Evolving Sound Ltd
Evolving Sound General Licensing Terms & Conditions
In this Agreement, the following terms shall have the following meanings:
“Agreement” means the Specific Terms (agreed as part of a licensing agreement) together with these General Conditions.
“Authorised Use” means that form of authorised exploitation as set out in the Specific Terms.
“Duration” means the duration of the Title (s) licensed under this Agreement as set out in the Specific Terms.
“Licence” means the licence granted by Licensor to Licensee pursuant to this Agreement.
“Fee” means the fee payable by the Licensee in consideration for the Licence as set out in the Specific Terms.
“Specific Terms” means the terms of this Agreement, excluding the General Conditions, setting out among other things, the relevant production and the use covered by the Licence.
“Licensor” means Evolving Sound Limited.
“Licensee” means that party specified in the Specific Terms.
“Production” means the production set out in the Specific Terms.
“Society” means that performing rights society operating in the country where the Licencee operates its principal place of business.
“Term” means in perpetuity unless otherwise specified in the Specific Terms.
“Territory” means that part of the world set out in the Specific Terms
“Title(s)” means the production music (comprising the Composition and Sound Recording) set out in the Specific Terms that is the subject of the Licence.
2. Grant of Licence
2.1 Subject to all terms and conditions set out herein, Licensor, hereby grants to the Licensee a non-exclusive licence to exploit the Title (which shall include making recordings if necessary ) in connection with the Authorised Use and any portion thereof, not exceeding the Duration, may be reproduced in or synchronised with the Production and in any and all in-context promotional clips, in-context advertisements, and in-context trailers produced for the promotion of the production, in any and all media now known or hereinafter devised and to make copies of the Production and distribute the same only in the Territory during the Term.
2.2 This Licence shall be issued in consideration of the Fee and shall be conditional upon receipt by the Licensor (or a third party duly authorised by Licensor to receive payments on its behalf) of payment in full of the Fee in cleared funds into the Licensor’s (or such third party’s) bank account.
3. Scope of Agreement
3.1 All rights in the Title other than those expressly granted to the Licensee hereunder are strictly reserved to the Licensor. Without prejudice to the generality of the foregoing:
(a) this Licence does not grant permission to make and/or distribute copies of the Title, or to rent or lend copies thereof, or to perform or play the Title, or to include the Title in a cable programme service or to authorise any of the foregoing other than in the Production and solely for the purpose of the Authorised Use;
(b) the Licensee may not reproduce or exploit the Title in the form of an arrangement, transcription, sample, parody or burlesque unless the Licensor has specifically authorised the Licensee to do this for the purpose of this Licence;
(c) all moral rights are reserved;
(d) the Title must not be used or exploited in an obscene or defamatory manner or context;
(e) the Title must not be used or exploited in such a way as to imply approval for the Production or any part of the content hereof by the writer(s) thereof, or any artist or performer associated with the Title, unless the relevant persons have specifically authorised the Licensee to do this for the purpose of this Licence.
3.2 This Licence only covers the Title. For the avoidance of doubt, it does not cover the copyright or any other rights in any film or broadcast. The Licensee must obtain separate permissions for the use thereof.
3.3 This Licence is null and void in relation to any copy of the Title (whether in the form of the Production or any copy thereof) which is (or is intended or proposed to be) used or exploited in breach of or outside the scope of this Licence, whether such use or exploitation is by the Licensee or any third party. All rights are reserved in relation to any such copy.
3.4 Without prejudice to clause 3.3 above, where the Licensee authorises a third party to make or use a copy of the Production as part of the Authorised Use, the Licensee must require such third party to agree not to use or exploit such copy outside the scope of this Licence or act in such a way as would be a breach of this Licence and not to part with possession of such copy without imposing similar conditions (including this condition) on the party to whom possession is given.
