Exhibit 10.3
ASCAP EXPERIMENTAL LICENSE AGREEMENT
FOR INTERNET SITES ON THE WORLD WIDE WEB - RELEASE 2.1
1. Parties: This is an agreement between the American Society of Composers,
authors and Publishers ("We,""Us" or "ASCAP"), located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
Web Audio & Radio Portal, Inc. ("You" or "Licensee"), located at
-------------------------------------------
Licensee Name
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. #▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Zip Code
2. Experimental Agreement: This is an experimental agreement which applies for
its term only and is entered into without prejudice to any position you or we
may take for any period subsequent to its termination.
3. Definitions:
(a) Your "Web Site" is the Internet site on the World Wide Web generally
known as
WARPRADIO
------------------------------------------------------------------
with the principal Universal Resource Locator (URL) of:
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
-----------------------------------------------------------
(b) "Web Site Transmissions" are all transmissions of content to Web Site
Users from or through your Web Site, or from any other web site
pursuant to an agreement between you and the operator of the other web
site, when accessed by means of ant' connection from your \Web Site.
(c) "Web Site Users" are all those who access Web Site Transmissions.
(d) Our "Repertory" consists of all copyrighted musical compositions
written or published by our members or by the members of affiliated
foreign performing rights societies, including compositions written or
published during the term of this agreement, and of which we have the
right to license non-dramatic public performances.
4. Grant of license: We want you a license to publicly perform, by means of Web
Site Transmissions, non-dramatic renditions of the separate musical compositions
in our Repertory.
5. Term of License: The license granted by this agreement commences on June 1,
1999 ("Effective Date"), and ends on December 31 of the same calendar year, and
continues after that for additional terms of one year each unless you or we
terminate it by giving the other party notice at least thirty days prior to end
of a calendar year.
6. Limitations on License:
(a) This license extends only to you and your Web Site and is limited to
performances presented by means of Web Site Transmissions, and by no
other means; provided, however, that (i) nothing in this agreement
authorizes such performances when transmitted from your Web Site
pursuant to an agreement between you and any other web site operator,
when accessed by means of a connection from that other web site, even
if such performances fall within the definition of Web Site
Transmissions; and provided further, that (ii) if you are an Internet
access provider, nothing in this agreement authorizes such
performances when transmitted from or through any homepage(s) hosted
on your Web Site for those for whom you provide the service of
Internet access.
(b) This license may not be assigned without our written consent.
(c) This license is limited to the United States, its territories and
possessions, and the Commonwealth of Puerto Rico.
(d) Nothing in this agreement grants you, or authorizes you to grant to
any Web Site User, or to anyone else, any right to reproduce, copy or
distribute by any means, method or process whatsoever, any of the
musical compositions licensed by this agreement, including, but not
limited to, transferring or downloading any such musical composition
to a computer hard drive, or otherwise copying the composition onto
any other storage medium.
(e) Nothing in this agreement grants, or authorizes you to grant, to any
Web Site User, or to anyone else, any right to perform publicly by any
means, method or process whatsoever, any of the musical compositions
licensed under this agreement, including, but not limited to, any
transmission, retransmission, or further transmission of any of those
compositions.
(f) This license is limited to non-dramatic performances, and does not
authorize any dramatic performances; nor does it extend to or include
the public performance of any opera, operetta, musical comedy, play,
or like production, as such, in whole or in part.
7. License Fees: For each year during the term of this agreement you agree to
pay us the license fee applicable to your "Amount Subject to Fee" as defined in
the Rate Schedules applicable for that year.
8. Rate Schedules: There are three alternative Rate Schedules attached to and
made a part of this agreement. The annual license fee under Rate Schedule "A" is
based on "Total Value Derived": that under Rate Schedule "B" is based on "Value
Attributable to Performances of Music" and that under Rate Schedule "C" is based
on "Value Attributable to Performances of ASCAP Music." For each year, you may
choose any of three rate schedules we offer and for which you qualify. Rate
Schedules "B" or "C" may only he used if: (a) you employ technology which
enables you to furnish the required information; (b) your Annual License Fee
Report is submitted when clue; and (c) you are current in payment of license
fees. In all other instances. Rate Schedule "A" applies.
2
9. Reports and Payments: You agree to furnish license fee reports and payments
to us as follows:
(a) Annual License Fee Reports. You will submit an Annual License Fee
Report for each year of this agreement, by the first day of April of
the following year on the Report Form we will provide you free of
charge.
(b) Initial License Fee Report. Upon entering into this agreement, you
will submit an Initial License Fee Report based on a good faith
estimate of your Web Site's "Amount Subject to Fee" for the first full
year of operation of your Web Site from the Effective Date of this
agreement.
(c) License Fee Payments. You will submit license fee payments quarterly
on or before January 1, April 1, July 1 and October 1 of each year.
The payments due by April 1, July 1 and October 1 of each year, and by
January 1 of the following year, are each equal to one-fourth of the
license fee for the preceding calendar year (annualized for any
reported period less than a year); provided, however, that in any year
for which your estimated license fee is less than $1,000, you will
submit payments of $250 each, or the balance of the license fee due
for that year, whichever is less.
