TERMS AND CONDITIONS

THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN LICENSEE AND WEST VIBE PUBLISHING ("WEST VIBE"). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND IS APPLICABLE TO ONLINE AND DIGITAL DELIVERY OF LICENSED MATERIAL.

1. Definitions. The following terms have the stated meanings:
  a. "Audio Products" means any product in any format or media now known or hereafter devised, embodying the Licensed Material alone, including, without limitation, compact discs (CDs), cassettes, phonograph records and digital downloads.
  b. "Breach" means any breach of, or failure to comply with, any representation, warranty, covenant or agreement made or undertaken in this Agreement.
  c. "Broadcast" means to cause or permit others to cause the performance, telecast, broadcast, transmission, streaming, exhibition or distribution of the Synchronized Licensed Material.
  d. "Collection Societies" means any performing, mechanical, or other rights society (e.g., ASCAP, BMI, SESAC, SOCAN, SACEM, MCPS, PRS, PPL, GEMA, GVL, SGAE, AIE) that collects and administers royalty payments on behalf of music publishers, writers and performers.
  e. "Copy" means to duplicate or otherwise make copies of the Work solely for the purpose of Broadcasting the Work.
  f. "Edit" means use by Licensee of less than an entire Master, including the editing, looping, enhancing or modifying of the Master, provided that any such change (i) shall not alter the fundamental character of the portion of the Master being used, and (ii) shall not give rise to any ownership rights or claims, including copyright, on the part of Licensee in or to the resultant edited recording or composition.
  g. "Licensed Material" means the sound recordings (the "Masters") and musical compositions, including lyrics, embodied on the Masters (the "Compositions") offered for licensing by West Vibe and selected for use by Licensee (such Masters and Compositions so selected, collectively the "Licensed Material"). Any reference to the Licensed Material shall be to each part of the Licensed Material and also to the Licensed Material as a whole.
  h. "Licensee" means the person or entity purchasing a license hereunder and, if specifically identified during the purchase process or set forth in the invoice, also means the person or entity on whose behalf the license is purchased.
  i. "Media" means, unless otherwise stated in the Rights and Restrictions, any and all media, now known or hereafter devised.
  j. "Rights and Restrictions" means the information: (i) accompanying the Licensed Material on any website where the Licensed Material is offered for licensing (including all areas of the purchase process); (ii) in any invoice or order receipt; and (iii) in any other written communication accompanying the Licensed Material. Such Rights and Restrictions may include, without limitation, a description of the Licensed Material, the permitted scope of use, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
  k. "Synchronize" means to couple and/or synchronize, arrange, record, re-record, transcribe, modify or edit the Licensed Material solely in timed relation with the Use(s).
  l. "Synchronized Licensed Material" means Licensed Material that has been coupled and/or synchronized, arranged, recorded, re-recorded, transcribed, modified or edited solely in timed relation with the Use(s).
  m. "Term of Use" means the period of time identified in the Rights and Restrictions, during which time Licensee may exercise the rights granted herein.
  n. "Territory" means worldwide unless otherwise stated in the Rights and Restrictions.
  o. "Use" means the specific use identified in the Rights and Restrictions.
  p. "Work" means the production or program embodying the Synchronized Licensed Material.

2. License Grant and Restrictions.
  a. West Vibe grants to Licensee, for the Term of Use and in the Territory, a non-exclusive, non-transferable right to use, Edit and Synchronize the Licensed Material, and to Copy and Broadcast the Synchronized Licensed Material. The rights granted herein may be subject to rights held by Collection Societies.
  b. Use of the Licensed Material is strictly limited to the Use, Media, Term of Use, Territory and any other restrictions specified in the Rights and Restrictions. Licensed Material shall not be used contrary to any Rights and Restrictions.
  c. Licensee may use the Synchronized Licensed Material as part of the Work to advertise or promote the Work, provided that the Licensed Material is “in-context” and is not separated from the original Work. Any use of Licensed Material apart from the Work requires a separate license.
  d. Nothing contained in this Agreement shall be deemed to grant Licensee the right to manufacture, distribute or sell Audio Products.
  e. Nothing contained in this Agreement shall be deemed to grant Licensee the right to use any Licensed Material as the theme song for a program or other production; any such use may only be made subject to the written approval of West Vibe and upon negotiation and payment to West Vibe of an additional fee.
  f. Licensee shall not make the Licensed Material available in any medium in a manner intended to allow or invite persons to download the Licensed Material alone or extract the Licensed Material from the Work.
  g. Licensed Material shall not be incorporated into a logo, trademark or service mark.
  h. Licensee shall not use the Licensed Material in any unlawful manner.

3. Interest or Cancellation on Overdue Invoices.
  If Licensee fails to pay West Vibe’s invoice in full within the time specified on the invoice, West Vibe may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. West Vibe also reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time.

