BMI Music Performance License Agreement

General License Terms

These BMI Music Performance License Agreement General License Terms (“General License Terms”), together with the Licensed Uses and Fee Calculations (as defined below) and any other exhibits, schedules, riders, and addendums presented by Broadcast Music, LLC (“BMI”) for acceptance by LICENSEE, govern BMI’s grant to LICENSEE of the right to publicly perform BMI Works, and are collectively referred to as this “Agreement.” If LICENSEE has an existing license in effect for any Licensed Use, acceptance of this Agreement shall supersede such license in its entirety in accordance with its terms. If LICENSEE is currently licensed under an agreement identified as “Interim” these General License Terms are inapplicable to such agreement and the terms of such interim agreement remain in full force and effect.

By clicking [“I Accept”, “Agreed”, or any similar button or checkbox indicating acceptance] or by making any payment toward the applicable License Fees, the individual accepting this Agreement (the “Signatory”) hereby agrees to each of the following on behalf of the corporation, partnerships, organization, or other entity [identified during the registration or ordering process] as the LICENSEE: (a) the Signatory has read and understands this Agreement; (b) the Signatory has the legal authority to bind LICENSEE to this Agreement, including the authority to act on LICENSEE’s behalf without the need for any additional consent or approval; (c) neither the execution nor the performance of this Agreement by LICENSEE will violate or conflict with any applicable law, regulation, court order, or any other agreement or obligation to which LICENSEE is a party or by which it is bound; and (d) this Agreement shall become effective as of the date the Signatory clicks to accept (“Effective Date”), and LICENSEE shall be legally bound by its terms as of the Effective Date. All required notifications will be posted in the licensee portal.

ABSENT A LICENSEE’S ACCEPTANCE OF THIS AGREEMENT, BMI HAS NOT AUTHORIZED THE INDIVIDUAL TO WHOM THIS AGREEMENT IS PRESENTED, OR ANY LEGAL ENTITY THAT SUCH INDIVIDUAL PURPORTS TO REPRESENT, TO PUBLICLY PERFORM BMI WORKS.

DEFINITIONS

1. “Admission Charge/Cover Charge” shall mean any payment to enter the Licensed Premises, or certain part thereof, including, but not limited to, minimum required purchases or tips to enter or remain in certain parts of the Licensed Premises. Where tickets are sold for Music Attractions LICENSEE shall obtain separate license coverage for such Music Attractions.
2. “Ambient Music” shall mean music performed by mechanical or electronic means, including, but not limited to, CDs, DVDs, digital audio files (e.g., MP3, WAV), records, and tapes performed as background music, foreground music, or as part of audio-visual presentations, or as an accompaniment to (i) non-class fitness training, including, but not limited to, individual/non-class weight-lifting and individual/non-class use of exercise equipment, and (ii) conversation and relaxation. Ambient Music does not include music used in Group Fitness Classes.
3. “Attendee(s)” shall mean any person who enters the Licensed Premises, whether or not any admission charge, registration fee, membership fee, or other payment is required to be made in connection with the entrance, but shall not include employees working at the Licensed Premises, including, but not limited to, personnel, exhibitor personnel, administrative staff, service contractors, temporary personnel, medical personnel, or credentialed members of the press, performers, or musicians. In the case of a trade show, convention, or political campaign where live or recorded music is performed on the exhibit floor, the number of Attendees shall be the total number of persons registered at the trade show / convention / campaign event. If no music is performed on the exhibit floor, the number of Attendees shall mean the lesser of the total attendance at each Function held at which music is performed or the total number of persons registered for the Event.
4. “Audio-Visual Performances” shall mean audio-visual performances of recorded music (including but not limited to large screen television, karaoke), unless exempt under Section 17 U.S.C. § 110(5).
5. “Audio-Visual Programming” shall mean audio-visual content offered by LICENSEE which is delivered by satellite, pre-recorded tapes or other forms of recordation capable of audio-visual performance for use only while Serviced Aircraft are in the air, while passengers are boarding and disembarking from Serviced Aircraft or while passengers are seated when Serviced Aircraft are on the ground OR while Serviced Passenger Train(s) are en route, while passengers are boarding and disembarking from Serviced Passenger Train(s) or while passengers are seated when Serviced Passenger Train(s) are stationary.
6. “BMI Grant” shall mean the license granted by BMI to LICENSEE set forth in Section 2.
7. “BMI Works” shall mean those rights in the musical works for which BMI has the right to license the non-dramatic public performance at the Licensed Premises at the time of performance of such musical works as part of the Licensed Uses during the Term.
8. “Contract Term” shall mean the duration of the initial Term or any additional Term of this Agreement.
9. “Chain Operation” shall mean locations that are commonly owned and operated by LICENSEE, and for which books, records and accounts are centrally maintained by LICENSEE.
10. “Compulsory Rate/Compulsory Radio Station Rate” shall mean the fee for non-commercial educational radio stations established under Section 118 of the U.S. Copyright Act.
11. “Dramatic Rights” shall include, but not be limited to, performance of a “dramatico-musical work” in its entirety; performance of one or more musical compositions from a “dramatico-musical work” accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken; performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied by dialogue, pantomime, dance, stage action, or visual presentation; performance of a concert version a “dramatico-musical work”. Dramatico-musical Works for purposes of this Agreement only, shall include, but not be limited to, a musical comedy, opera, ballet or play with music.
12. “Employees” shall mean all full-time and part-time persons employed at the Licensed Premises.
13. “Enhanced Recorded Music” shall mean the use of video tapes, DVDs and other projected visual images as an accompaniment/enhancement to recorded music performances (e.g., Karaoke, Self-Directed or Virtual Fitness Classes). Enhanced Recorded Music does not include performances delivered by commercial broadcast, cablecast or satellite delivered television programming.
14. “Event(s)” or “Function(s)” shall mean any activity that is contemplated by the Licensed Use and is conducted, sponsored, promoted, or presented by or held under the auspices of the LICENSEE on the Licensed Premises. For purposes of the “Meetings, Conventions, Trade Shows and Expositions” and “Political Entities and Organizations” Licensed Uses, “Event(s)” and “Function(s)” shall include: conventions, meetings, trade shows, and expositions that include an assemblage of delegates, representatives and/or members of an organization(s) convened for a common purpose, a meeting which includes individuals assembled together for purposes of communicating information to each other (i.e. panels, seminars, symposiums, convocations, conferences, caucuses, forums, assemblies, congresses, and institutes) or otherwise transacting business, an exposition at which products and services are displayed, or a trade, industrial or consumer show, or other similar activity of LICENSEE, provided such Event or Function does not last more than fourteen (14) consecutive days. For purposes of the “Competitions/Shows” Licensed Use, “Event(s)” and “Function(s)” shall include a competition, show, or special program, held on consecutive days, in which participants are evaluated, tested and/or rated on skill, ability or presentation, including but not limited to: beauty pageants, skating events, wrestling matches, boxing matches, cheerleading competitions; karate events; dancing competitions; volleyball matches, bowling tournaments, water-skiing events, body-building competitions, equestrian events, rodeos, dog and cat shows or competitions, or other non-racing, similar spectator activity. For purposes of the “Local Government Entity” Licensed Use, “Event(s)” and “Function(s)” shall include aerobics and exercise classes, athletic events, dances and other social events, concerts, festivals, arts and crafts fairs, and parades. For purposes of the “Political Entities and Organizations” Licensed Use, “Event(s)” and “Function(s)” shall also include a concert which is sponsored, conducted, endorsed or approved by LICENSEE, unless the concert is open to members of the general public who are not affiliated with the LICENSEE. “Function” shall include any activity conducted, sponsored, endorsed or approved by LICENSEE occurring in connection with an Event, including, but not limited to, meals, plenary sessions, breakouts, meetings, receptions, concerts, cocktail parties, dinners, dances, dinner-dances, seminars, or any other similar spectator or participatory activity. An “Event” shall exclude major and minor league sports, including but not limited to, basketball, hockey, football, baseball, and soccer sporting events.
15. “Execution Date” shall mean the date and time at which LICENSEE accepts and agrees to be bound by the Agreement by electronic signature, which includes by clicking on the box or button indicating acceptance of the Agreement. Where LICENSEE and BMI have agreed to Additional Terms and Conditions in a separate rider or addendum, the Execution Date of the Agreement shall be the date and time at which LICENSEE and BMI have both indicated acceptance of both the Agreement and such Additional Terms and Conditions by electronic or wet ink signature.
16. “Free Event” or “Free to Attend” shall mean any non-Benefit Event (for Licensed Uses that include “Endurance Races”) or Event (for all other Licensed Uses) where no admission or charge of any kind is required to attend.
17. “Intranet Transmissions” shall mean transmissions of content that can only be accessed through an internal computer network accessible only to faculty, staff, students, and other members of the campus community who authenticate themselves through a secure access system and who access such transmissions via a personal computer or other device capable of receiving internet transmissions.
18. “Jukebox” is a machine or device that is (A) employed solely for the performance of non-dramatic musical works by means of records, compact discs, mp3 files or other digital audio or video means upon being activated by insertion of coins, currency, token, or other monetary units or their equivalent; (B) is located in an establishment making no direct or indirect charge for admission at the time of performance; (C) is accompanied by a list which is comprised of the titles of all of the musical works available for performance on it, and is affixed to or otherwise appears on the phonorecord players, or is posted in the establishment in a prominent position where it can be readily examined by the public at the time of performance; and (D) affords a choice of works available for performance and permits the choice to be made by the patrons of the establishment in which it is located at the time of performance (as distinguished by the establishment’s employees or performers).
19. “Licensed Premises” shall mean the entirety of the physical location(s) located in the Territory at which in any part thereof BMI Works are publicly performed during the Term, solely as set forth in the Licensed Uses and Fee Calculations.
20. “License Fees” shall mean the fees due to BMI by LICENSEE in accordance with the Licensed Uses and Fee Calculations.
21. “Licensed Use(s)” shall mean the method(s) and manner(s) in which BMI Works are publicly performed at the Licensed Premises, solely as provided in the Licensed Uses and Fee Calculations.
22. “Licensed Uses and Fee Calculations” shall mean, collectively, all documentation as provided or presented by BMI to LICENSEE which sets out each of the Licensed Uses, associated License Fees and Additional Terms and Conditions related to BMI’s grant of a license for such Licensed Uses.
23. “LICENSEE” shall mean the entity identified on the Licensee Profile that is entering into the Agreement and is responsible for the Licensed Uses at the Licensed Premises. If any Licensed Premises are owned by separate legal entities, LICENSEE shall be deemed to include each such legal entity as indicated in the Licensed Uses and Fee Calculations. All entities deemed to be included as LICENSEE hereunder shall be jointly and severally liable for LICENSEE’s obligations under this Agreement.
24. “Licensee Portal” shall mean BMI’s electronic portal made available to LICENSEE for access, receipt, and provision to BMI of information related to LICENSEE’s customer relationship with BMI, and fulfillment of the parties’ contractual obligations, including, but not limited to, access to the Licensed Uses and Fee Calculations, reporting of LICENSEE’s Licensed Premises, payments and provision of payment instruments, and provision and receipt of customer account information.
25. “Licensee Profile” shall mean, collectively, all information provided to BMI by LICENSEE which describes LICENSEE and the business owned, operated and/or controlled by LICENSEE and is reflected in LICENSEE’s account in the Licensee Portal.
26. “Limited Use Events” shall mean events open to the public including agricultural festivals, state and county fairs, talent shows, fashion shows, parades, comedy or other spoken-word shows and other similar events that do not offer music as a principal form of entertainment or prominent component of the event. Limited Use Events shall not include athletic events such as competitions, racing, endurance and sporting events, business trade shows, and conventions.
27. “Live Music” shall mean music performed by one or more musician(s), singer(s), or other entertainer(s) (including disc jockeys, video jockeys, karaoke hosts or other similar hosts or emcees) actually present and performing at the Licensed Premises or Recorded Music which is used as an accompaniment to any other activity such as (but not limited to) fashion shows, puppet shows, drag performances, dance routines, comedy acts, etc.
28. “Live Music and Entertainment Costs” (herein sometimes referred to as “Costs” or “Entertainment Costs”) shall mean all expenditures of every kind and nature (whether in money or any other form of consideration) made by LICENSEE or on LICENSEE’s behalf, for all Live Music and entertainment in connection with LICENSEE’s activities on the Licensed Premises, including monies paid to performers, supporting musicians, booking agents, and agents of the performers. The term “Entertainment Costs” shall not include normal stage props and equipment unless the entity or person rendering or presenting entertainment services specifically requires specialized stage props and equipment. If any regularly or seasonally employed staff member of LICENSEE performs as part of an act containing live music entertainment in addition to performing other duties, that part of employee’s base wages (inclusive of overtime, if any) which equals the proportion of his or her time spent performing live music and entertainment services shall be included in Entertainment Costs. The term “Entertainment Costs” shall include the value of any accommodations or services (including without limitation, room and board) which are made available to any entity or person rendering or presenting entertainment activities as part of the consideration for such entertainment services. For purposes of this Agreement, the value of such accommodations or services shall be deemed to be one-half (1/2) of the prevailing rate charged to guests for similar accommodations or services at the facility where the person or entity is being accommodated and/or served.
29. “Locally Originated Programming” shall mean television programming produced or which is inserted locally by LICENSEE on LICENSEE’s Closed Circuit Television System including, without limitation, programming on locally-originated channels, including advertising and promotional materials thereon; programming on public, educational and governmental (“PEG”) access channels; public service announcements; programming on leased access channels; and advertising and promotional materials inserted locally or through an interconnect by or on behalf of LICENSEE into national, regional or local cable programming services.
30. “Music Attractions” shall mean live concerts, music festivals, and other similar events occurring at a Venue where music is one of the principal types of entertainment. Music Attractions includes all opening acts for such events as well as any Live Music or Recorded Music performed in such Venue in conjunction with such Music Attractions immediately before or after such events or during the intermissions thereof.
31. “Music-on-hold” shall mean a telephonic transmission service whereby music is performed for telephone callers while they are being held on the line.
32. “Music Policy” shall mean the manner and frequency that Licensed Premises uses any single or combined form of the items defined in the Licensed Uses and Fee Calculations during a Term. Music Policy shall include the Occupancy for Eating and Drinking Establishments.
33. “Music Programming” shall mean the audio-only music content offered by LICENSEE which is delivered by satellite, pre-recorded tapes or other forms of recordation capable of audio performance for use only while Serviced Aircraft or Serviced Passenger Train(s) are en route, while passengers are boarding and disembarking from Serviced Aircraft or Serviced Passenger Train(s), or while passengers are seated when Serviced Aircraft or Serviced Passenger Train(s) are stationary.
34. “Occupancy” shall mean the total of maximum allowable occupancy loads/capacities for the entirety of the Licensed Premises, including both indoor and outdoor space (which may be adjusted for seasonal non-use or closure). Occupancy shall be calculated under adopted building/codes, which shall not be limited to the number of available seats. If no such regulations are in effect in the applicable jurisdiction or do not provide occupancy for outdoor space, then maximum occupancy shall be calculated for such premises, or portion thereof that does not have a legally established occupancy, at one (1) person for every twenty (20) square feet.
35. “Off-Site Location” shall include any premises, other than Licensed Premises, which is under LICENSEE’s sole control and attended solely by LICENSEE’s employees, faculty, staff, their families, administration, students, and social acquaintances; this shall include broadcasts/transmissions through the digital meeting platforms used by LICENSEE with its employees and intra-corporate invitees.
36. strong>“Paid Admission” shall mean tickets are sold for admission to an Event or Music Attractions.
37. “Recorded Music” shall mean the performance of background music, foreground music, or as part of audio-visual presentations, by mechanical or electronic means, including, but not limited to, digital music players (e.g., iPods, MP3 players, etc.), CDs, DVDs, records, and tapes.
38. “Residential Community” shall mean a group of owner-occupied, leased or rented residences, wherein the residents are a group of interacting people living in a common location and who may have access to a Clubhouse or Other Common Recreational Area(s) within the community.
39. “Seasonal Use” shall mean the use of music at a Licensed Premises for fewer than twelve (12) months during the Term.
40. “Seating Capacity” shall mean the total number of passenger seats available for sale on a Serviced Aircraft or Serviced Passenger Train.
41. “Serviced Aircraft” shall mean aircraft operated for the sole purpose of transporting passengers from one location to another (and not for the purpose of entertaining passengers) utilizing LICENSEE’s Audio-Visual Programming.
42. “Serviced Passenger Train(s)” shall mean each of passenger train company’s passenger train(s) or other type of train operated for the sole purpose of transporting passengers from one location to another (and not for the purpose of entertaining passengers) utilizing Music Programming and/or Audio-Visual Programming.
43. “Subsidiary” shall mean an entity wholly-owned by LICENSEE for which payment of License Fees and reports are made by LICENSEE.
44. “Television and Radio Only” shall mean televisions and/or radios that are utilized solely for the reception of commercial broadcast, cablecast or satellite programming and only when no Recorded Music or Enhanced Recorded Music is performed and paid for under this Agreement.
45. “Term” shall have the meaning set forth in Section 13(a).
46. “Territory” shall mean the United States and its commonwealths, territories, and possessions, including the commonwealth of Puerto Rico.
47. strong>“TV and Radio” shall mean commercial broadcast television and radio.
48. “Venue” shall include, but not be limited to, a concert hall, stadium, auditorium, civic center, coliseum, theatre, amphitheater, stage, or similar facility, whether enclosed or not, where a Music Attraction or Limited Use Event may be presented, located within the Territory.
49. “Website” shall mean the Internet computer service comprising a series of interrelated web pages owned and/or operated by, or under the auspices of, LICENSEE and currently accessible via the Internet at the Uniform Resource Locator (URL) listed in the Licensed Uses and Fee Calculations or any other URL owned and/or operated by LICENSEE from which audio and/or audio-visual content containing musical works is made available to individuals.
50. “Website Transmissions” shall mean all transmissions of content over the Internet to individuals who access such transmissions from LICENSEE’s Website(s) and receive such transmissions via a personal computer or other device capable of receiving such transmissions.
51. Where a conflict exists between the text of this Section 1 and the terms of the State And Use Specific Disclosures (as defined in Section 3(b) below), the terms of the State And Use Specific Disclosures, as applicable to your Licensed Use(s), shall supersede this Section 1 to the extent necessary to resolve such conflict.

