MASTER LICENSE AGREEMENT
Last Modified: May 10, 2017
THIS MASTER USE LICENSE IS A LEGALLY BINDING AGREEMENT. PLEASE READ AND BE SURE YOU UNDERSTAND ALL TERMS OF THIS AGREEMENT BEFORE COMPLETING YOUR PURCHASE FROM CHEER.FM, LLC. IF THERE ARE ANY TERMS OF THIS AGREEMENT WITH WHICH YOU DO NOT AGREE, DO NOT COMPLETE YOUR PURCHASE. BY COMPLETING YOUR PURCHASE, YOU AGREE TO ALL TERMS OF THIS AGREEMENT.
THIS AGREEMENT (“Agreement”) is entered into between Cheer.fm, LLC, a Kansas limited liability company (“Company”, “we” or “us”), and the person or entity purchasing this limited, non-exclusive, license to use the Works provided by Company (“Licensee”).
WHEREAS, Company has the rights to the sound recordings, and musical compositions embodied therein, that comprise the “Premade Cheer Mix,” “Custom Cheer Mix,” “Customize voice over pack,” and similar “Cheer Mix” audio products as may be offered by Company, (the “Works”), and specifically the Works for which Licensee has purchased this license; and,
WHEREAS, Licensee desires to use the Works in Licensee’s cheerleading, dance and gymnastics events, practices, performances and other performing arts performances, subject to the terms, conditions, and restrictions of this Agreement, as set forth below.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the Parties hereto agree as follows:
- License: Company hereby grants Licensee the limited, non-exclusive right to:
- use the Works in connection with Licensee’s cheerleading, dance and gymnastics events, practices, performances and other performing arts performances, and for any and all other personal, noncommercial uses;
- reproduce up to 35 copies in total of the Works or any portions thereof exclusively for copies distributed to Licensee’s teammates or as reasonably required in connection with Licensee’s cheerleading, dance and gymnastics events, practices, performances and other performing arts performances;
- synchronize and publicly perform the Works in timed relation with any audio-visual transmissions of Licensee’s cheer or dance performances, in any and all media now known or hereafter devised, in perpetuity, throughout the world. No additional fees or royalties of any kind shall be due to Company from Licensee in connection with such transmissions. Notwithstanding the foregoing, Company reserves the rights to all public performance royalties payable as a result of any such transmission.
Company shall be responsible for any and all payments due to music publishers, record labels or any third parties in connection with the rights granted by this Agreement.
- Restrictions: The Works licensed from Company shall be used as delivered, and may not be remixed, edited, or modified, other than as to length of time of the Works. Licensee shall not sell, sub-license, or give permission to use, the Works to any third party (Licensee’s teammates are permitted to use the Works as set forth above). Licensee shall use the Works only for non-profit purposes in connection with the public performance by Licensee of the Works for cheerleading, dance and gymnastics events, practices, performances and other performing arts performances, and for any and all other personal, noncommercial uses.
- Ownership: All rights in and to the Works, whether now known or hereafter in existence, that are not granted to Licensee hereunder are specifically reserved by Company. Company owns all right, title, and interest in and to the Works, and nothing in this Agreement shall be construed to divest company of any such rights, or to otherwise transfer any ownership interest in the Works to Licensee. To the extent that the Works contain materials licensed by Company from third parties, Company retains all rights in and to such third-party licenses.
- Territory: With the exception of paragraph 1.c. above, this license is limited to the United States of America.
- Term: This term of this Agreement (“the Term”) is one year from the date Licensee purchases this license.
- Warranties and Representations:
- Licensee warrants and represents that: (i) it has the right to enter into this Agreement and has not entered into any other agreement that would interfere with your grant of rights hereunder; (ii) not under any disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to execute this Agreement; (iii) all information provided by Licensee herein and during the Term hereof shall be accurate, complete and not misleading in any material respect; (iv) it shall only use the Compositions for the purposes set forth in this Agreement; and (v) no usage by Licensee shall encourage or be associated with illegal or illicit activities.
