Bheard Music Licensing Agreement – Single Use
Terms and Conditions (for Pay Per Use customers)
- Definitions
In these Terms and Conditions (except as such Definition(s) may be otherwise modified or restricted by the specific language of this Licensing Agreement):
“broadcast” shall have the meaning ascribed thereto in section 6 of the Copyright Designs and Patents Act 1988 (and in related applicable Sections of the US Copyright Act of 1976, as amended);
“Publisher” means Bheard LLC (CA USA Entity 201629410399) of 5623 Bellingham Ave, Valley Village, CA 91607 (also considered the “Licensor”);
“Publisher Work” means each Musical Work the copyrights in which is/are solely owned and/or controlled in the THE UNIVERSE by Publisher and which is listed in the Publisher music library accessible via the Website and/or the Sound Recording embodying the Publisher Work (i.e., both the sound recording and underlying composition);
“Delivery Date” means, in relation to a Production, the date of delivery of the final version of the Production to the party that has commissioned it from the Licensee (or the party to which the Licensee is selling the Production, where it has not been commissioned), or where the Production consists of a series of episodes, delivery of the final episode;
“License Fee(s)” means the license fee payable by the Licensee to Publisher at Publisher’s then current license fee rate(s) as published on the Website for the relevant Publisher Work downloaded and type of single usage by the Licensee;
“Licensee” means the individual or company registered with the Website who wishes to obtain a license from Publisher to exploit Publisher Works and/or the client of the individual or company registered with the Website, if that individual or company is authorized/working on behalf of a client who wishes to obtain a license from Publisher to exploit Publisher Works;
“making available shall have the meaning ascribed thereto in section 20(2)(b) of the
to the public” Copyright Designs and Patents Act 1988 (and in related applicable Sections of the US Copyright Act of 1976, as amended);
“Musical Work” means any work consisting of music and any lyrics or words written to be used with the music (if applicable). It includes any part of such a work;
“Permitted Exploitation” means the single usage that the Licensee selects when downloading the Publisher Works via the Website and such other uses as Publisher may agree to in writing on a case by case basis (and the usage type categories on the Website are incorporated herein by reference);
“Production” means an individual audio visual production. For the purposes of the terms and conditions, the following shall be deemed to be an individual audiovisual production (without limitation):
(a) each single episode of a television series;
(b) each single audio visual video, broadcast or streamed on a website;
(c) each single advertising commercial;
(d) each single indie film, not intended for theatrical release, or paid online release. If the film is eventually released in theaters or sold online, a new custom license must be negotiated;
“Record” means any device, whether audio-visual and/or audio alone, embodying a Sound Recording in physical, non-physical, magnetic and/or other format whether now known or in the future developed, including, without limitation, vinyl. CD, DVD, Blu-Ray, permanent and/or semi-permanent download, digital streaming or any other device or media used for recording and emitting sounds whether alone or in conjunction with visual images and/or any form of reproduction, transmission or communication of sound whether known now or in the future developed and/or invented.
“Registration Date” means the date that the Licensee first downloads a Publisher Work via the Website;
“Adapted Version” means a piece of audio-visual material that is produced by editing the content of a Production into a different form. Adapted Versions will comprise substantially the same content as was contained in the original Production, but may include some new content, provided that it is related to the original content (and any material edit or adaption would require separate permission from Publisher);
“Sound Recording” means a recording embodying a Musical Work for exploitation either via a Record or otherwise.
“Term” means a period “in perpetuity” starting on the Registration Date, subject to any earlier termination in accordance with these Terms and Conditions;
“Territory” means the world for any medium; and
“Website” means the Publisher website at music.bheardmusic.com (or successor site).
- Rights Licensed
2.1 Subject to these Terms and Conditions, Publisher hereby grants to the Licensee a non-exclusive, non-transferable, revocable license during the Term to reproduce (including by way of synchronization but excluding by mechanical reproduction) Publisher Work(s) in the territory of the world into one single Production.
2.2 The license granted under clause 2.1 is of the copyright in both the Publisher Works and the specific Sound Recordings of the Publisher Works made available via the Website.
2.3 Licensee may reproduce in any single Production and the Licensee may reproduce a Publisher Work either in whole or in part in the single Production covered by this license (but for sake of clarity, this license does NOT grant a “mechanical license” for reproduction of the Publisher Works for commercial distribution, sale or streaming in digital or physical record formats).
