The draft contract between SoundCloud and Music Publishers

SoundCloud has over 175 million unique users, 40 million of them registered, with over 12 hours of audio content uploaded every minute.
Which might explain why major labels and publishers are very serious about either (a) licensing SoundCloud legitimately; or (b) shutting down the free ride. But major labels and publishers aren’t the only ones structuring agreements: independents are also jockeying for proper terms, and banding together to make sure they receive similar, equitable terms.  Which brings us to the following, near-complete agreement between independent music publishers and SoundCloud, complete with Most Favored Nations (MFN) stipulations to protect their cut.

This isn’t the final, signed contract, but it’s pretty close and slated for signatures this month.

You can download the contract document as well at Scribd: http://www.scribd.com/doc/267324650/SoundCloud-NMPA-Umbrella-Agreement

SOUNDCLOUD OPERATIONS, INC.

MUSIC PUBLISHING RIGHTS AGREEMENT

This Agreement (“Agreement”) is made as of  [DATE], 2015 (the “Effective Date”), by and between

SoundCloud Operations, Inc., a Delaware corporation with offices located at 101 5^th Avenue, New York, NY 10003 (“SoundCloud”), and [PUBLISHER NAME], a [corporation/general partnership/limited partnership/limited liability company/limited liability partnership/joint venture/individual], with offices at [ADDRESS] (“Publisher”).

WHEREAS, SoundCloud wishes to develop and make available to certain preferred content-owner business partners (“Creator Partners”) through the Creator Partner Program (as defined below) certain new features of the Platform (as defined below), which will enable Creator Partners to generate revenue through their presence on the Platform in the Territory, including in particular any audio content that Creator Partners (or other persons on their behalf) upload to their account(s) together with a corresponding International Standard Recording Code (“ISRC”) and approve for monetization on the Platform in the Territory (“Creator Partner Uploads”);

WHEREAS, in connection with the foregoing, SoundCloud desires to obtain a license from Publisher for the use of Musical Works (as defined below) embodied in Creator Partner Uploads in connection with the Service (as defined below) in accordance with this Agreement, and Publisher is willing to grant such license in connection with the Service in accordance with this Agreement;

WHEREAS, SoundCloud desires to obtain from Publisher a covenant not to sue for any other uses of Musical Works via the Platform, and Publisher is willing to grant such covenant not to sue in accordance with the terms set forth herein;

WHEREAS, SoundCloud and National Music Publishers’ Association (“NMPA”) are parties to an

Administration Agreement dated as of May 1, 2015, which governs, inter alia, the process for entering into and executing this Agreement and determining and computing Publisher’s NMPA Market Share, Publisher’s 2013 Music Publishing Revenues in the Territory and the amount of the Advance payable to Publisher under this Agreement based on Publisher’s NMPA Market Share of the NMPA Advance Pool (the “NMPA Administration Agreement”);

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1.             Definitions.  As used in this Agreement:

(a)           “Accounting Period” means, after the date on which Musical Works are made available for exploitation via the Service pursuant to this Agreement, each of the quarter-annual calendar periods during the Term (and after the Term, as permitted under paragraph 2(b) below) ending March 31, June 30, September 30, and December 31.

(b)           “Additional Subscription Features” means a Subscription Service that is operated by or on behalf of SoundCloud, is made available in the Territory, and offers end users access to additional

features not available via the SoundCloud Free-to-the-User Service in return for a monthly payment. Initially, it is anticipated that such additional features will include (i) the ability for subscribers to listen to content as Limited Downloads, and (ii) the removal of audio and display advertising. The particular sound recordings available to Subscribers will be substantially limited relative to services in the marketplace providing access to a comprehensive catalog of recordings and the SoundCloud Full Catalog Subscription Service.

(c)        “Applicable Consideration” has the meaning set forth in 37 CFR § 385.11, or 37 CFR

§385.21, as applicable.

(d)           “Claims” means any causes of action, suits, controversies or demands, however characterized, in law, equity or otherwise, of any kind or nature whatsoever, whether known or unknown, fixed or contingent, which any applicable person or entity ever had, now has, or may hereafter acquire, by reason of any matter, cause or thing whatsoever.

(e)           “Content ID System” means the content fingerprinting and identification technology(ies) utilized by SoundCloud.

(f)             “Creator” means an end user, who is not a Creator Partner, who uploads content to the

Platform.

(g)           “Creator Partner” has the meaning set forth in the preamble.

(h)           “Creator Partner Program” means the program in which Publisher and other Creator

Partners participate to enable monetization of their respective content (solely with respect to their respective rights in such content) on the Platform, and the sharing of revenue with respect thereto.

(i)             “Creator Partner Uploads” has the meaning set forth in the preamble.

(j)             “Deck” has the meaning set forth in paragraph 6(a) below.

(k)           “Free Nonsubscription/Ad Supported Service” means a service that offers Interactive Streams and/or Limited Downloads free of any charge to the end user.

(l)             “Identified” means a Creator Partner Upload embodying a musical work.

(m)          “Interactive Stream” has the meaning set forth in 37 CFR § 385.11.

(n)           “Limited Download” has the meaning set forth in 37 CFR § 385.11.

(o)           “Limited Offering” has the meaning set forth in 37 CFR § 385.21.

(p)           “Losses” means any and all liabilities, damages, awards, settlements, losses, and expenses including, without limitation, court costs, reasonable third party legal fees and third party costs of investigation.

(q)           “Major Music Publishers” means BMG Rights Management (US), EMI Music Publishing,

Kobalt Music Publishing America, Inc., Sony/ATV Music Publishing, Universal Music Publishing Group and Warner/Chappell Music Publishing.

(r)            “Major Record Labels” means Warner Music Group, Universal Music Group and Sony

Music Entertainment.

(s)           “Monetized Content” means all content available on the applicable offering of the Service

(including musical works and non-musical works) against which SoundCloud has designated advertising inventory as available to be sold. Monetized Content includes all Monetized Musical Works.

(t)            “Monetized Musical Works” means the musical works made available on the applicable offering of the Service (including musical works licensable via 17 U.S.C. § 115 and Non-115 Works) against which SoundCloud has designated advertising inventory as available to be sold. The concept of Monetized Musical Works specifically excludes all non-musical works.

(u)           “Musical Work” means a musical work owned, controlled and/or administered by Publisher, in whole or in part, to the full extent of Publisher’s ownership, control or administration interest

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in and to such musical work as designated by Publisher. With respect to any Musical Work in which the rights that are the subject of this Agreement are owned, controlled, and/or administered by Publisher only in part, the term “Musical Work” shall refer to the entirety of the musical work (i.e., 100% of all interests in and to the musical work), regardless of the extent of Publisher’s ownership or control or administration interest in and to such musical work. The portion of any Musical Work that is owned, controlled and/or administered by Publisher is sometimes referred to herein as the “Publisher Portion” of the Musical Work, and the remainder of such Musical Work is sometimes referred to herein as the “Non-Publisher Portion” of the Musical Work.

(v)           “Musical Work Metadata Database” means the database used by SoundCloud to identify the musical works embodied in Content Partner Uploads, which may be owned and operated by SoundCloud or a third party service provider.

(w)           “Non-115 Work” means a musical work that is not licensable via 17 U.S.C. § 115, including, but not limited to, musical works embodied in unreleased original recordings, mashups and certain other derivative musical works.

