Legal

EXCLUSIVE MASTER RIGHTS ADMINISTRATION AGREEMENT

 

This agreement (the "Agreement") is made as of 2019-06-25 07-36-36 (the "Effective Date") by and between you ("Licensor") and Verge Records International, Inc. dba "ONErpm" ("ONErpm").  Capitalized terms not otherwise defined in the basic terms and conditions set forth below ("Basic Terms"), shall have the meanings ascribed to them in the standard terms and conditions attached hereto as Schedule A ("Standard Terms and Conditions").  

You understand that by opting into this Agreement and/or using the master rights administration services offered by ONErpm, you agree to be bound by the terms set forth below.  If you do not accept this Agreement in its entirety, do not electronically accept and/or sign this Agreement and do not use the master rights administration or distribution services of ONErpm.  The "Effective Date" of this Agreement is the date on which you first opt into or use the master rights administration or distribution services of ONErpm.

Basic Terms


1.     Grant of Rights: ONErpm shall have the following basic rights in accordance with the Standard Terms and Conditions in addition to the rights granted under the Standard Terms and Conditions:

a.     exclusive Digital Distribution rights for the Masters

b.     if opted into by Licensor, exclusive Digital Performance Rights administration;

c.     exclusive digital distribution rights for the Videos;

d.     exclusive Content ID rights; and

e.     non-exclusive Synchronization Licensing rights.


2.     Income: In full consideration of the rights granted to ONErpm hereunder, and conditioned upon Licensor's full and faithful performance of all the terms and conditions hereof, Licensor shall be paid:

 

a.     85% of Net Receipts from Digital Distribution of the Masters and Digital Performance Royalties;

b.     70% of Net Receipts from Content ID, exploitation of the Videos via YouTube, and YouTube Channel Admin Services (excluding Integrations); and

c.     50% of Net Receipts from Synchronization Licensing, Integration, and exploitations of the Videos via Third Party Platforms, excluding YouTube (e.g. Apple Music and Vevo).


3.     Term: This Agreement shall commence as of the Effective Date and continue for successive, unlimited one (1) year periods until terminated in accordance with this Agreement (the “Term”).

4.     Territory: Universe

This Agreement shall consist of the Basic Terms, and the Standard Terms and Conditions and any schedules or exhibits attached thereto.  In the event of any conflict between the Basic Terms and the Standard Terms and Conditions, the Basic Terms shall govern.

Each party understands that the Standard Terms and Conditions contain a binding arbitration provision in section 9(h), which includes New York law as the governing law, and waiver of jury trials and class actions, governing disputes arising from this Agreement. By signing below, each party expressly consents to the such arbitration provision in section 9(h) of the Standard Terms and Conditions.

 

Schedule A

 

Standard Terms and Conditions


1.     Certain Definitions.

a.     The “Channel” means all YouTube channels and networks owned or controlled by Licensor during the Term, whether now or in the future, including, but not limited to, the YouTube Channel as set forth in the Basic Terms.

 

b.     “Content” means all Masters, Videos, Album Materials, YouTube Content, and other materials submitted by Licensor to ONErpm.

 

c.     “Digital Performance Rights” means the rights to perform a copyrighted work publicly by means of a digital audio transmission.

 

d.     “Digital Performance Royalties” means public performance royalties arising from or in connection with the public performance of the Masters in the Territory, including, without limitation, those payable by SoundExchange or by any other person or entity that collects public performance royalties on behalf of sound recording copyright owners, but specifically excluding public performance royalties payable in connection with the underlying musical compositions embodied on the Masters.

 

e.     “Masters” means all sound recordings submitted by Licensor to ONErpm.

 

f.      “Net Receipts” means all monies actually received by or credited to ONErpm directly attributable to the sale, license, exploitation, or use of the Masters and Videos hereunder less any money transfer transaction processing fees, applicable sales taxes and required tax withholding in applicable territories, and union scale fees (where applicable).

 

g.     “Recoupable Costs” means any and all out-of-pocket costs and expenses incurred by ONErpm and directly attributable to the distribution, exploitation, marketing, promotion, production, or advertising of the Masters and/or Videos.

 

h.     “Site(s)” means ONErpm’s website(s).

 

i.      “Services(s)” means the distribution, administration and other services that ONErpm provides.

 

j.      “Third Party Platforms” means third party Internet retailers and platforms that distribute, stream, exploit, or otherwise make available music, videos and other content, including, without limitation, platforms and services which may come into existence or be developed after the Effective Date.

