This agreement is made on 10th December 2018.
This agreement is between:
1. John Doe, 123 Strawberry Lane, S1 2RA, United Kingdom ("Artist"); and
2. Emerging Music and Media Limited t/a Emerge Media, a company registered in England under company registration # 07457299 whose place of business is at 14 Basing Hill, London, NW11 8TH ("Emerge").
1. Artist is the writer, performer and sole owner of certain audio only and/or audiovisual recordings of musical works, and controls the sole rights to collect income from and administer the same throughout the Territory.
2. Artist wishes to submit to Emerge certain of those recordings for inclusion in curated music channels licensed by Emerge to third parties.
3. If selected, Emerge wishes to include those recordings in its Licensed Networks on the terms below.
"Channel" means a particular selection of recorded music , bundled together as a continuous and/or randomized playlist which is marketed as a single music channel and licensed as such;
"Content" means the videos (if any), sound recordings and musical works (including accompanying literary works) which Artist has delivered to Emerge hereunder;
"Gross Channel Fees" means the gross licence fees, exclusive of VAT or similar sales taxes, received by Emerge (and not returned) directly attributable to the provision of a Channel; for the avoidance of doubt, any fees attributable to the provision of services relating to the Licensed Network (such as administration fees, provision of hardware or music curation) other than the licence of the content for the Channel itself shall be excluded from the foregoing;
"Licensed Network" means any closed distribution system for the broadcast of recorded music in public areas, including without limitation in-store music channels;
"Public Performance Rights" means the following rights in connection with sound recordings, films and/or musical works delivered hereunder: (i) all forms of communicating to the public, including, but not limited to, broadcast and/or making available; and (ii) all rights of copying, transmission (including without limitation uplinking and downloading) and public performance required to deliver and perform the same in public places; and (iii) all rights to administer and collect revenues from the foregoing exploitation;
"Rights Organisation" means any collection society or other similar organisation having the right to license the use of or collect income arising from the exploitation of sound recordings, musical works or music videos, or any so-called neighbouring rights in respect of the same, including without limitation PRS, PPL and VPL and any collection society with whom such bodies have reciprocal collection agreements;
"Rights Period" means the period commencing on the date of this agreement and continuing until terminated by Artist serving three (3) months’ notice on Emerge via email to email@example.com; where such notice period would expire other than on the last day of a month, it shall be deemed extended until the last day of that month;
"Territory" means [the world];
"Usage Fees" means the rates payable to artists in respect of the Usage Rights, as set out in Schedule 1;
"Usage Rights" means the rights granted to Emerge pursuant to clause 2.1 and 2.2;
2. Rights Period
2.1 Artist hereby exclusively grants and assigns to Emerge for the Rights Period throughout the Territory the Public Performance Rights in the Content. Notwithstanding the foregoing assignment, Emerge shall only be entitled to exploit the content in respect of Licensed Networks, and Artist shall be entitled to exploit the Content itself for any other purpose without reference to Emerge.
Unless allowed under the applicable legislation of the relevant countries in the Territory, this grant and assignment shall not apply to any of the compulsory licences referred under article 5.6 of this agreement. Any rights originating from said compulsory licences are not legally transferred to Emerge but are or have been waived within the meaning of article 5.6 of this agreement.
2.2 Artist grants Emerge the nonexclusive right to include Content on so-called sample CDs (or other carriers) for the purposes only of promoting Licensed Networks.
2.3 Emerge shall have the right during the Rights Period to make copies of the Content as required to make the fullest use of the Usage Rights, and to retain a copy of the Content for the purposes of record-keeping only in perpetuity.
2.4 Emerge may remove any Content from its servers and Channels at any time in its sole discretion.
2.5 Emerge shall have no obligation to exploit any of the Usage Rights.
2.6 For the avoidance of doubt, save for the rights granted to Emerge under this clause 2, Artist retains all other rights in the Content for itself.
2.7 The parties may from time to time extend the Usage Rights by signing an Additional Rights Addendum in the form set out in Schedule 2 (with any such additions or amendments agreed between the parties).
3. Usage Fees
3.1 Emerge shall account to Artist for the Usage Fees which relate to the Content within thirty (30) days of the end of each calendar quarter provided that Usage Fees shall not be payable until Artist has supplied all bank account or such other information required for payment as requested by Emerge.
3.2 Emerge may engage a third party payment facility provider ("Payment Partner") to fulfil payments to Artist. Artist acknowledges that such Payment Partner may pay the Usage Fees in dollars rather than pounds sterling. All charges properly levied by the Payment Partner in paying the Usage Fees, including any fees for conversion of currency, shall be deducted from the amounts to be paid to Artist.
3.3 Emerge shall provide a summary of the calculation of Usage Fees, showing in respect of each relevant Channel the calculation of Gross Artist Fees and Artist’s Share (as the same is set out in Schedule 1). Emerge shall not be obliged to account to Artist in any month for which the aggregate Usage Fees are less than £25, provided that such fees shall be carried over to the next month.
3.4 If Emerge shall overpay Artist for any reason, then upon provision of the recalculated Usage Fees Emerge may either (a) require the immediate repayment of the overpayment or (b) treat the overpayment as a pre-payment of future Usage Fees hereunder.
