Terms & Conditions

Merf Music Group, LLC d/b/a Song Placement Pros

 

Song Placement and Licensing Agreement

 

We are excited you have chosen to become a member of Song Placement Pros!  To follow is your and our agreement (“Agreement”) with respect to each song you deliver to us while you are a member.

 

For good and valuable consideration, receipt of which is hereby acknowledged by the parties, you and your publishing designee(s) (collectively, “Writer”) and Merf Music Group, LLC d/b/a Song Placement Pros (“SPP”) hereby agree as set forth below.  Writer and SPP are each sometimes referred to herein individually as a “Party” and collectively as the “Parties.”  

 

1. Certain Defined Terms.  Certain terms used in this Agreement are defined in Exhibit A which is attached hereto and made part of this Agreement by this reference.

2. Song Delivery / SPP’s Rights and Services / Secured Use Monies.

   1. In each instance during the Membership Period that Writer desires to furnish a Song to SPP to Pitch, Writer shall send SPP notice of such fact and Deliver such Song and its associated Recording to SPP. During the Representation Period, Writer grants to SPP the non-exclusive right to Pitch such Song and any Recordings thereof throughout the Territory.  The Parties acknowledge that Writer may have delivered Songs and Recordings to SPP prior to the date of this Agreement and that such Works are also subject to this Agreement.

   2. SPP shall use reasonable efforts in its sole business judgment to identify potential sources of exploitation and Pitch each Song Delivered.  The Parties acknowledge and agree that placement and exploitation of Songs and Recordings are speculative and SPP makes no guarantee that SPP will be able to secure placement or exploitation of any Work.  SPP’s failure to Pitch or secure commercial exploitation of any or all of the Works shall not be deemed a breach of this Agreement.

   3. SPP shall not acquire any copyright interest from Writer as a result of any Secured Use, but Writer grants to SPP the exclusive right throughout the Territory to license one hundred percent (100%) of Writer’s ownership interest in the Work(s) for all Secured Uses.  Writer also grants SPP the exclusive right throughout the Territory to administer, receive and collect SPP’s share (as provided below) of Secured Use Monies for the duration of the respective Participation Period.  If Writer desires that SPP provide administration services for any Works (i.e. other than collecting SPP’s share of Secured Use Monies) and SPP agrees to do so in writing, such administration shall be subject to an administration fee of fifteen percent (15%) of Writer’s share of monies derived from the respective Works, and all of the other terms and conditions set forth in SPP’s or SPP’s administrator’s (as applicable) formal administration agreement with Writer.

   4. SPP and Writer shall divide Secured Use Monies as follows:​​ (Click Here to See Chart).

   5. Upon the execution hereof, Writer shall execute and deliver to SPP letters of direction with respect to each Payor in substantially the forms attached hereto as Exhibits B through H and shall otherwise cooperate with SPP and each Payor to direct Secured Use Monies to SPP and Writer (as applicable) as provided in this Agreement.  Writer grants SPP the right to insert identifying information with respect to Exploited Works on the applicable letter(s) of direction and provide such letter(s) of direction to the respective Payor(s).  Upon the execution hereof, Writer shall also deliver to SPP a completed and signed Internal Revenue Service Form W-9 and Writer’s banking information for deposits, both of which SPP is hereby authorized by Writer to provide to Payors.  Whenever practicable, SPP shall use reasonable efforts to cause the respective Payor to make direct payment to Writer of Writer’s share of Secured Use Monies.  If SPP receives any portion of Writer’s share of Secured Use Monies, SPP shall account and make payment to Writer with respect to such monies.  In the event SPP receives any portion of Writer’s share of Secured Use Monies, Writer’s and SPP’s shares of Secured Use Monies received by SPP shall be calculated based on Net Receipts.  Writer represents, warrants, acknowledges and agrees that Writer shall be solely responsible for payment of any monies due to any third party with respect to the creation and exploitation of the Songs and Recordings, including, without limitation, royalty, work-for-hire and union payments.  

   6. Writer grants to SPP the right to authorize or license the non-exclusive use of Writer’s and any Artist’s respective names, likenesses and biographical material in connection with uses of the Works licensed by SPP.

   7. Writer grants to SPP the right to register Songs with Writer’s PRO, but shall have no obligation to do so.  SPP shall not be liable for any errors made in registering a Song.