1. BMI GRANT

   1. Subject to the terms and conditions of this Agreement, including BMI's receipt of the License Fees in accordance with this Agreement and a fully completed Licensee Profile, BMI hereby grants to LICENSEE, for the Term, a non-exclusive, non-transferable, non-assignable, non-sublicensable license to publicly perform or cause and permit the public performance of BMI Works, solely at the Licensed Premises in the Territory and solely as part of the Licensed Uses.
   2. This Agreement does not include Dramatic Rights, the right to perform dramatico-musical works in whole or in substantial part, the right to present individual works in a dramatic setting, or the right to use the BMI Works licensed hereunder in any context which may constitute an exercise of “grand rights.”
   3. This Agreement grants only public performing rights in BMI Works to LICENSEE, and does not grant any reproduction, distribution, or any other intellectual property right(s) in such BMI Works, or any digital performance, reproduction, distribution, or any other intellectual property right(s) in sound recordings.
   4. This Agreement shall not be construed as authorizing LICENSEE to mechanically reproduce such BMI Works by any method or means now or hereafter known.
   5. This Agreement does not include the right to perform BMI Works outside the Licensed Premises or the right to broadcast, telecast, cablecast, or otherwise transmit (including by the Internet) the performances licensed hereunder to persons outside of the Licensed Premises in which such performances take place unless otherwise agreed in the LICENSEE’s Licensed Uses and Fee Calculations.
   6. Nothing herein shall be construed as authorizing LICENSEE to grant to any third party any license or right to perform publicly, redistribute, or transmit by any means, method, or process whatsoever, any of the BMI Works licensed hereunder unless otherwise agreed in the LICENSEE’s Licensed Uses and Fee Calculations.
   7. Unless otherwise agreed in the LICENSEE’s Licensed Uses and Fee Calculations this Agreement does not include the right to perform BMI Works:
   1. at political rallies, conventions, parades, or other political or campaign events at the Licensed Premises;
   2. in or as part of any activity or event for which an Admission Charge/Cover Charge and/or separate admission fee or other charge must be paid to enter the premises, and/or attend or participate in an activity;
   3. by any commercial music service (to the extent such performance is otherwise licensed pursuant to the commercial music service’s agreement with BMI);
   4. as part of industrial or trade shows, expositions, or business presentations at the Licensed Premises;
   5. in theme/amusement parks, whether or not on the Licensed Premises;
   6. in any activity which involves parimutuel betting;
   7. by means of a Jukebox; or
   8. that are permitted pursuant to a statutory license or exemption.
   8. Where a conflict exists between the text of this Section 2 and the terms of the “State- And Use-Specific Disclosures” (as defined in Section 3(b)) contained in Sections 17 through 47, the terms of Sections 17 through 47, as applicable to your Licensed Use(s), shall supersede this Section 2 to the extent necessary to resolve such conflict.

2. ADDITIONAL TERMS AND CONDITIONS; STATE- AND USE-SPECIFIC DISCLOSURES

   1. LICENSEE’s right to publicly perform BMI Works granted herein is subject to all of the terms and conditions set forth in this Agreement, including the Sections below that are applicable to the Licensed Use(s) and any terms and conditions set forth in the Licensed Uses and Fee Calculations, and any other exhibits, schedules, riders, and addendums presented by BMI for acceptance by LICENSEE (“Additional Terms and Conditions”). In the event of any conflict among these General License Terms and the Additional Terms and Conditions, the Additional Terms and Conditions shall control to the extent necessary to resolve any such conflict.
   2. Sections 17 et seq. set forth certain disclosures, notices, rights, and other terms and conditions (the “State- And Use-Specific Disclosures”) that may apply to LICENSEE depending upon, among other things, the location of the Licensed Premises as well as terms that apply to licensees with specific Licensed Use(s), as provided in the LICENSEE’s Licensed Uses and Fee Calculations. In the event of any conflict between these General License Terms, any other Additional Terms and Conditions, and the terms and conditions of the State- And Use-Specific Disclosures, the terms and conditions of the State- And Use-Specific Disclosures shall control to the extent necessary to resolve any such conflict.

3. REMOVAL OF WORKS

   With or without notice, BMI reserves the right at its discretion to withdraw any musical work from the license granted by this Agreement (a) if a legal action has been instituted and a claim has been made that (i) BMI does not have the right to license the performing rights in such musical work or (ii) such musical work infringes another composition; (b) to protect (i) such work against indiscriminate performances or (ii) the value of such works licensed herein; or (c) to enforce BMI’s terms and conditions of work registration.

4. FEES AND PAYMENT

   1. In consideration of the license granted by this Agreement, LICENSEE shall pay to BMI the License Fees for the Term as set forth in the Licensed Uses and Fee Calculations. BMI has the right, in accordance with all applicable laws, to charge a processing fee for payments made by credit card; processing fees will be noted in the Licensed Uses and Fee Calculations.
   2. If any such License Fees are calculated based on data or attributes that must be reported by LICENSEE to BMI, and LICENSEE fails to timely report to BMI all of the information required to calculate the License Fees, BMI shall have the right to both assess reasonable estimated license fees for such Term and charge a late reporting fee, in the amount stated in the Licensed Uses and Fee Calculations, each month until the required information is reported to BMI. BMI shall give written notice to LICENSEE of the estimated license fees. LICENSEE shall have thirty (30) days after such written notice by BMI to submit all information required hereunder. If LICENSEE fails to deliver such information within thirty (30) days, BMI has the right to treat such estimated license fees as the actual License Fees for the unreported period and, if applicable, BMI has the right to use such License Fees for purposes of setting estimated license fees for subsequent periods. In no event does BMI’s use of, and LICENSEE’s payment of, estimated license fees for this purpose waive the requirement to submit information required hereunder. In the event actual License Fees due based on LICENSEE’s subsequent submission of required information are greater than the estimated license fees, BMI has the right to assess late payment charges from the date payment was originally due against the difference between BMI’s estimated license fees and the actual License Fees due.
   3. If LICENSEE’s license type requires the payment of estimated license fees in advance of actual License Fees, such estimated license fees shall then be subject to adjustment when the actual License Fees are determined in accordance with the Licensed Uses and Fee Calculations.
      1. If the actual License Fees are less than the estimated fees already paid to BMI by LICENSEE, BMI agrees to credit the difference to the account of LICENSEE and, if such difference shall occur during the last Term of this Agreement, BMI agrees to return such difference promptly.
      2. If the actual License Fees are greater than the estimated fee already paid by LICENSEE to BMI, LICENSEE shall pay BMI the difference between the actual License Fees and estimated license fees within thirty (30) days of LICENSEE’s receipt of the adjusted statement of License Fees sent by BMI.
   4. BMI has the right to adjust from time to time the rates and calculations used to determine License Fees, which adjustment shall be effective as of the start of the Term that begins following the date BMI provides notice of such adjustment, provided, however, that BMI shall provide notice at least thirty (30) days prior to the effective date of the new rates and calculations.
   5. License Fees to be paid for any Term shall not be less than the then-current Annual Minimum Fee set forth in the Licensed Uses and Fee Calculations.
   6. In the event that the payment of any License Fees to BMI by LICENSEE pursuant to this Agreement causes BMI to become liable to pay any state or local tax, other than income tax, which is based upon the amount of License Fees paid to BMI, LICENSEE agrees to pay BMI the full amount of such tax together with payment of the License Fees as invoiced by BMI, within normal payment terms; provided that BMI is permitted by law to pass through such tax to LICENSEE.
   7. LICENSEE acknowledges and agrees that acceptance by BMI of the License Fees (or portion thereof) shall not preclude BMI from seeking further information regarding such payments from LICENSEE or exercising its rights under Section 8.
   8. LICENSEE authorizes BMI or its authorized vendor(s) to store LICENSEE’s payment instruments and during the Term automatically charge any such payment instruments on the payment due date(s) the then-current License Fee rate, as set forth in the then-current Licensed Uses and Fee Calculations, unless LICENSEE terminates this Agreement in accordance with the provisions hereof. LICENSEE understands that the then-current License Fee rate that will be automatically charged is subject to change as described in this Agreement and/or as otherwise notified by BMI in advance (including by posting in BMI’s Licensee Portal). In the event BMI is unable to successfully charge a payment to LICENSEE’s primary payment instrument, BMI has the right to attempt to charge any other stored payment instrument. Failed payments after BMI attempts to charge LICENSEE’s stored payment instruments may incur BMI’s then-current failed payment fee, as set forth in the Licensed Uses and Fee Calculations. BMI has the right to participate in programs supported by LICENSEE’s payment instrument service provider to maintain LICENSEE’s payment instrument information. LICENSEE authorizes BMI or BMI’s authorized vendor(s) to continue billing and charging LICENSEE’s account for amounts owed with the information that BMI or its authorized vendor(s) obtain. LICENSEE acknowledges that BMI is not obligated to automatically bill LICENSEE for License Fees via recurring or automatic billing, and that it is LICENSEE’s responsibility to pay all License Fees due by the payment due date.
   9. Unless otherwise specified in the Licensed Uses and Fee Calculations, License Fees for the current Term are due in full immediately at the beginning of such current Term. As a convenience to LICENSEE, BMI may offer LICENSEE the ability to pay the License Fees at an alternative cadence over the duration of the Term (for example, on a monthly, quarterly, and/or semi-annual basis) if LICENSEE has provided BMI with one or more valid payment instruments, but BMI is not obligated to continue offering any such payment terms. With at least fourteen (14) days prior notice to LICENSEE, BMI has the right, in its sole discretion, to change the required payments frequency of recurring payments and/or cease offering the ability to make payments at an alternative cadence. Upon any such change BMI has the right to immediately accelerate payment of all outstanding due and payable fees in full or on a new payment schedule.
   10. Except as expressly agreed by BMI in this Agreement or otherwise in writing, or as ordered by a court of competent jurisdiction, the License Fees are final and nonrefundable and BMI is not obligated to provide any refunds, reimbursements, credits, or adjustments of any kind for any reason, including in connection with any termination of this Agreement prior to the expiration of the Term or overlapping coverage.