(d) Late Report Payments. If we do not receive your Annual License Fee
Report when due, you will submit quarterly license fee payments that
are 24% higher than the quarterly payments due for the preceding year,
and payments will continue at that increased rate until we receive the
late report.
(e) Annual Adjustment. With each Annual License Fee Report you will submit
payment of any license fees due over and above all amounts that you
paid for the year to which the report pertains. If the fee due is less
than the amount you paid, we will apply the excess to the next
quarterly payment due under this agreement. If the excess is greater
than one quarterly payment, we will refund the excess over and above
the amount of one quarterly payment to you at your written request.
(f) Late Payment Charge. You will pay a finance charge of 1-1/2% per
month, or the maximum rate permitted by the law of the state in which
your Web Site is located, whichever is less, from the date due, on any
required payment that is not made within thirty days of its due date.
(g) Music Use Reports. You agree to provide us with reports, as we may
from time to time request, regarding the musical compositions
contained in your Web Site Transmissions. Your reports shall be in the
form and contain the information specified in our requests. Any such
request(s) we make of you shall be in writing and sent to you at least
thirty days prior to commencement of the period to be covered by the
report. You will not be obligated to provide us with such reports for
a period or periods which in the aggregate exceed one week in each
calendar quarter in any one calendar year during the term of this
agreement.
10. Report Verification:
(a) We have the right to examine your books and records, and you agree to
obtain for us the right to examine the books and records of any partner in, or
co-publisher of, your Web Site, in order to verify any required report. We may
exercise this right by giving you thirty days notice of our intention to conduct
an examination. We will consider all data and information derived from our
examination as completely confidential. You agree to furnish all pertinent books
and records, including electronic records, to our authorized representatives,
during customary business hours.
3
(b) If our examination shows that you underpaid license fees, you agree to
pay a license charge of: 1-1/2% per month, or the maximum rate
permitted by the law of the state in which your Web Site is located,
whichever is less, on the license fees due from the date we ▇▇▇▇ you
for that amount or, if the underpayment is 5% or more, from the date
or dates that the license fees should have been paid.
(c) You may dispute all or part of our claim for additional fees. You may
do so by advising us in writing within thirty days from the date we
▇▇▇▇ the additional fees to you of the basis for your dispute, and by
paying the undisputed portion of our claim with the applicable finance
charges. If there is a good faith dispute between us concerning all or
part of our claim, we will defer finance charges on the disputed
amount until sixty days after we have responded to you, and will
pro-rate finance charges based on our resolution of the dispute.
11. Breach or Default: If you fail to perform any of the terms or conditions
required of you by this agreement, we may terminate your license by giving you
thirty days notice to cure your breach or default. If you do not do so within
that thirty day period, your license will automatically terminate at the end of
that period without any further notice from us.
12. Interference With ASCAP's Operations: We have the right to terminate this
license effective immediately, if there is any major interference with, or
substantial increase in the cost of, our operation as a result of any law in the
state, territory, dependency, possession or political subdivision in which you
or your Web Site is located which is applicable to the licensing of performing
rights.
13. Indemnification: We will indemnify you from any claim made against you with
respect to the non- dramatic performance licensed under this agreement of any
composition(s) in our Repertory, and will have full charge of the defense
against the claim. You agree to notify us immediately of any such claim, furnish
us with all the papers pertaining to it, and cooperate fully with us in its
defense. If you wish, you may engage your own counsel, at your expense, who may
participate in the defense. Our liability under this paragraph is strictly
limited to the amount of license fees that you actually paid us under this
agreement for the calendar year(s) in which the performance(s) which are the
subject of the claim occurred.
14. Covenant Not to ▇▇▇:
(a) ASCAP, on its own behalf and on behalf of our members, covenants not
to make any claim against you for unauthorized public performances of
any of our members' compositions in our Repertory which would have
been licensed under this agreement except for the limitation set forth
in subparagraph 6(a)(i), provided that the agreement between you and
the operator of the other web site referred to in subparagraph 6(a)(i)
expressly requires that the operator of the other web site obtain
needed authorization for performances of copyrighted musical
compositions on or through its web site. and provided further, that
within 24 hours of receipt of notice from us that the operator of the
other web site does not have such needed authorization, you will
remove or block the connection from that other web site to your Web
Site.
(b) ASCAP, on its own behalf and on behalf of our members, covenants not
to make any claim against you for unauthorized public performances of
any of our members compositions in our Repertory which would have been
licensed under this agreement except fur the limitation set forth in
subparagraph 6(a)(ii), provided that the agreement between you and the
owner of the homepage referred to in subparagraph 6(a)(ii) expressly
requires that that owner obtain needed authorization for performances
of copyrighted musical compositions on or through its homepage, and
provided
4
RATE SCHEDULE "A"
================================================================================
REPORT FORM
ASCAP EXPERIMENTAL LICENSE AGREEMENT
FOR INTERNET SITES ON THE WORLD WIDE WEB -- RELEASE 2.1
================================================================================
PART I. ACCOUNT INFORMATION
REPORT PERIOD: June 1999 THRU June 2000
LICENSEE NAME: Web Radio and Audio Portal, Inc.