(x)           “NMPA Advance Pool” means Three Hundred and Fifty Thousand US Dollars (USD

$350,000).

(y)           “NMPA Independent Music Publishers” means each of the individual music publisher members of the National Music Publishers’ Association, Inc. (the “NMPA”) that are not (i) Major Music

Publishers, or (ii) any music publisher or other musical work copyright proprietor whose works are licensed to SoundCloud through an administration agreement with a Major Music Publisher or whose rights do not cover the uses to be made by SoundCloud (i.e., print music publishers).

(z)            “Publisher’s NMPA  Market  Share”  means the  market  share  percentage  provided  to

SoundCloud by NMPA pursuant to the NMPA Administration Agreement. Publisher acknowledges and agrees that NMPA and its retained independent accounting firm, Tate & Tryon, shall determine and calculate Publisher’s NMPA Market Share by dividing Publisher’s 2013 Reported Revenue by Total NMPA Independent Publishers’ 2013 Reported Revenue. Publisher hereby irrevocably appoints NMPA to determine and calculate, on Publisher’s behalf, Publisher’s NMPA Market Share and Total NMPA Independent Publishers’ 2013 Reported Revenue. Publisher acknowledges and agrees, and shall never dispute at all times during and after the Term, that NMPA’s determination and calculation of Publisher’s NMPA Market Share and Total NMPA Independent Publishers’ 2013 Reported Revenue, shall be final, conclusive and binding upon Publisher.

(aa)         “Permitted Reasons” has the meaning set forth in paragraph 3(c).

(bb)        “Platform” means SoundCloud’s audio hosting platform, operated by or on behalf of SoundCloud, via which, inter alia, users of the platform may upload audio content for others to hear.

(cc)         “Promotional Excerpt” means a Creator Partner Upload consisting of an excerpt of a sound recording embodying a Musical Work with a playing time that does not exceed ninety (90) seconds.

(dd)        “Publisher Interactive Stream” means an Interactive Stream embodying a Musical Work.

(ee)         “Publisher Limited Download” means a Limited Download embodying a Musical Work.

(ff)          “Publisher Metadata” means all applicable metadata possessed by Publisher, including the following identification data for each Musical Work: ISWC, song title, songwriter(s), publisher(s), Publisher ownership shares, and performing rights organization affiliation to the extent such identification data is maintained in the normal course and is in a format transmittable by Publisher.

(gg)        “Publisher Parties” has the meaning set forth in paragraph 12(a).

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(hh) “Publisher’s Pro Rata Share” means a fraction, the numerator of which is the total number of plays of Publisher Interactive Streams and Publisher Limited Downloads that are Identified and embody Musical Works that are licensable pursuant to 17 U.S.C. § 115 and registered in the Musical Work Metadata Database in the applicable month via the applicable offering of the Service (pro-rated appropriately commensurate with Publisher’s interest therein in the case of Musical Works that are partially-owned, partially-controlled or partially-administered by Publisher), and the denominator of which is the total number of plays of all Interactive Streams and Limited Downloads (including Publisher Interactive Streams and Publisher Limited Downloads) that are Identified and embody musical works (including Musical Works) that are licensable pursuant to 17 U.S.C. § 115 in the applicable month via the applicable offering of the Service. For sound recordings of musical works (including, but not limited to, Musical Works) with a playing time of over five (5) minutes, the number of plays made via the Service shall be adjusted in accordance with the terms of 37 CFR § 385.12(d), or 37 CFR § 385.22(c), as applicable.

(ii) “Publisher’s 2013 Reported Revenue” means revenue figures reported by Publisher to NMPA in respect of Publisher’s total U.S. music publishing revenue attributable to the use and exploitation of musical works in the U.S., including for the avoidance of doubt and without limitation, mechanical, synchronization, print, digital and other revenues from music publishing operations in the ordinary course, for the period from January 1, 2013 through December 31, 2013. Publisher hereby irrevocably appoints NMPA to determine and calculate, on Publisher’s behalf, Publisher’s 2013 Music

Publishing Revenues. Publisher acknowledges and agrees, and shall never dispute at all times during and after the Term, that NMPA’s determination and calculation of Publisher’s 2013 Music Publishing

Revenues shall be final, conclusive and binding upon Publisher.

(jj)            “Record Company” has the meaning set forth in 37 CFR § 385.11.

(kk)         “Restriction Notice” has the meaning set forth in paragraph 3(c) below.

(ll)            “Service” means the following offerings to the extent made available via the Platform (which, for the avoidance of doubt, shall include, without limitation, as applicable, via SoundCloud’s website, application, embeddable player, API and/or any other extensions thereof)in the Territory: (i) the SoundCloud Free-to-the-User Service, (ii) the Additional Subscription Features, and (iii) the SoundCloud Full Catalog Subscription Service. For the avoidance of doubt, at all times during the Term and the Wind-Down Period, SoundCloud shall retain the right and ability to implement Restriction Notices sent by Publisher pursuant to Section 3(c) below for Permitted Reasons as and to the extent required under Section 3(c) below with respect to the applicable Musical Works made available through embeddable players, APIs and/or any other extensions thereof, as applicable.

(mm)      “Service Revenue” has the meaning set forth in 37 CFR § 385.11, or 37 CFR §385.21 (i.e., the definition of “Subpart C service revenue”), as applicable; provided that any such revenues generated in connection with Non-115 Works will nonetheless be included within this calculation. For the avoidance of doubt, all revenue described in paragraph (1) of 37 CFR § 385.11, or 37 CFR § 385.21, as applicable, for the applicable offering will be apportioned to music activity (both licensable and non-licensable under 17 U.S.C. § 115) by: (i) for advertising/sponsorships sold across the Service on a run-of-site basis, and for subscription fees, multiplying such applicable revenue by a fraction, the numerator of which is the total aggregate listening time of all Monetized Musical Works during the applicable month via the applicable offering of the Service, and the denominator of which is the total aggregate listening time of all Monetized Content during the applicable month via the same offering of the Service, (ii) including all applicable revenue, with respect to such offering, arising from advertising/sponsorships sold against sound recordings embodying musical works exclusively; and (iii) excluding any applicable revenue, with respect to such offering, from advertising/sponsorships sold exclusively against sound recordings not embodying musical works (e.g., spoken word comedy). For the further avoidance of doubt, (i) fees paid by creators in connection with SoundCloud’s Creator Partner Program shall not be included in Service Revenue, and (ii) references in this Agreement to “Service Revenue” shall apply on an offering-by-

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offering basis, and uses of this term in the Agreement shall be construed so as to refer only to the particular service offering being described in the specific context.

(nn)         “SoundCloud Free-to-the-User Service” means a Free Nonsubscription/Ad Supported

Service that is operated by or on behalf of SoundCloud, is made available in the Territory, and is ad-supported.

(oo)        “SoundCloud Full Catalog Subscription Service” means any Subscription Service that (i) is operated by or on behalf of SoundCloud, and (ii) offers end users access to an unlimited number of Interactive Streams and Limited Downloads where the particular sound recordings available to the end user over a period of time are not substantially limited relative to Limited Offerings.

(pp)        “SoundCloud Parties” has the meaning set forth in paragraph 8(a).

(qq)        “Subscriber” means an end user who subscribes to the Additional Subscription Features or SoundCloud Full Catalog Subscription Service.