5. REPORTING

   1. LICENSEE is obligated to provide BMI with all up-to-date and accurate information necessary for BMI to calculate License Fees and distribute royalties to BMI affiliates, as provided in the reporting requirements and timelines specified in the Licensed Uses and Fee Calculations. Failure to complete required reporting in a timely manner is a breach of this Agreement, which will give rise to a right for BMI to terminate this Agreement in addition to other available remedies.
   2. If LICENSEE fails to report such information within thirty (30) days of the due date stated in the Licensed Uses and Fee Calculations, BMI has the right to assess a late reporting fee, in the amount stated in the Licensed Uses and Fee Calculations, each month until the required information is reported by LICENSEE to BMI.

6. LATE PAYMENT / FAILED PAYMENT FEES

   BMI has the right to impose a late payment charge of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, calculated from the date any payment is due hereunder on any payment that is received by BMI more than thirty (30) days after the due date. In addition, BMI has the right to impose the then-current failed payment fee, as set forth in the Licensed Uses and Fee Calculations, for each payment instrument LICENSEE submits to BMI that fails. For the applicable late payment charges which may result from a Reassessment, see Section 8.

7. REVIEW OF INFORMATION; CHANGES TO LICENSEE PROFILE OR LICENSED USES AND FEE CALCULATIONS

   1. BMI has the right (but not the obligation) to verify the accuracy of the information provided in the Licensee Profile and in any Licensed Uses and Fee Calculations (including any changes thereof) by any and all reasonable means, which may include, but shall not be limited to, direct inquiries with LICENSEE, independent contacts by BMI representatives with Licensed Premises, use of public records, and reference to advertisements, promotions, and third party observations.
      1. BMI has the right to adjust the License Fees at any time in accordance with such verification, after giving LICENSEE at least thirty (30) days’ prior notice of such action.
      2. If BMI determines that the rights granted in the agreed upon Licensed Uses and Fee Calculations are not sufficient for LICENSEE’s music uses, BMI has the right to immediately modify or convert the Agreement with respect to the applicable Licensed Use to BMI’s current music performance license terms for the Licensed Use as appropriate for LICENSEE’s particular music uses, after giving LICENSEE at least thirty (30) days’ prior notice of such action.
   2. In addition, BMI has the right to, by its authorized representatives, at any time during customary business hours and upon reasonable prior notice, examine LICENSEE’s books and records of account to such extent as may be necessary to verify the accuracy of the Licensee Profile, any information provided in the Licensed Uses and Fee Calculations, all statements, accountings and/or reports required under this Agreement, and/or ascertain the License Fees due BMI for any unreported period, and to verify LICENSEE’s compliance with the representations and warranties set forth in this Agreement. LICENSEE will fully cooperate with any such examination and will provide promptly all documents and information necessary for the completion thereof. BMI shall consider all nonpublic or proprietary data and information coming to its attention as the result of any such examination of LICENSEE’s books and records as confidential. The rights specified herein shall survive the termination of this Agreement.
   3. In addition to any other remedy that BMI may have, in the event that BMI discovers an inaccuracy in the Licensee Profile or any other information reported by LICENSEE hereunder, and as a result it is revealed that LICENSEE underpaid or overpaid license fees to BMI, then BMI has the right to notify LICENSEE of its findings (a “Reassessment”) and the resulting change in License Fees, including the amount of any incremental License Fees that would be owed. Unless disputed by LICENSEE within thirty (30) days, the Reassessment shall be deemed correct and LICENSEE’s Licensed Uses and Fee Calculations, and associated License Fees shall be adjusted accordingly.
   4. LICENSEE has the right to dispute the Reassessment by contacting BMI by telephone or in writing in accordance with Section 15, prior to the expiration of the period described in Section 8(c), and providing a detailed description of LICENSEE’s bona fide disagreement as to the accuracy of the Reassessment. LICENSEE shall use good faith reasonable efforts to cooperate with BMI and promptly resolve such dispute, including by providing BMI with any information and documentation that BMI may reasonably request. In the event LICENSEE and BMI are unable to resolve such dispute, the parties have the right to seek resolution through arbitration pursuant to Section 14. For the avoidance of doubt, LICENSEE agrees to promptly pay to BMI License Fees as adjusted to reflect the result of the Reassessment following BMI’s notice of Reassessment while the parties attempt to resolve such dispute. Any incremental license fees that are determined in arbitration, or that have been agreed by the parties in writing, to have been incorrectly paid shall be promptly refunded to LICENSEE or paid to BMI.
   5. LICENSEE agrees that any incremental License Fees that would be owed as a result of any adjustment described above must be paid to BMI within thirty (30) days of BMI’s notice of Reassessment. BMI has the right to, but is not obligated, to charge any incremental License Fees that would be owed as a result of any adjustment described above to LICENSEE using any payment instrument which LICENSEE has stored with BMI. Furthermore, BMI has the right to, but is not obligated to, charge such incremental License Fees outside any otherwise agreed billing period as a one-time payment using any of LICENSEE’s stored payment instruments. If BMI does not receive the incremental License Fees within thirty (30) days of BMI’s notice of Reassessment, then LICENSEE shall incur a late payment charge on such incremental License Fees of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, calculated from the date(s) such incremental License Fees should have been paid pursuant to the Agreement as determined in the Reassessment.
   6. Without limiting the foregoing, LICENSEE shall promptly provide BMI with written notice of any change in the Licensee Profile and/or the Licensed Uses and Fee Calculations, and any other relevant information that BMI may reasonably request regarding such change. If LICENSEE believes such change in Licensee Profile and/or the Licensed Uses and Fee Calculations should result in a decrease of License Fees, LICENSEE can request a reassessment of License Fees by BMI (“LICENSEE Requested Reassessment”). LICENSEE shall provide a detailed description of LICENSEE’s bona fide rationale for requesting a LICENSEE Requested Reassessment, including providing any information and documentation that BMI may reasonably request. LICENSEE has the right to request a LICENSEE Requested Reassessment up to two (2) times within any twelve (12) month period. For purposes of this Agreement, a LICENSEE’s Licensee Profile and/or Licensed Uses and Fee Calculations shall be in effect for at least thirty (30) days prior to a LICENSEE Requested Reassessment being considered by BMI. Upon any such change in a Licensed Uses and Fee Calculations resulting in an increase in the applicable License Fees, LICENSEE agrees to pay BMI the increased License Fees, effective as of the initial date of such change, whether or not LICENSEE has provided written notice of such change.

8. REPRESENTATIONS, WARRANTIES, AND ACKNOWLEDGEMENTS

   1. LICENSEE understands and acknowledges that BMI has relied on the accuracy and completeness of the information provided by LICENSEE in Licensee Profile and the Licensed Uses and Fee Calculations and the other schedules in agreeing to the terms of this Agreement, including the License Fees. LICENSEE represents, warrants, and covenants that the information provided by it in the Licensee Profile and the Licensed Uses and Fee Calculations is true and correct and does not omit any material facts that would be necessary to make such information not misleading. LICENSEE represents, warrants, and covenants to BMI that throughout each term of this Agreement LICENSEE will ensure its Licensee Profile, and all information necessary for calculating License Fees, is accurate and current, and LICENSEE will promptly notify BMI of any changes.
   2. To the extent that LICENSEE engages in activities at the Licensed Premises that require BMI music licensing that is not granted under this Agreement, LICENSEE will inform BMI of such activities and acquire a License for such additional activities or modify or convert the Agreement with respect to the applicable Licensed Use to BMI’s current music performance license terms for the Licensed Use as appropriate for LICENSEE’s particular music uses.
   3. LICENSEE represents and warrants to BMI that (i) it has the requisite right, power, and authority to execute and perform this Agreement, including, if LICENSEE is deemed to include other legal entities, to bind each such other legal entity to the terms and conditions of this Agreement; (ii) its execution and performance of this Agreement have been duly authorized; (iii) upon execution of this Agreement (including via electronic signature or clicking on the box or button indicating acceptance of this agreement or other electronic evidence of affirmative acceptance), this Agreement will constitute the valid and binding obligation of, and is enforceable by BMI against, LICENSEE (and, if applicable, each such other entity which LICENSEE has been deemed to include) in accordance with its terms; and (iv) that the execution and performance of this Agreement is not barred, prohibited, or impaired by any existing law, rule, regulation, court or administrative order, decree, contract, or agreement to which the LICENSEE (and, if applicable, each other entity which LICENSEE has been deemed to include) is now a party or by which it is bound.
   4. LICENSEE acknowledges that BMI has the right, to modify this Agreement from time to time. Any modification to this Agreement other than a material modification that applies to LICENSEE shall become effective upon BMI’s notification to LICENSEE. A material modification to this Agreement, which shall include any change to the License Fees not expressly contemplated by the applicable Licensed Uses and Fee Calculations, shall become effective thirty (30) days following BMI’s notification to LICENSEE unless otherwise stated. If a change is a material modification and that material modification applies to LICENSEE, then LICENSEE shall have the right to terminate this Agreement within thirty (30) days following BMI’s notification to LICENSEE, if LICENSEE does not agree with any modification. For the avoidance of doubt, LICENSEE waives such right to terminate if not exercised within such period. A change which is not material or does not apply to LICENSEE does not create a right of termination for LICENSEE. In addition, BMI is not required to provide notice to LICENSEE of any modifications to this Agreement that do not apply to LICENSEE’s Licensed Use(s). Unilateral modifications made under this Paragraph shall not retroactively apply to disputes between the Parties that arose prior to the date on which notification of the modifications was provided by BMI to LICENSEE.

9. INDEMNITY

   1. BMI agrees to indemnify, hold harmless, and defend LICENSEE and its officers and employees (the “LICENSEE Indemnified Parties”) from and against any and all claims, demands, or suits (“Claims”) alleging copyright infringement, solely with respect to LICENSEE’s public performance during the Term of BMI Works as licensed hereunder, that may be brought against LICENSEE or any of them. LICENSEE agrees to give BMI prompt notice of any such Claim by Certified Registered Mail with Return Receipt Requested or overnight courier as provided in Section 15(a), deliver to BMI any communications and documents pertaining to such Claim, and cooperate with BMI with respect to such Claim, and BMI shall have full charge of the defense of any such Claim. Failure to give immediate notice will not relieve a party of indemnification obligations unless the indemnifying party is materially prejudiced by such failure. LICENSEE represents and warrants to BMI that it is not currently aware of any Claims threatened against LICENSEE in connection with the performance of BMI Works prior to the Execution Date of this Agreement, nor is LICENSEE aware of any facts or circumstances that would serve as a basis for such a Claim. This indemnity shall be limited to the public performance rights in musical works which are licensed by BMI at the time of LICENSEE’s performances. This indemnity shall not apply to public performances of a musical work after written request from BMI that LICENSEE refrain from performance of such musical work pursuant to Section 4. BMI will, upon reasonable written request, advise LICENSEE whether particular musical works are available for performance as part of BMI’s repertoire, if LICENSEE provides the title and the writer/composer of each music work requested to be identified. LICENSEE’s right to indemnification hereunder shall survive termination or expiration of this Agreement so long as this Agreement was not terminated by BMI for LICENSEE’s breach of this Agreement prior to BMI receiving the notice of an indemnified claim from LICENSEE.
   2. LICENSEE agrees to indemnify, save harmless, and defend BMI and its affiliates and its and their officers and employees (the “BMI Indemnified Parties”) from and against any and all Claims based upon or in connection with (i) any actual or alleged breach of LICENSEE’s representations, warranties, and covenants contained in this Agreement and (ii) the Licensed Premises, other than any Claim based upon LICENSEE’s public performance during the Term of BMI Works as licensed hereunder. BMI agrees to give LICENSEE immediate notice of any such Claim, deliver to LICENSEE any communications and documents pertaining thereto, and cooperate with LICENSEE with respect thereto, and LICENSEE shall have full charge of the defense of any such Claim, provided, however, that each BMI Indemnified Party has the right to participate, at its own expense, in the defense and/or settlement of any such Claim or action in order to protect its own interests. Any settlement of the Claims against BMI by LICENSEE must include an unconditional release of the BMI Indemnified Parties in respect of any such Claim, and LICENSEE may not enter into a settlement affecting the financial or legal obligations of any BMI Indemnified Party without such BMI Indemnified Party’s prior written consent. BMI Indemnified Parties right to indemnification shall survive termination or expiration of this Agreement.