3. Accounting.  Within ninety (90) days after the end of each semi-annual period during which SPP receives any portion of Writer’s share of Secured Use Monies, SPP shall submit a royalty statement and payment to Writer with respect to same.  Payments shall be in United States Dollars.  The same rate(s) of exchange utilized by third parties in accounting to SPP shall apply as between SPP and Writer in accountings hereunder.  Each statement submitted by SPP shall be binding upon Writer and not subject to any objection for any reason unless specific written objection, stating the basis thereof, is sent by Writer to SPP within one (1) year after the due date of said statement.  Writer or a certified public accountant on Writer’s behalf may, upon thirty (30) days prior notice in each instance and at Writer’s expense, examine SPP’s royalty books and records pertaining solely to Secured Use Monies at SPP’s place of business during SPP’s usual business hours, but not more than once per calendar year.  Said books relating to activities and receipts during any accounting period may only be examined as aforesaid during the one (1) year period following the due date of the statement for said accounting period.  Legal action against SPP by Writer with respect to a specific accounting statement or the accounting period to which the same relates shall be forever barred if not commenced in a court of competent jurisdiction within one (1) year after such statement is due.  Writer agrees to provide to SPP a completed and signed Internal Revenue Service Form W-9 prior to SPP making payment of any sums due Writer pursuant to this Agreement.   If Writer is a citizen of a country other than the United States of America, then notwithstanding anything to the contrary contained herein, if Writer does not deliver to SPP a properly completed Internal Revenue Service form W-8BEN (and/or such other forms as may be required by the Internal Revenue Service) with respect to the exemption of withholdings from payments to Writer, then SPP shall withhold taxes in the United States at the current rate provided for by the Internal Revenue Service until such time as the applicable forms, properly processed, are delivered to SPP.

4. Warranties and Representations.  Writer hereby warrants and represents that: (a) Writer has the right to enter into this Agreement, fully perform Writer’s obligations hereunder, and grant the rights granted to SPP herein; (b) the Works are and will be original and will not infringe any third party’s rights or violate any applicable statute or law, including but not limited to such third party’s copyright, trademark, servicemark, or right of privacy or publicity; (c) Writer has not received any advance of any nature which would be recoupable from Secured Use Monies; (d) Writer’s percentages of authorship and ownership interests in the Works are as follows: (i) with respect to the Schedule A Songs, as set forth on Schedule “A” and (ii) with respect to all other Works, as notified by Writer on delivery of same to SPP, (e) Writer is and will remain a writer and publisher member or affiliate in good standing of a PRO during each Representation Period and Participation Period, (f) Writer shall not attempt to modify the terms of any letter of direction or other notice to a PRO or other Payor with respect to SPP’s share of Secured Use Monies, or notify a PRO or other Payor that any Secured Use Monies should no longer be directed to SPP, other than upon the expiration of the respective Participation Period, (g) with respect to all union recording sessions, all documentation required by the union has been completed and submitted to the union per union rules and regulations with respect to the applicable Recording(s), (h) with respect to non-union recording sessions, Writer has obtained written documentation signed by each contributor confirming that the applicable Recording(s) was created as a work for hire for Writer, and (i) Writer is at least eighteen (18) years old.

5. Indemnity.  Writer hereby indemnifies, saves and holds SPP, its successors and assigns, and its and their parent, subsidiary and affiliated companies and their and SPP’s respective officers, employees, agents and licensees harmless from any and all liability, claims, demands, loss and damage (including, without limitation, attorneys’ fees and court costs) arising from or connected with any claim, demand or action which is inconsistent with any of the warranties, representations or agreements made or assumed by Writer in this Agreement (a “Claim”).  Writer shall reimburse the applicable indemnified party, on demand, for any payments made by such party at any time with respect to the actual amount of any Claim.  SPP will have the right to offset Writer’s liability under this indemnity against any sums otherwise payable to Writer hereunder.  In the event SPP is notified of a Claim, SPP will have the right to withhold from sums otherwise payable to Writer hereunder a sum reasonably related thereto until such time as the Claim is resolved.

6. Miscellaneous.

   1. This Agreement: (i) is the entire understanding of the parties with regard to its subject matter and all prior negotiations or alleged understandings are merged herein, (ii) may not be modified or amended except by a written instrument signed by Writer and SPP, and (iii) has been entered into in and is to be interpreted in accordance with the laws of the state of Tennessee and the state and federal laws applicable therein.  The jurisdiction and venue for any litigation which may proceed from the conclusion, execution or interpretation of this Agreement shall be with the state court or federal district court for Nashville, Davidson County, Tennessee.  No waiver shall be binding unless executed in writing by the party making the waiver.  If any provision or portion of this Agreement shall be invalid or unenforceable for any reason, there shall be deemed to be made such minor changes (and only such minor changes) in such provision or portions as are necessary to make it valid and enforceable.  The invalidity or unenforceability of any provision or portion of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement.  The headings of the paragraphs of this Agreement are supplied for convenience or reference only, and do not form a part hereof or in any way modify, interpret or construe the intention of the parties.    

