A. Heard SoundPack - End User License Agreement

THIS NON-EXCLUSIVE LICENSE AGREEMENT (this “Agreement”) dated __________ for the licensing of the track(s) identified on Schedule A attached hereto (the “Track(s)”) is a legal agreement between A.Heard, the party granting the license of the sample pack containing the Track(s) (“Licensor”) and you the undersigned, the party receiving the license of the Track(s) (“Recipient”). Licensor and Recipient are each a “Party” and may be referred to herein collectively as the “Parties.” This Agreement is solely for the licensing of the Track(s), which was discovered using the platform made available by Beatclub, Inc. (“Beatclub”). License. (a) Subject to the restrictions in Section 2 hereof, Licensor hereby grants to Recipient a non-exclusive, non-transferable, non-sublicensable, perpetual license, to create an unlimited amount of derivative works from the Track(s) by incorporating a vocal melody and lyrics and other production and musical elements (e.g., drums, guitars, etc.)(“Meaningful Additions”) to the Track(s) (the Track(s) once combined with such Meaningful Additions, the “Derivative Work(s)”) for public dissemination and commercial purposes (the “License”). Such public dissemination may include, but is not limited to, the reproduction, public performance, distribution, transmission, incorporation, and/or other use of the Derivative Work(s) by Recipient in connection with Recipient’s: (i) personal projects, (ii) major label releases, (iii) independent releases, (iv) beat tapes and/or (v) mix tapes. Notwithstanding the foregoing, Recipient shall have no rights to exploit the Track(s) separate and apart from its inclusion in a Derivative Work(s) as authorized hereunder. Recipient is not permitted to distribute the Track(s), other than to the extent the Track(s) is incorporated into a Derivative Work(s) (and then subject to the terms of this Agreement). For avoidance of doubt, this license is non-exclusive and Licensor may continue to license the Track(s) to other third parties. (b) Licensor Likeness Rights. Unless otherwise indicated in this Agreement, Recipient shall have no right to use the Licensor’s name(s), stage-name(s), image, likeness or other indicia of Licensor’s identity and persona to market and promote the Derivative Work(s) or for any other purpose. Violation of this subparagraph 1 (b) shall be deemed a material breach hereunder and shall activate all of Licensor’s termination rights pursuant to paragraph 8 hereunder. Restrictions. (a) Recipient shall not register the Track(s) with any performance rights organization. (b) Recipient shall not produce, or authorize the production of, any audio-visual works incorporating the Derivative Work(s). (c) Recipient is not permitted to register the Track(s) with the U.S. Copyright Office and shall not register the Derivate Work(s) with the U.S. Copyright Office without Licensor’s prior written consent. (d) Recipient shall only distribute the Derivative Work(s) through the following channels: (i) physical sales; (ii) through internet streaming services (whether streamed or downloaded, but only through DSPs) (collectively, the “Streaming Services”) (but solely in a manner which is monetized); and (iii) via monetized YouTube video(s) or channel(s) provided that such videos are directly related to the song and artist, i.e., MTV style/artist-centric videos. . (e) Recipient may engage in any live public performances by the Recipient of the Derivative Work(s), including terrestrial radio, and including any television broadcast provided Recipient is the party that performs the Derivative Work. (f) Recipient is not permitted to grant any synchronization licenses or other third party licenses to the Track(s) or of the Derivative Work(s) without Licensor’s prior written consent. (g) Recipient is not permitted to license or sublicense any use of the Track(s) or of the Derivative Work(s), in whole or in part, for any so-called “samples”. (h) Recipient is not permitted to sublicense, sell, lend, rent, lease or otherwise distribute the Track(s) as is (i.e., without Meaningful Additions) whether or not such Track(s) are modified under any circumstance, including, without limitation, as sound effects, loops or source material. (i) Recipient is not permitted to materially alter or otherwise modify the Track(s). It is expressly acknowledged that changes to the key, timing and/or formatting (i.e., adjusting file size) shall not be considered material alterations or modifications. 