10. BREACH OR DEFAULT/WAIVER

    BMI has the right to terminate this Agreement, effective as of the date of BMI’s first notice to LICENSEE of a breach of any term under this Agreement, provided that such termination shall not be effective if LICENSEE cures the breach within thirty (30) days after receiving the first notice from BMI (such thirty (30) day period, the “Cure Period”). Notices of breach pursuant to this Section may be sent by BMI via mail, email, the Licensee Portal, and/or text to LICENSEE. No waiver by BMI of full performance of this Agreement in any one or more instances shall be a waiver of the right to require full and complete performance of this Agreement for the remainder of the Term.

11. TEMPORARY LICENSE SUSPENSION

    1. If LICENSEE temporarily discontinues the use of all music and LICENSEE validly notifies BMI that LICENSEE would like to suspend its Agreement, BMI will prospectively cease billing License Fees (a “Suspension”) during the period of such Suspension (a “Suspension Period”).
    2. The Suspension Period shall end automatically at the earliest of (i) the Suspension Period’s end date provided by LICENSEE at the time LICENSEE requested the Suspension; (ii) upon subsequent notice from LICENSEE to BMI that the Suspension Period should end and LICENSEE is resuming use of BMI Works; and (iii) upon determination by BMI that LICENSEE has resumed the use of music under this Agreement pursuant to any review permitted under Section 8.
    3. If, during the Suspension Period, the Term expires, the Agreement shall automatically renew for a subsequent Term notwithstanding the Suspension unless LICENSEE has terminated the Agreement in accordance with Section 13. Upon the end of the Suspension Period, LICENSEE shall be obligated to resume License Fee payments, recurring or otherwise, at the then-current License Fee rates provided by BMI. If, during the Term that included the Suspension Period, LICENSEE failed to make payments of at least the Annual Minimum Fee applicable in the Licensed Uses and Fee Calculations, then in addition to all other fees due, LICENSEE shall be obligated to immediately pay BMI the difference between the Annual Minimum Fee and the actual payments made during that Term.
    4. LICENSEE may be granted a Suspension no more than two (2) times per Term, unless agreed to by BMI.

12. TERM; TERMINATION

    1. The “Term” shall mean, in respect to each Licensed Use, the period that begins on the effective date set forth for such Licensed Use in the applicable Licensed Uses and Fee Calculations and, unless and until the Agreement is terminated in accordance with the provisions of this Agreement, continues through the expiration date set forth in the Licensed Uses and Fee Calculations. Thereafter, the Term automatically renews for the duration stated in the Licensed Uses and Fee Calculations (the initial period and each such renewal period sometimes referred to as a “Term”). Either party has the right to terminate the Term (for all uses under this Agreement or with respect to any specific Licensed Use) effective as of the end of any Term upon prior written notice, including through the Licensee Portal, to the other party no later than one (1) day prior to the end of such Term, subject to Section 9(d).
    2. If LICENSEE permanently ceases operation of any of the Licensed Premises, this Agreement will end with respect to that Licensed Premises. LICENSEE shall give written notice of such cessation to BMI, stating the effective date that the Licensed Premises ceased operation, and if applicable, the name of the new owner/operator of the location. If calculation of the License Fees is dependent on the number of Licensed Premises, BMI will adjust LICENSEE’s fees from the end of the last day of the month in which LICENSEE provided such written notice of cessation and refund to LICENSEE any unearned license fees that have already been paid hereunder. LICENSEE’s adjustment hereunder shall not reduce LICENSEE’s License Fees due to BMI below the Annual Minimum Fee applicable under the Agreement and disclosed in the Licensed Uses and Fee Calculation.
    3. If LICENSEE permanently ceases operation of all the Licensed Premises or otherwise permanently discontinues the use of music via the Licensed Uses, LICENSEE has the right to terminate this Agreement upon written notice to BMI.
    4. BMI has the right to terminate this Agreement along with the simultaneous termination of the agreements of all other licensees of the same class and category as LICENSEE, as of the end of any month during the Term, upon thirty (30) days’ advance written notice.
    5. Upon any termination or expiration of this Agreement for any reason, the license granted by BMI herein shall immediately terminate. Any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement (including BMI’s examination rights under Section 8, LICENSEE’s obligation to pay license fees for prior terms and any corresponding late fees, BMI’s obligation to indemnify LICENSEE pursuant to Section 10 where the Agreement was not canceled by BMI for LICENSEE’s breach, and LICENSEE’s obligation to indemnify BMI pursuant to Section 10), will survive any such termination or expiration.
    6. BMI’s termination rights shall be in addition to any other remedies BMI may have at law or in equity.

13. ARBITRATION

    All disputes of any kind, nature, or description arising in connection with the terms and conditions of this Agreement, except for matters exclusively in the jurisdiction of Southern District of New York pursuant to the BMI Consent Decree, shall be submitted to the American Arbitration Association in the City, County, and State of New York, for arbitration under its then prevailing arbitration rules. The arbitrator(s) are 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 a third arbitrator, then either party has the right to, 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 judgment may be entered in any court having jurisdiction. Such award shall include the fixing of the costs, expenses, and attorneys’ fees of arbitration, which shall be borne by the unsuccessful party. Arbitration proceedings shall be confidential.

14. NOTICES; CUSTOMER COMMUNICATIONS; ELECTRONIC SUBMISSIONS

    1. Except as specified in Paragraph 10(a) any notices and other communications under this Agreement from LICENSEE to BMI may be submitted via the Licensee Portal. Notices pursuant to Paragraph 10(a) and any notices not submitted to BMI via the Licensee Portal must be sent by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service to:
       
       Attention: Vice President, Licensing Department
       Broadcast Music, LLC
       10 Music Square East, Nashville, TN 37203
       
       With a separate copy to: Senior Vice President and General Counsel (sent to the address above)
       .(JavaScript must be enabled to view this email address)
       
       Any properly given notice will be deemed given upon receipt by BMI.
    2. All notices and other communications under this Agreement from BMI to LICENSEE shall be delivered in electronic format via posting to the Licensee Portal or sending to the email address on record with BMI, provided that LICENSEE has not withdrawn its consent to receive documents in electronic form in accordance with our ESIGN Act Disclosure, in which case such notices and other communications shall be delivered via mail to the mailing address on record with BMI.
    3. LICENSEE hereby consents to receiving pre-recorded telephone messages and SMS texts, emails and other electronic communications from BMI.
    4. BMI PROVIDES ITS LICENSEES WITH THE ABILITY TO ENTER INTO AGREEMENTS AND TO MAKE TRANSACTIONS, INCLUDING PURCHASING LICENSES AND MAKING ELECTIONS AND CHANGES TO ACCOUNTS, ELECTRONICALLY VIA THE LICENSEE PORTAL. BOTH THE SIGNATORY AND LICENSEE ACKNOWLEDGE AND AGREE THAT ELECTRONIC SUBMISSIONS VIA THE LICENSEE PORTAL CONSTITUTE EACH OF THEIR AGREEMENT AND INTENT TO BE BOUND BY SUCH SUBMISSIONS, INCLUDING TO THE TERMS OF THIS AGREEMENT AND THE OBLIGATION TO PAY ALL LICENSE FEES AND OTHER APPLICABLE AMOUNTS PAYABLE. IN ADDITION, SUCH AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS BETWEEN THE PARTIES IN CONNECTION WITH BMI’S LICENSING OF PERFORMING RIGHTS AND THE EXECUTION AND ADMINISTRATION OF THIS AGREEMENT, INCLUDING, TO THE FULL EXTENT ALLOWED BY LAW, ALL ELECTRONIC COMMUNICATIONS PROVIDED BY BMI TO THE SIGNATORY AND LICENSEE (WHETHER BY POSTING IN THE LICENSEE PORTAL OR OTHERWISE), WHICH MAY INCLUDE NOTICES, DISCLOSURES, POLICIES, CONTRACTS, AMENDMENTS AND MODIFICATIONS TO THIS AGREEMENT, NOTICES ABOUT APPLICABLE FEES, CHARGES AND PRICE CHANGES, TRANSACTIONAL INFORMATION, AND OTHER INFORMATION CONCERNING OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR LICENSEE’S ACCOUNT. BOTH THE SIGNATORY AND LICENSEE AGREE THAT SUCH ELECTRONIC COMMUNICATIONS CONSTITUTE VALID NOTICE TO LICENSEE HEREUNDER AND SATISFY ANY LEGAL COMMUNICATIONS REQUIREMENTS, INCLUDING THAT SUCH COMMUNICATIONS BE IN WRITING. ACCORDINGLY, SIGNATORY AND LICENSEE SHOULD MAINTAIN COPIES OF ELECTRONIC COMMUNICATIONS BY PRINTING A PAPER COPY OR SAVING AN ELECTRONIC COPY.

15. MISCELLANEOUS

    1. LICENSEE is not permitted to use the name, service marks or trademarks, logos, or otherwise identify or refer to BMI or any of its affiliates in the public domain (including in any press releases, press conferences, publicity, marketing or promotional material, or other media) without the prior written consent of BMI, in its sole discretion, in each instance.
    2. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement cannot be waived or added to or modified orally. Except as expressly provided for herein or in the Licensee Portal, including, for the avoidance of doubt, BMI’s ability to revise license fee rates and adjust Licensee’s License Fees in accordance with Sections 5, and 8, no waiver, addition, or modification shall be valid unless in writing and signed (including via electronic signature or clicking “OK” or other electronic evidence of affirmative acceptance) by the parties.
    3. LICENSEE does not have the right to assign or transfer this Agreement or any rights or obligations under the Agreement without the written consent of BMI, except that LICENSEE has the right to assign the Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to BMI. Any other attempt to transfer or assign shall be void ab initio. BMI shall have the right to assign or transfer this Agreement freely.
    4. This Agreement, its validity, construction, and effect, shall be governed by the laws of the State of New York, without regard to choice of law rules, unless prohibited by law, and, subject to Section 14, LICENSEE specifically agrees and submits to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise.
    5. The parties to this Agreement agree that any applicable law that would require interpretation of any claimed ambiguities in this Agreement against BMI, the party that drafted it, has no application and is expressly waived. If any claim is made by a party relating to any conflict, omission, or ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will be implied because this Agreement was prepared by BMI. If a court of competent jurisdiction holds that any provision herein is void or unenforceable, such provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties, and such holding shall not affect the validity or enforceability of any other provisions.
    6. Each party is an independent commercial party whose obligations to each other are limited to those set forth in this Agreement and each party’s personnel are not employees or agents of the other party for federal, state, or other tax purposes or any other purposes whatsoever. Personnel of one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to, or otherwise recognize a joint venture, partnership, or business entity of any kind, or constitute one party an agent of the other party. There are no third-party beneficiaries, actual or intended, pursuant to this Agreement.
    7. All headings in this Agreement are for the purpose of convenience and shall not be considered to be part of this Agreement. The terms “include” or “includes” and “including” mean “include(s) but are not limited to” and “including but not limited to” respectively and are to be construed as inclusive, not exclusive.

16. LOCALE SPECIFIC REQUIREMENTS

    1. OKLAHOMA RATE CHANGE NOTICE. If LICENSEE’s Licensed Premises is located in the State of Oklahoma, BMI shall notify LICENSEE of any rate change at least thirty (30) days prior to the expiration date of the Agreement.
    2. COLORADO 3 BUSINESS DAY REVIEW. If LICENSEE’s Licensed Premises is located in the State of Colorado, LICENSEE shall have the right to rescind the Agreement for a period of three (3) business days after execution of the Agreement.

17. LICENSE FOR AIRCRAFT AND ASSOCIATED MUSIC SERVICE AND AUDIO-VISUAL PROGRAMMING

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Aircraft”, “Aircraft Music Service”, “Aircraft Music Service Audio-Visual Programming Only”, or “Aircraft Audio-Visual Programming Only”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Music Service” shall mean the Music Programming and/or Audio-Visual Programming the LICENSEE provides to airline companies for public performance in Serviced Aircraft.
       2. “Licensed Premises” shall include any Serviced Aircraft while Serviced Aircraft are in the air, while passengers are boarding and disembarking from Serviced Aircraft, or while passengers are seated when Serviced Aircraft are on the ground.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works only on domestic flights over and to and from the Territory, and on international flights originating or terminating in the Territory, to the extent that BMI has the right to license such performances outside of the Territory.
       2. Except as specifically permitted as a Licensed Use, this Agreement does not include the right to perform BMI Works hereunder:
          1. in association with advertising or commercial announcements of any kind or nature, except only LICENSEE’s recordings which are utilized in the Music Service programming; or
          2. within any airport terminal buildings.
    4. Fees. The Fees and Payment terms set forth in Section 5 in respect of this Licensed Use are further modified by:
       1. LICENSEE agrees to pay BMI for all of each airline companies’ Serviced Aircraft utilizing LICENSEE’s Music Service for each month of the Term.
       2. BMI and LICENSEE acknowledge and agree that no fees will be due for any Serviced Aircraft during any period exceeding one (1) month during which such Serviced Aircraft are not in revenue service (e.g. while such Serviced Aircraft are being repaired or serviced).