(rr)           “Subscription Service” has the meaning set forth in 37 CFR § 385.21.

(ss)         “Territory” means the United States of America and its territories, commonwealths and possessions, including, without limitation, Puerto Rico.

(tt)           “Total NMPA Independent Publishers’ 2013 Reported Revenue” means revenue figures reported by one hundred percent (100%) of all NMPA Independent Music Publishers (including Publisher) to NMPA in respect of one hundred percent (100%) of all NMPA Independent Music Publishers (including Publisher) total U.S. music publishing revenue attributable to the use and exploitation of musical works in the U.S., including for the avoidance of doubt and without limitation, mechanical, synchronization, print, digital and other revenues from music publishing operations in the ordinary course, for the period from January 1, 2013 through December 31, 2013. Publisher hereby irrevocably appoints NMPA to determine and calculate, on Publisher’s behalf, Total NMPA Independent Publishers’ 2013 Reported Revenue. Publisher acknowledges and agrees, and shall never dispute at all times during and after the Term, that

NMPA’s determination and calculation of Total NMPA Independent Publishers’ 2013 Reported Revenue, shall be final, conclusive and binding upon Publisher.

2.     Term:

(a)           The term of this Agreement (the “Term”) shall commence as of the Effective Date and continue through and including the date that is two (2) years from the end of the first calendar quarter during which Musical Works were first made available on the Service pursuant to the terms of this Agreement, unless earlier terminated in accordance with paragraph 9 below.

(b)           Notwithstanding the foregoing or anything to the contrary in this Agreement, the parties hereby acknowledge and agree that Subscribers who initiate subscriptions (or renewals of existing subscriptions, as the case may be) to the Additional Subscription Features and the SoundCloud Full Catalog Subscription Service, as the case may be, during the Term may continue to use the Additional Subscription Features and access the SoundCloud Full Catalog Subscription Service, as applicable (inclusive of all Musical Works) throughout the applicable subscription period notwithstanding the earlier termination of the Term (the “Wind-Down Period”); provided that the Wind-Down Period shall not exceed one (1) year following termination of the Term regardless of the existence of an ongoing applicable subscription period of any Subscriber. With respect to such subscriptions and the use of Musical Works in connection therewith during the Wind-Down Period, all of the parties’ respective rights, obligations, representations, warranties, covenants, permissions and agreements set forth herein that relate to the Additional Subscription Features and the SoundCloud Full Catalog Subscription Service, as applicable, that apply during the Term shall continue to apply during the Wind-Down Period, including, without

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limitation, SoundCloud’s obligation to pay to Publisher any applicable Publisher Payments in connection with the continued use of Musical Works by any such Subscribers. For the avoidance of doubt, with respect to subscriptions and access to all Musical Works in connection therewith during the Wind-Down Period, such Musical Works shall only be licensed under this Agreement with respect to those Subscribers whose subscriptions continue during the Wind-Down Period.

3.     Rights Granted:

(a)           Grant of Rights. In order to enable Creator Partners to monetize and promote Creator Partner Uploads via the Platform in the Territory, Publisher hereby grants to SoundCloud the non-exclusive right and license (the “License”) in the Territory, during the Term (and after the Term, as permitted under paragraph 2(b) above) and with respect to the Service, to do all of the following:

(i)             encode,  transmit,  reproduce,  make  available,  deliver  and  distribute  (on  a

“through-to-the-end-user” basis) Publisher Interactive Streams and Publisher Limited Downloads of any and all of the Musical Works licensable pursuant to 17 U.S.C. § 115 that are embodied in Creator Partner Uploads; and

(ii)            encode,  transmit,  reproduce,  make  available,  deliver  and  distribute  (on  a

“through-to-the-end-user” basis) Promotional Excerpts (licensable pursuant to 17 U.S.C. § 115) for real-time playback for purposes of previewing the applicable content to promote the availability of the Additional Subscription Features, the SoundCloud Full Catalog Subscription Service and/or the sale of permanent downloads.

Publisher hereby further grants to SoundCloud the non-exclusive, worldwide, royalty-free right and license to use any Publisher Metadata provided by Publisher under this Agreement for the following purposes: (A) matching to fingerprints for audio content on the Platform; (B) storing in a metadata database maintained by SoundCloud or a third party contractor on SoundCloud’s behalf and solely for SoundCloud’s benefit; (C) querying, and extracting information from, SoundCloud’s metadata database and/or its third party contractor’s database for the purposes of identifying musical works embodied in audio content and the corresponding rights owners on the Platform; (D) editing, altering, adapting, modifying or changing the Publisher Metadata as necessary to correct any obvious error(s) or to add any additional information for the purposes of better classification within SoundCloud’s metadata database or its third party contractor’s database; and (E) for such other non-commercial purposes solely as SoundCloud may require in connection with the exploitation of the rights granted in this Agreement.. Publisher Metadata provided to SoundCloud and/or any third party contractor retained by SoundCloud pursuant to paragraph 3(c) below shall be used solely to fulfill SoundCloud’s obligations and enable exploitation of the rights granted by Publisher under this Agreement and for no other purpose.

(b)           Scope of License. For the avoidance of doubt, the License includes all rights of every kind and nature in and to the Musical Works (excluding public performance rights, if applicable) necessary for Creator Partners and/or SoundCloud (as applicable) to exploit the Musical Works as permitted in paragraph 3(a) above, from the making of server reproductions to the transmission of the Musical Works, in all cases made subject to and in accordance with the terms of this Agreement.

(c)           Limitations.  Notwithstanding the foregoing, Publisher shall issue an electronic notice (a

“Restriction Notice”) to SoundCloud specifying Musical Works for which Publisher has lost the necessary rights and/or has incurred additional restrictions with respect to such Musical Work(s) and/or Publisher’s rights in such Musical Works(s) do not cover the exploitation thereof as part of the features authorized hereunder, preventing Publisher from granting authorization for their inclusion under paragraph 3. Publisher shall issue the Restriction Notice promptly upon the occurrence of any of the foregoing events, and in any event, in a timely manner providing SoundCloud with a reasonable amount of time to obtain a consecutive license pursuant to 17 U.S.C. § 115 to use such musical work(s) in the Service; provided that Publisher’s non-intentional, non-repetitive failure to do so shall not constitute a breach of this Agreement. In addition, Publisher may have the right to withhold or withdraw on a going forward basis from the License granted hereunder one or more Musical Works by issuing a Restriction Notice to SoundCloud in

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the event (i) of the foregoing as set forth in the first sentence of this paragraph 3(c); (ii) there is a bona fide songwriter, administered publisher or representative sensitivity as to inclusion in the Service; or (iii) there exists a third party claim or dispute (or suspected claim or dispute) (the “Permitted Reasons”). The withholding or withdrawal of the Musical Work(s) that is(are) the subject of such Restriction Notice shall not go into effect until two (2) business days after SoundCloud’s receipt of such Restriction Notice.

Publisher shall not issue a Restriction Notice (x) punitively, (y) in a discriminatory manner or (z) in a manner that frustrates the purposes of this Agreement. To the extent a restriction exists prior to and/or at the time of the Effective Date, Publisher shall send a Restriction Notice to SoundCloud promptly following the Effective Date. Notwithstanding the foregoing, nothing in this Agreement shall limit SoundCloud’s ability to exploit any withdrawn or withheld Musical Works via other lawful means (e.g., a statutory license).

