during the Term and new releases, Except for special circumstances, such as occasional, exclusive, limited-time, one-off promotion for a particular Tracks, album and/or video in the Catalog, Label shall not make any Track, album and/or video in the Catalog available on any other online service prior to making such Tracks, album and/or video available on the Services. TITANIUM DIGITALS reserves the right to require that content be delivered to TITANIUM DIGITALS according to TITANIUM Digitals’s then-effective content-acquisition guidelines.
5 - Promotional Artist Photographs
Label agrees to provide to TITANIUM DIGITALS any promotional photographs and images of the artists featured in the Catalog that Label generally makes available to third parties for promotional purposes and that Label is authorized to allow TITANIUM DIGITALS and any of its Licensees to display as provided in Section 2. If reasonably possible, Label shall make such photographs and images available to TITANIUM DIGITALS in digital format, according to the following specifications: (i) resolution: 300 dpi; (ii) size: 1425 x 1425 pixels, or full size; (iii) file format: JPG, and (iv) color: 24-bit or 32-bit, RGB (not CMYK).
6 – Promotion
6.1) TITANIUM DIGITALS or any of its Licensees shall display on the Services, in an easily legible manner, with respect to each Track in the Catalog actually available to be Streamed and/or Downloaded through the Services: (a) the title of the Track, album and/or video (b) the name of the artist featured on the Track, album and/or video, and (c) the name of the video, if applicable, on which the Track appears.
6.2) TITANIUM DIGITALS or any of its Licensees shall have the unrestricted right to market, promote and advertise the Services or any part thereof, including by identifying the Tracks and artists available through the Services.
7 – Mechanical Payments and other Taxes
7.1) With respect to permanent downloads delivered in the US, Label shall bear all responsibility for administering and paying, on a timely basis, all applicable mechanical royalties (including those for digital deliveries) and other present and future regulatory taxes owed to third parties as a result of the Services in the U.S. pursuant to this Agreement,
7.2) With respect to Permanent Downloads delivered outside the US, TITANIUM DIGITALS or its Licensees shall bear all responsibility for administering and paying, on a timely basis, all applicable mechanical royalties (including those for digital deliveries) owed to third parties as a result of Permanent Downloads of the Catalog made through the Services outside of the U.S. pursuant to this Agreement, and shall deduct all such royalties from the amounts payable to Label for such Permanent Downloads under this Agreement.
7.3) With respect to Conditional Downloads delivered through the Service, TITANIUM DIGITALS or its Licensees shall bear all responsibility for administering and paying, on a timely basis, all applicable mechanical royalties (including those for digital deliveries) owed to third parties as a result of Conditional Downloads of the Catalog delivered through the Services.
8.1) The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue for a period of five (5) years, provided however that the Term shall renew automatically for consecutive two (2) years periods unless either party gives written notice to the other party of its election not to renew at least ninety (90) days prior to the end of the then-current Term.
8.2) Either party may terminate this Agreement prior to the expiration of the Term in the event that the other party (i) files in any court or agency a petition in bankruptcy or insolvency, (ii) is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition is not dismissed within sixty (60) days after the filing thereof, (iii) makes an assignment for the benefit of creditors, or (iv) breaches any material representation, obligation or covenant contained herein, unless such breach is cured no later than thirty (30) days from the date of receipt of notice of such breach, or if not able to be so cured, resolved to the non-breaching party’s satisfaction.
9 – Trademarks and Logos
Label hereby grants to TITANIUM DIGITALS ”titanium digitals” and to any of its Licensees, during the Term, the right to display Label’s name and logo (i) on the Services in connection with the display of any album cover artwork from album in the Catalog and in connection with the transmission of any Track album and/or video clip in the Catalog, (ii) in connection with the sale of any Download in the Catalog, (iii) as part of any list of TITANIUM Digitals’s content partners that appears on any TITANIUM DIGITALS website, and (iv) to identify Label in promotions of the Services (including in promotions operated and run by TITANIUM DIGITALS’s Licensees or their distribution partners). TITANIUM Digitals’s use, or use by any of its Licensees, of any of Label’s logos, trademarks or other marks as permitted herein shall not create any additional right, title or interest in or to any such intellectual property.
