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Subject: Short form licence agreement Author: Anonymous [ Next Thread | Previous Thread | Next Message | Previous Message ] Date Posted: 03:52:29 06/03/03 Tue 10 Short form licence agreement THIS MEMORANDUM OF AGREEMENT is made the [………] day of […………] BETWEEN: (1) (name) whose [registered office or principal place of business] is at (address) (‘Company’) and (2) (name) whose [registered office or principal place of business] is at (address) (‘Licensee’) [744] IT IS AGREED as follows: The Company by its signature confirms the grant to the Licensee of the Rights in the Album upon and subject to the terms and conditions set out in this Memorandum of Agreement and the Standard Provisions in the attached Schedule whose definitions apply where relevant in this Memorandum of Agreement. The Licensee acknowledges and confirms that the Licensee has read and accepts the attached Standard Provisions and warrants undertakes and agrees with the Company in the terms set out in the Standard Provisions which shall together with the material particulars set out in this Memorandum of Agreement and in the exhibits to this Memorandum of Agreement constitute a full and binding legal agreement between the parties. 1 ADVANCE: £/US$ [………] Payable : [………]% on Signature [………]% on Delivery 2 ALBUM2 (name) Track Listing as per Exhibit 1 3 DELIVERY DATE: (specify) 4 DELIVERY MATERIAL and PUBLICITY MATERIAL: The materials specified in Exhibit 2 5 [……]% of Dealer Price or [……]% during any Major Television Advertising Campaign 6 TERRITORY: (specify) 7 TERM:3 (specify) 8 SPECIAL STIPULATIONS: IN WITNESS of which the parties have executed this Agreement as a deed the day month and year first above written EXECUTED AND DELIVERED as a deed ) for and on behalf of ) (name of Company) ) (signatures) EXECUTED AND DELIVERED as a deed ) for and on behalf of ) (name of Licensee) ) (signatures) [745] SCHEDULE OF STANDARD PROVISIONS 1 Remuneration 1.1 The Licensee agrees to pay to the Company: (a) the Advance4 as to [……]% on signature of this Agreement and [……]% on Delivery; (b) the Royalties on each Accounting Date in accordance with the provisions of this Agreement; (c) such costs in respect of the manufacture and delivery to the Licensee of the Delivery Material as may be notified by the Company in writing. 1.2 The Licensee also agrees to pay or procure the payment to all relevant third parties in a timely manner all sums in respect of Copyright Liabilities relating to the Records and undertakes to pay to the Company such costs in respect of the manufacture and delivery to the Licensee of the Delivery Material as may be notified by the Company in writing. [746] 2 Grant of rights 2.1 In consideration of the obligations warranties and undertakings of the Licensee in this Agreement and subject to and conditional upon their full and timely performance and observance the Company : (a) grants to the Licensee the non-exclusive right to manufacture Records in the Territory and the sole and exclusive right to sell and distribute Records throughout the Territory during the Term [provided however that the right to distribute the Records by means of Rental is expressly excluded from the rights granted to the Licensee]5; (b) grants to the Licensee the non- exclusive right to reproduce distribute and display the Publicity Material solely in conjunction with the Records and subject to any terms and conditions from time to time notified by the Company in the Territory during the Term; (c) undertakes to effect Delivery by no later than the Delivery Date. 2.2 The Licensee undertakes and agrees that all Records will contain the artist/production credits contained on Exhibit 3 together with the credit ‘Licensed by (name)’ and the Company’s logo displayed in a prominent position as agreed by the Company. 2.3 The Licensee undertakes and agrees that all Records shall be manufactured in full accordance with the technical recommendations of [Sony SBM and Philips Dolby Pro-Logic] whose [Sony SBM logo and Philips Dolby Pro-Logic Surround Sound] logo will be displayed in strict accordance with such companies’ terms and conditions. [747] 3 Company's warranties The Company warrants agrees and undertakes with the Licensee that: 3.1 the Company is free to enter into this Agreement and grant the Licensee the rights granted in it and is not under any disability restriction or prohibition which might prevent the Company from performing or observing any of the Company's obligations under this Agreement; 3.2 the Company has not entered into and shall not enter into any arrangement which may conflict with this Agreement; 3.3 all Third Party Liabilities shall be the sole responsibility of the Company and the Licensee shall not incur any liability for these; 3.4 following the expiry of the Term by effluxion of time the Licensee shall have the non-exclusive right subject to the terms and conditions of this Agreement for the further period of 3 calendar months to sell off Records previously manufactured by the Licensee during the Term provided that in the last two calendar quarters of the Term the Licensee shall not manufacture Records in excess of the average aggregate number of sales of Records in the preceding Accounting Period6. [748] 4 Royalty 4.1 The Licensee undertakes to pay to the Company by way of royalties [……]% of the Dealer Price on Sales of Records in vinyl disc or tape form or in compact disc or other configurations. Where the Licensee promotes the sale of Records by a Major Television Advertising Campaign the royalty rate shall be reduced to [……]% during the term of such advertising campaign7. 