LICENCE AND SALE AGREEMENT
Client must agree to all terms and conditions described in this document before purchasing the product. Once client agrees to these terms and conditions they are legally bound to this agreement.
THIS AGREEMENT is made by and between:-
• Web Jingles Online ABN 49 640 659 021, whose registered office is at 3/268 Wrights Road, Drummoyne NSW 2047, Australia ( " WJO "); and
• Person renting or buying the music (the " Customer ").
THEREFORE, WJO and the Customer (hereinafter referred to collectively as the "Parties" and individually as a "Party") hereby agree as follows:
1. DEFINITIONS
The following words shall have the following meanings:
" Agreement " means this Agreement and all Schedules attached hereto.
" Confidential Information " means information that is by its nature confidential; and
(a) is designated by a Party as confidential; or
(b) a Party knows or ought to know is confidential,
but does not include:
(c) information which is or becomes public knowledge other than by breach of the Agreement or any other confidentiality obligation.
" Effective Date " means the date on which this Agreement is signed by the Parties.
" Fees " means the license fees, purchase price and other charges owed by Customer to WJO, which will be calculated and paid by Customer to WJO in accordance with the terms of this Agreement and in particular Schedule 1 .
" Intellectual Property Rights " means all intellectual property rights under statute or at common law or equity, including but not limited to (i) patents, copyrights, registered designs trade marks and any rights to have confidential information kept confidential; and (ii) any application or right to apply for any rights referred to in paragraph (i).
" Loss " means liabilities, expenses, losses, damages and costs (including but not limited to reasonable legal costs), whether incurred by or awarded against a Party.
" Personal Information " has the meaning given to it in the Privacy Act 1988 (Cth), which is as follows:
'information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.'
" Product " means a short musical piece for use as a jingle as described in the relevant Order Form .
" Term " means the duration of this Agreement as set out in clause 11.1 .
" Website " means the website managed and used by WJO to make the Products available to customers online in accordance with this Agreement.
2. ORDERING PRODUCT(S)
2.1 Customer may order Products under the Agreement by placing an order on the Website.
2.2 All Orders are subject to acceptance by WJO. WJO may accept an order by making the Product(s) available to the Customer. Orders will be governed by the terms of the Agreement even when they lack an express reference to the Agreement.
2.3 The Customer may purchase the Product(s) in accordance with clause 5 or license the Product(s) in accordance with clause 4 .
3. PAYING FOR PRODUCTS
3.1 Fees . Upon acceptance of an order by WJO, the Customer will pay the Fees in accordance with the relevant Order Form and Schedule 2 .
3.2 Payment . All Fees are due immediately and are payable via credit card on the Website. The Customer will pay all bank charges, taxes, duties, levies and other costs associated with any bank, electronic transfer or other means of payment.
3.3 Late Charges . Any overdue and unpaid portion of the Fees will bear interest, compounded at two percent (2%) above the base rate of the Commonwealth Bank of Australia on amounts overdue on a monthly basis until payment thereof to accrue daily after as well as before any judgment. The Customer will reimburse WJO for reasonable legal fees and any other associated costs with collecting any debts that remain unpaid.
• GST . Any consideration or amount payable under this Agreement (" Consideration ") is exclusive of GST (when applicable). If GST is or becomes payable on a supply made under or in connection with this Agreement (" Supply "), an additional amount (" Additional Amount ") is payable by the party providing consideration for the Supply (" Recipient ") equal to the amount of GST payable on that Supply as calculated by the party making the Supply (in this clause 3.4 only, the " Supplier ") in accordance with the GST Law. The Additional Amount payable under paragraph (b) is payable at the same time and in the same manner as the Consideration for the Supply, and the Supplier must provide the Recipient with a Tax Invoice immediately after the time of payment of the Additional Amount if a Tax Invoice has not already been provided under this Agreement. For the purposes of this clause: (i) "GST" means a goods and services tax or similar value added tax levied or imposed under the GST Law; (ii) "GST Law" has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and (iii) capitalized terms that are not defined elsewhere in this Agreement and which are defined in the GST Law, have the meaning given to them in the GST Law.
• Other Taxes . The Customer will pay any and all other applicable taxes, which may be due in connection with the supply of the Products under this Agreement.
4. LICENSING PRODUCT(S) (RENT OPTION)
4.1 License Grant. Subject to clause 4.2 , WJO hereby grants the Customer a non-exclusive, non-transferable, limited license to use the Product(s) specified in the relevant Order Form(s) for the Customer's internal business purposes only, subject to full and timely payment of the Fees and full compliance with the terms of this Agreement (including the relevant Order Form(s)).