(d)           Third Party Contractors. Publisher acknowledges that SoundCloud may use third party contractors to exercise its rights and/or perform its obligations under this Agreement; provided, that such third party contractors shall abide by the obligations and restrictions set forth in this Agreement, including the confidentiality provision in paragraph 11 below, and SoundCloud shall maintain control over, and retain liability hereunder for, all such rights and obligations.

(e)           User Access. The parties hereby acknowledge and agree that, notwithstanding anything to the contrary in this Agreement: (x) it shall not be deemed a breach of this Agreement if an end user is able to access the Service while traveling outside of the Territory, provided that SoundCloud uses commercially reasonable efforts to ensure, through commercially available technological means, that the end user concerned is in good standing with respect to SoundCloud’s terms of use for the Service (e.g., by utilizing reverse IP address lookup); and (y) sound recordings embodying Musical Works may be hosted on servers owned and/or controlled by SoundCloud and/or its contractors anywhere in the world.

(f)            Delivery of Metadata. Publisher shall, as frequently as possible, but in no event less frequently than monthly, and promptly upon any change in Publisher’s rights or interest, throughout the Term provide SoundCloud (or SoundCloud’s third party contractors, as SoundCloud shall direct) with

Publisher Metadata, including any applicable updates to the Publisher Metadata.

(g)           Experimental Agreement. The parties acknowledge that the arrangements described herein are experimental in nature, and that SoundCloud may withdraw or modify any of the features of the Service described herein at any time. Publisher acknowledges that Creator Partners are not obliged to maintain any certain Creator Partner Uploads on the Service, and may withdraw Creator Partner Uploads from the Service at their discretion. SoundCloud represents and warrants that it will use its commercially reasonable efforts to sell advertising in an effort to monetize audio content embodying Musical Works.

4.     Publisher Payments:

(a)           In consideration for the rights granted, and the representations, warranties and covenants made, by Publisher in this Agreement, SoundCloud agrees to pay Publisher a share of the revenues received by SoundCloud for each offering that it makes available via the Service as follows (“Publisher Payments”):

(i)             SoundCloud Free-to-the-User Service.  With respect to the SoundCloud Free-to-

the-User Service, the payment calculation will be the same as that royalty calculation set forth in 37 CFR

§ 385.12 and § 385.13 for a “free nonsubscription/ad-supported service”, which is as follows:  Publisher’s

Pro Rata Share of: (I) the greater of (A) 10.5% of Service Revenue attributable to the SoundCloud Free-to-the-User Service during the applicable month, and (B) 22% of the total amount expensed by SoundCloud or any of its affiliates in accordance with GAAP for sound recording rights (excluding sound recordings not embodying musical works) with respect to Interactive Streams and/or Limited Downloads received by users of the SoundCloud Free-to-the-User Service in the Territory during the applicable month (including amounts associated with sound recordings embodying Non-115 Works), which amount shall equal the Applicable Consideration for such rights at the time such Applicable Consideration is properly recognized as an expense under GAAP; less (II) the applicable payments that have been or that

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will be expensed in connection with the public performance of musical works (including, but not limited to, Musical Works) via the SoundCloud Free-to-the-User Service in the Territory during the applicable month.

(ii)            Additional Subscription Features.  With respect to the Additional Subscription

Features, the payment calculation will be the same as that royalty calculation set forth in 37 CFR §

385.22 and § 385.23 for a “limited offering,” which is as follows: Publisher’s Pro Rata Share of: (I) the greater of: (A) 10.5% of Service Revenue attributable to the Additional Subscription Features during the applicable month (excluding any such Service Revenue attributable to free trials covered under paragraph 4(c) below); (B) 21% of the total amount expensed by SoundCloud or any of its affiliates in accordance with GAAP for sound recording rights (excluding sound recordings not embodying musical works) with respect to Interactive Streams and/or Limited Downloads received by Subscribers to the Additional Subscription Features in the Territory during the applicable month (including amounts associated with sound recordings embodying Non-115 Works), which amount shall equal the Applicable Consideration for such rights at the time such Applicable Consideration is properly recognized as an expense under GAAP; and (C) a per-subscriber minimum of $0.18 per Subscriber of the Additional Subscription Features during the applicable month (subject to proration for partial subscriber months as set forth in 37 CFR § 385.23(c)) in the Territory; less (II) the applicable payments that have been or that will be expensed in connection with the public performance of musical works (including, but not limited to, Musical Works) via the Additional Subscription Features during the applicable month.

(iii)           SoundCloud Full Catalog Subscription Service.  With respect to the SoundCloud

Full Catalog Subscription Service, the payment royalty calculation will be the same as that set forth in 37

CFR  §385.12  and  §385.13  for  a  “standalone  portable  subscription  service”,  which  is  as  follows:

Publisher’s Pro-Rata Share of the greater of: (A) the greater of (i) 10.5% of Service Revenue attributable to the SoundCloud Full Catalog Subscription Service during the applicable month (excluding any such Service Revenue attributable to free trials covered under paragraph 4(c) below) and (ii) the lesser of (x) 21% of the total amount expensed by Sound Cloud or any of its affiliates in accordance with GAAP for sound recording rights (excluding sound recordings not embodying musical works) with respect to Interactive Streams and/or Limited Downloads received by Subscribers to the SoundCloud Full Catalog Subscription Service in the Territory during the applicable month (including amounts associated with sound recordings embodying Non-115 Musical Works), which amount shall equal the Applicable Consideration for such rights at the time such Applicable Consideration is properly recognized as an expense under GAAP, and (y) $0.80 per Subscriber to the SoundCloud Full Catalog Subscription Service in the Territory during the applicable month (subject to proration as set forth in 37 CFR §385.13(d)); less the applicable payments that have been or that will be expensed in connection with the public performance of musical works (including, but not limited to, Musical Works) via the SoundCloud Full Catalog Subscription Service during the applicable month; and (B) the per-subscriber minimum of $0.50 per Subscriber to the SoundCloud Full Catalog Subscription Service in the Territory during the applicable month (subject to proration as set forth in 37 CFR §385.13(d)).

(b)           Monthly Calculations. The Publisher Payments shall be calculated on a monthly basis but accounted for and paid on a quarterly basis, as set forth in paragraph 5(a) below.

(c)           Free Trial Periods. Notwithstanding the foregoing or anything elsewhere in this Agreement, with respect to any offerings of the Additional Subscription Features and access the SoundCloud Full Catalog Subscription Service, as applicable, that are made available to end users on a trial basis, free to the user, with no consideration paid by SoundCloud for use of any sound recordings in connection with the free trial period, and in a manner that has as its primary purpose the promotion of subscriptions to the Additional Subscription Features and access the SoundCloud Full Catalog Subscription Service, as applicable, no monies (including, for the avoidance of doubt, any Publisher Payments) shall be payable (and no reporting obligations shall apply) with respect to the offering concerned for the trial user concerned for a period of thirty (30) consecutive days per two-year period. Accordingly, (i) any plays of sound recordings of musical works (including Musical Works) by such trial users during such thirty-day period shall not be included in the determination and calculation of

Publisher’s Pro Rata Share, and (ii) any such trial users shall not be included within the determination and calculation of any per subscriber minima hereunder.

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(d) Clips. Notwithstanding the foregoing or anything elsewhere in this Agreement, no monies (including, for the avoidance of doubt, any Publisher Payments) shall be payable (and no reporting obligations shall apply) with respect to Promotional Excerpts.