4.2 In respect of Records sold through any club operation or otherwise sold at substantially reduced price the Dealer Price shall be the price charged by any such club or the price at which such club accounts to the Licensee in respect of sales of records or the actual selling price to the customer provided that the Licensee undertakes not to effect any such sales without the prior written consent of the Company8. 4.3 In the case of Records which with the prior written consent of the Company incorporate material other than the Recordings the Royalties shall be computed by multiplying the royalty rate by a fraction the numerator of which is the total of all material derived from the Recordings and the denominator the total of all material whether or not derived from the Recordings. 4.4 No Royalties shall accrue on Records distributed free as samples or for the purpose of publicity provided that the total so distributed shall not exceed [………] in respect of any Recording during the Term without the prior written consent of the Company. 4.5 For the avoidance of doubt the Licensee shall not be entitled to deduct packaging deductions from the Dealer Price or the Royalty payable under this Agreement. [749] 5 Licensee’s undertakings The Licensee warrants undertakes confirms and agrees with the Company that: 5.1 that save as expressly granted in this Agreement all rights and title in and to the Records the Delivery Material and the Recordings are expressly reserved to the Company; 5.2 the Licensee shall not couple or compile or re-mix or in any other way alter the Delivery Material or the Recordings without the consent of the Company; 5.3 the Licensee shall ascertain the identity of the owners of all rights of copyright in all music and lyrics contained in the Records and the identity of the owners’ representatives in each country of the Territory and prior to any exercise by the Licensee of the rights granted under this Agreement the Licensee shall obtain all necessary returns and pay all Copyright Liabilities and other payments whatsoever required to exploit the rights granted in this Agreement9; 5.4 the Licensee shall not by any act or omission impair or prejudice the copyright in the Records or deal with the Delivery Material so that any third party might obtain any lien or other right of whatever nature incompatible with the rights of the Company and shall ensure that all records and artwork manufactured by the Licensee contain full and accurate copyright notices and credit attributions; 5.5 the Licensee shall on the expiry or sooner determination of the Term at the Licensee's cost and expense to return to the Company the Delivery Material and all other material supplied by the Company in the same condition as when supplied to the Licensee; 5.6 the Licensee shall not create any promotional material or artwork relating to the Records without the prior written consent of the Company and in respect of any material commissioned or manufactured by the Licensee the copyright shall be secured in the name of the Company and title to all physical material shall belong to and be dealt with as if such physical material had been supplied by the Company and the Company shall at all times have unrestricted access to the same for the purposes of the Company; 5.7 the Licensee shall throughout the Term supply the Company with a monthly statement of the shipments and net sales of Records which have taken place pursuant to this Agreement; 5.8 the Licensee shall not sell or consign any Records on a sale or return or stock balancing basis or permit any Records to be sold or exported outside the Territory without the prior written consent of the Company (NB: This provision will require adjustment where the Territory includes member states of the European Union)10; 5.9 the Licensee shall give full particulars to the Company forthwith on becoming aware of any actual or threatened claim by any third party in connection with the Records; 5.10 the Licensee shall punctually pay to the Company all sums owing to the Company under this Agreement; [750] 5.11 the Licensee shall not assign charge license sublicense or otherwise part with possession of the benefit or burden of this Agreement without the prior written consent of the Company; 5.12 the Licensee shall not copy or duplicate the Delivery Material or any part of it otherwise than for the purpose of manufacturing and exploiting Records in accordance with this Agreement; 5.13 the Licensee shall pay all costs fees import export and reimportation duties customs freight packaging transportation and collection charges sales taxes other taxes of whatever nature and insurance premiums and shall account to the Company for any tax credits however arising; 5.14 the Licensee shall retain total control and actual possession at all times