2.4 The Licensee may edit or re-edit a Publisher Work to the required length for the purposes of production only, but this is the only form of editing or re-editing of a Publisher Work that is permitted under these Terms and Conditions. Any such editions or re-editions shall remain the copyright of Publisher.
2.5 The license granted hereunder covers distribution of the Production containing Publisher Works worldwide for the Permitted Exploitation (subject to clause 2.3).
2.6 The Licensee shall be entitled to sub-license any of the rights granted by Publisher hereunder to a financially responsible third party provided that Licensee shall remain primarily liable to Publisher for all of its obligations hereunder (and the sub-licensee complies with the Terms and Conditions).
- Extent of the License
3.1 Any rights not granted to Licensee pursuant to the terms of this Agreement are reserved by Publisher, including without limitation:
3.1.1 the right to make adaptations and arrangements of and alterations to the Publisher Works and/or the Sound Recordings including the right to alter the lyrics or add new lyrics thereto to or to provide translations of the Publisher Works or new lyrics in other languages or to add music or authorize others to do so;
3.1.2 the right to make literary versions of the Publisher Works or literary works based upon the Publisher Works throughout the Territory or any part thereof and to print publish and sell such literary versions (as well as the dramatic versions aforementioned) throughout the Territory or any part thereof;
3.1.3 the right to use or permit others to use so-called sampled extracts from any of the Sound Recordings embodying Publisher Works;
3.1.4 the use of the lyrics or any part thereof from the Publisher Works with music other than that written to be used with such lyrics or hereby authorized for use with the lyrics;
3.1.5 the right to print, publish, lease, hire and sell and cause to be printed, published, leased, hired and sold copies of the Publisher Works in the Territory and to collect any royalties or fees payable by reason thereof;
3.1.6 the right with respect to audio and audio visual devices within the Territory to grant licenses for the manufacture and sale of mechanical and electrical reproduction of the Publisher Works upon sound carriers and sound and visual carriers whether physical, digital or otherwise howsoever whether known or invented; and
3.1.7 the right to broadcast the Publisher Works and make the same available to the public other than in connection with a Production.
3.1.8 All intellectual property (i.e., copyrights, trademarks and patents) remain with Publisher.
3.1.9 All SoundExchange and Neighboring Rights royalties.
3.1.10 All songwriter/publisher performance rights royalties.
3.2 The provisions of these Terms and Conditions authorize the making of the Production for the Permitted Exploitation only. In the event that a copy of the Production is made or used or extended in any way for any other purpose (including, without limitation, retail sale, rental and/or lending, cinematic/theatrical performance) whether by the Licensee or any other party, then that copy or extension shall not be licensed under these Terms and Conditions, and a separate license will be required from Publisher (otherwise such copy or extension would have to cease and desist/take down).
3.3 It is the responsibility of the Licensee to obtain all necessary consents, permissions and/or licenses (whether from third parties or otherwise) required for the exploitation of the Publisher Works by Licensee and any applicable Production and to pay all applicable fees in relation thereto.
3.4 During the Term and for a period of seven (7) years thereafter, the Licensee will keep accurate books and records regarding its use and exercise of the license granted hereunder. At any time during the Term (and for a period of seven (7) years thereafter) upon reasonable notice Publisher shall be entitled to audit and review these books and records to ensure that the Licensee is exploiting the Publisher Works in accordance with this Agreement.
- License Fees and payment
4.1 In consideration of the license granted by Publisher hereunder, the Licensee shall pay to Publisher the License Fee(s) (based on the applicable licensed use type/category), which shall be non-refundable.
4.2 Publisher may, at their sole discretion, elect to grant a free non-exclusive license to Licensee in respect of a Publisher Work(s) allowing the Licensee to try such Publisher Work(s) with a Production solely for the purposes of checking compatibility (“Try Before You Buy”), provided that under no circumstances shall Licensee be entitled to exploit (commercially or otherwise) such Publisher Work(s), either as part of that Production or otherwise, unless and until Licensee has paid the applicable License Fee and complied with all other terms and conditions of this Agreement.
4.3 A License Fee is due and payable each time that a Publisher Work is downloaded by the Licensee for use in the Production SAVE FOR those Publisher Works downloaded pursuant to the Try Before You Buy arrangement. The License Fee(s) shall cover reproduction of the Publisher Work into only one Production. If the Licensee wishes to reproduce the Publisher Work into more than one Production, an additional License Fee shall be payable in respect of each such Production. Please contact Publisher for details of such additional license fees on: [email protected].