10 – Confidentiality
10.1) For the purposes of this Agreement, “Confidential Information” means information about the disclosing party’s business or activities that is proprietary and confidential, which shall include (a) the terms of this Agreement; (b) all business, financial, technical and other information of a party marked or designated by such party as “confidential” or “proprietary”; and, (c) any information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Confidential Information does not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving party knew prior to receiving such information from the disclosing party, or (d)the receiving party develops independently.
10.2) Each party agrees (a) that it will not use or disclose to any third party any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement, and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which at no time shall be less restrictive than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each party may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, or (b) on a “need-to-know” basis under an obligation of confidentiality solely to its legal counsel, accountants, banks and other professional advisors subject to the restrictions herein; provided that in no event shall Label disclose TITANIUM Digitals’s Confidential Information to any other media service, or media store, or media distributor, or media aggregator, online or otherwise, whereas “media” means music or video contents.
11 – Press Releases and Public Statements
Neither party shall issue any press release or make any other public statement regarding this Agreement or the transactions contemplated herein without the prior written consent of the other party.
If TITANIUM DIGITALS becomes aware of any unauthorized reproduction, distribution, or sale of Tracks , album and/or video clip in the Catalog by any End User or third party through the Services, TITANIUM DIGITALS shall notify Label thereof, and take commercially reasonable measures to cooperate with Label in the event that Label commences any action or proceeding against such third party.
13 – Representations and Warranties
13.1) TITANIUM DIGITALS hereby represents and warrants that:
(a) TITANIUM DIGITALS has the right and power to enter into this Agreement and fully perform its obligations under this Agreement; and
(b) TITANIUM DIGITALS or any of its licensees has obtained or will obtain at their sole cost and expense all necessary blanket public performance licenses from performing rights societies (e.g. ASCAP, BMI & SESAC) required for the public performance of the musical and/or video compositions embodied in the Tracks and/or Movies streamed through the Service in the Territory.
(c) TITANIUM DIGITALS or any of its licensees has obtained or will obtain all necessary mechanical licenses required in connection with the delivery of (i) Permanent Downloads through the Service outside of the U.S. and (ii) Conditional Downloads through the Service in the Territory.
13.2) Label represents and warrants to TITANIUM DIGITALS and its Licensees that:
(a) Label has the right and power to enter into this Agreement and fully perform its obligations under this Agreement;
(b) Label shall administer and pay, on a timely basis, all applicable mechanical royalties (including those for digital deliveries) owed to third parties as a result of Permanent Downloads of the Catalog made through the Service in the U.S pursuant to this Agreement, provided that all such Permanent Downloads are properly reported to Label as required by this Agreement;
(c) Label shall pay all royalties, fees and/or sums payable to recording artists, producers, other master royalty participants, graphic artists, labor unions, and/or other parties required to be compensated for the use of movie and sound recordings, movie cover artwork, and promotional materials authorized for use under this Agreement;
(d) Label has, and will have throughout the Term, the rights necessary to grant each and all of the licenses and other rights granted under this Agreement, and to provide TITANIUM DIGITALS with all copies of the sound or video recordings in Catalog, cover artwork, promotional materials, metadata, digital audio files, digital video clip files, and other material provided to TITANIUM DIGITALS by Label, or authorized by Label for use by TITANIUM DIGITALS or any of its Licensees, in connection with this Agreement;
(e) TITANIUM Digitals’s exercise of the rights granted to it by Label under this Agreement will not infringe on any third party’s rights, including, without limitation, any rights of copyright, trademark, patent, unfair competition, defamation or privacy.
14 – Indemnities
15.1) TITANIUM DIGITALS will defend, indemnify and hold harmless Label, and each of its parents, subsidiaries, and affiliates and each of their respective officers, directors, agents and employees, from and against any and all third party claims, actions, damages, liabilities, losses, costs and expenses (including reasonable legal expenses and counsel fees) arising out of or in connection with (a) TITANIUM Digitals’s use of the Catalog in breach of this Agreement; and/or (b) any breach by TITANIUM DIGITALS of any representation, warranty or agreement made by TITANIUM DIGITALS herein.
15 – Customer Data
TITANIUM DIGITALS or any of its Licensees shall own and retain all right, title and interest in all names, addresses, and other personally identifiable information collected by it from End Users, and shall have no obligation to share such personal information with Label or any of Label’s third-party partners.