B. Notwithstanding the provisions of subparagraph A of this paragraph 5, SLP shall have no obligation to make payment hereunder with respect to:
- any performance of a Work which occurs prior to the date on which SLP shall have received from Publisher all of the material with respect to such Work referred to in subparagraph A of paragraph 12 hereof, and in the case of foreign performances, the information referred to in subparagraph B of paragraph 16 hereof, or
- any performance of a Work as to which a direct license as described in subparagraph C of paragraph 4 hereof has been granted by Publisher, its co-publishers or the writers, or
- any performance for which no license fees shall be collected by SLP, or
- any performance of a Work which Publisher claims was either omitted from or miscalculated on a royalty statement and for which SLP shall not have received written notice from Publisher of such claimed omission or miscalculation within nine(9) months of the date of the royalty distribution seeking to be adjusted.
6. In accordance with SLP’s then current standard practices, SLP will furnish periodic statements to Publisher during each year of the term showing the monies due pursuant to subparagraph A of paragraph 5 hereof. Each such statement shall be accompanied by payment of the sum thereby shown to be due to Publisher, subject to all proper deductions, if any, for taxes, advances or amounts due to SLP from Publisher.
A. Nothing in this agreement requires SLP to continue to license the Works subsequent to the termination of this agreement. In the event that SLP continues to license Publisher’s interest in any Work, however, SLP shall continue to make payments to Publisher for such Work for so long as Publisher does not make or purport to make directly or indirectly any grant of performing rights in such Work to any other licensing organization. The amounts of such payments shall be calculated pursuant to SLP’s then current standard practices upon the basis of the then current performance rates generally paid by SLP to its affiliated publishers for similar performances of similar compositions. Publisher agrees to notify SLP by registered or certified mail of any grant or purported grant by Publisher directly or indirectly of performing rights to any other performing rights organization within ten (10) days from the making of such grant or purported grant and if Publisher fails so to inform SLP thereof and SLP makes payments to Publisher for any period after the making of any such grant or purported grant, Publisher agrees to repay to SLP all amounts so paid by SLP promptly with or without demand by SLP. In addition, if SLP inquires of Publisher by registered or certified mail, addressed to Publisher’s last known address, whether Publisher has made any such grant or purported grant and Publisher fails to confirm to SLP by registered or certified mail within thirty (30) days of the mailing of such inquiry that Publisher has not made any such grant or purported grant, SLP may, from and after such date, discontinue making any payments to Publisher.
B. SLP’s obligation to continue payment to Publisher after the termination of this agreement for performances outside of the United States, its territories and possessions, of Works which SLP continues to license after such termination shall be dependent upon SLP’s receipt in the United States of payments designated by foreign performing rights licensing organizations as the publisher’s share of foreign performance royalties earned by the Works. Payment of such foreign royalties shall be subject to deduction of SLP’s then current handling charge applicable to its affiliated publishers and shall be in accordance with SLP’s then standard practices of payment for such performances.
8. In the event that SLP has reason to believe that Publisher will receive, or is entitled to receive, or is receiving payment from a performing rights licensing organization other than SLP for or based on United States performances of one or more of the Works during a period when such Works were licensed by SLP pursuant to this agreement, SLP shall have the right to withhold payment for such performances from Publisher until receipt of evidence satisfactory to SLP that Publisher was not or will not be so paid by such other organization. In the event that Publisher was or will be so paid or does not supply such evidence within twelve (12) months from the date of SLP’s request therefor, SLP shall be under no obligation to make any payment to Publisher for performances of such Works during such period.
A. In the event that this agreement shall terminate at a time when, after crediting all earnings reflected by statements rendered to Publisher prior to the effective date of such termination, there remains an unearned balance of advances paid to Publisher by SLP or any other indebtedness owed to SLP by Publisher, such termination shall not be effective until the close of the calendar quarterly period during which:
- Publisher shall repay such unearned balance of advances or indebtedness, or
- Publisher shall notify SLP by registered or certified mail that Publisher has received a statement rendered by SLP at its normal accounting time showing that such unearned balance of advances or indebtedness has been fully recouped by SLP.