of the Delivery Material and maintain the Delivery Material safe and secure in appropriate storage facilities the risk in the Delivery Material passing to the Licensee on the Company's appropriation in order to effect Delivery pursuant to this Agreement; 5.15 the Licensee shall if any part of the Delivery Material is lost or damaged in whole or in part pay to the Company the cost of replacing the same as a contract debt and to swear such affidavits and statements and do any such reasonable acts as may be required by the Company as to the fact of such loss in order to claim insurance proceeds or for any other reason whatever; 5.16 the Licensee shall notify the Company within 48 hours of import or receipt of any Delivery Material of any damage to or defect in it failing which the Licensee shall be deemed irrevocably to have accepted delivery of the same; 5.17 the Licensee shall effect and keep in place adequate insurance on a comprehensive basis against all risks relating to the Delivery Material and give irrevocable written directions to the appropriate insurers to name the Company as named insured and where appropriate or required by the Company as sole loss payee; 5.18 the Licensee shall conform with all local industry trade union guild collective bargaining and other agreements relating to the manufacture and distribution of Records; 5.19 the Licensee shall release the Records throughout the Territory within [six] months of Delivery and maintain the Records in release in the Territory throughout the Term11; 5.20 the Licensee shall advertise the Records throughout the Territory in the same manner as other major records advertised by the Licensee in the Territory and shall not remove any of the details or credits from the Publicity Material or alter their size order or prominence12; 5.21 the Licensee shall exploit the rights granted to the Licensee to the best of the Licensee’s skill and ability with the utmost despatch and ensure the highest possible Royalties payable to the Company and ensure that the Records are given fair and equitable treatment and not discriminated against in favour of any other records which the Licensee may have for distribution in the Territory13; 5.22 the Licensee shall at the end of the three month sell off period referred to in Clause 3.4 at the direction of the Company permit the Company to purchase from the Licensee all stocks of Records then unsold at a unit cost equal to the actual cost of manufacture to the Licensee and to return all Delivery Material and other material relating to the Records in the possession of the Licensee to the Company or if the Company shall direct to procure its destruction and provide certificates and affidavits of destruction in such form as may be satisfactory to the Company; 5.23 the Licensee shall indemnify and keep fully indemnified the Company from and against all actions proceedings claims demands costs (including without prejudice to the generality of this provision the legal costs of the Company on a solicitor and own client basis) awards and damages arising directly or indirectly as a result of any breach or non- performance by the Licensee of any of the Licensee’s undertakings warranties or obligations under this Agreement. [751] 6 Payment 6.1 The Licensee shall not have the right to withhold any part of sums due to the Company as a reserve against returns and/or credits and in the event that the Licensee is required by law to make any withholding from sums to be remitted to the Company the Licensee shall prior to the making of any withholding of payment furnish the Company with evidence satisfactory to the Company in its entire discretion as to the Licensee's obligation to make such withholding of payment. 6.2 The Licensee undertakes to make all payments required under this Agreement by banker’s draft in pounds sterling drawn on an English bank or by telegraphic transfer to the account of the Company as follows: Bank: [………] Branch: [………] Address: [………] Account Number: [………] Sort Code: [………] Attention: [………] 6.3 The Licensee undertakes that all receipts payable to the Company will be converted into Sterling at the best obtainable rate of exchange on each Accounting Date provided that in the event of any continuous materially adverse currency movement of longer than 7 days’ duration during any Accounting Period it shall be the responsibility of the Licensee to ensure that all receipts are converted into Sterling as soon as practicable following receipt and the Licensee shall follow all directions to the Company from time to time relating to currency conversion. 6.4 If exchange control or other restrictions prevent or threaten to prevent the remittance to the Company of any money payable under this Agreement the Licensee shall immediately advise the Company in writing and follow the Company’s instructions in respect of the money to be remitted including if required depositing the same with any bank or other person designated by the Company at such location as may be designated by the Company. 