18. LICENSE FOR AMUSEMENT / THEME PARKS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Amusement / Theme Parks”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works during the Term solely in the Licensed Premises, which shall be LICENSEE’s amusement or theme park, provided that:
          1. In the event that LICENSEE performs the music licensed hereunder outside of the Licensed Premises for purposes of public relations for the Licensed Premises, this Agreement shall include the right to perform BMI Works at such other place for such purpose, whether or not such other place is licensed by BMI, as long as no direct or indirect monetary charge is imposed for such public relations performances. However, the extension of this Agreement to such outside place shall not be interpreted to permit the exercise of any of the rights which are excluded by Section 2.
          2. This Agreement does not include the right to perform BMI Works in any hotel or motel situated within the area of the Licensed Premises, whether or not such hotel is owned or operated by LICENSEE.
       2. This Agreement does not include the right to perform BMI Works from sources originating outside of the Licensed Premises, except that if LICENSEE is a subscriber to a commercial subscription music service which is licensed by BMI, then only this Agreement shall provide the right to perform BMI Works on the Licensed Premises music which is provided to LICENSEE by such subscription music service.

19. LICENSE FOR BUSINESS MULTIPLE USE

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Business Multiple Use”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Executive or general office” shall mean a location where LICENSEE conducts its managerial or administrative functions.
       2. “Industrial facility” shall mean a premises used for manufacturing plant or warehouse and related purposes.
       3. “Licensed Premises” shall mean each premises operated and owned or leased by LICENSEE or LICENSEE’s subsidiaries which is used primarily as an Executive or general office or as an Industrial facility as listed in the Licensee Profile or Licensed Uses and Fee Calculations. Licensed Premises shall specifically exclude:
          1. any retail establishment owned or leased by LICENSEE;
          2. any location which is used by LICENSEE for a trade show, convention or exposition; and
          3. any hospital or similar facility.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works:
          1. at Off-Site Locations;
          2. by means of Music-on-hold through LICENSEE’s telephone system at the Licensed Premises and shall authorize LICENSEE to transmit such performances to persons connected to the Licensed Premises by telephone;
          3. as Live Music or Recorded Background Music;
          4. in LICENSEE’s fitness and aerobics facilities;
          5. in audiovisual presentations in LICENSEE’s business meetings;
          6. over LICENSEE’s teleconferencing at the Licensed Premises;
          7. in television and radio programming received by LICENSEE at the Licensed Premises; and
          8. through LICENSEE’s performances of music by interactive software, whether (i) delivered by media such as CD-ROM, CD-I, diskette or cartridge, or (ii) rendered by multimedia hardware, such as computer-driven handheld devices.
       2. This Agreement does not include the right to perform BMI Works by interactive transmissions delivered by online service, such as interactive cable, interactive TV, computer network, telephone or satellite.

20. LICENSE FOR COFFEE SHOPS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Coffee Shops”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Licensed Premises” shall mean LICENSEE’s coffee shop location that has a total Occupancy of not more than fifty (50) persons, does not serve alcoholic beverages, and primarily sells coffee, beverages and snacks.

21. LICENSE FOR COLLEGE UNIVERSITY

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “College University One Tier”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “LICENSEE” as used herein shall include the named institution and any of its constituent bodies, agencies, or organizations which maintain a substantial nexus to the named institution and/or over which the named institution has control or authority, including, but not limited to, fraternities, sororities, social clubs, and other organizations located on or off the LICENSEE’s campus.
       2. “Orchestra” shall mean a college orchestra, which consists primarily of student performers who may be augmented by faculty, staff, or other musicians. The Orchestra is offered by the institution to further education in music, including training musicians for professional careers, or to better their general musical skills. The Orchestra staff is employed by the college or school, which also has ultimate fiscal responsibility for the Orchestra, and is governed by the institution, a college based steering committee or other similar body, and not a separate board of directors independent from the college or school.
       3. “Licensed Premises” shall include LICENSEE’s campus(es) and any site located off LICENSEE’s campus(es) which has been engaged for use by LICENSEE, including, but not limited to, those locations where college groups such as bands or choruses perform as part of their nonprofit, community outreach and educational activities, provided that such events are not promoted or sponsored by a third party.
       4. “Full-time Students” as used herein shall be the sum of:
          1. all full-time undergraduate and graduate students and
          2. one-third of all part-time undergraduate and graduate students.
          3. If, during the Term of this Agreement, the method of converting part-time students to a full-time equivalency is changed from the Integrated Postsecondary Education Data System (IPEDS) or any superseding survey conducted annually by the U.S. Department of Education, such different method of conversion shall be deemed substituted as of the effective Fall academic term. For a Term that spans multiple calendar years, the number of Full-time Students as for all covered branch campuses shall be reported for the Fall academic term of the Term upon execution of this Agreement.
       5. “Base Student Fee” shall be as defined in the Licensed Uses and Fee Calculations.
       6. “Total Base Student Fee” shall mean the Base Student Fee in any Term multiplied by the number of Full-Time Students in that Term. In no event shall the Total Base Student Fee for any Term be less than the Minimum Annual Total Base Student Fee.
       7. “Campus Radio Station” shall mean and be limited to a non-commercial educational radio station that is not affiliated with NPR.
       8. “Total Campus Radio Station Fee” shall mean the total number of Campus Radio Stations multiplied by the Compulsory Rate outlined in the Licensed Uses and Fee Calculations.
       9. “Cable System” shall mean each Cable Television System operated by LICENSEE on which Locally Originated Programming only is performed.
       10. “Total Cable System Fee” shall be calculated by multiplying the total number of Full-time Students by the Per Student Cable System Fee.
       11. “Internet Transmissions” shall mean all transmissions of content over the Internet to individuals who access such transmissions from LICENSEE’s Website(s) and receive such transmissions via a personal computer or other device capable of receiving such transmissions.
       12. “LICENSEE’s Cable Television System” shall mean a cable television system, system of closed circuit distribution, MMDS, internet, broadband, including any linear feed via the Internet, broadband or other online service or other means of distribution which is owned and operated by LICENSEE and by which LICENSEE transmits Locally Originated Programming on LICENSEE’s campus, except that it shall not include free over- the-air broadcast television.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. BMI hereby grants to LICENSEE for the Term of this Agreement a non-exclusive, non-transferrable, non-assignable, non-sublicensable license to perform or cause and permit the public performance of BMI Works by live or recorded means at LICENSEE’s Licensed Premises or by means of Internet Transmissions or Intranet Transmissions in the Territory, including, but not limited to the right to perform BMI Works:
          1. by or at sporting events, student unions, classrooms, fraternities/sororities, socials, college theater groups, fairs/festivals, college orchestras, Music Attractions, fitness centers, athletic facilities, student bands, Campus Radio Broadcasting Stations, special events such as orientation and graduation;
          2. by means of Music-on-hold through LICENSEE’s telephone system at the Licensed Premises and shall authorize LICENSEE to transmit such performances to persons connected to the Licensed Premises by telephone;
          3. on LICENSEE’s Website(s), including webcasts of Campus Radio Broadcasting Stations, and LICENSEE’s Cable Television System, with respect to Locally Originated Programming only.
       2. This Agreement does not include the right to perform BMI Works:
          1. via any form of televised transmission, whether over-the-air broadcast, cable, satellite or otherwise, except via (i) LICENSEE’s Website(s), unless via a Website subject to the limitations in Section 22(d) below; (ii) LICENSEE’s Intranet Transmissions; or (iii) LICENSEE’s Cable Television System, with respect to Locally Originated Programming only;
          2. as part of Music Attractions on the Licensed Premises promoted by outside promoters (which shall mean any person or entity other than LICENSEE);
          3. as part of Music Attractions occurring outside of the Licensed Premises, except as part of community outreach and educational activities; or
          4. via commercial radio stations.
       3. This Agreement does not include the right to perform BMI Works at any establishment or property in which LICENSEE has a pecuniary interest in the establishment or property which is not directly related to LICENSEE’s educational purposes or where the intended primary purpose of such establishment or property is not for the use of LICENSEE’s students (e.g. a university related hospital or healthcare institution, other than a college/university infirmary used exclusively by students), at which establishment or property musical compositions are being performed publicly for purposes other than community outreach or education.
       4. Representations, Warranties and Acknowledgements. The Representations, Warranties and Acknowledgements terms set forth in Section 9 in respect of this Licensed Use are further modified as follows:
       5. The foregoing license grant in respect of LICENSEE’s Website(s) is subject to the accuracy of and compliance with the following representations, warranties and covenants:
          1. LICENSEE shall provide BMI with an updated list of URLs annually upon submitting its annual report.
          2. LICENSEE represents and warrants that each such Website is generally educational in nature or otherwise operated for the primary purpose of promoting the school and its resources to current and prospective students, faculty, staff, alumni, and the school community.
          3. LICENSEE further warrants and represents that, in the event that LICENSEE has a pecuniary interest in a Website which is not related to LICENSEE’s educational or promotional purposes or where the intended primary purpose of such Website is not for the use of LICENSEE’s current or prospective students, faculty, staff, alumni, or the school community, it is specifically understood and agreed to by LICENSEE that, unless specifically permitted by the Licensed Uses and Fee Calculations, this Agreement does not include the right to perform BMI Works on such Website(s).

22. LICENSE FOR CONCERT BAND WIND ENSEMBLE

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Concert Band Wind Ensemble”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Concert(s)” shall mean and be restricted to a musical performance or similar event given by an Orchestra or Concert Band/Wind Ensemble/Symphonic Band in the Territory.
       2. “Concert Band/Wind Ensemble/Symphonic Band” shall mean and be restricted to the LICENSEE, which, as of the date of this agreement, is described as one of the following: Concert Band, Wind Ensemble, Symphonic Band, or Wind Symphony Orchestra.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. BMI hereby grants to LICENSEE for the Term of this Agreement a non-exclusive, non-transferable, non-assignable, non-sublicensable license to perform or cause and permit the public performance, in Concerts presented before an audience physically present at the time of performance, of BMI Works.
       2. It is specifically understood that this Agreement does not include any rights other than those expressly provided for above in this Section and, without in any way limiting the generality of this sentence, this Agreement does not include the right to perform any BMI Works in a concert/classical work (as such terms are commonly understood) which have not previously been publicly performed in the Territory, unless written permission to perform such work is first secured from the publisher, composer or copyright proprietor and written notice thereof is given to BMI.

23. LICENSE FOR CRUISE SHIP

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Cruise Ship”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Licensed Premises” shall include each passenger cruise vessel owned, operated, or represented by LICENSEE, as listed in the Licensee Profile or Licensed Uses and Fee Calculations, which list may be amended by LICENSEE from time to time to add or delete an individual Licensed Premises. In the event LICENSEE licenses more than one Licensed Premises hereunder, all of the terms and conditions of this Agreement, including, but not limited to, the Licensed Uses and Fee Calculations, shall apply separately and distinctly to each of the Licensed Premises. LICENSEE shall delete one or more individual Licensed Premises only upon the occurrence of an event set forth in Section 24(d) below.
       2. “Live Music and Entertainment Costs”
          1. shall include:
             1. only one-half the cost of transportation to and from a Licensed Premises of a crew member providing entertainment services hereunder;
             2. credit, exchanges, barters, and other forms of payment in lieu of specific sum payments in order to provide entertainment services on board the Licensed Premises, which LICENSEE shall report at the fair market value thereof.
          2. shall exclude any fees paid by LICENSEE to an independent contractor(s) for the live music and entertainment costs if: (1) LICENSEE notifies BMI at the time of its reports that the independent contractor claims it has paid fees to BMI for the public performance of live music on LICENSEE’s Licensed Premises licensed hereunder, and (2) those fees have been paid.
    3. Reporting. The Reporting terms set forth in Section 6 in respect of this Licensed Use are further modified by:
       1. LICENSEE shall report its total Live Music and Entertainment Costs for all Licensed Premises as reported to BMI during the Term on one of the following bases, as LICENSEE elects:
          1. allocated equally to each Licensed Premises;
          2. allocated to each Licensed Premises according to the number of cabins on each such Licensed Premises; or
          3. according to the actual costs of each such Licensed Premises.
    4. Termination. The Termination terms set forth in Section 13 in respect of this Licensed Use are further modified as follows:
       1. If during the Term LICENSEE shall cease to operate a Licensed Premises, whether by reason of sale or lease thereof, or otherwise, this Agreement and the obligation of LICENSEE to BMI shall thereupon terminate as to such Licensed Premises; provided, however, that LICENSEE shall, within ten (10) days thereafter, give written notice of such termination to BMI, setting forth the effective date thereof and the name of any vendee or lessee of the Licensed Premises, as the case may be, and that LICENSEE shall pay to BMI all fees due hereunder until said date.