 

k.     “Videos” means the audiovisual recordings owned or controlled by Licensor.


2.     Grant of Rights. Licensor hereby grants and licenses to ONErpm the following irrevocable, sub-licensable rights throughout the Territory and during the Term:

a.     the exclusive right and license to convert, digitize, encode, integrate, make, cause or otherwise reproduce the Masters and the Videos in any digital or electronic format now known or hereafter devised for the purposes of distributing, exploiting or using the Masters and Videos as granted herein;

 

b.     the exclusive right and license to digitally distribute, reproduce, transmit, license, sell (including without limitation via downloading, streaming, and subscription services), advertise, publish, publicly perform, broadcast, and otherwise use and exploit the Masters in any electronic or digital format now known or hereafter devised during the Term to consumers throughout the Territory through any platform or service, including, but not limited to, its Site(s) and the sites, platforms or services of any Third Party Platforms (“Digital Distribution”);

 

c.     the exclusive right and license to digitally distribute, reproduce, transmit, license, sell (including without limitation via downloading, streaming, and subscription services), advertise, publish, publicly perform, broadcast, and otherwise use and exploit the Videos in any electronic or digital format now known or hereafter devised during the Term to consumers throughout the Territory through any platforms or services of any Third Party Platforms. Such rights shall include the right to make, display, reproduce, and distribute separate images (e.g., thumbnails) of video stills from the Videos in connection with the promotion, advertising, and marketing of the Videos and the Services;

 

d.     the right and license to stream or broadcast the Masters, whole or in part, on a gratis basis for purposes of inducing users to download the Masters ("Preview Clips").  Licensor agrees that no royalties or payments (including, but not limited to, for the use of the underlying musical compositions embodied in the Masters) shall accrue or be payable with respect to any such gratis Preview Clip stream. For the avoidance of doubt, the Preview Clip may be made available on the Site(s) or any Third Party Site in such a manner so as to allow consumers to listen to the Preview Clip but not download the Preview Clip;

 

e.     the exclusive right and license to exploit and administer the exploitation of audio, visual, and audiovisual recordings and other content (“UGC”) embodying the Masters on the Internet via YouTube or otherwise including, without limitation, the management of YouTube’s Content ID with respect to the Masters and such UGC, and the tracking, monetizing, taking down or blocking of such UGC on the Internet (the “Content ID”);

 

f.      the non-exclusive right and license to use in the Territory the approved name, likeness, logos, trademarks, and biography of each artist whose performance is embodied in the Masters and Videos and the approved album artwork, lyrics and liner notes relating to the Masters and Videos (collectively the “Album Materials”) in connection with the exploitation, sale, and distribution of the Masters and Videos hereunder and the advertising, publicizing or promotion of the Masters and Videos in all configurations and by any and all media, provided that (i) all materials provided by Licensor to ONErpm shall be deemed approved for purposes hereof and (ii) Licensor understands that credit may not be provided in connection with all uses of the Masters and Videos hereunder;

 

g.     the right and license to exploit the musical compositions embodied in the Masters and Videos to the extent needed for ONErpm to exploit the rights granted to it hereunder.  In the event that Licensor does not own or control such musical compositions, Licensor shall obtain licenses for such compositions pursuant to subsection 4(b) below;

 

h.     if Licensor opts into ONErpm’s Services with respect to Digital Performance Rights, the exclusive right to: (i) register, on Licensor’s behalf, with SoundExchange and any other similar organizations and licensing agencies which collect Digital Performance Royalties; (ii) claim and collect, on Licensor’s behalf, all Digital Performance Royalties and other amounts owed to Licensor for the exercise and exploitation of Digital Performance Rights of the Masters; and (iii) otherwise exercise and exploit, and allow others to exercise and exploit, the Digital Performance Rights of the Masters in any manner or media, whether interactive or non-interactive, including, without limitation, digitally performing and licensing others to digitally perform the Masters, publicly or privately, for profit or otherwise, by any means or media whatsoever, whether now known or hereafter conceived or developed;

 

i.      the non-exclusive right, subject to Licensor’s prior written approval in each instance (email being sufficient), to license and cause others to license the use, exploitation, and performance of the Masters and, to the extent owned or controlled by Licensor, the underlying musical compositions embodied therein, including, without limitation, the synchronization of the Masters and such musical compositions (if applicable) in connection with motion pictures, television programs, advertisements, video games and any other audiovisual works, and to collect all income related to any exploitation of the Masters and such musical compositions (excluding public performance royalties) licensed by ONErpm ( “Synchronization Licensing”); and