4. Limitation of Liability
4.1 Neither Emerge nor any director, subcontractor or employee of Emerge shall be liable for any financial loss caused to Artist in connection with exploitation of Content by Emerge or its licensees.
5. Artist's Warranties
5.1 Artist warrants that it has the authority to enter into this agreement and to grant Emerge the Usage Rights free of any claim by any third party. Where Artist is a group, Artist warrants that the person making this agreement has the right to make such agreement on behalf of each member of the group, and give all warranties hereunder on behalf of each member of the group.
5.2 Artist warrants that it is the sole author, owner and controller of the musical works and any accompanying literary works (lyrics) embodied in the Content, that such works are original and Artist is not party to any exclusive songwriting agreement.
5.3 Artist warrants that Artist is the sole performer of the works embodied on the Content.
5.4 Artist warrants that it is the sole owner of the sound recordings comprising the Content and is not party to any exclusive recording agreement.
5.5 Artist warrants that it is the sole owner of any audiovisual recordings comprising the Content.
5.6 Artist warrants that it is not a member of any Rights Organisation with rights to licence or collect income from the exploitation of the Public Performance Rights and that Emerge may exploit the Public Performance and Usage Rights and authorise others to do the same without payment to any Rights Organisation or other third party.
Without prejudice to article 2.1. Artist hereby explicitly declares and guarantees that, for the purposes of this agreement, it waives or has waived all rights relating to the Content which originate or may originate from any statutory or other compulsory license relating to the Public Performance Rights and Usage Rights including, without limitation and wherever applicable throughout the Territory, the right to the so-called equitable remuneration. This waiver applies to all types of compulsory licences relating to the Public Performance Rights and Usage Rights, known at present or in the future, under the applicable copyright, neighbouring rights or other laws of all the countries in the Territory if, by applicable law, a third party, including but not limited to any Rights Organisation, is exclusively entrusted with collecting any type of compensation for the exploitation of the Public Performance Rights and Usage Rights.
Artist acknowledges that, following this waiver, it renounces the right for any Rights Organisation or other third party to collect any type of compensation for the Public Performance Rights and Usage Rights from Emerge and/or any affiliated person including, but not limited to, Emerge and/or its licensees.
5.7 Artist warrants that it has the right to use any name, logo or other indicia supplied to Emerge.
5.8 Artist indemnifies Emerge, its licensees, directors and employees, against all claims, losses, legal fees and other liabilities that Emerge may suffer resulting from any claim against Emerge inconsistent with any representation made by Artist in this agreement or during any upload procedure by which the Content is delivered to Emerge electronically.
5.9 The warranties and indemnities in this clause 5 shall survive the termination of this agreement and/or the Rights Period.
6. Personal Data
6.1 Emerge shall be entitled to hold personal data supplied by Artist during and after the Rights Period save that where the Rights Period has expired, Emerge shall hold the personal data for record-keeping purposes only.
6.2 Emerge shall be entitled to supply personal data relating to Artist to third parties for the purposes of exploiting the Usage Rights and/or verifying any claims by Rights Organisations or other persons who may have a claim against Emerge and/or its licensees for the exploitation of the Usage Rights.
6.3 Artist further authorises Emerge to make enquiries with Rights Organisations that include the disclosure of personal data relating to Artist to the extent required to verify the rights of that Rights Organisation which may be inconsistent with the Usage Rights.
7. Further Assurances
7.1 To the extent that any rights granted by Artist to Emerge are inconsistent with any claim or rights exercised by any Rights Organisation then Artist shall promptly upon notice by Emerge of such claim confirm to the Rights Organisation the rights granted to Company hereunder and Artist shall do all things as reasonably requested by Emerge to perfect and confirm the grant of rights hereunder.
7.2 Where Emerge notifies Artist of any claim or right exercised by any Rights Organisation inconsistent with the rights granted to Emerge hereunder, and Artist fails within 14 days to complete any notification, application or other documentation reasonably requested by Emerge to confirm Emerge’s rights hereunder, then Emerge shall have the right coupled with an enduring power of attorney to make such applications or give such notifications on behalf of Artist including without limitation the right to complete any applications to "opt out" of the rights exercised by the Rights Organisation which are inconsistent with the Usage Rights. In the foregoing, where any Rights Organisation declines to allow an opt out of the Usage Rights only, then such opt out application may be made to the least extent reasonably required to effect an opt out of the Usage Rights.
7.3 Artist waives any moral rights or like rights that may prevent Emerge or its licensees from exploiting the Usage Rights.
8.1 Emerge shall not be in breach of those obligations where performance is reasonably prevented by a so-called force majeure provided that Emerge takes all reasonable steps to mitigate its effect.
8.2 This agreement represents the entire agreement between the parties in respect of the Content.
8.3 If any clause or any part of this agreement or the application of such to any party shall for any reason be adjudged by a court or other legal authority of competent jurisdiction to be invalid, such judgement shall not affect the remainder of this agreement, the terms of which shall remain in full force and effect.
8.4 The laws of England shall govern this agreement and the English courts shall have exclusive jurisdiction.