(e) Accounting for Non-Publisher Portion. As between Publisher and SoundCloud, SoundCloud shall be responsible for the accounting and making of any payments with respect to the usage of the Non-Publisher Portion of the Musical Works licensed hereunder in accordance with the rates set forth above (where, for the avoidance of doubt, the calculation of Publisher’s Pro Rata Share shall be pro-rated appropriately based on the applicable owner’s or administrator’s interest in the Musical Work (as opposed to Publisher’s interest in the Musical Work)). For the avoidance of doubt, the calculation of amounts payable to Publisher for the service offerings shall be solely based on the Publisher Portion of the Musical Works licensed hereunder.

(f) No Other Fees. Other than the amounts expressly referenced in this paragraph 4 and paragraph 4A, no additional fees or amounts of any kind or nature shall be payable by SoundCloud for the right to use Musical Works (as works licensable via 17 U.S.C. § 115 or Non-115 Works) in connection with the Service as granted by Publisher under this Agreement (with the exception of any fees associated with the public performance of any of the Musical Works, which fees, if any, shall be paid directly to the U.S. musical work performing rights organizations). In the event that SoundCloud is required at any time to pay additional payments for the public performance of musical works via the Service in respect of Accounting Period(s) for which the applicable Publisher Payments have already been calculated and paid to Publisher pursuant to this paragraph 4, such that an overpayment by SoundCloud to Publisher of Publisher Payments for such past Accounting Period(s) would result, SoundCloud shall be entitled to a credit against future Publisher Payments in the amount of such overpayment. For the avoidance of doubt, SoundCloud shall not be obligated to pay to Publisher any additional amounts in connection with the storage or hosting of Musical Works and/or the incidental reproduction of Musical Works for purposes of operating the Service.

(g) Taxes. Each party hereto will be responsible for collecting and remitting sales, use, value added, and other comparable excise taxes due with respect to (or incurred in connection with) the sale or license of such party’s goods or services to its customers. Neither party hereto is liable for any taxes, duties, levies, fees, excises or tariffs incurred in connection with or related to the sale of the other party’s goods or services.

4A.       Advance:

(a)           Provided that this Agreement is fully executed and delivered on or prior to July 1, 2015,

SoundCloud will pay Publisher a recoupable advance in an amount equal to Publisher’s NMPA Market Share of the NMPA Advance Pool (the “Advance”), as follows: (i) if this Agreement is fully executed and delivered prior to June 1, 2015, SoundCloud will pay Publisher the Advance on or before July 1, 2015; and (ii) if this Agreement is fully executed and delivered between June 1, 2015 and June 30, 2015, SoundCloud will pay Publisher the Advance on or before August 1, 2015. The Advance shall be fully recoupable from any and all Publisher Payments due to Publisher pursuant to paragraph 4(a) of this Agreement during the Term.

(b)           Solely in the event that SoundCloud terminates the Term of this Agreement in accordance with paragraph 9(a) below, the theretofore unrecouped amount of the Advance as of the date of such termination of the Term shall be reimbursed by Publisher to SoundCloud within ten (10) business days of the date of such termination, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Publisher.

4B.       MFN:

(a) SoundCloud represents that, as of the Effective Date (i) it has not granted material non-contingent economic terms (i.e., advances and minimum revenue guarantees), to any Major Music

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Publisher granting substantially equivalent rights and benefits for the use of musical works via the Service and the Platform (e.g., term, territory and grant of rights) with respect to the same offerings of the Service in the Territory during the Term that, when considered on a collective basis, are more favorable to such Major Music Publisher than the amount of the NMPA Advance Pool, provided that in the event the Major Music Publisher concerned has a higher market share than the aggregate market share of all NMPA Independent Music Publishers, counted collectively, any such material non-contingent economic terms granted to such Major Music Publisher shall only be considered after taking into account the relative aggregate market share of all NMPA Independent Music Publishers, counted collectively, as compared to the Major Music Publisher concerned (each, an “Agreement with More Favorable Advances”), and (ii) it has not granted royalty rates to any Major Music Publisher for the use of musical works via the Service and the Platform with respect to the same offerings of the Service in the Territory during the Term that are more favorable to such other music publisher licensors than the Publisher Payment rates set out in paragraphs 4(a)(i), 4(a)(ii) and 4(a)(iii) above (each, an “Agreement with More Favorable Royalty Rates”). In the event that during the Term SoundCloud enters into an Agreement with More Favorable Advances and/or an Agreement with More Favorable Royalty Rates, as the case may be, as Publisher’s sole and exclusive remedy in connection therewith, Publisher will have the option of electing to receive (x) its NMPA Market Share of such more favorable material non-contingent economic terms (on a collective basis and on a market-share adjusted basis if the Major Music Publisher concerned has a higher market share than the aggregate market share of all NMPA Independent Music Publishers, counted collectively) in lieu of the determination and calculation of the Advance hereunder on the basis of the NMPA Advance Pool as set forth in this Agreement, and/or (y) such more favorable royalty rates in lieu of the Publisher Payment rates set out in paragraphs 4(a)(i), 4(a)(ii) and 4(a)(iii) above, as applicable, provided that in each case, Publisher also accepts any and all other terms and conditions contained in the corresponding Agreement with More Favorable Advances or Agreement with More Favorable Royalty Rates, as applicable, that were tied to, relevant to or otherwise conditional to the grant of such more favorable material non-contingent economic terms or such more favorable royalty rates, as applicable.

5.     Accountings:

(a)           Quarterly Accountings. Within forty-five (45) days after the end of each Accounting Period, SoundCloud, or a third-party contractor acting on SoundCloud’s behalf, shall render to Publisher an accounting statement covering the Publisher Payments due. Each accounting statement shall be delivered in hard copy or electronic format in the form (or substantially similar form) set forth in Schedule

1. Payment of the applicable Publisher Payments may be mailed to Publisher or sent to Publisher via wire transfer, at SoundCloud’s option.

(b) Audits. An independent accountant on behalf of Publisher may, at SoundCloud’s offices and at Publisher’s expense, examine SoundCloud’s books and records solely for the purposes of verifying the accuracy of accounting statements rendered by SoundCloud to Publisher hereunder. Such books and records may be examined as aforesaid only (i) during SoundCloud’s normal business hours, (ii) upon at least thirty (30) days’ prior notice to SoundCloud, and (iii) within three (3) years after the date a statement is rendered hereunder. Publisher shall not have the right to examine such books and records more frequently than once in any twelve (12) month period or more than once with respect to any particular statement. Publisher acknowledges that such books and records constitute and contain Confidential Information (as defined in paragraph 11(a) below), and Publisher’s accountant must sign and deliver to SoundCloud a confidentiality agreement in a form reasonably acceptable to SoundCloud prior to engaging in any such examination. Each statement hereunder shall be deemed final and binding upon Publisher as an account stated and shall not be subject to any claim or objection by Publisher (A) unless

Publisher notifies SoundCloud of Publisher’s specific written objection to the applicable statement, stating the basis thereof in reasonable detail within three (3) years after the date such statement is rendered hereunder, and (B) unless, prior to the date six (6) months after the expiration of said three (3) year period, Publisher makes proper service of process upon SoundCloud in a suit instituted in a court of proper jurisdiction.