6.5 If any withholding or other taxes are required to be deducted from any moneys provided to be remitted to the Company pursuant to this Agreement it shall be the responsibility of the Licensee to ensure that no improper deductions are made and that the Company is provided with all necessary receipts certificates and other documents and all information required in order to avail the Company of any tax credit or other fiscal advantage. [752] 7 Royalty accounting 7.1 The Licensee shall on each Accounting Date render to the Company a full and complete statement showing all money owing to the Company under this Agreement in respect of the preceding Accounting Period. 7.2 The statement of account referred to in Clause 7.1 shall be in such form as the Company shall require and shall show Records manufactured and where stored Records shipped Records returned and Records sold and each such statement shall be accompanied by payment of all amounts owing without reserve. 7.3 Pounds Sterling shall be the currency of account and where any sums are received in a currency other than pounds Sterling the same shall be converted at the [mid-market rate calculated using the ‘Financial Times’ index on the date of receipt or best obtainable rate of exchange on the date payment is due]. 7.4 Value Added Tax shall be payable by the Licensee to the Company in respect of all payments made to or to the order of the Company pursuant to this Agreement. 7.5 The Licensee shall keep full and proper books of account relating to the exploitation of its rights under this Agreement and the Company or its representative being a certified or chartered accountant not otherwise engaged on an audit of the Licensee or any of its associated group or subsidiary companies shall have the right not more than twice in any period of 12 months during normal business hours and on not less than 2 days’ written notice during the Term and for 3 years thereafter to inspect and take copies of such books of account. In the event that such audit or inspection reveals any deficiency in moneys paid to the Company under this Agreement then the Licensee shall forthwith pay the same to the Company together with interest thereon from the date first due calculated with monthly rests at a rate of [4]% above prime or base rate charged by its bankers to the Company from time to time and shall pay all reasonable costs incurred by the Company directly as a result of such inspection. 7.6 The Licensee shall keep confidential and shall not disclose to any third parties (other than professional advisers where necessary) the results of any such inspection or audit or any of the terms of this Agreement or any matters incidental thereto or relating to the business of the Company and shall indemnify the Company fully in respect of any breach of its obligations under this Clause. [753] 8 Determination It shall constitute the repudiation by the Licensee of its obligations under this Agreement and the Company may at any time serve written notice on the Licensee accepting such repudiation and determining the Licensee’s rights under this Agreement if: 8.1 the Licensee fails to pay any amount due under this Agreement in full within 5 business days of its due date and such failure is not remedied within [3] business days of receipt of written notice; 8.2 the Licensee is in breach of any other material term of this Agreement which is incapable of remedy or if capable of remedy is not remedied within 7 days of the Licensee becoming aware of it; 8.3 any of the Licensee’s representations shall prove to have been incorrect when made or become materially incorrect and the Company’s rights and entitlements under this Agreement are materially and adversely affected; 8.4 the Licensee transfers disposes of or threatens to transfer or dispose of any part of its assets which is likely in the reasonable opinion of the Licensor to prevent or to materially inhibit the performance by the Licensee of its obligations under this Agreement; 8.5 any indebtedness guarantee or similar obligation of the Licensee or of any guarantor of the Licensee becomes due or capable of being declared due before its stated maturity or is not discharged at maturity or the Licensee or any guarantor of the Licensee defaults under or commits a breach of the provisions of any guarantee or other obligation (whether actual or contingent) of any agreement pursuant to which any such indebtedness guarantee or other obligation was incurred all or any of which shall in the reasonable opinion of the Company materially affect its rights and entitlements under this Agreement; 8.6 the Licensee is declared or becomes insolvent; 8.7 the Licensee convenes a meeting of its creditors or proposes or makes any arrangement or composition with or any assignment for the benefit of its creditors or a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Licensee (save for the purpose of and followed by a voluntary reconstruction or amalgamation previously approved in writing by the Company) or if an incumbrancer takes possession of or a trustee administrator administrative receiver liquidator or similar officer is appointed in respect of all or any part of its business or assets or any distress execution or other legal process is levied threatened enforced upon or taken against any of such assets; 8.8 the Licensee shall abandon the business of exploiting the Records. [754] 9 Effect of determination 9.1 Upon