3.5 The Licensee is in any event liable to the Licensor for any such use or exploitation of such a copy as is referred to in clauses 3.3 and/or 3.4 (whether or not the Licensee has obtained an agreement in accordance with clause 3.4) and Licensor may at its option require the Licensee to pay to Licensor as liquidated damages the equivalent to the highest amount ordinarily payable for a licence for the particular type of use or exploitation which is not licensed hereunder, together with interest thereon (as calculated under clause 5.2) from the date of such use or exploitation to the date of payment.
3.6 Where the Authorised Use includes the sale or supply of copies to members of the general public the Licensee’s obligations under clauses 3.4 and/or 3.5 shall not extend to the relationship between seller or supplier and the members of the general public. For the avoidance of doubt, all rights are reserved against the latter.
3.7 The Licence granted herein is conditional upon the Licensee (and any assignee to whom the Licence is assigned under clause 7, if any) at all times complying with all the terms and conditions of this Agreement.
4.1 The Fee shall be payable upon Licensee entering into this Agreement. Payment shall be made online via the website www.evolvingsound.com or otherwise where an invoice is issued to Licensee directly by Licensor in accordance with the terms of the invoice. All international payments to be made net of any bank fees and in GB pounds sterling.
4.2 The Fee shall include all payments due to the Licensor in respect of any mechanical rights in the musical composition embodied in the Title arising from the Authorised Use as licenced hereunder.
4.3 The Fee shall include all payments due to the Licensor in respect of any synchronisation rights in the musical composition and/or the sound recording which comprise the Title to the extent that these are exercised by the Licensee in connection with the Authorised Use.
5. Inspection of Production
5.1 The Licensee shall at Licensor’s request make facilities available for Licensor or Licensor’s duly authorised representatives to view and inspect the Production and shall also supply Licensor with any information or documentation in the Licensee’s possession, power, custody or control (and use its best endeavours to supply the same to Licensor if it is not in the Licensee’s possession, power, custody or control) as is reasonably requested by Licensor at any time in order to assist Licensor in verifying whether a proper licence has been obtained in relation to the Production and/or whether the terms and conditions of this Licence have and are being complied with. The provisions of this clause are without prejudice to any additional powers of verification and/or audit which Licensor may have under any other scheme, agreement, licence or code.
5.2 Licensee shall supply copies of the cue sheets submitted to the Licencee’s local collection society in relation to any public performance of the Title carried out in connection with the Authorised Use.
This Agreement may not be assigned without the prior written consent of Licensor. However, consent shall be deemed given where assignment is for the sole purposes of financing or distribution of the Production PROVIDED THAT the licensee has ensured that the relevant assignee has delivered to Licensor an irrevocable written undertaking to abide by the terms and conditions of this Agreement at all times and Licensor has acknowledged receipt of the same.
7.1 Licensor warrants that it has full power right and authority to enter into this Agreement and make the grant of rights contained herein PROVIDED always THAT the aggregate liability of Licensor for any breach of this warranty in relation to the reproduction of any one Title on all copies of the Production shall not exceed a sum equal to five times the total amount paid by the Licensee for such licence in relation to such Title.
7.2 Licensee warrants that:
(a) it is a member of the Society and shall submit all necessary information and complete all necessary returns and cue sheets and pay any performance fees arising in connection with the Authorised Use of the Title in the Production.
(b) it shall make no use of the Title save as set out in this Agreement.
(c) all details set out in the Specific Terms are accurate as of the date of this Agreement and LIcenee shall notify Licensor promptly in the event any subsequent changes (eg title of production) take place.
(d) it shall comply with the rules and regulations of any competent authority existing within the Territory in so far as they effect the Production.
7.3 Save as qualified at 7.1 above either party shall indemnify the other against any and all claims, costs proceedings, demands, losses, damages or expenses resulting from or by reason of any breach of the representations, warranties and agreements made herein.
8 Entire Agreement
This Agreement sets forth the full agreement of the parties hereto and may only be modified or varied by a written instrument signed by the parties hereto.
If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
10 Governing law and jurisdiction
This Licence shall be construed according to the laws of England and Wales and the parties agree to submit to the jurisdiction of the English Courts.