4.2 License Restrictions. The Customer must not do (or permit any third party to do) any of the following unless the Customer has purchased the relevant Product(s) in accordance with this Agreement but in any event subject to clause 5.4:
(a) distribute the Product(s) or any part thereof to any other person (whether by way of copying, selling, sharing, sub-licensing or disposing of the Product(s) including without limitation as part of a downloadable template, music compilation or music library);
(b) use or permit the use of the Product(s) or any part thereof for any illegal purpose; or
(c) alter, manipulate or remix the Product(s) in any way (but voice or sound effects may be added).
4.3 License Term. The license granted under this Agreement is valid for a limited time only as set out in the relevant Order Form. The license will automatically expire at the end of the specified license term.
4.4 All Rights Reserved. Except for the limited license rights expressly granted in this clause 4, WJO reserves all rights in and to the Products and any modifications thereto, including title, ownership, intellectual property rights, and any other rights and interests.
4.5 Termination. WJO may terminate the license granted herein with immediate effect if the Customer breaches any terms of this Agreement (and fails to remedy such breach within a reasonable period of time if capable of remedy). Upon such termination, the Customer will cease use of the relevant Product(s).
4.6 Automatic Renewal. Should the Customer continue to use the Product(s) after the expiry of the specified license term, such term will automatically renew for an additional period of time of the same length and the Customer will pay the applicable Fees to WJO immediately.
5. PURCHASING PRODUCT(S) (BUY OPTION)
5.1 Should the Customer wish to purchase the Product(s), the Customer must pay to WJO the applicable Fees in accordance with the relevant Order Form and this Agreement. Upon receipt of payment, WJO will arrange for the assignment of all existing and future Intellectual Property Rights in the relevant Product(s) to the Customer.
5.2 The Customer hereby agrees to sign any documents and take any steps required by WJO in order to give effect to the assignment referred to in clause 5.1 .
5.3 The Customer hereby acknowledges that some of the Product(s) are owned by third party licensors, which have authorized WJO to distribute the Product(s) on their behalf. In such case, the relevant third party licensor will directly assign all Intellectual Property Rights in the relevant Product(s) to the Customer.
5.4 The Customer hereby further acknowledges that some of the Product(s), which the Customer wishes to purchase under this Agreement, may already be used by another person to which WJO has granted a limited license under a separate agreement. In such case, the Customer must not (whether directly or indirectly) prevent the other person from using the Product(s) or restrict the other person's ability to do so in any way and by any means whatsoever. The Customer will not receive any financial compensation from the other person, WJO or any other source in connection with the use of the Product(s) by the other person. The Customer hereby agrees to honor and comply with WJO's obligations to the other person as if it were the Customer's obligations. WJO will disclose the extent of its obligations to the other person to the Customer subject to the Customer's confidentiality obligations under this Agreement. WJO cannot guarantee the compliance by the other person with the terms of the license agreement entered into with WJO.
6. CONFIDENTIALITY AND PRIVACY
• Neither party shall at any time, either during the Term or thereafter, disclose to any third party any Confidential Information relating to the affairs of the other Party or the Products or any business operations carried on by the other Party or the method of carrying on such business operation, without the other Party's prior written consent. Each Party will only use confidential information of the other Party for the purposes of performing its obligations under this Agreement and only disclose confidential information to those persons who need to know and who have been expressly directed to and have agreed to keep that information confidential.
• The obligations imposed on the Parties under this clause 6 will not be taken to have been breached to the extent that Confidential Information:
(a) is disclosed by a Party to its advisers or employees solely in order to comply with obligations, or to exercise rights, under this Agreement;
(b) is authorised or required by law, including under this Agreement, under a licence or otherwise, to be disclosed; or
(c) is in the public domain otherwise than due to a breach of this clause 6.
6.3 In addition to the above confidentiality obligations, both Parties agree:
(a) to use or disclose Personal Information obtained in connection with this Agreement only for the purposes of this Agreement and in accordance with the Privacy Act 1988 (Cth) and WJO's privacy policy (as amended and made available on the Website from time to time);
(b) to immediately notify the other Party if it becomes aware of a breach or possible breach of any of the obligations contained in this clause;
(c) to ensure that any person who is required to deal with, or has access to, Personal Information for the purposes of this Agreement is made aware of, and requested to comply with, the obligations of the Parties set out in this clause 6.3.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in the Product(s) belong to WJO or its third party licensors (as applicable) and are protected by copyright, trademarks, service marks and/or other proprietary rights and laws of Australia and other countries.
7.2 All information and other elements displayed on the Website are also copyright works.
7.3 The Customer hereby agrees to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Website.
8. WARRANTIES AND DISCLAIMER
8.1 The Customer represents and warrants that:
(a) it has the right to enter into this Agreement;
(b) it has all rights, title, licences, interests and property necessary to lawfully use the Product(s); and
(c) it is not in breach of any other agreement, regulation or law by entering into the Agreement.
