"Agreement" means this Licence Agreement.
"Business Day" means any day other than a Saturday or Sunday or a public holiday in Australia.
"Commencement date" the date nominated by the Company provided always that the Customer has paid to the Company the Licence Fee and should the Customer fail to pay the Licence Fee by the Commencement Date, the Commencement Date shall be automatically extended without notice by either party to the Delivery Date.
"Customer" means you and/or any party authorised in writing by the Company to Licence the Product.
"Delivery date" the date or period specified for the delivery of the Product specified in clause 4.1.
"Force majeure" an act, omission or circumstance relied on by one of the parties to this agreement as a force majeure event and over which that party could not reasonably have exercised control.
"Licence" the licence granted by the Company to the Customer under this agreement.
"Licence fee" the fee payable by the Customer to the Company as nominated by the Company.
"Product" all synth presets, audio samples and associated midi Licensed by the Company to the Customer in exchange for payment of the Licence Fee by the Company.
"Reproduce" or "Reproduction" means to reproduce the Product within the Customer's original musical or audio compositions including demos, songs, albums, records, remixes, computer games, commercials, post productions, commissioned pieces and soundtracks for film, theatre, musicals, television and live performances but expressly excludes any use in any manner of the Product in isolation
Unless the context otherwise requires, words importing the singular include the plural and vice versa and words of one gender include all other genders.
A reference to a party to this Agreement includes a reference to that party's executor, administrator, heirs, successors, permitted assigns, guardian, and trustee in bankruptcy, all of whom, respectively, are bound by the provisions of this Agreement.
Headings in this Agreement are inserted for guidance only, and shall not affect the meaning and interpretation of the remaining provisions of this Agreement.
A reference to an amount of currency is a reference to that amount in Australian dollars.
Words in this Agreement importing the singular number or plural number shall include the plural number and singular number respectively.
Words in this Agreement importing persons include all persons, entities and associations, including companies, trusts, bodies corporate, statutory bodies, partnerships, and joint venturers.
Where a word of phrase is given a particular meaning in this Agreement, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
Where a party to this Agreement is more than one person the covenants and obligations on their part contained in this Agreement are binding upon each of them jointly and severally.
A reference to any statute is a reference to that statute, as amended and in force from time to time.
A reference to a party to this Agreement includes a reference to any partner, joint venturer, related company or subsidiary of a party to this Agreement, (whether presently existing or not) and each party respectively, shall be liable to perform or to procure the performance by any such partner, joint venturer related company or subsidiary to any obligation upon it arising pursuant of this agreement.
The Parties agree that this original Agreement may be in email or electronic form and that execution of this Agreement may be communicated by email.
This Agreement may consist of a number of copies each executed by one (1) or more parties to the Agreement. If so, the executed copies are treated as making up the one (1) Agreement.
Despite any other clause in this Agreement, the Customer acknowledges that by making an offer to the Company to Licence the Product, or by making any indication acknowledging their agreement to this Agreement or by Licensing or Reproducing the Product, the Customer unconditionally and irrevocably agrees to accept and immediately be bound by the terms and conditions of this Agreement in full.
In exchange for the payment of the Licence Fee by the Customer to the Company, the Company grants to the Customer a non-exclusive non-transferable licence to Reproduce the Product in accordance with the terms of this Agreement commencing on the Commencement Date.
Agrees not to copy, duplicate, sell, lend, trade rent or hire the Product or broadcast, upload or download the Product to any database, news group, server, computer, file sharing service or any other form of distribution;
Agrees not to release song starter full mix previews of the Product;
Acknowledges and agrees that the Product may not be sold as a standalone music file, or included in any other media/stock product, library, or collection for distribution or resale.
Acknowledges and agrees that the Product may not be used for product that is intended for resale, such as, but not limited to, digital product (electronic templates for websites or applications, software and mobile applications, video games, stock elements or films/illustrations for resale) or physical product (DVDs, BluRay, or external media storage such as USB drives). The Customer further acknowledges that the customer may not in any circumstance publish or use the Produce in isolation on any video hosting services.
The Customer shall use the Product in combination with other sounds in music productions (which include song releases, demos, albums, remixes, movie soundtracks, computer games and commercials and other reasonable musical purposes within musical compositions).
The Customer acknowledges and agrees that it may only use the Product in isolation as a sound effect (i.e. a sequence of musical events) provided that such use is not in any way considered to be any competitive product of the Product that can sold or relicensed to or by multiple third parties.
Duration of Agreement
Subject always to the Customer's compliance with Part 4 of this Agreement, this agreement commences on the Commencement Date and will continue until terminated by either party pursuant to this agreement.
The Company shall deliver the Product to the Customer on the later of:
The next Business Day immediately following the day that the Company has received the Licence Fee as cleared funds; and
The Commencement Date.
The Customer shall be solely responsible for the supervision, management and control of the Product.
The Customer shall use its best endeavours to ensure that the Product is protected at all times during this agreement from unauthorised access or use by a third party or misuse, damage or destruction by any other person.
The Company shall treat as confidential information which comes into its possession, pursuant to or as a result of or in the performance of this contract, whether such information relates to the business, sales, marketing or technical operations of the Customer or the clientele of the Customer or otherwise.
The Company shall not, without the written permission of the Customer, disclose such confidential information to a third party.
The operation of this clause shall survive the termination of this agreement.
Intellectual Property Rights
The Customer shall notify the Company as soon as practicable of any infringement, suspected infringement or alleged infringement by the Product of the intellectual or industrial property rights of any person.
The Customer shall if requested provide the Company with reasonable assistance in conducting the defence of such a claim.