   2. Any notice to be given from one Party to the other Party pursuant to this Agreement must be in writing and shall be sent by personal delivery, email, or by registered or certified mail, return receipt requested, or by overnight air express to such Party at its address set forth on page 1 above, or to such other address of which either Party may hereafter notify the other Party by like notice.  Notices shall be deemed given on the date sent by email, or the date deposited with the post office or courier, as applicable.  Notices of change of address are effective upon delivery to the addressee, which delivery may not be declined or refused.  Royalty statements may be sent to Writer by regular, first class mail or by email.

   3. Promptly upon SPP’s request therefor, Writer shall execute and deliver to SPP all documents deemed necessary or desirable by SPP to evidence or effectuate the provisions of this Agreement fully, including, but not limited to, a letter of direction notifying Writer’s performing rights society of SPP’s share of Secured Use Monies.

   4. Writer agrees, without any additional consideration, at SPP's request, to make, execute and deliver any and all further documents, instruments, and writings which in SPP’s judgment and discretion are necessary to carry out the terms and purposes of this Agreement.  Notwithstanding the foregoing, Writer hereby irrevocably nominates and appoints SPP as Writer's true and lawful attorney, to make, execute, and deliver any and all documents, instruments and writings in Writer's name which in the reasonable judgment and discretion of SPP are necessary or desirable to carry out the terms and purposes of this Agreement.  The power herein granted to SPP is coupled with an interest and is irrevocable for any cause whatsoever.

   5. Writer acknowledges that SPP’s business model and/or terms of service may change in the future and SPP may elect to modify the terms of this Agreement on a prospective basis.  SPP agrees to provide Writer with notice (“Change Notice”) at least thirty (30) days prior to making any changes to this Agreement, which Change Notice shall state the specific change(s) to be made.  Such change(s) will automatically apply to Works Writer elects to deliver to SPP by Writer on or after the implementation date stated by SPP in its change notice (“Change Date”) (which date shall be no less than 30 days after SPP’s Change Notice is sent to Writer).  Further, such change(s) shall also automatically apply to Works delivered to SPP by Writer prior to the Change Date that are not Exploited Works as of the Change Date, unless Writer notifies SPP of Writer’s election not to apply such change(s) to such previously-delivered Works within thirty (30) days after the Change Notice is given.

   6. This Agreement may be executed in counterpart originals, a set of which bearing the signatures of each of the Parties, when taken together, shall constitute a single document.  Each of the Parties agrees that a photographic, electronic or facsimile copy of the signature evidencing a Party’s execution of this Agreement shall be effective as an original signature and may be used in lieu of the original for any purpose.

   7. WRITER ACKNOWLEDGES THAT WRITER HAS BEEN REPRESENTED BY AND HAS RELIED UPON LEGAL COUNSEL EXPERIENCED IN THE MUSIC INDUSTRY AND OF WRITER’S OWN CHOOSING IN THE NEGOTIATION OF THIS AGREEMENT; AND THAT WRITER HAS READ THIS AGREEMENT AND HAS HAD ITS CONTENTS FULLY EXPLAINED BY WRITER’S LEGAL COUNSEL, AND WRITER IS FULLY AWARE OF AND UNDERSTANDS ALL OF THE TERMS AND LEGAL CONSEQUENCES OF THIS AGREEMENT.

 

If the foregoing accurately reflects our agreement, please indicate your acceptance checking the box indicated below.

 

Sincerely yours,

 

Merf Music Group, LLC d/b/a Song Placement Pros

Ray Hamilton                                              

CEO

 

EXHIBIT A

 

The following terms used in the agreement to which this Exhibit A is attached have the following meanings:

 

1. “Artist” means a recording artist whose performances are embodied on a Recording.

2. “Deliver” with respect to a Song and its associated Recording means that Writer shall submit to SPP, and a Song and Recording shall be deemed “Delivered” when SPP has received, all of the following with respect thereto: (a) the best quality Recording in Writer’s possession or control (and notice of Writer’s percentage of ownership of such Recording); (b) a complete and legible lyric sheet; (c) complete and accurate writer/publisher information, including, without limitation, the names of all co-writers and co-publishers, with respect to the Song, and co-owners and contributors with respect to the Recording, and their percentages of authorship and ownership; and (d) with respect to the Song and/or Recording, sample clearance agreements with respect to the portion of any third party copyright used, if any.