B. The termination of this agreement shall be deemed subject to any rights or obligations existing between SLP and its licensees under licenses then in effect. As a result thereof, notwithstanding such termination, SLP shall have the right to continue to license all of Publisher’s Works in all places and in all media with respect to which such licenses exist as of the date of termination, until such licenses expire.
10. Notwithstanding the termination of this agreement, all of the terms and conditions of this agreement shall continue to apply subsequent to such termination with respect to any Works which may continue to be licensed by SLP and any monies payable to Publisher by SLP pursuant to the provisions of this agreement.
A. SLP shall have the right, upon written notice to Publisher, to exclude from this agreement, at any time, any Work which in SLP’s opinion is similar to a previously existing composition and might constitute a copyright infringement, or has a title or music or lyric similar to that of a previously existing composition and might lead to a claim of unfair competition.
B. In the case of Works which in the opinion of SLP are based on compositions in the public domain, SLP shall have the right, at any time, upon written notice to Publisher, either
- to exclude any such Work from this agreement, or
- to classify any such Work as entitled to receive only a stated fraction of the full credit that would otherwise be given for performances thereof.
C. In the event that any Work is excluded from this agreement pursuant to subparagraph A or B of this paragraph 11, or pursuant to subparagraph C of paragraph 14 hereof, all rights of SLP in such Work shall automatically revert to Publisher ten (10) days after the date of the notice of such exclusion given by SLP to Publisher. In the event that a Work is classified for less than full credit under subparagraph B (2) of this paragraph 11, Publisher shall have the right, by giving notice to SLP within ten (10) days after the date of SLP’s notice to Publisher of the credit allocated to such Work, to terminate all rights in such Work granted to SLP herein and all such rights of SLP in such Work shall thereupon revert to Publisher.
A. With respect to each of the Works which has been or shall be published or recorded commercially or synchronized with motion picture or television film or tape or which Publisher considers likely to be performed, Publisher agrees to furnish to SLP:
- A completed work registration form available in blank from SLP, unless a cue sheet with respect to such Work is furnished pursuant to subparagraph A (3) of this paragraph 12.
- If such Work is based on a composition in the public domain, a legible lead sheet or other written or printed copy of such Work setting forth the lyrics, if any, and music correctly metered; provided that with respect to all other Works, such copy need be furnished only if requested by SLP pursuant to subsection (b) of subparagraph D (2) of this paragraph 12.
- If such Work has been or shall be synchronized with or otherwise used in connection with motion picture or television film or tape, a cue sheet showing the title, writers, publisher and nature and duration of the use of the Work in such film or tape.
B. Publisher shall submit the material described in subparagraph A of this paragraph 12 with respect to Works heretofore published, recorded or synchronized within ten (10) days after the execution of this agreement and with respect to any of the Works hereafter so published, recorded, synchronized or likely to be performed prior to the date of publication or release of the recording, film or tape or anticipated performance.
C. The submission of each work registration form or cue sheet shall constitute a warranty and representation by Publisher that all of the information contained thereon is true and correct and that no performing rights in any of the Works listed thereon have been granted to or reserved by others except as specifically set forth therein.
D. Publisher agrees:
- To secure and maintain copyright protection of the Works pursuant to the Copyright Law of the United States and pursuant to the laws of such other nations of the world where such protection is afforded; and to give SLP, upon request, prompt written notice of the date and number of copyright registration and/or renewal of each Work registered in the United States Copyright Office.
- At SLP’s request:
- To register each unpublished and published Work in the United States Copyright Office pursuant to the Copyright Law of the United States.
- To obtain and deliver to SLP copies of: unpublished and published Works, including any commercial recording of such Works; copyright registration and/or renewal certificates issued by the United States Copyright Office; any agreements, assignments, instruments or documents of any kind by which Publisher obtained the right to publicly perform and/or the right to publish, co-publish or sub-publish and/or the right to administer the performing rights in and/or collect the royalties for any of the Works.
E. Publisher agrees to give SLP prompt notice by registered or certified mail in each instance when, pursuant to the Copyright Law of the United States,
- the rights granted to SLP by Publisher in any Work shall revert to the writer or the writer’s representative, or
- copyright protection of any Work shall terminate.