determination under Clause 8 of the Licensee’s rights under this Agreement: (a) the Company may without notice retake possession of the Material and for that purpose shall be entitled to enter upon any land or building in the possession power or control of the Licensee where the Material may be situated or believed to be situated; (b) the Material shall no longer be in the Licensee’s possession or control with the Company’s consent; (c) without prejudice to any right to damages of the Company the Licensee shall forthwith pay to the Company all sums owing and whether or not then due under this Agreement; (d) the Licensee shall assign to the Company all its right title benefit and interest in any agreements entered into by it in respect of the Records (including the right to receive any money payable pursuant to such agreements) on terms satisfactory to the Company and shall immediately thereafter give notice of such assignment to the other parties to such agreements in a form and manner approved by the Company. 9.2 Upon the termination repudiation or expiry of the Term the Licensee shall be responsible at its own risk for re-delivery of the Delivery Material and the Records to the Company at such address in the United Kingdom as the Company may direct in good and serviceable condition (fair wear and tear excepted) and free of any advertising permitted in writing by the Company. [755] 10 Notice 10.1 Any notice or other document required to be given under this Agreement or any communication between the parties with respect to any of the provisions of this Agreement shall be in writing in English and be deemed duly given if signed by or on behalf of a duly authorised officer of the party giving the notice and if left at or sent by pre-paid registered or recorded delivery post or by telex telegram cable facsimile transmission or other means of telecommunication in permanent written form to the address of the party receiving such notice as set out at the head of the Agreement or as notified between the parties for the purpose of this Clause. 10.2 Any such notice or other communication shall be deemed to be given to and received by the addressee: (a) at the time the same is left at the address of or handed to a representative of the party to be served; (b) by post on the day not being a Sunday or Public Holiday two days following the date of posting; (c) in the case of a telex telegram cable facsimile transmission or other means of telecommunication on the next following day. 10.3 In proving the giving of a notice it should be sufficient to prove that the notice was left or that the envelope containing the notice was properly addressed and posted or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be. [756] 11 Definitions and interpretation 11.1 The words and phrases defined in the Memorandum shall have the meanings ascribed to them in the Memorandum and the following words and phrases shall have the following meanings: ‘Accounting Date’ 30 days from the end of each Accounting Period ‘Accounting Period’ successive 3 month periods ending on 31 March 30 June 30 September and 31 December in each year during the Term ‘Agreement’ the Memorandum and this Schedule of Standard Provisions and any and all schedules annexures and exhibits attached to it or incorporated in it by reference ‘Associate’ any person firm or company which is a connected person (as defined in the Income and Corporation Taxes Act 1988 Section 839) of the Licensee or which is an associated company of the Licensee within the meaning of Section 416 of that Act ‘Copyright Liabilities’ all sums arising on or as a result of the manufacture or exploitation of records payable to the owners of any right of copyright or other right whatever in the Master Tapes or the Records including expressly without limitation any form of statutory mechanical performance royalty or other payments whatever to publishers or other third parties and all sums payable in respect of the public performance and/or broadcast of the Records ‘Dealer Price’ the dealer price from time to time approved by the Company for the sales of Records in the Territory being not less than [………] for compact discs and [………] for cassettes ‘Delivery’ delivery by the Company to the Licensee of the Delivery Material [or at the discretion of the Company a bill of lading airways bill or other note evidencing physical delivery of the Delivery Material to the Licensee’s carrier] ‘Licensee’ the party listed in the Memorandum and any Associate of such party ‘Major Television Advertising Campaign’ any campaign involving direct expenditure by the Licensee in excess of £/US$[………] ‘Memorandum’ the Memorandum of Agreement to which these Staandard Provisions are attached ‘Recordings’ recordings of the Artists and musical works short particulars of which are contained in Exhibit 1 ‘Records’ any sound alone recordings manufactured by the Licensee in any configuration whether now known or invented in the future and derived in whole or in part from the Album the Recordings and/or the Delivery Material ‘Rental’ any rental or lending of the Records within the meaning of the Copyright, Designs and Patents Act 1988 Sections 18A(2) to (6) and/or 182C(2) to (7) ‘Royalties’ all sums