8.2 WJO represents and warrants that:
(a) it has the right to enter into this Agreement;
(b) to the best of its knowledge without making thorough investigations, it has the rights to lawfully supply the Product(s);
(c) it will use reasonable endeavours to ensure that the Product(s) will be free from material faults and virus. WJO will otherwise use reasonable efforts to eliminate them from the Product(s); and
(d) the use of the Product(s) in accordance with this Agreement will not infringe the Intellectual Property Rights of any person.
8.3 No Remedies . The Customer acknowledges that it has had the opportunity to trial the Product(s) before entering into this Agreement and that it will not be able to return the Product(s) and/or obtain a refund of the Fees paid for such Product(s) following execution of this Agreement. However if a Product cannot be accessed or used by the Customer and WJO is notified of this default within 7 days of execution of this Agreement, WJO will use reasonable endeavors to repair or replace the Product and make it available to the Customer, unless the default is due to a breach, willful or negligent act or omission of the Customer.
8.4 Disclaimer. The Product(s) is provided by WJO on an "as is" basis and is not intended to address the Customer's particular requirements. WJO makes no warranties or representations, whether express or implied, in relation to the Product(s), including but not limited to implied warranties or conditions of completeness, accuracy, satisfactory quality and fitness for a particular purpose. WJO also makes no warranty that the Website will meet the Customer's requirements or that the use of the Site will be uninterrupted, timely, secure or error-free.
9. INDEMNITY
9.1 The Customer will indemnify, defend and hold harmless WJO from and against any and all Losses sustained or incurred by WJO as a result of a claim made or threatened by a third party arising out of or in connection with:
(a) any negligent, unlawful or wilfully wrong act or omission of the Customer; or
(b) any breach of the license terms set out in clause 4 by the Customer.
9.2 Where WJO wishes to enforce an indemnity under clause 9.1 , it must:
(a) give written notice to the Customer as soon as practical;
(b) make reasonable efforts to mitigate the relevant Loss;
(c) subject to the Customer agreeing to comply at all times with clause 9.3 , permit the Customer, at the Customer's expense, to handle all negotiations for settlement and, as permitted by law, to control and direct any settlement negotiation or litigation that may follow; and
(d) in the event that the Customer is permitted to handle negotiations or conduct litigation on behalf of WJO under clause 9.2(c), provide all reasonable assistance to the Customer in the handling of any negotiations and litigation.
9.3 In the event that the Customer is permitted to handle negotiations or conduct litigation on behalf of WJO under clause 9.2(c) , the Customer must:
(a) comply with applicable laws relevant to the conduct of the litigation and any settlement negotiation, as if the Customer were WJO, and any reasonable directions notified by WJO;
(b) keep WJO informed of any significant developments relating to the conduct of the defence or settlement of any claim; and
(c) provide to WJO such information and documentation as are reasonably requested by WJO, to enable WJO to ascertain whether the defence or settlement by the Customer of any claim is being conducted in accordance with applicable laws.
10. LIMITATION OF LIABILITY
10.1 Scope . The limitations of liability in this clause will apply to any damages, however caused, and on any theory of liability, whether for breach of contract, tort (including, but not limited to, negligence), or otherwise, and regardless of whether the limited remedies available to the Parties fail of their essential purpose. The limitations of liability will not apply, in cases of willful misconduct, gross negligence, personal injury or breach of the license terms set out in clause 4 .
10.2 Excluded Types of Damages . In no event will either Party or its respective licensors or suppliers have any liability for any incidental, special, statutory, indirect or consequential damages, or for any loss of profits, revenue, data, toll fraud, or cost of cover.
10.3 Aggregate Liability . The liability of either Party for any claim arising out of or in connection with the Products provided under this Agreement is limited to the amount of the Fees paid for the Products most directly related to the claim or paid under the Order Form to which the disputed Products relate.
10.4 Limitation of Liability for Representatives . The limitations of liability in this clause also apply to any liability of directors, officers, employees, agents and suppliers of either Party. Directors, officers, employees, agents and suppliers will be third party beneficiaries of this contractual limitation of liability and will be entitled to enforce this limitation directly against the other Party.
11. Term AND TERMination
• This Agreement remains in force until terminated in accordance with its terms. Notwithstanding any other provisions, either Party shall have the right to terminate this Agreement in any of the following events:
(a) if the other Party commits a material breach of any of the terms or conditions of this Agreement and fails to remedy the breach within thirty (30) days of being required by the Party to remedy; or
(b) if the other Party is unable to pay its debts as they fall due or enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debts; or
(c) if there is a merger, combination, consolidation or amalgamation of the other Party with any other firm or corporation or shareholder control of the other Party changes to another person or corporation.
11.2 Notwithstanding clause 11.1 above, WJO will have the right to terminate this Agreement immediately should the Customer fails to comply with its obligations under clause 4 .