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(c)           Publisher Notification. If Publisher becomes aware that SoundCloud is reporting on and/or paying Publisher for musical works that Publisher does not own, control or administer, Publisher will promptly notify SoundCloud in accordance with paragraph 10.

6.     Rights Management:

(a)           Takedown Tool. To assist Publisher in managing its copyrights on the Service, SoundCloud will provide Publisher with access to a takedown tool (the “Takedown Tool”) through SoundCloud’s account administration and rights management interface, known as “Deck” (“Deck”). The

Takedown Tool provides the ability to remove content uploaded by any third party that embodies one or more Musical Works (other than content embodying musical works licensable under 17 U.S.C. § 115) for a Permitted Reason using the takedown tool. Publisher shall not take content down (a) punitively, (b) in a discriminatory manner, or (c) in a manner that frustrates the purposes of this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, SoundCloud reserves the right to revoke Publisher’s access to the takedown tool in the event Publisher misuses the Takedown Tool. In such

event, Publisher’s ability to remove content from the Platform will be limited to sending takedown notices to SoundCloud.

(b) Content Management. As part of the arrangement contemplated herein, SoundCloud shall comply, during the Term, with the following obligations:

(i)             Content  Filtering. SoundCloud  will  continue  to  implement  and  maintain

automated content filtering and blocking at the point of upload using the Content ID System.

(ii)            Scrubs.  On a periodic basis during the Term, SoundCloud will “scrub” its archive

of audio content, using the Content ID System.

(iii)           Notice and Takedown.  SoundCloud will continue to maintain a notice and

takedown process in compliance with 17 U.S.C § 512.

(iv)          Repeat Infringer Policy.  SoundCloud will continue to maintain a process for

terminating the accounts of repeat infringers in compliance with 17 U.S.C § 512.

(v)           Rights Management Tools.  SoundCloud will continue to provide access to the

rights management tools described in paragraph 6(a), above.

7.     Certain Representations, Warranties and Covenants:

(a)           As of the Effective Date and during the Term (and during the Wind-Down Period), each party hereto represents, warrants and covenants that: (i) it has the full right and power to enter into and fully perform this Agreement in accordance with its terms; and (ii) its execution and performance of this Agreement will not violate the provisions of any agreement to which it is a party, or any applicable law or regulation.

(b)           As of the Effective Date and during the Term (and during the Wind-Down Period), Publisher represents, warrants and covenants that (i) Publisher is, and shall remain, the beneficial owner and/or administrator of all rights being licensed to SoundCloud pursuant to this Agreement (subject, for the avoidance of doubt, to any Restrictions Notices sent by Publisher to SoundCloud during the Term); (ii) as between Publisher and SoundCloud, Publisher shall pay and be solely responsible for the payment of royalties and other amounts to any and all songwriters and other third parties who are entitled to a royalty or other payment in connection with the permitted exploitation of the Publisher Portion of the Musical

Works hereunder; and (iii) SoundCloud’s exercise of the rights granted to it under this Agreement will not infringe upon or violate any third party’s rights, including any rights of copyright, trademark, publicity or privacy.

8.     Indemnification:

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(a) Indemnification by Publisher. Publisher agrees to defend, indemnify and hold harmless SoundCloud, its subsidiaries, affiliates, successors, licensees, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing (collectively, “SoundCloud Parties”), from and against any and all Losses due to any claim by a third party: (i) based on facts that, if true, would constitute a breach by Publisher of this Agreement, including any warranty, representation or covenant made in this Agreement by Publisher with respect to the Publisher Portion of Musical Works licensed under this Agreement; or (ii) arising from or related to the rights and authorizations with respect to the Publisher Portions of Musical Works granted to SoundCloud in this Agreement or the exercise thereof. For the avoidance of doubt, Publisher shall not be required to indemnify SoundCloud with respect to any Losses due to any claim by a third party relating to the Non-Publisher Portion of a Musical Work licensed under this Agreement.

(b) Indemnification by SoundCloud. SoundCloud agrees to defend, indemnify and hold harmless Publisher, its subsidiaries, affiliates, successors, licensees, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing, from and against any and all Losses due to any claim by a third party: (i) based on facts that, if true, would constitute a breach by SoundCloud of this Agreement, including any warranty, representation or covenant made in this Agreement by SoundCloud; or (ii) arising from the payment or non-payment of royalties, accounting or other actions taken by SoundCloud with respect to Non-Publisher Portions of Musical Works licensed under this Agreement.

(c)           Procedures. The persons and entities entitled to be indemnified under paragraphs 8(a) and 8(b) above (individually and collectively, the “Indemnitee”) shall (i) promptly inform the indemnifying

party under such paragraphs (the “Indemnitor”) of each claim, suit or proceeding with respect to which it seeks indemnity, (ii) furnish to the lndemnitor a copy of each communication, notice or other action

related to such claim, suit or proceeding, and (iii) give the Indemnitor the authority, information and reasonable assistance necessary to settle or litigate such claim, suit or proceeding, using counsel

selected by the Indemnitor (provided, however, that the Indemnitee shall have the opportunity to participate in the defense of such suit or proceeding with counsel of its choice, at the Indemnitee’s sole

cost). Any settlement of any such claim, suit or proceeding by the Indemnitor that imposes any requirements on the Indemnitee or which involves agreements other than the payment of money by the

Indemnitor and receipt of a full release for the benefit of the Indemnitor and the lndemnitee, shall be subject to the Indemnitee’s written consent.

(d)           Payments. Without waiving any right or remedy available to SoundCloud, if any claim is made for which Publisher is obligated to indemnify any of the SoundCloud Parties, SoundCloud shall

have the right to withhold amounts otherwise payable to Publisher under this Agreement in an amount reasonably related to such claim and to deduct therefrom payments required under paragraph 4(a)

above.

(e)           WITHOUT LIMITING THE INDEMNITY OBLIGATIONS OF THE PARTIES PURSUANT TO THE FOREGOING PROVISIONS OF THIS PARAGRAPH 8 (INDEMNIFICATION) AND OTHER

THAN AS A RESULT OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,

CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,

BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOUNDCLOUD MAKES

NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, TO PUBLISHER AS TO THE QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF

THE SERVICE OR ANY ELEMENTS OF THE SERVICE.

(f)

9.     Termination:

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(a)           Breach. Without limiting any other remedy available at law or in equity, either party may terminate the Term in the event of any material breach of this Agreement by the other party that is not remedied within thirty (30) days after notice is provided to the breaching party thereof. Without limiting the generality of the preceding sentence, neither party shall be entitled to recover damages or to terminate the Term by reason of any breach by the other party of its obligations hereunder unless the breaching party fails to remedy such breach within thirty (30) days following receipt of notice thereof. The foregoing cure period(s) will not apply to breaches incapable of being cured.

(b)           Financial Difficulty. In addition to the right of termination set forth in paragraph 9(a) above, each party hereto shall have the right to terminate the Term immediately: (i) in the event that the other party makes a general assignment for the benefit of its creditors; (ii) in the event of the filing of a voluntary or involuntary petition against the other party under any applicable bankruptcy or insolvency law; or (iii) in the event of the appointment of a trustee or receiver or any equivalent thereof for the other party hereto or its property.

(c)           Fails to Launch; Cessation of Service. In addition, SoundCloud shall have the right to terminate the Term upon notice to Publisher in the event that SoundCloud fails to launch any offering of the Service during the Term.