----------------------------------------------------------------
POSTAL ADDRESS: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------
WEB SITE URL: http:// ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ E-MAIL: ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------- ------------------
FACSIMILE NUMBER: ▇▇▇-▇▇▇-▇▇▇▇ PHONE NUMBER: ▇▇▇-▇▇▇-▇▇▇▇
-------------------- -------------
PART II. TOTAL VALUE DERIVED
NOTE 1: The terms Web Site, Web Site Transmissions and Web Site Users are
defined in subparagraphs 2(a), (b), I (c) of the license agreement.
NOTE 2: Total Value Derived is the greater of Web Site Revenue or Operating
Expenditures. All Web Site venue and Operating Expenditures definitions include
all specified payments and expenditures whether made directly to or by you, any
entity under the same or substantially the same ownership, management or control
as you, or to or by any other person, firm or corporation including, but not
limited to, any partner or co-publisher of your Web Site, pursuant to an
agreement or as directed or authorized by you or any of your agents or
employees.
NOTE 3: If Total Value Derived exceeds $8,700,000 per year, or if you choose not
to report Web Site Revenue or Operating Expenditures, your annual Maximum
License Fee is S140,OOO.
WEB SITE REVENUE
1. Web Site Users Revenue means all payments made by
or on behalf of Web Site Users to access Web Site
Transmissions including, but not limited to,
subscriber fees, connect tine charges, and any
other access fees ................................... $ 0
2. Net Sponsor Revenue (from line 6) .................... $ 0
3. Web Site Revenue (add lines 1 and 2) ................ $ 0
A-I
NET SPONSOR REVENUE
4. Sponsor Revenue means all payments made by or on behalf
of sponsors, advertisers, program suppliers, content
providers, or others for use of the facilities of your
Web Site including, but not limited to, payments
associated with syndicated selling, on-line franchising
and associate programs. Sponsor Revenue also means all
payments from whatever source derived upon your sale or
other disposition of goods or services you received as
barter for use of the facilities of your Web Site
including, but not limited to, payments for the sale of
advertising time or space .................................. $ 0
5. Adjustment to Sponsor Revenue means advertising agency
commissions not to exceed 15% actually allowed to an
advertising agency that has no direct or indirect
ownership or managerial connection with you or your Web
Site ....................................................... $ 0
6. Net Sponsor Revenue (subtract line 5 from line 4) .......... $ 0
OPERATING EXPENDITURES
7. Annual Operating Expenditures means all expenditures,
whether direct or indirect, made in connection with
operation of your Web Site including, but not limited
to salaries, supplies, lease payments, payments to
Internet service providers, payments to Internet access
providers, and depreciation ................................ $300,000
TOTAL VALUE DERIVED
8. Enter line 3 or line 7, whichever is greater ............... $ 0
PART III. LICENSE FEE CALCULATION FOR RATE SCHEDULE "A"
9. Total Value Derived/Amount Subject to Fee
(from Part II, line 8) .................................... $ 0
10. Rate ....................................................... x .01615
11. License Fee (multiply line 9 by line 10) ................... $ 0
12. Minimum License Fee ........................................ $ 250.00
13. Maximum License Fee ........................................ $140,000.00
14. LICENSE FEE DUE (enter amount from line 11, or line 12,
or line 13, whichever is greater - see Note 3 above) $ 250.00
PART IV. CERTIFICATION
We certify that this report is true and correct and that all books and records
necessary to verify this report are now and will continue to be available for
your examination in accordance with the terms of the license agreement.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 5/12/99
---------------------------------- ------------------------------
Signature Date
▇▇▇▇▇▇ ▇▇▇▇▇▇ - owner
--------------------------------------------------------------------------------
Print Name and Title
A-2
further, that within 24 hours of receipt of notice from us that the owner
of the homepage does not have such needed authorization, you will remove
that homepage from your Web Site.
15. Notices: We or you may give any notice required by this agreement by sending
the notice to the other party's last known address by United States Mail or by
generally recognized same-day or overnight delivery service. We each agree to
inform the other in writing of any change of address.
IN WITNESS WHEREOF, this Agreement has been duly executed by ASCAP and Licensee
this _____ day of ,19____
--------------------------------------------------------------------------------
AMERICAN SOCIETY OF COMPOSERS,
AUTHORS AND PUBLISHERS Web Audio & Radio Portal, Inc.
------------------------------------
Licensee Name
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ------------------------------
Signature
▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ------------------------------
Title Print Your Name
Owner
------------------------------
Title
(Fill in capacity in which
signed: (a) If corporation,
state corporate office held:
(b) If partnership, write word
"partner" under printed name
of signing partner; (c) If
individual owner, write
"individual owner" under
printed name.)
A-3