3. “Exploited Work” means a Work with respect to which a Secured Use exists.

4. "Gross Receipts" means Secured Use Monies actually received by SPP in the United States, less (a) fees charged by any collection agent or society used by SPP, SPP's administrator, or its or their sub publisher, (b) fees charged by SPP's (or SPP's administrator's) sub publishers, (c) a sum equivalent to the fees that would otherwise be deducted by a collection agent or society for a particular function with respect to the Works if SPP (or SPP's administrator) elects to perform such function rather than utilizing the services of a collection agent or society for such function, (d) taxes withheld at the source of the income (i.e., foreign withholding taxes, VAT and the like), (e) fees charged by a third party for solicitation of uses of the Works on SPP's behalf, (f) fees associated with the creation and/or procurement of a foreign language translation or new foreign lyrics of a Song, and (g) any other out-of-pocket expenses of SPP (or SPP's administrator) directly related to the collection of Secured Use Monies.  

5. “Membership Period” means the period of Writer’s paid membership with SPP.

6. "Net Receipts" means Gross Receipts after deduction of: (a) royalties due to co-publishers, co-writers, Recording contributors, and any other royalty participants (other than Writer), if any, entitled to a share of such monies; (b) all taxes, excluding income taxes, paid by SPP that have not been deducted prior to SPP's receipt of the taxed income; (c) any administration fees payable to SPP's administrator in the United States, and (d) any other administrative or exploitation expenses of SPP or SPP's administrator.  

7. “Participation Period” means, with respect to an Exploited Work, a period of five (5) years starting on the date that a Payor first pays SPP with respect to such Exploited Work.  Notwithstanding the foregoing, if during the initial Participation Period with respect to an Exploited Work an additional Secured Use of such Exploited Work occurs, the expiration of the Participation Period with respect to such Exploited Work shall be extended until the date that is five (5) years after a Payor first pays SPP with respect to such additional Secured Use.

8. “Payor” means a third party payor of royalties or fees from a Secured Use.

9. “Pitch” means to solicit a commercial exploitation of a Song, including without limitation, a recording of a Song by a recording artist, or synchronization of a Song (and any Recording thereof) with an audio-visual production (e.g. films, television productions, videogames, etc.).

10. “PRO” means ASCAP, BMI, SESAC or other recognized performing rights society in the United States.

11. “Recording” means Writer’s ownership interest in a sound recording of a Song.  Songs and Recordings are sometimes referred to herein individually and collectively as “Work(s).”

12. “Representation Period” means, with respect to any Song, a period starting on the date that the respective Song is Delivered to SPP and ending on the date that is thirty (30) days after the date Writer requests in writing (email is also acceptable) that SPP no longer Pitch such Song.  Notwithstanding the foregoing, the Representation Period for an Exploited Work shall not end earlier than the Participation Period with respect thereto.  

13. “Secured Recording” means a recording of a Song recorded by an artist as a result of a Pitch during the Representation Period by SPP or a third party on SPP’s behalf.  Upon SPP’s securing a Secured Recording, each other recording of the respective Song that is not a Secured Recording (“Additional Recording”) shall be automatically subject to this Agreement and Writer hereby grants to SPP all of the same rights with respect to such Additional Recording as if it were a Secured Recording, provided that the Participation Period applicable to such Additional Recording shall be co-terminus with the Participation Period applicable to the Secured Recording of the respective Song (as such period may be extended by one or more additional Secured Recordings of such Song).  

14. “Secured Use” means a commercial exploitation, including, without limitation, Synchronization Uses and Secured Recordings, which exploitation is secured (or the solicitation of which occurred) during the Representation Period by SPP or a third party on SPP’s behalf.

15. “Secured Use Monies” means all monies in connection with Writer’s authorship and ownership interests that are derived from Secured Uses.

16. “Song(s)” means, individually and collectively, Writer’s authorship and ownership interest in a musical composition written in whole or in part by Writer.   

17. “SPP Co-write” means a Song co-written by Writer and at least one other songwriter each of which (i.e. Writer and another songwriter) was a member of SPP at the time such Song was written (in whole or in part).  If an SPP Co-write is delivered to SPP by Writer’s co-writer, such SPP Co-write shall be deemed to also have been Delivered to SPP by Writer.  

18. “Synchronization Use” means the recording of a Work in synchronism or timed-relation with an audiovisual production of any type, including without limitation, music videos, theatrical films, television productions, commercials and videogames, regardless of the type of media.

19. “Territory” means, collectively, the world and universe.