24. LICENSE FOR DANCE CLASSES

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Dance Classes”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Background Music” shall mean recorded music, whether vocal or instrumental, designed to be used as an unobtrusive accompaniment to routine activities, including, but not limited to, conversation and relaxation, as long as such music is not intended to accompany non-instructional dancing or any other type of entertainment.
       2. “Background Use” shall mean the performance of recorded Background Music on the licensed premises adjacent to or outside of the studio.
       3. “Instructional Use” shall mean the performance of recorded music in a designated area on the LICENSEE’s Licensed Premises (the “studio”) for use during dance instruction including, but not limited to, classes in social dancing, ballroom dancing, jazz dancing, tap dancing, square dancing, modern dancing, and ballet, as those terms are commonly understood in the dance profession.

25. LICENSE FOR DANCE CLASSES (20-999 LOCATIONS)

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Dance Classes (20-999 Locations)”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works through recorded music in designated instructional area(s) (the “studio”) on each Licensed Premises, as long as LICENSEE is engaged in operating between 20 and 999 separate Licensed Premises where recorded music not otherwise licensed by BMI is performed, for use during athletic classes and instruction, including, but not limited to, classes in aerobics, gymnastics, slimnastics, social dancing, ballroom dancing, jazz dancing, tap dancing, square dancing, modern dancing, and ballet, as those terms are commonly understood in the dance profession.
       2. This Agreement includes the right to perform BMI Works through recorded background music at the Licensed Premises adjacent to or outside of the studio.
       3. This Agreement includes the right to perform BMI Works through incidental live or recorded music at the Licensed Premises for promotional social dances and for dance recitals by students and instructors, as long as no admission fee is charged.
       4. This Agreement includes the right to perform BMI Works at each Licensed Premises as of the day on which music is first performed at such Licensed Premises, as long as payment for and reporting of that Licensed Premises is made as required.
       5. This Agreement does not include the right to perform BMI Works outside the perimeter of the Licensed Premises into any area not owned and/or controlled by LICENSEE.
       6. In no event, however, shall this Agreement include the right to perform BMI Works in any restaurant, cocktail lounge, nightclub, bar or other similar facility which may be a part of any Licensed Premises.
    3. Representations, Warranties and Acknowledgements. The Representations, Warranties and Acknowledgements terms set forth in Section 9 in respect of this Licensed Use are further modified as follows:
       1. LICENSEE hereby warrants and represents that, as of the beginning of each Term, LICENSEE operates between twenty (20) and nine hundred and ninety-nine (999) Licensed Premises.
    4. Fees and Payment. The Fees and Payment terms set forth in Section 5 in respect of this Licensed Use are further modified by:
       1. For purposes of calculating the License Fee, all additions to and deletions from the list of Licensed Premises shall be deemed to be effective on the last day of the contract Term in which they occurred, and each annual payment shall reflect those additions and deletions which occurred during the previous Term.
    5. Review of Information. The Review of Information Terms set forth in Section 8 in respect of this Licensed Use are further modified as follows:
       1. If any report submitted by LICENSEE reflects that LICENSEE operated less than twenty (20) Licensed Premises or more than nine hundred ninety-nine (999) Licensed Premises during the previous Term, then BMI shall adjust the Licensed Uses and Fee Calculations in accordance with Section 8(a)(ii).

26. LICENSE FOR DIGITAL JUKEBOX

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Digital Jukebox”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Attract Mode” shall mean the occasional performance of BMI Works, or portions of BMI Works, on a free, promotional basis, intended solely to attract consumers’ attention to the presence of the Digital Jukebox.
       2. “Distribution System” shall mean the system by which LICENSEE electronically transmits Sound Recordings to Digital Jukeboxes as it may be configured by LICENSEE from time-to-time during the Term and by means of which music is publicly performed by Digital Jukeboxes in Licensed Premises.
       3. “Digital Jukebox” shall mean each of LICENSEE’s Digital Jukeboxes operating within the Territory which (A) employs a medium upon which digital phonorecords are stored and played, including, but not limited to, a hard drive for the storage of phonorecords or recorded musical compositions; (B) in response to insertion of coins, currency, tokens, or other monetary units or their equivalent, including but not limited to credit cards and debit cards (or in response to free play instructions, for instance, when the Digital Jukebox is in Attract Mode) makes non-dramatic performances of musical works which are selected from the works available on such digital jukebox by the patrons of the Licensed Premises in which it is located (or, with respect to free play in Attract Mode programmed or randomized other than by patrons); (C) allows the Digital Jukebox to play recorded background music as programmed by LICENSEE for each Digital Jukebox, pursuant to a subscription fee paid by each individual Licensed Premises, which may request different genres of music; and (D) permits advertising to be displayed on the Digital Jukebox, but not in any way to suggest that any artist or any song is endorsing or is endorsed by any advertiser. As used in this Agreement “operating” shall mean a digital jukebox which has generated revenue within the last sixty (60) days.
       4. “Licensed Premises” shall mean the establishment in which LICENSEE’s Digital Jukebox is placed for operation which does not have an Admission Charge/Cover Charge and does not utilize the Digital Jukebox as an accompaniment to live entertainment including, but not limited to, adult dancers or other dance performances.
       5. “Indirect Charge for Admission” shall mean any expectation on the part of the Licensed Premises that payment must be made by a patron to remain within the Licensed Premises, or any portion of the Licensed Premises, including, but not limited to, an admission fee, cover charge, minimum purchase requirement, mandatory tipping, or ticket purchased from any source whatsoever.
       6. "Play” shall mean each paid (or free play while in Attract Mode) public performance of a Sound Recording by a Digital Jukebox.
       7. “Sound Recording” shall mean a sound recording embodying a musical composition.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. BMI hereby grants to LICENSEE, for the Term, a non-exclusive license to transmit to Digital Jukeboxes via LICENSEE’s Distribution System any or all of the BMI Works.
       2. BMI further grants to LICENSEE for the Term of this Agreement a non-exclusive, non-transferrable, non-assignable, non-sublicensable license to perform or cause and permit the public performance, in such Licensed Premises only (construed as including adjoining areas such as a deck or patio) and by means of LICENSEE’s Digital Jukebox only, of any or all of the BMI Works.
       3. This Agreement does not include the right to perform BMI Works in LICENSEE’s Licensed Premises in any manner other than through LICENSEE’s Digital Jukebox.
       4. This Agreement does not include the right to perform BMI Works as an accompaniment to live entertainment.
    4. Miscellaneous. The Miscellaneous terms set forth in Section 16 in respect of this Licensed Use are further modified as follows:
       1. LICENSEE shall display by electronic means on the touchscreen of each Digital Jukebox licensed hereunder or in a similar place that is easily visible to the public (A) a notice that the Digital Jukebox is licensed by BMI, consistent with current practices, and (B) the serial or other identification number of the Digital Jukebox. Such notice shall be visible both when the Digital Jukebox is performing music and when it is not.
       2. If LICENSEE agrees to provide to any other U.S. musical composition performing rights organization information on the names and locations of the premises where the Digital Jukeboxes are located, LICENSEE shall provide the same information to BMI.
       3. BMI and LICENSEE agree that this Agreement is being entered into without prejudice to any position either party may take in any negotiation or proceeding for determination of reasonable fees for a license for any period subsequent to this license period.

27. LICENSE FOR EATING AND DRINKING ESTABLISHMENTS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Eating and Drinking Establishments”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Live Music” shall mean music performed by one or more musician(s), singer(s), or other entertainer(s) (excluding disc jockeys video jockeys, karaoke hosts or other similar hosts or emcees) actually present and performing at the Licensed Premises or Recorded Music which is used as an accompaniment to any other activity such as (but not limited to) fashion shows, puppet shows, drag performances, dance routines, comedy acts, etc.
       2. “Interactive/Other Recorded Music” shall mean Recorded Music that is not otherwise defined as “Live Music” and is not performed by a DJ or as part of Karaoke, which shall include (but not limited to) Recorded Music performed as part of trivia and/or music bingo; and/or Recorded Music played by CD, tape, vinyl record, other digital storage source, and/or streaming that is otherwise not licensed, etc.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement includes the right to perform BMI works when an Admission Charge/Cover Charge must be paid but does not include the right to perform BMI works where tickets are sold for Music Attractions on the Licensed Premises.
    
    

    View the Rates for Eating and Drinking Establishments.

    
    

28. LICENSE FOR ENDURANCE RACING

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Endurance Racing”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Endurance/Racing Event” or “Event” shall mean a physical event such as a running, biking, swimming, and/or walking race, and other similar events where entry fees are charged and the participation in the event is open to the general public that includes music, whether or not music is the principal type of entertainment which occurs within the Territory. It shall include, but not be limited to: 5K and 10K events, half and full marathons and ultramarathons, cross country and long distance races, track and relay style events, trail running, obstacle courses, fun runs, color runs, cycling, duathlons, triathlons, ultra-triathlons, and Ironman events (including charitable event(s) sponsored by charitable organizations or for charitable purposes). Event(s) shall not include professional or collegiate track and field type events open to participants only through qualification or invitation, vehicle racing (automobile, stock car, hot rod, truck, tractor or any other conveyance), horse racing (thoroughbred, harness and quarter horse, or any other type of horse racing), or dog racing of any kind.
       2. “Benefit Event” shall mean a public entertainment performance or social event held to raise funds for a specific person or cause in which all proceeds less direct expenses are donated to charity.

29. LICENSE FOR FAMILY ENTERTAINMENT CENTER

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Family Entertainment Center”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “LICENSEE” shall mean the entity identified within the Licensed Uses and Fee Calculations that (together with its parent, affiliate, or subsidiary entities) owns and/or operates or franchises the Licensed Premises (or is otherwise authorized by the Licensed Premises), and is permitted by BMI to enter into this license on its/their behalf.
       2. “Licensed Premises” shall mean LICENSEE’s Family Entertainment Center(s) which publicly perform musical works and are listed in the Licensee Profile or Licensed Uses and Fee Calculations. Licensed Premises do not include venues with full-service nightclubs, health clubs, dance studios, or similar facilities.
       3. “Family Entertainment Center(s)” shall mean a facility that offers indoor or outdoor family entertainment attractions such as competitive games, arcade games, redemption games, rides, and other attractions, which may include, but is not limited to bowling, video games, laser tag, go-carts, bumper cars, batting cages, and mini-golf, and at which (A) attendance is not counted; (B) no regular daily admission or similar charge is charged for entrance to the premises; (C) admission charges are assessed for playing games, riding rides, and other uses of individual attractions on the premises; and (D) no more than fifty percent (50%) of gross revenues are derived from food and beverage operations.
       4. “Bowling Lanes” shall mean individual lanes used for bowling which includes the seating area situated directly in front of any Bowling Lanes, shoe rental counters, pro shops, and any other areas dedicated solely to the activity of bowling.
       5. “Non-Bowling Indoor Square Footage” shall mean all interior square footage of the Family Entertainment Center, excluding square footage attributable to Bowling Lanes.
       6. “Outdoor Attractions” shall mean individual outdoor attractions which are not covered, heated, or air conditioned.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement does not include the right to perform BMI Works through commercial music services or commercial music video services at the Licensed Premises that are performed in portions of the Licensed Premises where there is no admission charge and the commercial music services or commercial music video services accompany only routine activities.

30. LICENSE FOR FITNESS CLUBS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Fitness Clubs”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Member” shall mean any Fixed Fee Member or Pay Per Visit Member.
       2. “Fixed Fee Member” shall mean a customer of the Licensed Premises who pays a fee for a membership of a set duration.
       3. “Group Fitness Classes” shall mean any fitness class and/or directed or instructed workouts held at Licensed Premises for groups of participants, including, but not limited to, classes in aerobics, hip-hop, kick boxing, spinning, group circuit workouts, and other similar group exercise classes.
       4. “Pay Per Visit Member” shall mean a customer who is permitted to pay to use the Licensed Premises on a per visit or per class basis without paying a fee for a membership of a set duration. Pay Per Visit Members shall include each individual customer who visits and uses a Licensed Premises on a per visit or per class basis at least one time during the given license term; such an individual customer shall be counted as one Pay Per Visit Member for the purpose of calculating “Total Members” (irrespective of the number of visits such customer made during the given license term).
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement does not include the right to perform BMI Works through commercial music services or commercial music video services at the Licensed Premises that are performed outside of Group Fitness Classes.

31. LICENSE FOR HEALTH CARE

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Health Care”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows. “Licensed Premises” shall mean all locations listed in the Licensee Profile or Licensed Uses and Fee Calculations operated and owned or leased by LICENSEE or LICENSEE’s subsidiaries which operate as health care facilities for the treatment of illness or provision of custodial care which have full-service professional staffs such as hospitals, nursing homes, ambulatory care centers, assisted care centers and clinics. In all cases, the term “Licensed Premises” shall specifically exclude (1) doctors, dentists or other professional offices not located within a health care facility, and (2) any location, other than Licensed Premises, which is used by LICENSEE for a trade show, convention, or exposition.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works: (A) in rehabilitation areas; (B) in television and radio programming received by LICENSEE on the Licensed Premises; (C) in LICENSEE’s audio-visual presentations; (D) as recorded background music or live music in LICENSEE’s facilities; (E) over teleconferencing at the Licensed Premises; (F) by means of Music-on-hold through LICENSEE’s telephone system at the Licensed Premises and shall authorize LICENSEE to transmit such performances to persons connected to the Licensed Premises by telephone; or (G) in-room music on demand, movies on demand or interactive games which the LICENSEE provides to patients or staff without charge to the patients or staff, and which is received in patient rooms, waiting rooms or staff lounges.
       2. This Agreement does not include the right to perform BMI Works: (A) via broadcast, telecast, cablecast or otherwise transmit performances outside of the Licensed Premises, except to the extent that music on telephone hold lines originating at a Licensed Premises is audible at remote locations on telephone lines as part of Music-on-hold; or (B) by interactive software or interactive games, for which there is a direct charge to the patient(s) or staff member(s), whether (1) delivered by media such as CD-ROM, CD-I, diskette or cartridge, (2) delivered by on-line service such as interactive cable, interactive TV, computer network, telephone or satellite, or (3) rendered by multimedia hardware such as computer or computer-driven handheld devices.