3. Fee. As good and valuable consideration, the sufficiency of which is hereby acknowledged, Recipient shall pay Licensor a fee in the amount displayed for the specific product being licensed (the “Fee”) via the Beatclub checkout page (the “Fee”) and this Agreement shall not be effective until the Fee is paid. The Fee is non-negotiable, non-refundable and non-recoupable (including without limitation by being offset against any royalties that may become due). 4. Co-Producer Credit. Recipient shall be required to provide credit to Licensor on all distributions of the Derivative Work(s) by including “Co-Produced by A.Heard” in the “credits” and/or “personnel” sections attached to all distributions of the Derivative Work(s), including, without limitation, in any liner notes, back cover of packaging, any “single” embodying the Derivative Work(s) on the “A-side”, meta-data and in all print ads placed or controlled by Recipient or a third party authorized by Recipient to distribute the Derivative Work(s) of one-fourth (1/4) page or larger featuring the Derivative Work(s). In the event of any failure by Recipient to issue such credit to Licensor, Recipient must use best efforts to correct and cause any applicable third party to correct such failure immediately and on a prospective basis. Recipient’s uncured failure to provide such credit shall be deemed a material breach of this Agreement. Violation of this paragraph 4 shall be deemed a material breach hereunder and shall activate all of Licensor’s termination rights pursuant to paragraph 8 hereunder. 5. Master Participation and Accountings. (a) On sales and other exploitations of records embodying master recordings of the Derivative Work(s) as permitted hereunder, Licensor shall be entitled to receive a royalty in the amount of _50___ percent (__50_____%) of all income received by Recipient (i.e., all monies received by or credited to Recipient, less only applicable taxes) generated by the Derivative Work(s). In the event the Derivative Work(s) are produced by another individual and/or mixed by a third party to whom Recipient is obligated to pay a royalty, the royalty payable to Licensor hereunder with respect to the Derivative Work(s) concerned shall not be reduced by the royalty payable to such other individual(s). (b) For the avoidance of doubt, if Recipient receives or is credited with monies from third parties other than publishing monies, e.g., without limitation, digital performance income from Sound Exchange attributable to the exploitation of any Derivative Work(s), Recipient shall instruct such third party to pay Licensor a pro-rata share of such monies via an irrevocable letter of direction in the form attached hereto as Schedule A. Recipient shall promptly provide Licensor with a copy of such letter of direction for Licensor’s records. (c) Licensor ’s royalties hereunder shall be paid and accounted (supported by detailed statements) to Licensor in the same manner and at the same time as Recipient is accounted to, but no less than semi-annually and within thirty (30) days after June 30th and December 31st of each calendar year. At any time, Licensor may appoint a certified public accountant or attorney to audit Recipient’s books and records as they relate to the sale and other exploitation of the Derivative Work(s) (and related expenditures) for the purpose of verifying the royalties or credits due to Licensor under this Agreement. If such an examination or audit results in an underpayment of more than __1_ percent (___1___%) of the amount otherwise due to Licensor with regard to the given period under review, Recipient shall then reimburse Licensor’s costs and expenses of the respective audit within thirty (30) days of the examination or audit. Further, Recipient shall credit Licensor’s account with Licensors pro rata share of any monies recovered by Recipient with respect to the Derivative Work(s) pursuant to any audit Recipient may elect to conduct or claim against any third party in connection with therewith. 6. Publishing. The parties hereby acknowledge that the entire worldwide right, title and interest, including the copyright, the right to copyright, and the renewal right, in and to each of the underlying musical compositions in each Derivative Work shall be owned in the following percentages: _50_ percent (___50__%) by Licensor’s music publishing affiliate for musical compositions embodied in Derivative Work(s), and __50__ percent (__50___%) to Recipient. If and when Recipient registers the Derivative Work(s) with a performance rights organization (“PRO”), Recipient shall include that Licensor shall be entitled to the percentage set forth above of all amounts payable by the PRO to anyone, including