 

j.      if Licensor submits a YouTube channel to ONErpm to be administered by ONErpm or otherwise opt into YouTube-related services provided by ONErpm, the exclusive right to administer, collect all revenue, and exploit all rights to the Videos, Masters, underlying musical compositions (if applicable), and all other visual, audio, and audio-visual materials (collectively referred to herein as “YouTube Content”) owned, created or submitted by Licensor for uploading, exploitation, and administration on the Channel, including but not limited to, the exclusive right to: (i) identify potential claims against any unauthorized individuals who are using the YouTube Content on YouTube prior to or during the Term of this Agreement without Licensor’s specific authorization; (ii) claim and negotiate settlements with such unauthorized persons on Licensor’s behalf on terms and conditions that ONErpm will elect in its sole discretion; (iii) negotiate and grant on Licensor’s behalf all the licenses and sub-licenses necessary for YouTube or any affiliated Google service to carry out its services, which include but are not limited to host, cache, route, index, transmit, store, copy, embed, stream, perform, distribute, reproduce, display, reformat, synchronize (in timed relation or otherwise), edit, modify, catalog, add metadata, add content ID tags, sell advertising against, and otherwise exploit and make available the YouTube Content on YouTube;  (iv) include the YouTube Content and the Channel within the network of YouTube channels owned or controlled by ONErpm; (v) monetize the YouTube Content and the Channel by licensing the exploitation of the YouTube Content and/or the Channel for distribution and exploitation on YouTube; (vi) monetize the YouTube Content and the Channel by selling advertising and sponsorships; (vii) procure, solicit, and arrange product, brand, or services integrations in or in association with the YouTube Content and/or the Channel (“Integrations”), subject to Licensor’s approval; (viii) collect any and all revenues generated by the Channel and/or YouTube Content from YouTube and related services and Integrations; and (ix) access, manage and administer the Channel for purposes of carrying out the services listed and exercising the rights granted above, including but not limited to the cross-promotion of the YouTube Content, the adding of links, product placements, videos, images, annotations and other channels to YouTube Content and to the Channel at ONErpm’s sole discretion and to promote and advertise the YouTube Content and the Channel within YouTube and Google’s advertising platforms (all rights granted under this subsection except Integrations shall be referred to herein as the “YouTube Channel Admin Services”). For the avoidance of doubt, such rights shall include the right to make, display, reproduce, and distribute separate images (e.g., thumbnails) of video stills from the YouTube Content in connection with the promotion, advertising, and marketing of the Channel and YouTube Content and the Services. The Channel shall be included exclusively in ONErpm’s network and all Channel views will consequently be incorporated into ONErpm’s total network view count for purposes of analytics and reporting systems. Licensor agrees not to disable any features on the Channel that would interfere with ONErpm’s ability to carry out these services and exercise the rights granted herein.

 

k.     Unless otherwise specifically specified herein, the foregoing grant of rights are exclusive throughout the Territory during the Term such that Licensor shall not grant the rights granted to ONErpm hereunder to any third party for any purpose or independently exploit the rights granted to ONErpm hereunder for any purpose throughout the Territory during the Term. Licensor acknowledges and agrees that ONErpm may utilize third parties to exercise the rights granted to it hereunder.


3.     Reservation of Rights. ONErpm shall not edit, remix, resequence or otherwise alter any Master delivered by Licensor to ONErpm in any manner, except as otherwise set forth herein. All rights not specifically granted to ONErpm herein are expressly reserved for the Licensor.