- Company warrants and represents that: (i) it has full power and authority to enter into this agreement and perform the services hereunder; (ii) the performance of the services and grant of rights hereunder will not violate or conflict with the terms of any other agreement to which it may be bound; (iii) the performance of Company’s services and the uses of the Works described herein will not infringe upon or violate any rights of any kind of any third party; and (iv) Company is authorized to permit the User to make up to 35 copies of the Work for the User’s use in connection with the intended purpose of the Work. Company will defend, indemnify and hold licensee, its employees, agents, attorneys, consultants, officers, directors, and assigns, as well as its parent companies, subsidiaries and affiliates harmless from and against any and all third-party claims, suits, demands, liabilities, costs, judgments, penalties or expense (including reasonable attorney’s fees and court costs) that may be obtained against, imposed upon or suffered by any of them as a result of any breach of any such warranty or representation, arising from or in connection with any uses of the Works permitted herein or any material breach by Company of the terms and conditions of this Agreement.
- Indemnification: Each party indemnifies and holds harmless the other and its designees from all damages, claims, and expenses (including legal costs and attorneys’ fees) arising out of or connected with any claim, demand, or action by a third party, which claim is reduced to final judgment or settled with indemnifier’s consent (which shall not be unreasonably withheld), and which a.) is inconsistent with any agreement or representation made in this Agreement; or b.) is caused by any acts of the indemnifier. Each party shall give the other notice of any claim to which this indemnity applies, and each shall cooperate fully with the other in defending same. The indemnifier may participate in the defense of the claim at its own expense through counsel of its choice; however, final control and disposition of such claim shall remain with the indemnified party. If the indemnifier fails to consent to a proposed settlement, the indemnified party shall have the right to enter into same and the indemnifier shall not be liable for the amount of the settlement, but shall be liable for the indemnified party’s expenses through the date thereof. If the indemnifier fails to consent to a settlement and the indemnified party elects not to so settle, the indemnifier shall, upon written request by the indemnified party, thereafter directly bear all expenses of defense and promptly reimburse the indemnified party for all of its expenses through the date on which the indemnifier failed to consent to the settlement. If the indemnifier fails to promptly reimburse such expenses and undertake such future expenses, the indemnified party may settle such claim in its sole discretion and the indemnifier’s indemnity shall apply to such settlement. The indemnifying party shall pay the other, on demand, any amounts for which such party may be responsible.
- Modification and Severability: This Agreement is intended to conform to the USA Cheer/ Varsity/ USASF requirements for approved vendor music contracts. In the event that any term or terms of this Agreement do not comply with the USA Cheer/ Varsity/ USASF requirements, the parties agree that the Agreement will be modified to the least extent necessary to bring the Agreement into compliance. Lack of compliance with the USA Cheer/ Varsity/ USASF approved vendor requirements shall not be deemed a breach of this Agreement and shall not render the Agreement void or voidable. Notwithstanding the foregoing, if any text or substance in this Agreement is deemed void, voidable, or otherwise unenforceable or inoperative by any competent authority, all remaining text shall remain in full force and effect, and the Agreement will be deemed modified as permissible to enforce the intent of such excised text. No modification of or addition to this Agreement shall be effective unless written and signed by both parties.
- Assignment: Company shall have the right to assign this Agreement to any party with whom they shall merge, consolidate, or which acquires a substantial, interest in the assets of Company’s business. Licensee shall have the limited right to assign this Agreement to any party with whom they shall merge, consolidate, or which acquires a substantial, interest in the assets of Licensee’s business. Licensee shall not have the right to assign this Agreement to any third party.
- Governing Law, Jurisdiction, and Attorney Fees: This Agreement, its validity and interpretation, and all actions arising from it shall be governed by and interpreted in accordance with Kansas law or the federal law of the District of Kansas, as appropriate. In the event of litigation concerning this Agreement or the resulting relationship between the parties, exclusive jurisdiction and venue shall rest in the state or federal court serving Butler County, Kansas. If either party retains an attorney to enforce or litigate this Agreement, its validity, or any provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements incurred through appeal.