Licensor or any other publishers designated when registering with a PRO, with respect to the Derivative Work(s). Licensor and Recipient shall administer their own share of such musical compositions, provided that Licensor shall have the right to issue licenses for the entirety of any such musical composition(s) without Recipient’s consent, Recipient shall not have right to issue licenses for any such musical composition(s) without Licensor’s consent, and Recipient further agrees to license its respective shares of such musical compositions to any third parties under the same terms and conditions as approved and/or licensed by Licensor. In connection with any such license issued by or on behalf of Recipient for the entirety of such musical composition, however, it is understood and agreed that Licensor shall instruct and use reasonable efforts to cause the licensee to account directly to Recipient for Recipient’s proportionate share of the total compensation due. As between the parties, Recipient shall have the right to designate the title or titles of any musical composition embodied in a Derivative Work. 7. Ownership. Licensor shall continue to own all right, title, and interest in and to the master recording and composition of the Track(s), and nothing herein shall constitute an assignment of any such rights. For the avoidance of doubt, Recipient shall not own the intellectual property rights to the composition or sound recording of the Track(s). Recipient is solely licensed the right to use the Track(s) in the Derivative Work(s) and to exploit the Derivative Work(s) in accordance with the terms and conditions of this Agreement. All Meaningful Additions written and recorded by Recipient shall be owned by Recipient and the Derivative Work(s) shall be owned by Recipient. Following any termination of this Agreement, (other than for breach of the Agreement as set forth in paragraph 8(a) hereinbelow) Recipient shall be able to continue using (and owning) all Meaningful Additions that had been layered over the Track(s), and under no circumstances shall such layered materials be deemed owned by Licensor. 8. Termination. If Recipient is in material breach of this Agreement and fails to cure such breach within fifteen (15) days of receiving written notice, the Licensor may terminate this Agreement and any and all rights granted to Recipient hereunder shall immediately and automatically revert to Licensor, and Recipient shall execute and cause any licensees or assignees of such rights to execute any and all necessary documentation in order to perfect such assignment. In addition to the preceding, to the extent this license is terminated pursuant to this section, Recipient and all copyright holders including but not limited to assignees, purchasers, successors shall immediately assign 100% of each of their right, title and interest in the Derivative Work to Licensor. Recipient shall insure that it and all other copyright holders inform all third parties related to the Derivative Work including but not limited to licensees, assignees, or successors of such reversion obligations and shall ensure that such obligations are included in all agreements related to the Derivative Work. Further, Licensor shall not be deemed to be in breach of any of its obligations hereunder unless Recipient will have given written notice setting forth the nature of such breach and Licensor will have failed to cure such breach within thirty (30) days after Recipient’s receipt of such notice. Following termination of this Agreement, Recipient shall be obligated to remove the Derivative Work(s) from streaming services and all other marketplaces. For the sake of clarity, to the extent Recipient does not remove all such Derivative Works from all such platforms Licensor shall have the right to do so. 9. Notices. All accountings to Licensor hereunder shall be sent to Antoine Heard. All notices to Licensor hereunder shall be sent to Licensor at a.heardmusic@gmail.com with a copy to Beatclub at notices@Beatclub.com. Recipient shall provide contact information to Beatclub as to where Recipient notices hereunder shall be sent. 10. Representations, Warranties and Covenants. Recipient represents, warrants, and covenants that (i) Recipient has the right to enter into this Agreement and the execution, delivery and performance of this Agreement by Recipient does not and will not conflict with, breach, violate or cause a default under any obligation, agreement, contract or instrument to which Recipient is a party or any judgment, or decree which Recipient is subject, (ii) Recipient owns, or controls the copyright