4.     Licensor Obligations.        

a.     Upon the execution of this Agreement and throughout the Term, Licensor shall:

 

i.     deliver to ONErpm the Masters and Videos in a digital or electronic format approved by ONErpm or by any other format approved by ONErpm;

 

ii.     transfer to ONErpm control over the management and administrative functions of the Channel; provided that Licensor shall retain all rights in, including ownership of and absolute liability for, the YouTube Content and the Channel. ONErpm may remove or may require Licensor to remove any YouTube Content immediately upon a notice of copyright violation, or violation of any party’s rights, or concern thereof, or if such YouTube Content is in violation of the terms of this Agreement or violates any laws, rules, or regulations, including ONErpm’s or YouTube’s (or its parent company’s or affiliates’) terms, rules, policies, guidelines, or other business interests, in such party’s sole and reasonable determination;

 

iii.     deliver to ONErpm all release assets, including, but not limited to, the Content files and metadata, high resolution Album Materials, credit information, marketing information, and such other related information as may be required by ONErpm, prior to release of the applicable Master and/or Video (recommended four weeks prior to scheduled release date); and

 

iv.     not re-record or perform on a recording of any of the musical compositions embodied in the Masters nor remix or re-release any of the Masters, in whole or in part, unless such recordings are released by ONErpm subject to this Agreement.

 

b.     Some of the Services provided by ONErpm may be subject to payment of a one-time, up-front fee by Licensor to ONErpm. These Services are optional to Licensor, and Licensor will be made aware of any required fees prior to opting in to the applicable Service. All fees are due upon time of opt in and payments shall be made via the Site.

 

c.     Licensor shall obtain and pay for any necessary clearances and licenses in the Territory for all of the Licensor’s Content (including, but not limited to, the musical compositions embodied in the Masters and Videos, unless otherwise handled and paid directly by the Third Party Platforms, which shall be Licensor’s responsibility to verify in writing). Accordingly, Licensor shall be responsible for and pay any and all royalties and other income due to artists, side artists, producers, writers, publishers and other record royalty participants from sales or other uses of the Masters and Videos, including but not limited to, all mechanical royalties payable to writers and/or publishers of the copyrighted musical compositions embodied in the Masters and Videos from sales or other uses of the Masters and Videos, all payments that may be required under collective bargaining agreements applicable to the Masters and Videos, and any other royalties, fees, and or monies payable by the Licensor with respect to the Content, unless Licensor has verified in writing that the Third Party Platforms have paid such royalties.


5.     Accounting.

a.     Licensor's share of Net Receipts shall be inclusive of all publishing, mechanical royalties, and other payments due to all royalty participants associated with the Masters and Videos and the musical compositions embodied therein unless otherwise paid directly by the Third Party Platforms. In the event that ONErpm pays any publishing income, royalties, or other payments directly to any third party, as directed by Licensor or required by law, including, without limitation, to performance rights organizations, such amounts shall be deducted from Licensor’s share of Net Receipts. Licensor shall be responsible for the payment of all taxes assessed to Licensor with respect to all income received by Licensor pursuant to this Agreement. ONErpm shall have the right to rely on accounting, usage, and other statements received from ONErpm’s sublicensees (including, but not limited to, YouTube Analytics) for all purposes hereunder.

 

b.     ONErpm shall account to and pay Licensor's share of Net Receipts on a monthly basis via the Site. Such accounting shall include the Net Receipts received by ONErpm from exploitation of the Masters and Videos from all sources specified herein and the amount due to the Licensor.  Payments will be made to Licensor via Paypal via the Site or any other method used by ONErpm.  Payments shall be subject to the terms and conditions of the third party service or financial institution used to render payment to Licensor hereunder, and Licensor shall be responsible for any fees charged by any such third parties. Any objection relating to any accounting statement, or any lawsuit arising therefrom, must be made (and any lawsuit commenced), no later than one (1) year after the date the statement is to be rendered, and Licensor hereby waives any longer statute of limitations that may be permitted by law.

 

c.     Licensor agrees that ONErpm may freeze and withhold any and all revenues in Licensor’s account that are received in connection with the Content that ONErpm believes, in its sole and reasonable discretion, violates this Agreement or the Site Agreements (defined below), provided that ONErpm shall give Licensor immediate written notice that such sums are withheld and will review in good faith any explanation or other response provided by Licensor. If ONErpm has a good faith belief (and ONErpm’s legal counsel agrees) that such revenues are the result of fraud or infringement by Licensor, then such revenues shall be forfeited by Licensor. To the extent any fraudulent and/or infringing activities are determined to be caused by Licensor or Licensor’s affiliates’ actions or omissions, any costs incurred by ONErpm (including legal fees and expenses) in connection therewith may, in addition to other remedies, be deducted by ONErpm from any monies otherwise payable to Licensor hereunder. Certain Third Party Platforms may also have policies related to fraud and suspected fraudulent activities, and Licensor agrees that it is Licensor’s responsibility to investigate such policies, if any, and that such policies shall be binding upon Licensor.