If it is determined by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of any industrial of intellectual property rights of any person has occurred on the grounds in any way related to the Product, the Company shall recall the Product or request that the Customer delete all copies of the product in the Customer's possession in which case this Agreement will be automatically and immediately terminated and the Company shall not be under any liability to the Customer in respect of any loss or damage (including any consequential loss or damage) however in any case the Company's liability shall at all times be limited to the payment of the Licence Fee to the Customer.
Each party acknowledges that:
The Product and accompanying materials (if any) are provided on an "as is" basis;
The entire risk as to the quality and performance of the Product will pass to the Customer upon the commencement of this licence;
Except for such warranties on the part of the Company as are expressly set out in this Agreement there are no other terms, warranties, undertakings or understandings whatsoever binding upon the Company or between the Company and the other parties;
The Company has not made, nor has any person on behalf of the Company made any term, warranty, undertaking, or understanding whatsoever that is not expressly set out in this Agreement;
To the full extent permitted by law, there are no statutory warranties binding upon the Company; and
The Company shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Product or licence to Reproduce and where any Act of Parliament implies in this agreement any term, condition or warranty, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this agreement. However, the liability of the Company for any breach of such term condition or warranty shall be limited to the payment of the Licence Fee to the Customer.
The Customer acknowledges that the Company has not made and does not make any warranty or representation whatsoever as to:
The suitability or fitness of the Product for the Customer's intended purpose (whether made known to the Company or not);
The Reproduction of the Product;
The marketability of the Product;
The profits or revenues that may result from the Reproduction of the Product.
Neither party should be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to force majeure.
If delay or failure to perform obligations is caused or anticipated due to force majeure, the performance of a party's obligations will be suspended.
If a delay or failure to perform a party's obligations due to force majeure exceeds sixty (60) days, either party may immediately terminate the agreement on providing notice to the other party.
If this agreement is terminated pursuant to clause 9.3, the Company shall refund moneys previously paid by the Customer pursuant to this agreement for goods or services which have not been provided by the Company to the Customer.
Assignment and Transfer of Shares
The Customer must not assign or transfer any of its rights or obligations contained in this Agreement to any person, without the prior written consent of the Company, which may be granted or withheld in the Company's unfettered discretion.
If the Customer is a company, the Customer must not allot any shares in its share capital, accept, approve or register any transfer of shares to any person who is not immediately prior to allotment or transfer already a shareholder of the Customer such that any such allotment or transfer will result in such person acquiring fifty-one per cent (51%) or more of the issued shares in the Customer without the prior consent in writing of the Company, which the Company must not unreasonably withhold.
The Company shall be entitled to grant consent pursuant to clause 10.1 or clause 10.2 subject to any conditions as the Company requires in the Company's unfettered discretion.
No right under this agreement shall be deemed to be waived except by notice in writing signed by each party.
A waiver by the Customer pursuant to clause 11.1 will not prejudice its rights in respect of any subsequent breach of this agreement by the Company.
Subject to clause 11.1, any failure by the Customer to enforce any clause of this agreement, or any forbearance, delay or indulgence granted by the Customer to the Company, will not be constructed as a waiver of the Customer’s rights under this agreement.
Time shall be of the essence of this agreement.
Risk of loss or damage to the Product passes to the Customer on the Delivery Date.
Headings used in this agreement are for convenience and ease of reference only, are not part of this agreement and shall not be relevant to or affect the meaning or interpretation of this agreement.
This agreement will be governed by and construed according to the law of Queensland.
Notices under this agreement may be delivered by hand, by registered mail, or by facsimile to the addresses specified in Schedule I.
Notice will be deemed given:
in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
in the case of facsimile, upon completion of transmission.
Any dispute arising in connection with this agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.
The Company's entire liability and Customer's exclusive remedy, with respect to any claims arising out of Customer's Licence, use or Reproduction of the Product or accompanying material (if applicable), or out of Customer's actions in downloading such, shall be as follows:
Customer may, upon request to Company, be permitted to download the Products again, at a location provided by Company;
If Customer continues to be unable to download the Products, Company will use its best endeavours to arrange for alternative downloading mediums suitable for the Customer.
In no event shall Company or any of its directors, officers, employees, shareholders, partners, or agents be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of this agreement, including without limitation Customer's use of, reliance upon, access to, or exploitation of the Products, or any part thereof, or any rights granted to Customer hereunder, even if Company has been advised of the possibility of such damages, whether the action is based on contract, tort (including negligence), infringement of intellectual property rights or otherwise.
In any event, Company's total maximum aggregate liability under this agreement, the license provided hereunder, or the use or exploitation of any or all of the Products in any manner whatsoever shall be limited to the fees actually paid by Customer to Company under this Agreement in respect of the use of the Products.
Release and Indemnity
The Customer releases the Company, its officers, employees and agents from and against all actions, claims, proceedings or demands in respect of any loss, death, injury, illness or damage (whether personal or property, and whether special, direct, indirect or consequential, including consequential financial loss) arising out of this Agreement, the Reproduction of the Product, and the performance of this Agreement.
The Customer indemnifies and shall continue to indemnify the Company, its officers, employees and agents in the absence of any negligence or wilful omission on their part from and against all actions, claims, proceedings or demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether special, direct, indirect or consequential, including consequential financial loss) arising out of this Agreement, the Reproduction of the Product, and the performance of this Agreement.
The obligation to indemnify the Company and its officers, employees and agents set out in clause 13.2 is a continuing obligation separate and independent of other obligations, and shall survive the expiration or termination of this Agreement.