13. Publisher warrants and represents that:
A. Publisher has the right to enter into this agreement; Publisher is not bound by any prior commitments which conflict with its undertakings herein; the rights granted by Publisher to SLP herein are the sole and exclusive property of Publisher and are free from all adverse encumbrances and claims; and exercise of such rights will not constitute infringement of copyright or violation of any right of, or unfair competition with, any person, firm, corporation or association.
B. Except with respect to Works in which the possession of performing rights by another person, firm, corporation or association is specifically set forth on a work registration form or cue sheet submitted to SLP pursuant to subparagraph A of paragraph 12 hereof, Publisher has performing rights in each of the Works by virtue of written grants thereof to Publisher signed by the authors and composers or other owners of such Work.
A. Publisher agrees to defend, indemnify, save and hold SLP, its licensees, the advertisers of its licensees and their respective agents, servants and employees, free and harmless from and against any and all demands, loss, damage, suits, judgments, recoveries and costs, including counsel fees, resulting from any claim of whatever nature arising from or in connection with the exercise of any of the rights granted by Publisher in this agreement; provided, however, that the obligations of Publisher under this paragraph 14 shall not apply to any matter added to, or changes made in, any Work by SLP or its licensees.
B. Upon the receipt by SLP or any of the other parties herein indemnified of any notice, demand, process, papers, writ or pleading, by which any such claim, demand, suit or proceeding is made or commenced against them, or any of them, which Publisher shall be obliged to defend hereunder, SLP shall, as soon as may be practicable, give Publisher notice thereof and deliver to Publisher such papers or true copies thereof, and SLP shall have the right to participate and direct such defense on behalf of SLP and/or its licensees by counsel of its own choice, at its own expense. Publisher agrees to cooperate with SLP in all such matters.
C. In the event of such notification of claim or service of process on any of the parties herein indemnified, SLP shall have the right, from the date thereof, to withhold payment of all sums which may become due pursuant to this agreement or any modification thereof and/or to exclude the Work with respect to which a claim is made from this agreement until receipt of satisfactory written evidence that such claim has been withdrawn, settled or adjudicated.
15. Publisher makes, constitutes and appoints SLP, or its nominee, Publisher’s true and lawful attorney, irrevocably during the term hereof, in the name of SLP or that of its nominee, or in Publisher’s name, or otherwise, in SLP’s sole judgment, to do all acts, take all proceedings, and execute, acknowledge and deliver any and all instruments, papers, documents, process or pleadings that, in SLP’s sole judgment, may be necessary, proper or expedient to restrain infringement of and/or to enforce and protect the rights granted by Publisher hereunder, and to recover damages in respect of or for the infringement or other violation of said rights, and in SLP’s sole judgment to join Publisher and/or others in whose names the copyrights to any of the Works may stand, and to discontinue, compromise or refer to arbitration, any such actions or proceedings or to make any other disposition of the disputes in relation to the Works; provided that any action or proceeding commenced by SLP pursuant to the provisions of this paragraph 15 shall be at its sole expense and for its sole benefit. Notwithstanding the foregoing, nothing in this paragraph 15 requires SLP to take any proceeding or other action against any person, firm, partnership or other entity or any writer or publisher, whether or not affiliated with SLP, who Publisher claims may be infringing Publisher’s Works or otherwise violating the rights granted by Publisher hereunder. In addition, Publisher understands and agrees that the licensing by SLP of any musical compositions which Publisher claims may be infringing Publisher’s Works or otherwise violating the rights granted by Publisher hereunder shall not constitute an infringement of Publisher’s Works on SLP’s part.
A. It is acknowledged that SLP has heretofore entered into, and may during the term of this agreement enter into, contracts with performing rights licensing organizations for the licensing of public performing rights controlled by SLP in territories outside of the United States, its territories and possessions (herein called “Foreign Territories”). Upon Publisher’s written request, SLP agrees to permit Publisher to grant performing rights in any or all of the Works for any Foreign Territory for which, at the time such request is received, SLP has not entered into any such contract with a performing rights licensing organization; provided, however, that any such grant of performing rights by Publisher shall terminate at such time when SLP shall have entered into such a contract with a performing rights licensing organization covering such Foreign Territory and shall have notified Publisher thereof. Nothing herein contained, however, shall be deemed to restrict Publisher from assigning to its foreign publisher or representative the right to collect a part or all of the publishers’ performance royalties earned by any or all of the Works in any Foreign Territory as part of an agreement for the publication, exploitation or representation of such Works in such territory, whether or not SLP has entered into such a contract with a performing rights licensing organization covering such territory.