in the composition and master recording of the Meaningful Addition(s); (iii) to the extent any third-party intellectual property (“MA Third-Party IP”) has been incorporated into the Meaningful Addition(s), Recipient has obtained all necessary rights from all applicable third-parties for (x) the inclusion of such MA Third-Party IP in the Meaningful Addition(s), and (y) Recipient is able to grant the rights to Licensor contemplated herein with no consents required of, or any additional costs due to, any third party for any use of the Derivative Work(s) by Licensor made in accordance with this Agreement; (iv) that the Meaningful Addition(s) (regardless of whether such Meaningful Addition(s) are contributed by Recipient or any third party furnished, selected or engaged by Recipient) and Derivative Work(s), do not and shall not infringe, violate or misappropriate the intellectual property rights or any other rights of any third party or violate or infringe any law or statutory right of any person or entity, and there shall be no liens, encumbrances or other charges against the Meaningful Addition(s) or Derivative Work(s); and (v) Recipient shall not use such Derivative Work(s) in any way which is infringing or violates any third party rights. 11. Indemnification. Recipient will indemnify, defend, and hold harmless Licensor and Beatclub and their respective officers, directors, members, managers, employees, equity holders, advisors, successors, assigns, representatives, agents and affiliates (collectively, “Indemnified Parties”) from and against any losses, liabilities, demands, claims, damages, costs, deficiencies, penalties, fines, and/or expenses (including reasonable attorneys’ fees and reasonable amounts paid in investigation, defense or settlement of any of the foregoing) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding based on or arising from: (i) Recipient’s breach of any of the representations, warranties, or covenants herein, (ii) any breach or non-fulfillment of any covenant or agreement on the part of Recipient under this Agreement; (iii) the negligent acts or omissions or willful misconduct of Recipient and/or any party acting on Recipient‘s behalf; and/or (iv) any claim that the Derivative Work(s), Meaningful Addition(s) or related material violate the intellectual property of any third party. Indemnified Parties must give Recipient prompt notice of any such action, claim or proceeding (provided that any failure to so promptly give notice shall not affect any indemnitee’s rights to indemnification hereunder except to the extent the indemnitor is actually prejudiced by such failure), and Recipient, in its discretion, shall take such action as it deems advisable to defend the action, claim or proceeding on behalf of the Indemnified Parties; provided, however, that no settlement or agreement to impose any conditions or obligations on the Indemnified Parties shall be entered into without the written consent of the applicable Other Indemnified Parties, which consent shall not be unreasonably withheld. The Indemnified Parties shall at all times have the option to participate in any matter or litigation, including, but not limited to, participation through counsel of its own selection, if desired. 12. Further Documents. Recipient agrees to execute such further documents and instruments as may be requested by Licensor and/or Beatclub in order to effectuate the terms and intentions of this Agreement, and in the event that Recipient fails or is unable to execute any such documents or instruments within five (5) days of Licensor’s or Beatclub’s written request, Recipient hereby appoints Licensor and Beatclub as its limited attorney-in-fact solely to execute such documents or instruments that are consistent with the terms and conditions of this Agreement. Licensor’s and Beatclub’s rights under this Section constitute a power coupled with an interest and is irrevocable. 13. Limitation of Liability. IN NO EVENT WILL BEATCLUB OR LICENSOR BE LIABLE TO RECIPIENT FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES, OR LOSSES, INCLUDING LOST PROFITS, LOST DATA, OR OPPORTUNITY COSTS, REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. FURTHERMORE, LICENSOR’S AND BEATCLUB’S AND ALL PARTIES RELATED TO LICENSOR AND BEATCLUB’S COMBINED TOTAL LIABILITY IN CONNECTION WITH ANY AND ALL CLAIMS OR CONTROVERSIES ARISING IN CONNECTION WITH THIS LICENSE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE DUE LICENSOR HEREIN. 