11.3 Termination of this Agreement does not affect any accrued rights or remedies of a Party. The following clauses survive the termination and expiry of this Agreement:
(a) Clause 6 (Confidentiality and Privacy)
(b) Clause 7 (Intellectual Property);
(c) Clause 8 (Warranties);
(d) Clause 9 (Indemnity);
(e) Clause 10 (Liability); and
(f) Clause 12 (Dispute Resolution).
12. DISPUTE RESOLUTION
12.1 This Agreement will be governed by the laws of New South Wales (Australia).
12.2 Any dispute, controversy or claim arising out of this Agreement shall first be referred to the Australian Commercial Dispute Centre (" ACDC ") and resolved under the ACDC rules (except proceedings for urgent interlocutory relief). The Party claiming that a dispute has arisen must give the other Party notice setting out details of the dispute. The role of a mediator is to assist in negotiating a resolution of the dispute. A mediator may not make a binding decision on a Party to the dispute except if the Party agrees in writing. Unless agreed by the mediator and Parties, the mediation must be held within 21 days of the request for mediation. The Parties must attend the mediation and act in good faith to genuinely attempt to resolve the dispute. The place of mediation shall be in Sydney, New South Wales.
12.3 Any information or documents disclosed by a Party under this clause must be kept confidential and may only be used to attempt to resolve the dispute. Each party must pay its own costs of complying with this clause and both Parties must equally pay the costs of any mediator.
12.4 A Party to a dispute may terminate the dispute resolution process by giving notice to the other Party after it has complied with this clause 12. If a Party to a dispute breaches this clause 12, the other Party does not have to comply with this clause in relation to the dispute.
12.5 Disputes will not be a basis for withholding payment of any undisputed amounts due under the Agreement or setting off other amounts due whether or not the disputed item is on the same order or invoice, nor will any amount be retained in anticipation of a Dispute for which notice has not been received.
13. FORCE MAJEURE
Neither party will have liability for delays, failure in performance or damages due to: fire, explosion, power failures, pest damage, lightning or power surges, strikes or labor disputes, water, acts of God, war, civil disturbances, terrorism, acts of civil or military authorities, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or network facilities, or other causes beyond the party's reasonable control. The foregoing will not apply to payments of Fees.
14. RELATIONSHIP OF PARTIES
The relationship between WJO and the Customer is that of independent parties. WJO shall under no circumstances be deemed to be an agent or representative of the Customer. Each Party undertakes that it shall not enter into any contracts or commitments in the name of or on behalf of the other Party, nor shall either Party bind the other Party in any respect whatsoever.
• MISCELLANEOUS
• Any notice required to be given by any Party hereto to the other Party shall be deemed validly served by hand delivery or by e-mail or by prepaid registered letter sent through the post to its address given herein or such other address as may from time to time be notified for this purpose, and:
• any notice served by hand shall be deemed to have been served on delivery;
• any notice served by facsimile transmission shall be deemed to have been served on transmission if a transmission report can evidence such transmission; and
• any notice served by prepaid registered letter shall be deemed to have been served forty-eight (48) hours after the time at which it was posted (or ten (10) days later if overseas) and in proving service it shall be sufficient to prove that the notice was properly addressed and delivered or posted, as the case may be.
• Failure by a Party to require strict performance of any of its terms and conditions hereunder, or delay in exercising any of its remedies, shall not constitute a waiver of such terms and conditions or a waiver of any default, nor of the remedy.
• The terms and conditions contained herein constitute the entire agreement between the Parties and shall supersede all previous communication, either oral or written, between the Parties with respect to the subject matter hereof.
• The captions appearing herein are for convenience only and shall not affect the meaning or interpretation of this Agreement or any section or provision hereof.
• This Agreement:
• shall not be assigned by any Party hereto without prior written consent of the other Party; and
• may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document.
• This Agreement and all Schedules attached hereto are all binding to both Parties. However if there is any contradiction in meaning between the Agreement and the Schedules attached, the terms of the Agreement shall prevail. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remaining provisions of this Agreement.
• Neither the expiration nor termination of this Agreement shall release either Party from their respective obligation to perform any duty or to discharge any liability that had been incurred prior to the expiration or termination of this Agreement.
• This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
SCHEDULE 1
FEES
A. License
LICENSE TERM |
LICENSE COST |
|
1 |
Two months |
AUD 10 |
2 |
Six months |
AUD 25 |
3 |
Twelve months |
AUD 40 |
4 |
Twenty-four months |
AUD 70 |
B. Purchase
Agreed once client accepts terms and condition of point 5 of this legally binding document. (this is done by clicking yes to terms and conditions, if the terms and conditions are not accepted the client may not RENT or BUY any products from WJO).