B. Publisher agrees to notify SLP promptly in writing in each instance when publication, exploitation or other rights in any or all of the Works are granted for any Foreign Territory. Such notice shall set forth the title of the Work, the Foreign Territory or Territories involved, the period of such grant, the name of the person, firm, corporation or association entitled to collect performance royalties earned in the Foreign Territory and the amount of such share. Within ten (10) days after the execution of this agreement Publisher agrees to submit to SLP, in writing, a list of all Works as to which Publisher has, prior to the effective date of this agreement, granted to any person, firm, corporation or association performing rights and/or the right to collect publisher performance royalties earned in any Foreign Territory.
17. SLP shall have the right, in its sole discretion, to terminate this agreement if:
A. Publisher, its agents, employees, representatives or affiliated companies, directly or indirectly during the term of this agreement:
- Solicits or accepts payment from or on behalf of authors for composing music for lyrics, or from or on behalf of composers for writing lyrics to music.
- Solicits or accepts music and/or lyrics from composers or authors in consideration of any payments to be made by or on behalf of such composers or authors for reviewing, arranging, promotion, publication, recording or any other services connected with the exploitation of any composition.
- Permits Publisher’s name, or the fact of its affiliation with SLP, to be used by any other person, firm, corporation or association engaged in any of the practices described in subparagraphs A (1) and A (2) of this paragraph 17.
- Submits to SLP, as one of the Works to come within this agreement, any musical composition with respect to which any payments described in subparagraphs A (1) and A (2) of this paragraph 17 have been made by or on behalf of a composer or author to any person, firm, corporation or association.
B. Publisher, its agents, employees or representatives directly or indirectly during the term of this agreement makes any effort to ascertain from, or offers any inducement or consideration to, anyone, including but not limited to any radio or television licensee of SLP or to the agents, employees or representatives of SLP or of any such licensee, for information regarding the time or times when any such SLP licensee is to report its performances to SLP, or to attempt in any way to manipulate performances or affect the representative character or accuracy of SLP’s system of sampling or monitoring performances.
C. Publisher fails to notify SLP’s Department of Writer/Publisher Administration promptly in writing of any change of firm name, ownership or address of Publisher.
In the event SLP exercises its right to terminate this agreement pursuant to the provisions of subparagraphs A, B or C of this paragraph 17, SLP shall give Publisher at least thirty (30) days’ notice by registered or certified mail of such termination. In the event of such termination, no payments shall be due to Publisher pursuant to paragraph 7 hereof.
18. In the event that during the term of this agreement:
- mail addressed to Publisher at the last address furnished by Publisher pursuant to paragraph 22 shall be returned by the post office, or
- monies shall not have been earned by Publisher pursuant to paragraph 5 hereof for a period of two consecutive years or more, or
- the proprietor, if Publisher is a sole proprietorship, shall die, SLP shall have the right to terminate this agreement on at least thirty (30) days’ notice by registered or certified mail, electronic mail (“e-mail”) or facsimile number addressed to the last postal or electronic address or transmitted to the last facsimile number furnished by Publisher in writing to SLP’s Department of Writer/Publisher Administration and, in the case of the death of a sole proprietor, to the representative of said proprietor’s estate, if known to SLP. If Publisher failed to maintain a current address with SLP and SLP has made reasonable good-faith efforts in attempting to locate Publisher without success, SLP shall have the right to terminate this agreement pursuant to this paragraph 18 by regular first-class U.S. mail, in lieu of the means otherwise specified, regardless of anything in paragraph 17 to the contrary. In the event of such termination, no payments shall be due Publisher pursuant to paragraph 7 hereof.