14. Miscellaneous. Beatclub is an express, intended, third-party beneficiary under this Agreement. Neither Party may assign this Agreement without the prior, written consent of the other Party. This Agreement forms the entire agreement between the Parties with respect to the Track(s) and overrides any and all prior agreements or negotiations between the Parties with respect to the Track(s). No changes or modifications or waivers to this Agreement will be effective unless in writing and agreed to by both Parties (including via e-mail). If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement remains in full force and effect and enforceable. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of California, without reference to the choice of law rules thereof. Headings herein are for convenience of reference only and in no way affect interpretation of this Agreement. The parties agree that in the case of termination of this Agreement all sections which would by their nature survive termination shall survive and remain in effect following such termination (e.g., warranties and representations, restrictions, indemnities, etc.). 15. Counterparts and Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall constitute one and the same instrument. In addition, this Agreement may be executed electronically and such electronic signature shall be deemed an original and constitute a binding agreement. It is expressly agreed that the consent check boxes below (each a “Consent Check Box”) shall serve as valid and binding signatures of both Recipient and Licensor and shall, for all purposes, be treated as if they were an original manual signature of both Recipient and Licensor and shall be binding on both Parties as though an originally signed document had been delivered. 16. RECIPIENT AND LICENSOR ACKNOWLEDGE AND AGREE THAT THEY HAVE READ THIS AGREEMENT AND HAVE BEEN ADVISED BY BEATCLUB OF THE SIGNIFICANT IMPORTANCE OF RETAINING AN INDEPENDENT ATTORNEY OF RECIPIENT’S AND LICENSOR’s CHOICE TO REVIEW THIS AGREEMENT ON THEIR BEHALF. RECIPIENT AND LICENSOR ACKNOWLEDGE AND AGREE THAT THEY HAVE HAD THE UNRESTRICTED OPPORTUNITY TO BE REPRESENTED BY AN INDEPENDENT ATTORNEY. IN THE EVENT OF RECIPIENT’S OR LICENSOR’S FAILURE TO OBTAIN AN INDEPENDENT ATTORNEY OR WAIVER THEREOF, RECIPIENT AND LICENSOR (AS APPLICABLE) HEREBY WARRANT, REPRESENT AND AGREE THAT THEY WILL NOT ATTEMPT TO USE SUCH FAILURE AND/OR WAIVER AS A BASIS TO AVOID ANY OBLIGATIONS UNDER THIS AGREEMENT, OR TO INVALIDATE THIS AGREEMENT OR TO RENDER THIS AGREEMENT OR ANY PART THEREOF UNENFORCEABLE. SCHEDULE A Track(s) B©, A.Heard Meadow Em 105 B©, A.Heard Sprinkles Em 143 B©, A.Heard Almonds C 115 B©, A.Heard Dark Roast Gm 110 B©, A.Heard Mist Fm 120 B©, A.Heard Cake Am 124 B©, A.Heard Sure F 141 B©, A.Heard Lemonade C# 104 B©, A.Heard Pecan Cm 134 B©, A.Heard Peanut Butter F 120 B©, A.Heard Vanilla D 142 B©, A.Heard Raisins E 126 B©, A.Heard Noon D 120 B©, A.Heard Scrambled1 Dm 112 B©, A.Heard Muffins F#119 B©, A.Heard Strawberry C 113 B©, A.Heard Spices G 120 B©, A.Heard Blueberry A# 136 B©, A.Heard Bite F# 120 B©, A.Heard Drive Cm 142 B©, A.Heard Clock A 121 B©, A.Heard Midnight Gm 117 B©, A.Heard Scrambled2 Cm 125 B©, A.Heard Salty Bm 146 B©, A.Heard Seeds F#m 133 B©, A.Heard Chocolate Dm 109 B©, A.Heard Dulce Cm 115 B©, A.Heard Cedarwood F#m 113 B©, A.Heard Conversation A#m B©, A.Heard Espresso F#m 135 B©, A.Heard Tea B 146 B©, A.Heard Mixture F#m 118 B©, A.Heard Raindrops F 115 B©, A.Heard Broadstreet F 104 B©, A.Heard Bitter A#m 180 B©, A.Heard Scrambled3 Dm 125 B©, A.Heard Cookies D#m 126 B©, A.Heard Bronze D#m 119 B©, A.Heard Macarons B 108 B©, A.Heard Shadows Fm 121 B©, A.Heard Elegance C 110 B©, A.Heard Cocoa D 119 B©, A.Heard Apple Pie A 115 B©, A.Heard Grape G#m 126 B©, A.Heard Candy A 155 B©, A.Heard Iced Latte D 120 B©, A.Heard Toast Dm 142 B©, A.Heard Boulevard E 119 B©, A.Heard Cold Brew A# 115 B©, A.Heard Dawn C 120 B©, A.Heard Closing Bm 117 B©, A.Heard Ice Em 108 B©, A.Heard Glass F 127 B©, A.Heard Cherries Fm 119 B©, A.Heard Cedar C# 134 B©, A.Heard The Bookend G 120 B©, A.Heard Droplet B2 140 B©, A.Heard Sunlight Am1 140 B©, A.Heard Bubble A1 140 B©, A.Heard Sunlight Gm1 140 B©, A.Heard Button Em2 140 B©, A.Heard Sunlight Am2 140 B©, A.Heard Droplet E2 140 B©, A.Heard Button Em1 140 B©, A.Heard Droplet A1 140 B©, A.Heard Sunlight Cm1 140 B©, A.Heard Ring C2 140 B©, A.Heard Blue Metal C 133 B©, A.Heard Bubble A2 140 B©, A.Heard Sunlight Em1 140 B©, A.Heard Mood Hit Em1 133 B©, A.Heard Droplet B1 140 B©, A.Heard Ring D#1 140 B©, A.Heard Droplet A2 140 B©, A.Heard Sunlight Gm2140 B©, A.Heard Sunlight Cm2 140 B©, A.Heard Droplet E1 140 B©, A.Heard Ring C1 140 B©, A.Heard Ring D#2 140 B©, A.Heard Mood Hit Em2 133 B©, A.Heard Sunlight Em2 140