(d)           Survival. Paragraphs 2(b), 3(a)(i)-(ii) (but only with respect to uses that are permitted to occur during the Wind-Down Period, it being understood and agreed that paragraphs 2(b), 3(a)(i)-(ii) shall not survive the expiration or earlier termination of the Term of this Agreement in the event that Publisher terminates the Term pursuant to paragraphs 9(a) or 9(b) above), the final paragraph of paragraphs 3(a), 4 and 5 (but only with respect to accounting, reporting and payment for activities that occurred during the Term and for uses that are permitted to occur during the Wind-Down Period), 7, 8, 9(d), 10, 11, 12 and 13 shall survive the expiration or earlier termination of the Term of this Agreement.

(e)           No Termination After Cure. A party’s right to terminate the Term of this Agreement will be deemed to have been waived for all purposes in the event that it is not exercised prior to the date upon which the breach giving rise to such right of termination has been cured.

10.  Notices and Payments: All notices under this Agreement must be in writing in order to be effective, and shall be deemed to have been duly given or made (a) on the date delivered in person, (b) on the date indicated on the return receipt if mailed postage prepaid, by certified or registered mail, with return receipt requested, or (c) if sent by Federal Express, U.P.S. Next Day Air or other internationally recognized overnight courier service or overnight express mail, with service charges or postage prepaid, on the next business day after delivery to the courier service or express mail service (if sent in time for and specifying next day delivery). In each case (except for personal delivery) such notices, as well as all requests, demands, and other communications shall be directed to a party at the address first mentioned above, unless otherwise indicated in a notice duly given hereunder, and, in the case of SoundCloud, to the attention of General Counsel, with required simultaneous copy tendered as aforesaid to Bobby Rosenbloum, Esq., Greenberg Traurig, LLP, Terminus 200, 3333 Piedmont Road, NE, Suite 2500, Atlanta, Georgia 30305, and, in the case of Publisher, to the attention of the person or persons so designated by Publisher in the signature block of this Agreement or upon notification to SoundCloud under this paragraph 10 immediately following the Effective Date. Until such time that Publisher notifies SoundCloud otherwise, all Publisher Payments and accounting statements will be sent to Publisher as indicated in paragraph 5(a) above.

11.  Confidentiality:

(a)           For the purposes of this Agreement, “Confidential Information” shall mean the terms of this Agreement, including Publisher’s NMPA Market Share, and any non-public information, data, usage reports, revenue reports, or other materials provided by one party to the other under or in connection with this Agreement (other than Musical Works, metadata, and other information intended for storage and display to users or prospective users of the Service under this Agreement) and any other information the receiving party should reasonably have understood under the circumstances should be treated as

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confidential, whether or not the specific designation “confidential” or any similar designation is used, such as usage data, accounting statements, and similar information. Notwithstanding the foregoing, SoundCloud agrees to not share split level information with the public at large, but SoundCloud shall be permitted to use such information without restriction in connection with the operation of the Service, including without limitation, in connection with matching, accounting, reporting, disputes, audits, etc. Except with the prior written consent of the disclosing party, neither party shall use or disclose any

Confidential Information other than (i) to such party’s attorneys, accountants and financial representatives under a duty of confidentiality as may be reasonably necessary in order to receive their professional advice, (ii) to such party’s employees and contractors who have a need to know and any disclosure to contractors may only be to contractors who are bound by an agreement to protect the confidential information of third parties, (iii) with investors, prospective investors, acquirers and prospective acquirers, each of whom shall first be required to enter into a nondisclosure agreement, (iv) in connection with any legal, governmental or administrative proceeding, provided that, where it is legal so to do, prior written notice of such disclosure is furnished to the non-disclosing party in order to afford such non-disclosing party a reasonable opportunity to seek a protective order (it being agreed that if the non-disclosing party is unable to obtain or does not seek a protective order, disclosure of such information in such proceeding may be made without liability), and (v) in the ordinary course of such party’s fulfillment of its obligations hereunder and this applies to Publisher solely to the limited extent necessary to fulfill its written and/or legal obligations to songwriters and/or music publishers. In addition, nothing in this Agreement shall prohibit or limit either party’s use or disclosure of information (A) previously known to it by lawful means without obligation of confidence, (B) independently developed by or for it without use of or access to the other party’s Confidential Information, (C) acquired by it from a third party which, to the reasonable knowledge of the receiving party, is not under an obligation of confidence with respect to such information, (D) which is or becomes publicly available through no breach of this Agreement or (E) that is required to be disclosed by operation of law, court order or other governmental demand (subject to the notice requirement in clause (iii) of this paragraph 11(a)).

12.  Covenant Not To Sue:

(a)           Covenant Not To Sue. Publisher, on behalf of itself, its songwriters, parents, subsidiaries, divisions, predecessors, successors and any and all other affiliates, and each of their respective officers, directors, past and present employees, consultants, agents, representatives, insurers, attorneys, shareholders and heirs (collectively, the “Publisher Parties”), hereby irrevocably and unconditionally agrees and covenants never (whether during or after the Term) to directly or indirectly bring, assert, pursue, maintain, join in, support, assist, fund, lend resources to, encourage, cooperate or otherwise participate in, or cause, persuade or induce any of the Publisher Parties or any third party to bring, assert, pursue, maintain, join in, support, assist, fund, lend resources to, or otherwise participate in any Claim against SoundCloud, directly or indirectly, arising from, relating to, based on or in connection with, in whole or in part, directly or indirectly, the use and exploitation, however characterized (including without limitation the reproduction, distribution, public display, public performance, or communication to the public), of Non-115 Works and/or Musical Works which are not registered in the Musical Work Metadata Database and/or are not embodied in Content Partner Uploads which are Identified, as the case may be, in whole or in part, directly or indirectly, through the Platform during the Term. For purposes of clarity, the foregoing covenant not to sue extends without limitation to SoundCloud’s hosting and use on the Platform of any derivative works of Musical Works (i.e., whether or not authorized)

uploaded to the Platform by third parties. However, nothing contained in this paragraph 12(a) limits the right of Publisher to bring a claim against SoundCloud to enforce the terms, conditions or limitations prescribed in this Agreement with respect to the rights, licenses and consents granted under this Agreement. For purposes of clarity, the foregoing covenant not to sue does not cover any claims against Creators for the creation (as opposed to the uploading to the Platform) of derivative works based on one or more Musical Works.

13.  Miscellaneous:

(a)           Construction; Entire Agreement. All references in this Agreement to “this Agreement,” “hereof,” “herein” and words of similar connotation include all exhibits and schedules attached hereto,

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unless specified otherwise. The parties hereto intend this Agreement as a final expression of their understanding and agreement with respect to the subject matter hereof and as a complete and exclusive statement of the terms thereof; this Agreement supersedes all prior and contemporaneous negotiations, understandings, and agreements between the parties hereto with respect to the subject matter hereof. No draft or addition, deletion, revision, change or other alteration in or to drafts of this Agreement prepared prior to the execution of this Agreement shall be referred to by any of the parties hereto in any lawsuit in which the construction, interpretation or meaning of this Agreement is in dispute or otherwise be used for purposes of construing or interpreting any of the terms, provisions or language of this Agreement in adjudicating or otherwise resolving any such lawsuit. The parties acknowledge and agree that no party hereto has made any representations or promises in connection with this Agreement or the subject matter hereof not contained herein.