19. Publisher acknowledges that the rights obtained by it pursuant to this agreement constitute rights to payment of money and that during the term SLP shall hold title to the performing rights granted to SLP hereunder. In the event that during the term Publisher shall file a petition in bankruptcy, such a petition shall be filed against Publisher, Publisher shall make an assignment for the benefit of creditors, Publisher shall consent to the appointment of a receiver or trustee for all or part of its property, Publisher shall file a petition for corporate reorganization or arrangement under the United States bankruptcy laws, or Publisher shall institute or shall have instituted against it any other insolvency proceeding under the United States bankruptcy laws or any other applicable law, or, in the event Publisher is a partnership, all of the general partners of said partnership shall be adjudged bankrupts, SLP shall retain title to the performing rights in all Works the rights to which are granted to SLP hereunder and shall subrogate Publisher’s trustee in bankruptcy or receiver and any subsequent purchasers from them to Publisher’s right to payment of money for said Works in accordance with the terms and conditions of this agreement.
20. All disputes of any kind, nature or description arising in connection with the terms and conditions of this agreement shall be submitted to the American Arbitration Association in New York, New York, for arbitration under its then prevailing rules, the arbitrator(s) to be selected as follows: Each of the parties shall, by written notice to the other, have the right to appoint one arbitrator. If, within ten (10) days following the giving of such notice by one party, the other shall not, by written notice, appoint another arbitrator, the first arbitrator shall be the sole arbitrator. If two arbitrators are so appointed, they shall appoint a third arbitrator. If ten (10) days elapse after the appointment of the second arbitrator and the two arbitrators are unable to agree upon the third arbitrator, then either party may, in writing, request the American Arbitration Association to appoint the third arbitrator. The award made in the arbitration shall be binding and conclusive on the parties and shall include the fixing of the costs, expenses and reasonable attorneys’ fees of arbitration, which shall be borne by the unsuccessful party. Judgment may be entered in New York State Supreme Court or any other court having jurisdiction.
21. Publisher agrees that it shall not, without the written consent of SLP, assign any of its rights hereunder. No rights of any kind against SLP will be acquired by the assignee if any such purported assignment is made by Publisher without such written consent.
22. Publisher agrees to notify SLP’s Department of Writer/Publisher Administration promptly in writing of any change in Publisher’s address. Any notice sent to Publisher pursuant to the terms of this agreement shall be valid if addressed to Publisher at the last address furnished in writing by Publisher to SLP’s Department of Writer/Publisher Administration.
23. This agreement shall be subject to SLP’s standard practices and procedures which are in effect as of the effective date of this agreement and as they may be modified and/or supplemented from time to time.
24. Publisher acknowledges that the relationship between SLP and Publisher which is created by this agreement is one of ordinary contracting parties and is not intended to be a fiduciary relationship with respect to any of the rights or obligations hereunder.
25. Publisher authorizes the inclusion of Publisher’s name, likeness and biographical information, and those of Publisher’s executive employees, in publicly-distributed material relating to Publisher’s association with SLP.
26. This agreement constitutes the entire agreement between SLP and Publisher, cannot be changed except in a writing signed by SLP and Publisher and shall be governed and construed pursuant to the laws of the State of Florida.
27. In the event that any part or parts of this agreement are found to be void by a court of competent jurisdiction, the remaining part or parts shall nevertheless be binding with the same force and effect as if the void part or parts were deleted from this agreement.
28. All works that were embraced by any prior agreement between Publisher and SLP and in which no other licensing organization controls Publisher’s performing right interest shall be deemed embraced by this agreement. Any unearned balance of advances previously paid to Publisher by SLP or unpaid indebtedness owed to SLP by Publisher shall be deemed to be recoupable by SLP from any monies which become payable to Publisher pursuant to this agreement and any extensions, renewals or modifications. If Publisher has acquired the works of the former SLP affiliate who is indicated on the attached terminated agreement, then all works which were embraced by that agreement and in which no other licensing organization controls the performing right interest shall be deemed embraced by this agreement. Any unearned balance of advances previously paid to said former affiliate by SLP or unpaid indebtedness owed by said former affiliate to SLP shall be deemed to be recoupable by SLP from any monies which become payable to Publisher pursuant to this agreement and any extensions, renewals or modifications.