32. LICENSE FOR HOTEL/MOTEL

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Hotel/Motel”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Licensed Premises” shall mean the hotel or motel premises, as listed in the Licensee Profile or the Licensed Uses and Fee Calculations (and “hotel” as used in this Agreement shall mean either hotel or motel), including all public rooms or public areas directly on the hotel premises, except that for purposes of Recorded Music performances, Licensed Premises will be limited to include only those restaurants, nightclubs, casinos, and shops that are owned and/or operated by the LICENSEE and on the hotel premises. Licensed Premises shall not include theme/amusement parks whether on the hotel premises or not.
       2. “Rooms” shall mean the total number of guest rooms at the Licensed Premises.
       3. “Shows or Acts” shall include, but not be limited to, the use of a disc jockey, video jockey, master of ceremonies, or comedian or similar vocal commentary to patrons, or the use of special visual effects commonly associated with nightclubs, including, but not limited to, special lighting effects other than normal hotel or cocktail lounge illumination, “light shows”, smoke or fog machines, or special moving visual or artistic constructs used as part of such entertainment.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement does not include the right to perform BMI Works contained in pay-per-view television programming in guest rooms.

33. LICENSE FOR INDIVIDUAL BUS, VEHICLES, AND MOTORCOACHES

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Individual Bus, Vehicles, and Motorcoaches”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows. “Licensed Premises” shall include any bus, vehicle or coach owned, leased or operated by LICENSEE for the sole purpose of transporting passengers from one location to another (and not for the purpose of entertaining passengers) and equipped with audio, visual or audio/visual capabilities (hereinafter referred to as “Coaches”), extended to musical works performed by recorded/mechanical means only.

34. LICENSE FOR LIMITED USE EVENTS (FREE AND PAID ADMISSION)

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Limited Use Events (Free)” or “Limited Use Events (Paid Admission)”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Live Music and Entertainment Costs” shall mean all expenditures of every kind and nature (whether in money or any other form of consideration) made by LICENSEE or on LICENSEE’s behalf, for all Live Music and entertainment in connection with Limited Use Event, including monies paid (including the cost of room, board and transportation) to performers (including supporting musicians), booking agents, and agents of the performers. “Live Music and Entertainment Costs” shall not include fixed costs not required by the particular performers, such as normal stage props and equipment unless the entity or person rendering or presenting entertainment services specifically requires specialized stage props and equipment.
       2. “LICENSEE” shall include the entity accepting this Agreement that promotes, presents or otherwise organizes or exhibits a Limited Use Event at a Venue. To promote a Limited Use Event is to enter into an agreement with the artist(s) performing at the Venue. Notwithstanding anything to the contrary in the General License Terms, LICENSEE shall not include third party legal entities that own the Venues and that are not affiliates of LICENSEE.
       3. “Licensed Premises” For purposes of the Licensed Use authorized by this Agreement, each Venue shall be deemed a Licensed Premises solely for purposes of the Limited Use Event taking place at such Venue.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. Limited Use Events shall not include events at which the Live Music and/or Recorded Music is a principal form of entertainment or prominent component of the event, or where separate tickets are sold or separate fees are charged to experience the Live Music and/or Recorded Music.
    4. Miscellaneous. The Miscellaneous Terms set forth in Section 16 in respect of this Licensed Use are further modified as follows. Transferring liability for licensing a Limited Use Event to anyone other than an appropriately BMI-licensed promoter, co-promoter, presenter or co-presenter of the Limited Use Event is not permitted. If the responsible promoter, co-promoter or other person, entity, or Venue is not licensed by BMI on an appropriate license, LICENSEE shall remain liable for payment of the fees due for such Limited Use Event.

35. LICENSE FOR LOCAL GOVERNMENT ENTITY

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Local Government Entities”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “LICENSEE” shall include the named entity and any of its constituent bodies, departments, agencies, or leagues.
       2. “Premises” shall mean buildings, hospitals, airports, zoos, museums, athletic facilities, and recreational facilities, including, but not limited to, community centers, parks, swimming pools, and skating rinks owned and/or operated by LICENSEE and any site which has been engaged by LICENSEE for use by LICENSEE.
       3. “Recorded Music” shall mean music when performed at the Premises by means other than by live musicians who are performing at the Premises, including, but not limited to (1) compact disc, audio record or audio tape players (but not including jukeboxes); (2) videotape, video disc or DVD players; (3) music performed as an accompaniment to karaoke; (4) the reception and communication at the Premises of radio or television transmissions which originate outside the Premises, and which are not exempt under the U.S. Copyright Act; or (5) by means of Music-on-hold through LICENSEE’s telephone system at the licensed premises and transmitted to persons connected to the licensed premises by telephone.
       4. “Special Events” means musical events, concerts, shows, pageants, sporting events, festivals, competitions, and other events of limited duration presented by LICENSEE for which the “Gross Revenue” of such Special Event exceeds $25,000.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement does not include the right to perform BMI Works:
          1. at any convention, exposition, trade show, conference, congress, industrial show or similar activity presented by LICENSEE or on the Premises unless it is presented or sponsored solely by and under the auspices of LICENSEE, is presented entirely on LICENSEE’s Premises, and is not open to the general public;
          2. by or at colleges and universities;
          3. at any professional sports events or game played on the Premises;
          4. at any permanently situated theme or amusement park owned or operated by LICENSEE; and
          5. by any symphony or community orchestra.
    4. Fees and Payment. The Fees and Payment terms set forth in Section 5 in respect of this Licensed Use are further modified as follows:
       1. The Base License Fee for the first Term of this Agreement and any License Fees due for Special Events that were presented between the Effective Date and the execution of this Agreement shall be payable upon the execution of this Agreement.
       2. If LICENSEE presents, sponsors or promotes a Special Event that is reportable with another person or entity licensed under a BMI license agreement, LICENSEE shall indicate the name, address, phone number and BMI account number of the other person(s) or entity(ies) and the party responsible for payment for such Special Event. If the other party is not licensed by BMI, LICENSEE shall pay the License Fees due hereunder, notwithstanding any agreement to the contrary between LICENSEE and the other party.

36. LICENSE FOR MOTION PICTURE THEATRE

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Motion Picture Theatres”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Recorded Background Music” shall mean performances of recorded music, whether vocal or instrumental, designed to be used as an unobtrusive accompaniment to routine activities, including, but not limited to, work, conversation, dining and relaxation, as long as such music is not intended to accompany dancing or any other form of entertainment.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
    1. This Agreement includes the right to perform BMI Works by means of Recorded Background Music at the Licensed Premises only by either (A) the playing of records, pre-recorded tapes, or other mechanical devices or (B) via the reception of broadcast audio transmissions on receiving apparatus and amplifications thereof for public performance, and such performances may be amplified only through loudspeakers located at the Licensed Premises.
    2. This Agreement includes the right to perform BMI Works at each Licensed Premises added to the list set forth in the Licensee Profile or Licensed Uses and Fee Calculations as of the day on which Recorded Background Music is first performed at such a location, if payment for and reporting of that location is made as required herein.
    3. This Agreement does not include the right to perform BMI Works during the course of live stage presentations at the theatres.
    4. Fees and Payment. The Fees and Payment terms set forth in Section 5 in respect of this Licensed Use are further modified as follows. For purposes of calculating the License Fees, all additions and deletions of screens shall be deemed to be effective on the first day of the Term following the Term in which they occurred, and the License Fees due shall reflect those additions and deletions which occurred during the previous Term.

37. LICENSE FOR MUSIC ON HOLD

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Music On Hold”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works only through recorded music by means of Music-on-hold through LICENSEE’s telephone system at the Licensed Premises and shall authorize LICENSEE to transmit such performances to persons connected to the Licensed Premises by telephone.
       2. This Agreement does not include the right to perform BMI Works audible other than on a telephone or to a service that provides Music-on-hold to subscribers.
       3. This Agreement does not include the right to perform BMI Works at more than one premises.

38. LICENSE FOR MUSIC ON HOLD SERVICE

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Music On Hold Service”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Music-on-hold service” shall mean a business operation which provides audio recordings to its customers for Music-on-hold use.
       2. “Custom Audio Production” shall mean an audio music programming produced (whether via the provision of tapes, telephonic delivery or other means) for a particular Music-on-hold service customer according to specifications and which may include advertising messages and information in addition to music.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. BMI hereby grants to LICENSEE a non-exclusive license to cause and permit its customers to perform BMI Works over telephone lines at locations where LICENSEE’s Custom Audio Productions are received.
       2. This Agreement does not include the right to perform BMI Works other than on telephones calling a location where LICENSEE’s Custom Audio Productions are received.

39. LICENSE FOR PASSENGER TRAINS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Passenger Trains”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows. “Licensed Premises” shall include any Serviced Passenger Train(s), extended to its Music Programming and/or Audio-Visual Programming utilized by LICENSEE while Serviced Passenger Train(s) are en route and while passengers are boarding and disembarking from Serviced Passenger Train(s) or are seated when Serviced Passenger Train(s) are stationary.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. This Agreement includes the right to perform BMI Works on domestic routes in the Territory, and on international routes originating or terminating in the Territory, to the extent that BMI has the right to license such performances outside of the Territory.
       2. Except as specifically permitted as a Licensed Use, this Agreement does not include the right to perform BMI Works:
          1. associated with advertising or commercial announcements of any kind or nature, except only LICENSEE’s announcements relating to the passenger train transportation and related services of LICENSEE and to the companies whose recordings are utilized in the music service;
          2. within any terminal buildings or on terminal platforms.
    4. Fees and Payment. The Fees and Payment terms set forth in Section 6 in respect of this Licensed Use are further modified by:
    1. LICENSEE agrees to pay BMI for each Serviced Passenger Train(s) utilizing Music Programming for each month of the Term.
    2. BMI and LICENSEE acknowledge and agree that no fees will be due for any Serviced Passenger Train(s) during any period exceeding one (1) month during which such Serviced Passenger Train(s) are not in revenue service (e.g. while such Serviced Passenger Train(s) are being repaired or serviced).

40. LICENSE FOR POLITICAL ENTITIES AND ORGANIZATIONS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Political Entities and Organizations”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. One or more work(s) or catalog(s) of works by one or more BMI songwriter(s) may be excluded from this license if notice is received by BMI that such BMI songwriter(s) objects to the use of their copyrighted work(s) for the intended uses by LICENSEE.
          1. BMI shall provide written notice to LICENSEE of any such exclusion. Any performance by LICENSEE of any excluded work(s) or catalog(s) of works at any Event or Function following receipt of such notice shall not be covered by the grant hereunder, are expressly excluded from indemnification, and shall be deemed a material breach of this Agreement.
          2. If the venue or establishment at which the Event or Function takes place is separately licensed to publicly perform the work(s) or catalog(s) of works, LICENSEE shall not rely on, or use as a defense, any such separate license in any legal action or claim arising out of any performance of such excluded work(s).
       2. This license grants permission for the public performance of BMI Works. LICENSEE may be responsible for securing other rights including, but not limited to, synchronization, master use and mechanical rights, particularly if a specific musical work is used frequently or in a manner by which it becomes associated with the campaign (i.e. theme song).