payable to the Company by way of royalty under this Agreement ‘Sales’ 100% of all Records sold in the Territory during the Term ‘Third Party Liabilities’ any and all sums payable under any agreement with any person who rendered services supplied goods or made available finance in connection with the production of the Recordings other than the Copyright Liabilities [757] 11.2 Any reference in this Agreement to any statute or statutory provision order or regulation shall be construed as including a reference to that statute or statutory provision order or regulation as from time to time amended modified extended or re-enacted whether before or after the date of this Agreement and to all statutory instruments orders regulations and directives modifying or extending the same. 11.3 Unless the context otherwise requires words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate unincorporated associations and partnerships. 11.4 The word ‘copyright’ means the entire copyright and design right subsisting under the laws of the United Kingdom and all analogous rights subsisting under the laws of each and every jurisdiction throughout the world. 11.5 Unless otherwise stated time shall be of the essence for the purpose of the performance of the Licensee's obligations under this Agreement. 11.6 Unless otherwise stated references to clauses sub-clauses sub-paragraphs schedules annexures and exhibits relate to this Agreement. [758] 12 Miscellaneous 12.1 If any provision of this Agreement shall be prohibited by or adjudged by a court to be unlawful void or unenforceable such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances or the validity or enforcement of this Agreement. 12.2 This Agreement contains the full and complete understanding between the parties and supersedes all prior arrangements and understandings whether written or oral appertaining to the subject matter of this Agreement and may not be varied except by an instrument in writing signed by all of the parties to this Agreement. The Licensee acknowledges that no representations or promises not expressly contained in this Agreement have been made by the Company or any of its servants agents employees members or representatives in respect of the amounts of Royalties payable under this Agreement (if any) or in any other respect whatever. 12.3 The Company shall not be liable to the Licensee for failing to supply or procure the supply of the Delivery Material and any other material to be supplied under this Agreement due to circumstances beyond its control and it shall not be liable for any expenses or consequential losses whatsoever thereby suffered by the Licensee. 12.4 The Licensee warrants that it is not the nominee or agent of any undisclosed principal and warrants that it will assume sole and complete responsibility for the performance of the obligations in this Agreement expressed to be performed by the Licensee. 12.5 No failure or delay on the part of any of the parties to this Agreement relating to the exercise of any right power privilege or remedy provided under this Agreement shall operate as a waiver of such right power privilege or remedy or as a waiver of any preceding or succeeding breach by the other party to this Agreement nor shall any single or partial exercise of any right power privilege or remedy preclude any other or further exercise of such or any other right power privilege or remedy provided in this Agreement all of which are several and cumulative and are not exclusive of each other or of any other rights or remedies otherwise available to a party at law or in equity. 12.6 This Agreement shall not be deemed to constitute a partnership or joint venture or contract of employment between the parties. 12.7 This Agreement shall be governed by and construed in accordance with the laws of England and Wales the courts of which shall be courts of competent jurisdiction. [759] EXHIBIT 1 TRACK LISTING EXHIBIT 2 DELIVERY MATERIALS EXHIBIT 3 CREDITS 1 This Form is intended for use in circumstances where the company is licensing to a licensee rights in certain sound recordings. The agreement is a short form agreement which provides a basic level of protection to the company which is not as comprehensive as the protection provided by Form 9 [725] ante. 2 The number of tracks and number of minutes’ playing time in respect of any album is subject to negotiation. 3 The precise length of the term is generally subject to commercial negotiation. 4 The advance is not expressed to be recoupable from the royalty. 5 See Form 9 note 3 [743] ante. As to performers’ property rights and rental rights see Paragraphs 96 [148] et seq ante. 6 See Form 9 note 4 [743] ante. 7 See Form 9 note 12 [743] ante. 8 See Form 1 note 49 [631] ante. 9 See Form 9 note 7 [743] ante. 10 See Form 9 note 8 [743] ante. 11 The licensee may seek to amend the obligation to keep the product in continuous release. 12 The licensee may not be prepared to assume the advertising obligation. 13 The licensee may seek to limit the exploitation obligations so that they are consistent with the licensee’s reasonable business judgment and exercised in its reasonable discretion. [760] [ Next Thread | Previous Thread | Next Message | Previous Message ]