6.     Confidentiality.  The terms and conditions of this Agreement are confidential and shall not be disclosed by Licensor to any third party (except for professional advisors) without ONErpm’s prior written consent, except as may be required to be disclosed by applicable law or legal process, provided that Licensor shall notify ONErpm at least five (5) days prior to any disclosure as required by law or legal process so as to allow ONErpm an opportunity to protect such terms through protective order or otherwise.

7.     Representations and Warranties; Indemnification.

a.     Licensor represents and warrants that: (i) Licensor has the right to enter into this Agreement and to perform all of its obligations hereunder and grant the rights set forth herein; (ii) Licensor is, and can demonstrate to ONErpm’s full satisfaction that Licensor is the licensor of or otherwise controls or has obtained the rights and licenses to the Masters and Videos, the underlying musical compositions embodied therein, and the Album Materials in order for ONErpm to exploit the rights granted to it hereunder; (iii) Licensor shall not grant and has not granted to any third party any rights that are inconsistent with the rights granted to ONErpm hereunder; (iv) Licensor shall be solely responsible for the payment of any royalties or other payments to any third parties that may become due as a result of ONErpm’s exercise of its rights hereunder, including, without limitation, to any performing rights organizations, writers, co-writers, producers, performers, and third party royalty participants; (v) the Content (including, without limitation, the Masters, Videos, Album Materials, YouTube Content, and any underlying musical compositions embodied therein) or any other materials furnished by Licensor to ONErpm and ONErpm’s exercise of the rights granted hereunder, shall not infringe upon any other material, or violate or infringe upon any common law or statutory rights, including but not limited to copyright, trademark rights, and rights of privacy and publicity, of any third party; and (vi) Licensor knows of no material claims, nor basis for such claims, which may affect the ownership or validity of the Content.

 

b.     Licensor agrees to indemnify, defend, and hold ONErpm, its affiliates, assigns, sub-distributors and licensees and their directors, officers, shareholders, agents, employees harmless from and against all third party claims and resulting damages, liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, arising out of or connected with any breach or alleged breach by Licensor of any warranty, representation or agreement made herein or pertaining to any act, error, or omission committed by Licensor or any person or entity acting on Licensor’s behalf or under Licensor’s direction or control.  In the event that a claim is made or an action is commenced, ONErpm shall have the right to withhold payment of any and all monies due to Licensor hereunder in reasonable amounts related to such claim or action pending the disposition thereof.

 

c.     Nothing in this Agreement shall obligate ONErpm to distribute, reproduce, exploit, or otherwise use any of the Masters, Videos, or other Content, all of which shall be in ONErpm’s sole discretion. ONErpm may choose to not provide, or cease to provide, any Services, with respect to any Master and/or Video in its sole discretion, including, without limitation, due to poor recording quality or hateful, obscene or inappropriate content. Without limiting the foregoing, ONErpm shall have the unilateral right to remove any Content or other materials from the Site and Services that it deems, in its sole discretion, to violate the Site Agreements, the Third Party Platform Agreements, or the terms and conditions of this Agreement.

 

d.     ONERPM'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF MONEY PAID BY ONERPM TO LICENSOR IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE BREACH OR ALLEGED BREACH BY ONERPM OF THIS AGREEMENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ONERPM BE LIABLE TO LICENSOR OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST DATA ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7(C) WILL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WHETHER OR NOT THE PARTIES WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, THAT THE AGREEMENTS MADE IN THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK, AND THAT EACH PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.


8.     Termination.

a.     Licensor shall have the right to terminate the Term by giving ninety (90) days prior written notice to ONErpm, which termination will become effective at the end of the current period. Following expiration of the Term, ONErpm shall have a collection period that shall extend until such time as ONErpm has received payment for all exploitations of the Masters, Videos, and Channel during the Term as authorized herein, including, without limitation, payments from Third Party Platforms and license fees arising from exploitation of Synchronization Rights.

 

b.     ONErpm shall have the right, at any time, to terminate this Agreement, remove any of Licensor’s Content from the Site(s), cease providing Services to Licensor, and/or cease the exploitation and distribution of any Content, which ONErpm may elect to do as a result of ONErpm’s determination that Licensor’s Content (i) infringes or may infringe upon any third party rights, (ii) violates the Site Agreements, the Third Party Platform Agreements (as defined below), or the terms and conditions of this Agreement, (iii) may be offensive or obscene, (iv) may harm ONErpm or bring ONErpm into disrepute by association, or (v) for any other reason, or no reason, that ONErpm may determine in its sole discretion.