4.Music Credit.
   Licensee agrees to provide credit, where technically feasible and in accordance with customary industry practice, in the following manner: "[Artist's Name]/[Special Collection Reference, if any]/West Vibe Publishing" or as otherwise notified by West Vibe.

5. Collection Society Payments.
   Nothing contained herein shall be deemed to constitute a waiver of any fee which, as a result of the use of the Licensed Material contemplated by this Agreement, shall become due and payable to the relevant Collection Society or pursuant to union or collective bargaining requirements. Licensee agrees to submit, and to instruct any third party acquiring rights to the Work to submit, to all relevant Collection Societies, in any part of the Territory in which the Work is to be Broadcast or reproduced, such filings, including so-called "cue sheets," and further agrees to take such actions as are necessary, in keeping with common industry practice, to enable such Collection Societies to monitor and administer those performing and mechanical rights fees payable to the copyright owners of the Licensed Material embodied in the Work.

6.Representations and Warranties.
  a. West Vibe represents and warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (iii) Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement, will not infringe upon the rights of any third party, including copyrights and rights of privacy or publicity.

   b. Licensee represents and warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) if licensing the Licensed Material on behalf of a third party, Licensee is authorized to act as an agent on behalf of that third party and has full power and authority to bind the third party to this Agreement and Licensee shall be bound and liable for any failure of such third party to comply with the terms of this Agreement.

7. Indemnification.
  a. Provided the Licensed Material is only used in accordance with the terms of this Agreement and Licensee is not otherwise in breach of this Agreement, and as Licensee's sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth above, West Vibe shall defend, indemnify, and hold Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of West Vibe ), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that West Vibe is in breach of its warranties set forth above. The foregoing states West Vibe’s entire indemnification obligation under this Agreement.

  b. Licensee shall defend, indemnify and hold West Vibe and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or as a result of claims by third parties relating to: (i) Licensee's use of any Licensed Material outside the scope of this Agreement; or (ii) any other actual or alleged breach by Licensee of this Agreement.

  c. The party seeking indemnification pursuant to this section shall promptly notify the other party of such claim. At the indemnifying party's option, the indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event the indemnified party shall cooperate in the defense of any such claim or litigation. The indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

8.Limitation of Liability.
   EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WEST VIBE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WEST VIBE SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF WEST VIBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.

9. Breach and Termination.
   In the event of a Breach by Licensee, West Vibe may, at its sole discretion, terminate this Agreement and revoke any licenses granted herein. Such termination shall take effect immediately upon notice to Licensee, and Licensee shall immediately (i) cease using the Licensed Material in any Media and in any manner; (ii) destroy or delete all copies of the Licensed Material.

10.Reservation of Rights.
   All rights which are not expressly granted by West Vibe to Licensee pursuant to this Agreement, including all promotional materials or any other property owned or controlled by West Vibe (including, without limitation, the West Vibe music licensing system) are specifically reserved by West Vibe Publishing. Except as expressly set forth in this Agreement, nothing contained herein shall be deemed to convey or transfer to Licensee any ownership interest, including copyright, in or to the Licensed Material.

11. Miscellaneous Terms.
  a. Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling West Vibe to exercise all rights and remedies available to it under copyright laws around the world. In addition, and without prejudice to West Vibe’s other remedies under this Agreement, West Vibe reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times West Vibe’s standard license fee for the unauthorized use of the Licensed Material.

  b. Audit/Certificate of Compliance. Upon reasonable notice, West Vibe may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of the Licensed Material in order to verify compliance with the terms of this Agreement. Where West Vibe reasonably believes that the Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at West Vibe’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by West Vibe.

  c. Withdrawal. Upon notice from West Vibe, or upon Licensee's knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which West Vibe may be liable herein, or if West Vibe withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic and physical) and, if possible, cease any future use at its own expense. West Vibe shall provide Licensee with comparable Licensed Material (which comparability will be determined by West Vibe in its reasonable commercial judgment), free of charge, but subject to the other terms and conditions of this Agreement.

  d. Governing Law. Any and all disputes that may arise between the parties hereto under or in connection with this Agreement shall be submitted (together with any counterclaims and disputes under or in connection with other agreements between the parties) to final and binding arbitration heard by a single arbitrator in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). The arbitration shall be conducted in Los Angeles, California. All questions concerning the validity, operation, interpretation, and construction of this Agreement will be governed by and determined in accordance with the laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, West Vibe shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of West Vibe, such action is necessary or desirable.

  e. Severability. If one or more of the provisions contained in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.

  f. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

  g. No Agency. The relationship between West Vibe and Licensee is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties or to allow either party to bind the other or incur any obligation on its behalf.

  h. Assignment. West Vibe shall have the right to assign this Agreement or any of its rights hereunder to any person, firm or corporation. Licensee may not assign, voluntarily, by operation of law, or otherwise, this Agreement without West Vibe’s prior written consent, and any attempt to do so without that consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

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