(b)           Updates to CFR.  All references in this Agreement to any section of the Code of Federal

Regulations (sometimes referred to herein as the “CFR”) shall include such section as may be amended, modified or superseded from time to time.

(c)           Compliance With Law. Nothing in this Agreement shall be construed to require the commission of any act contrary to law, and wherever there is a conflict between any provisions of this Agreement and any statute, law, ordinance, order or regulation contrary to which the parties hereto have

no legal right to contract, such statute, law, ordinance, order or regulation shall prevail; provided, that, in such event, (i) the provision of this Agreement so affected shall be limited only to the extent necessary to permit the compliance with the minimum legal requirements, (ii) no other provisions of this Agreement shall be affected thereby, and (iii) all such other provisions shall remain in full force and effect. The parties hereto shall negotiate in good faith to replace any invalid, illegal or unenforceable provision (the

“Invalid Provision”) with a valid provision, the effect of which comes as close as possible to that of the Invalid Provision.

(d)           Waivers. This Agreement cannot be canceled, modified, amended or waived, in part or in full, in any manner except by an instrument in writing signed by the party to be charged. No waiver by a party hereto, whether express or implied, of any provision of this Agreement or default hereunder shall affect such party’s right thereafter to enforce such provision or to exercise a right or remedy set forth in this Agreement in the event of any other default, whether or not similar. The rights and remedies of each party as specified in this Agreement are not to the exclusion of any other rights or remedies of such party. Each party may decline to exercise one or more of its rights and remedies as it may deem appropriate without jeopardizing any other of its rights or remedies. Notwithstanding anything in this Agreement, each of the parties hereto may at any time exercise any right it now has or at any time hereafter may be entitled to as a member of the public as though this Agreement were not in existence, and nothing herein will be deemed to affect or limit (i) SoundCloud’s eligibility for any of the safe harbors under 17 U.S.C §

512 (or any reasonably equivalent or analogous laws anywhere in the world), or (ii) any other agreement between Publisher and SoundCloud.

(e)           Examples Illustrative.  Whenever examples are used in this Agreement with the words

“including,” “for example,” “e.g.,” “such as,” “etc. “ or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof. The paragraph headings herein are used solely for convenience and shall not be used in the interpretation or construction of this Agreement.

(f)            THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF NEW YORK, AND THE VALIDITY, INTERPRETATION AND LEGAL EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES UNDER NEW YORK LAW TO THE CONTRARY). THE NEW YORK COURTS (STATE AND FEDERAL) LOCATED IN NEW YORK COUNTY, NEW YORK, SHALL HAVE SOLE JURISDICTION OF ANY CONTROVERSIES REGARDING THIS AGREEMENT. THE PARTIES WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS AND HEREBY SUBMIT TO THE JURISDICTION OF THOSE COURTS. ANY PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY, AMONG OTHER METHODS, BE SERVED UPON A

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PARTY BY DELIVERING IT OR MAILING IT, BY REGISTERED OR CERTIFIED MAIL OR BY OVERNIGHT COURIER OBTAINING PROOF OF DELIVERY, DIRECTED TO THE ADDRESS SET FORTH IN PARAGRAPH 10 OR SUCH OTHER ADDRESS AS A PARTY MAY DESIGNATE PURSUANT TO PARAGRAPH 10. ANY SUCH DELIVERY OR MAIL SERVICE SHALL BE DEEMED TO HAVE THE SAME FORCE AND EFFECT AS PERSONAL SERVICE WITHIN THE STATE OF NEW YORK. THE PREVAILING PARTY IN ANY LEGAL ACTION ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE ENTITLED TO PROMPT REIMBURSEMENT FROM THE OTHER PARTY FOR ALL COSTS AND EXPENSES (INCLUDING REASONABLE OUTSIDE ATTORNEYS’ FEES) INCURRED BY THE PREVAILING PARTY IN CONNECTION THEREWITH.

(g)           Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Each party may assign this Agreement and/or its rights and/or obligations hereunder in whole or in part only to any affiliate or to any person or entity acquiring all or substantially all of the assets or business of such party, and such rights and obligations may be assigned by any assignee thereof, but subject to the same limitations. Any purported assignment in violation of the foregoing shall be deemed null and void ab initio and without force or effect. Other than such permitted assignees, no person or entity not a party to this Agreement shall have any rights or remedies under this Agreement, whether as a third-party beneficiary or otherwise.

(h)           Independent Contractors. In entering into this Agreement, SoundCloud and Publisher have and will have the status of independent contractors. Accordingly, there is no joint venture, partnership, agency or fiduciary relationship existing between the parties, and the parties do not intend to create any such relationship by this Agreement.

(i)             Force Majeure. Neither party hereto will be responsible for, or be in breach of this Agreement, to the extent that its performance is delayed as a result of any act of God, war, terrorism, fire, earthquake, civil commotion, act of government or any other cause wholly beyond its control, and not due to its own negligence or that of its contractors or representatives, and which cannot be overcome by the exercise of due diligence (“Force Majeure Event”). Publisher agrees that SoundCloud shall have the right to suspend the running of the Term in the event of a Force Majeure Event. Such right may be exercised by notice to Publisher (each such notice, a “Suspension Notice”), and such suspension will last for the duration of the applicable event. If SoundCloud suspends the running of the Term in the event of a Force Majeure Event and the Force Majeure Event affects no other digital music service in the Territory operating under a direct grant of rights from Publisher other than SoundCloud, and that Force Majeure Event continues for more than a period of six (6) consecutive months, Publisher may request, by notice to SoundCloud (the “Request Notice”), that such Suspension Notice be terminated by SoundCloud within the sixty (60) day period after Publisher’s receipt of the Request Notice. If SoundCloud does not terminate such Suspension Notice, the Term shall terminate at the end of that sixty (60) day period (or at such earlier time as SoundCloud may designate by notice to Publisher), and all parties shall be deemed to have fulfilled all of their obligations under this Agreement except those obligations which survive the end of the Term.

(j)             Publisher Payments Speculative. Nothing contained in this Agreement obligates SoundCloud or any Creator Partner to make available, sell, license, exploit or distribute Musical Works on or in connection with the Service.

(k)           Publicity. No party hereto shall, without the prior written consent of the other party, issue any press release or make any other public announcement or statement relating to the existence of this Agreement, any terms and conditions of this Agreement or to the negotiation thereof to which such party was privy or of which it was otherwise made aware (e.g., by being copied on correspondence or by being advised by another party to the negotiation).

(l)             Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which when taken together, will be deemed to constitute one and the same instrument. Executed copies of this Agreement transmitted via facsimile and/or electronic mail will be deemed originals for all purposes and will be binding upon the parties hereto. Further, this Agreement may be accepted in

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electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and each party’s acceptance shall be deemed binding between the parties. Each party acknowledges and agrees it shall not contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Each party further acknowledges and agrees that it shall not contest the validity or enforceability of a signed facsimile copy of this Agreement on the basis that it lacks an original handwritten signature. Facsimile signatures shall be considered valid signatures as of the Effective Date. Computer maintained records of a party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.

IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement as of the Effective Date.

Publisher’s electronic execution of the Rights

Agreement via the NMPA CRM portal constitutes

Publisher’sbinding agreement to these terms.

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Schedule 1

Specification for Quarterly Accounting Statements

See attached