 

c.     In the event of any termination of this Agreement, Sections 5(d), 6, 7, and 9 of this Agreement shall survive.


9.     Miscellaneous.

a.     The parties agree and acknowledge that the relationship between the parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other's agent, partner, or employee.

 

b.     Licensor agrees to be bound by the Site(s)’ Terms of Use (at https://onerpm.com/legal/terms), Privacy Policy (at https://onerpm.com/legal/privacy), and other agreements located on the Site(s) and applicable to Licensor (the “Site Agreements”), as the same are amended or updated from time to time on the Site(s). Licensor further agrees to be bound by the Third Party Platforms’ (including but not limited to YouTube and Google) terms of use and privacy policies (the “Third Party Platform Agreements”) as they pertain to Licensor, the use of the Third Party Platforms’ platforms, the exploitation of the Content and the rights granted hereunder. To the extent the terms of this Agreement conflict with the terms of the Site Agreements, or the Third Party Platform Agreements, the terms of this Agreement shall control. This Agreement, together with the Site Agreements, contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous agreements or arrangements between Licensor and ONErpm pertaining to the Services, if any. This Agreement may only be modified by a writing accepted and/or signed by the parties.

 

c.     This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, administrators, and successors of each of the parties. ONErpm will have the right to freely assign this Agreement at any time to any party in its sole discretion. Licensor acknowledges and agrees that neither this Agreement nor any right or interest hereunder may be assigned or transferred by Licensor without the express, prior, written consent of ONErpm.

 

d.     All notices hereunder shall be sent in writing via electronic mail.  If ONErpm provides notice to Licensor, ONErpm will use the contact information provided by Licensor upon registration with ONErpm or as updated by Licensor, or, in the absence of a valid electronic mail address, via any other method ONErpm may elect in its sole discretion, including, but not limited to, via posting to Licensor’s account on the Site. All notices to ONErpm shall be sent to support@ONErpm.com. All notices will be deemed received: (i) 24 hours after the electronic mail message was sent, if no “system error” or other notice of non-delivery is generated or (ii) upon posting if by other electronic means, if permitted. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.

 

e.     If any provision of this Agreement or the application thereof shall for any reason be declared by a court of competent jurisdction or arbitration proceeding under this Agreement to be invalid or unenforceable, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting therefore another provision that is valid, legal, and enforceable so as to materially effectuate the parties’ intent.

 

f.      As a condition precedent to any assertion by Licensor that ONErpm is in default in performing any obligation contained herein or otherwise in breach of this Agreement, Licensor shall give ONErpm detailed written notice of such default or breach, and ONErpm shall be allowed a period of thirty (30) days after receipt of such written notice within which to cure such alleged default or breach. No default or breach by ONErpm will be deemed to be incurable. The failure of either party to act in the event of a breach of this Agreement by the other will not be deemed a waiver of such breach or a waiver of future breaches.

 

g.     This Agreement shall be deemed to have been made in the State of New York, without regard to its conflict of laws provisions, and its validity, construction, performance and breach shall be governed by the laws of the State of the New York.

 

h.     Any controversy originating from this Agreement or which is thereto related will be resolved, on a definitive basis, by arbitration. The arbitration will be administered and conducted by the American Arbitration Association and will follow the procedures established by its Rules.  The arbitration tribunal will be formed by one or more arbitrators in accordance with the referred Rules. The arbitration will take place in New York, New York, United States of America; however, the parties may participate by phone or video conference. The arbitration will be conducted in English and New York law will be the applicable law. Any such action or proceeding shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim, controversy, action or proceeding of any other party.  In the event of a claim or dispute, Licensor’s sole remedy shall be limited to an action at law for money damages, if any, and Licensor shall not have the right to in any way enjoin or restrain ONErpm’s Site(s), services or other activities. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

 

i.      This Agreement may be executed by digital or electronic signature, by a “click through” format, and/or exchanged via e-mail or other digital means.


Licensor acknowledges that Licensor has been advised to seek independent legal and business counsel with respect to this Agreement and that Licensor has either sought and obtained such counsel or deliberately refrained from doing so.  This Agreement shall be deemed to be jointly drafted by the parties and may not be construed against any party by reason of its preparation or word processing.