41. LICENSE FOR PRIMARY AND SECONDARY SCHOOLS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Primary and Secondary Schools”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Licensed Premises” shall mean the educational institution enrolling students in kindergarten through twelfth grade, or a subset thereof, which is identified by name and address indicated in the Licensee Profile or Licensed Uses and Fee Calculations (the “School”).
       2. “Premises” shall include LICENSEE’s school buildings and fields and any site located off LICENSEE’s property that has been engaged for use by LICENSEE, including, but not limited to, those locations where School groups such as bands or choruses perform as part of their nonprofit, community outreach, educational activities, faculty and administration events, provided that such events are not promoted or sponsored by a third party.
       3. “Enrolled Students” shall be the total number of students enrolled at the School at the start of the current year’s academic term, and at the start of each subsequent academic year as this Agreement shall be extended. Student counts shall be reported for the Fall of the current year upon execution of this Agreement.
       4. “Base Student Fee” for the contract of the current year shall be based on the number of Enrolled Students at the School, as outlined in the Licensed Uses and Fee Calculations.
       5. “School Radio Station” shall mean and be limited to a non-commercial educational radio station that is not affiliated with NPR.
       6. “Total School Radio Station Fee” shall mean the total number of School Radio Stations multiplied by the Compulsory Rate outlined in the Licensed Uses and Fee Calculations.
       7. “LICENSEE’s Closed Circuit Television System” shall mean a system of closed-circuit distribution, MMDS, internet, broadband, including any linear feed via the Internet, broadband or other online service or other means of distribution which is owned and operated by LICENSEE and by which LICENSEE transmits Locally Originated Programming on LICENSEE’s premises, except that it shall not include free over-the-air broadcast television.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. BMI hereby grants to LICENSEE for the Term of this Agreement a non-exclusive, non-transferrable, non-assignable, non-sublicensable license to perform or cause and permit the public performance of BMI Works by live or recorded means at LICENSEE’s Premises, Off-Site Location, or by means of Internet Transmissions or Intranet Transmissions in the Territory, including, but not limited to the right to perform BMI Works:
          1. by student bands or orchestras, School theater groups, or other School performing groups, at sporting events, student unions, classrooms, socials, fairs/festivals, Music Attractions, fitness centers, athletic facilities, special events such as orientation and graduation;
          2. by means of Music-on-hold through LICENSEE’s telephone system at the licensed premises and shall authorize LICENSEE to transmit such performances to persons connected to the licensed premises by telephone; and
          3. in LICENSEE’s Website Transmissions, including webcasts of School Radio Broadcasting Stations, and LICENSEE’s Closed Circuit Television System, with respect to Locally Originated Programming only.
       2. This Agreement does not include the right to perform BMI Works:
          1. via any form of televised transmission, whether over-the-air broadcast, cable, satellite or otherwise, except performances via
             1. LICENSEE’s Intranet Transmissions;
             2. LICENSEE’s Website Transmissions;
             3. LICENSEE’s School Radio Station; or
             4. LICENSEE’s Closed Circuit Television System, with respect to Locally Originated Programming only;
          2. as part of Music Attractions held at the Premises which are promoted by outside promoters (which shall mean any person or entity other than LICENSEE);
          3. as part of Music Attractions occurring outside of the Premises, except as part of community outreach, educational activities, or faculty and administration events at an Off-Site Location;
          4. by commercial radio stations; or
          5. as part of LICENSEE’s student participation in national or regional sporting tournaments and competitions, and national or regional music and arts competitions.
    4. Representations, Warranties and Acknowledgements. The Representations, Warranties and Acknowledgements terms set forth in Section 9 in respect of this Licensed Use are further modified as follows:
       1. The foregoing license grant in respect of LICENSEE’s Website(s) is subject to the accuracy of and compliance with the following representations, warranties and covenants:
          1. LICENSEE shall provide BMI with an updated list of URLs annually upon submitting its annual report.
          2. LICENSEE represents and warrants that each such Website is generally educational in nature or otherwise operated for the primary purpose of promoting the school and its resources to current and prospective students, faculty, staff, alumni, and the school community.
          3. LICENSEE further warrants and represents that, in the event that LICENSEE has a pecuniary interest in a Website which is not related to LICENSEE’s educational or promotional purposes or where the intended primary purpose of such Website is not for the use of LICENSEE’s current or prospective students, faculty, staff, alumni, or the school community, it is specifically understood and agreed to by LICENSEE that, unless specifically permitted by the Licensed Uses and Fee Calculations, this Agreement does not include the right to perform BMI Works on such Website(s).

42. LICENSE FOR RACING EVENTS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Racing Events”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Racing Event” shall mean vehicle racing, including automobile, stock car, hot rod, truck, tractor or any other conveyance, horse racing, including thoroughbred, harness and quarter horse, or dog racing.
       2. “Racing Day” shall mean each program or card for which either separate admission is charged or separate entry is required of any attendee, (e.g., an afternoon program and evening program on the same calendar day are considered two racing days). A Racing Event may consist of multiple Racing Days.

43. LICENSE FOR RESIDENTIAL COMMUNITIES (INCLUDING OCCASIONAL USE)

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Residential Communities” or “Residential Communities – Occasional Use”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Clubhouse or Other Common Recreational Area” shall mean a meeting or gathering place used by members of the Residential Community for social, cultural, recreational, or entertainment purposes.
       2. “Occupancy” shall be limited to only the entire premises of the Clubhouse or Other Common Recreational Area(s) of the Licensed Premises.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement includes the right to perform BMI Works through recorded music by means of LICENSEE’s telephone system at the Licensed Premises and shall authorize LICENSEE to transmit such performances to persons connected to the Licensed Premises by telephone.

44. LICENSE FOR RETAIL ESTABLISHMENTS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Retail Establishments”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Licensed Premises” shall mean a retail store or establishment open to the general public which is used exclusively for the sale of goods and/or services to the public. Licensed Premises shall not include the common area of a shopping center or mall. Licensed Premises also do not include eating and drinking establishments such as restaurants, bars, grills, nightclubs or similar premises. However, a bar, cafe or restaurant owned and operated by LICENSEE that is located within a Licensed Premises listed in the Licensee Profile or License Uses and Fee Calculations and that is operated by LICENSEE as an additional service for store patrons may be included under this Agreement upon reporting and payment of fees for all applicable music uses under the License Uses and Fee Calculations.
       2. “Square Footage” shall mean the entire interior space of a retail store or establishment, and any adjoining outdoor space used to serve patrons, whether on a seasonal basis or otherwise.
       3. “Recorded Music” shall mean music performed by: (A) the reception of radio broadcasts, including internet webcasts, and further transmission of those broadcasts over a loudspeaker or system of loudspeakers; (B) the use of LICENSEE’s (as distinguished from a commercial/background music service’s) audio tapes, records, CDs, and/or DATs by means of LICENSEE’s audio-only tape, record, CD, and/or DAT players; or (C) non-live audio-visual uses of music (such as the use of a large-screen projection television or like medium, video tapes and/or multiple televisions).
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement includes the right to perform BMI Works at each Licensed Premises listed in the Licensee Profile or Licensed Uses and Fee Calculations as of the day on which Recorded Music or Live Music is first performed at such added Licensed Retail Premises, as long as payment for and reporting of that Licensed Premises is made as required herein.
       1. LICENSEE shall give BMI written notice within twenty (20) days of the time music is being performed at any Licensed Premises not listed in the Licensee Profile or Licensed Uses and Fee Calculations.
       2. The notice will include the address and square footage of additional Licensed Premises, type of music used as stipulated in the Licensed Uses and Fee Calculations, and the month music use began.
       3. LICENSEE will pay the License Fees listed in the Licensed Uses and Fee Calculations for the period from which music is first performed.

45. LICENSE FOR RV PARKS AND CAMPGROUNDS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed “RV Parks and Campgrounds”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Licensed Premises” shall mean each RV Park or Campground owned or operated by LICENSEE, limited to outdoor property divided into individual sites used for Camping and/or RVing and including any recreational and administrative structures located at such facilities. This Agreement specifically excludes properties which have more than fifty percent (50%) Fixed Structures, as defined below, including hotels/motels, mixed-use communities (e.g., active lifestyle or resort communities consisting primarily of manufactured homes and/or other types of permanent or semi-permanent structures), even if these properties also offer limited RV accommodations on the premises. Uses of music at such facilities will be licensed as a different Licensed Use, as applicable.
       2. “Camping and/or RVing” shall mean temporary living in the outdoors with the aid of shelter consisting of a tent, pop-up trailer, travel trailer, truck camper, motor home, van, recreational trailer, recreational vehicle, teepee, yurt, camping cabin, or similar temporary shelter.
       3. “Fixed Structures” shall mean units owned or managed by LICENSEE and available for rent to the public on a temporary basis, consisting of cabins, manufactured homes, recreational trailers (commonly known in the industry as park models), teepees, yurts, or other similar type units that are not readily transportable without the aid of a commercial-type hauler. The Fixed Structures threshold outlined above shall apply to individually owned units occupying leased or rented spaces on a monthly or greater basis.
       4. “Campsites” shall mean the maximum number of tents, recreational vehicles or similar transportable lodging places available at Licensed Premises.

46. LICENSE FOR SKATING RINKS

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for “Skating Rinks”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Highest Admission Price” shall mean the highest stated ticket price for any Regularly Scheduled Skating Session.
       2. “Regularly Scheduled Skating Session” shall mean a skating session held more than four times per year, whether as a special event or otherwise.
       3. “LICENSEE’s Operating Policy” shall mean the variables which determine the license fee applicable to the Licensed Premises as indicated in the License Uses and Fee Calculations.
    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows. This Agreement includes the right to perform BMI Works through content provided to LICENSEE by a programmed subscription music service provider at Licensed Premises as subscription music service providers are expressly prohibited from licensing on behalf of skating rink facilities.

47. LICENSE FOR VIDEO MUSIC SERVICE

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed and engaged in the business of operating a subscription “Video Music Service”, the terms in this Section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows:
       1. “Video Music Service” shall mean and be limited to non-dramatic performances of recorded music as part of music videos provided by LICENSEE on video tape, DVD, or like medium to premises either by terrestrial delivery of such video tapes or by closed circuit satellite transmission.
       2. “Music Video” shall mean a video tape, DVD, or like medium produced by LICENSEE or according to LICENSEE’s specifications and which may include advertising messages and information in addition to music (“advertisements”).
       3. “Licensed Premises” shall mean a premise which subscribes to LICENSEE’s Video Music Service, either directly or indirectly, and which LICENSEE reports to BMI. Licensed Premises shall not under any circumstances include:
          1. Ballrooms, discotheques, dance studios, and similar locations;
          2. family entertainment centers;
          3. any theme park, skating rink, nightclub, fitness center or other location where an admission fee, cover charge, membership fee or similar payment is assessed from patrons as a condition to observing, hearing, experiencing or participating in any of the activities offered by such location (provided that such exclusion is limited to such portion of the premises in or from which the activity for which payment is charged is intended to be observed, heard, experienced, or participated in, with the understanding that any other portion of such premises may be covered as a Licensed Premises if such coverage would otherwise be permitted under the terms and conditions of this Agreement); and
          4. the premises of LICENSEE’s customers who only use LICENSEE’s additional services (for example, sales and/or installation of sound system equipment or drive-through equipment, drive-through maintenance, or commercial TV or video music services).

          For the avoidance of doubt, if a single physical premises has the right to play the Video Music Service using separate music in multiple distinct “zones” within the establishment, each zone shall be considered a separate Licensed Premises for purposes of calculating License Fees hereunder.

    3. BMI Grant. The BMI Grant terms set forth in Section 2 in respect of this Licensed Use are further modified as follows:
       1. BMI hereby grants to LICENSEE a non-exclusive license to perform publicly and to cause or permit to be performed publicly BMI Works within the Territory solely via LICENSEE’s Video Music Services transmitted to and played solely at one or more Licensed Premises.
       2. This Agreement includes the right to perform BMI Works only at those Licensed Premises that are identified on the reports provided to BMI each month which are reported as follows:
       1. Licensed Premises that become serviced by LICENSEE on or after the first day of any month but before the sixteenth day of that month must be identified on the reports provided to BMI for that month.
       2. If LICENSEE ceases servicing the Licensed Premises between the sixteenth day of the month and the last day of the month that Licensed Premises must appear on the reports provided to BMI for that Month and shall be removed from the reports provided to BMI for the subsequent month.
       3. The full monthly fee shall be paid for any Licensed Premises appearing on the reports provided to BMI for any month, which shall include all Licensed Premises added on or before the fifteenth day or cancelled after the sixteenth day.
       3. This Agreement does not include the right to perform BMI Works audible outside of LICENSEE’s Licensed Premises.
       4. This Agreement does not include the right to perform BMI Works other than through LICENSEE’s Video Music Service and specifically excludes performances through (A) any cable television system or cable radio system or (B) any radio or television station, and (3) at a place other than on LICENSEE’s Licensed Premises.
       5. Nothing contained herein shall be interpreted or construed as the consent of BMI to the performance of any musical composition except to LICENSEE’s Licensed Premises.
       6. This Agreement does not, under any circumstances, include the right to perform BMI Works:
          1. as a featured form of entertainment, or played at elevated sound levels in a manner in which the music is in the foreground and integral to the experience of the patrons of the Licensed Premises;
          2. as an accompaniment to dancing and other physical activities (including fitness activities, whether or not the movements are directly synchronized to music or led by an instructor) in or for which music (including the sequencing and playback sound level thereof) plays an integral part; or
          3. by a DJ or VJ.
    4. Miscellaneous. The Miscellaneous terms set forth in Section 16 in respect of this Licensed Use are further modified as follows:
       1. In the event that LICENSEE ceases to provide its Video Music Service to a Licensed Premises for which it had been paying BMI a license fee hereunder, LICENSEE shall use its best efforts to promptly remove any of LICENSEE’s program content materials to prevent unauthorized public performance of BMI-licensed music through use of LICENSEE’s Video Music Service by said premises thereafter.
       2. BMI shall not collect or demand separate License Fees from LICENSEE’s Licensed Premises for the Video Music Services which are licensed hereunder.

48. LICENSE FOR ZOO/AQUARIUM

    1. If LICENSEE’s Licensed Uses and Fee Calculations indicate that LICENSEE is licensed for Zoos and/or Aquariums, the terms in this section apply to the license granted hereby in respect of such use.
    2. Definitions. The definitions set forth in Section 1 in respect of this Licensed Use are further modified as follows. “Licensed Premises” shall mean LICENSEE's zoo or aquarium location(s) listed in the Licensee Profile or Licensed Uses and Fee Calculations.