4.4 The License Fee(s) must be paid by debit card, credit card or Paypal via the Website and are subject to VAT where applicable, which shall be payable by the Licensee. For the avoidance of doubt, Publisher shall be under no obligation to provide the Licensee with any Publisher Work until the License Fee(s) has been paid in full SAVE FOR those Works and Sound Recordings licensed by Licensor to Licensee pursuant the Try Before You Buy arrangement as set out in clause 4.2 above.
- Cue Sheets AND PERFORMING RIGHTS
5.1 For the Production covered by these Terms and Conditions the Licensee shall:
5.1.1 provide the relevant production company, broadcaster, website owner or other third party with a cue sheet containing sufficient information to allow such third party to properly register the performance usage with all applicable local performing rights collecting society/ies (including, without limitation, in the USA the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, inc. (BMI), SESAC, Global Music Rights (GMR) and other analogous organizations throughout the world). For the avoidance of doubt, the cue sheet must contain standard industry custom details for the type of usage. All Performance and other similar rights will normally be cleared by the performing organization, broadcaster or web site owner (not the producer). This is usually done through a blanket license arrangement with ASCAP, BMI, or otherwise in the USA or similar relevant societies in overseas territories. Any queries in this respect should be raised with Publisher on [email protected];
5.1.2 provide Publisher with a copy of such cue sheet within 7 days of the Delivery Date, or on the date that the Production is first communicated to the public if there is no Delivery Date; and
5.1.3 to the best of its ability, upon request by Publisher on no more than a semi-annual basis, provide Publisher with customary details of any broadcast or performance of a Production in the Territory.
- Termination of Agreement
6.1 If there is an applicable Term less than in perpetuity, upon expiry of the Term, the license granted hereunder terminates and the Licensee must renew its license via the Website.
6.2 Publisher shall have the right to terminate the license granted under these Terms and Conditions immediately by notice to the other party if the Licensee:
6.2.1 commits a breach of these Terms and Conditions which is not capable of remedy; or
6.2.2 commits a breach of these Terms and Conditions which is capable of remedy but which has not been so remedied within 14 days of notice thereof;
6.2.3 is dissolved, becomes insolvent or otherwise unable to pay its debts, ceases to trade, has a trustee, administrator or receiver appointed, has a resolution passed for its winding up or liquidation or makes a general assignment, arrangement or composition with or for the benefit of its creditors.
6.3 For the avoidance of doubt, following expiry of the Term or termination of the license granted under these Terms and Conditions, the Licensee may not download any further Publisher Works or reproduce any Publisher Works downloaded prior to such expiry or termination and shall permanently delete all copies of Publisher Works (excluding those reproduced into Productions in accordance with these Terms and Conditions).
- INDEMNITY
7.1 Licensee agrees at all times to keep Publisher fully indemnified from and against any losses, claims, demands and expenses actual and/ or adjudged by a court or tribunal of competent jurisdiction which Publisher may sustain by reason of any breach of any provisions hereof by the Licensee (or sub-licensee) or any warranty, representation or undertaking given by the Licensee (or sub-licensee) hereunder being untrue, inaccurate or unfulfilled.
7.2 Except as set out herein, the total liability of Publisher to Licensee in contract, tort or otherwise for breaches by Publisher of its obligations under this Agreement is limited to the amount payable by Licensee to Publisher under this Agreement provided that Licensee notifies Publisher in writing of any potential claim arising under this Agreement within a reasonable time (and no later than thirty (30) days) of Licensee first becoming aware of such potential claim, and only if Publisher fails to cure such breach within thirty (30) days of notice. Publisher shall not be liable to Licensee for any loss of business, contracts, profits, anticipated savings, goodwill, or revenue or for any indirect or consequential loss whatsoever incurred by Licensee, whether or not they have advised in advance of the possibility of any such loss.
- GENERAL
8.1 The Licensee shall include in each and every Production containing Publisher Works licensed hereunder a suitable credit in the name of Publisher (including, as applicable, the artist’s name [including any “guest feature”], the writer’s name(s), the producer’s name(s)) where music credits are customarily given (including online metadata).
8.2 Other than as set out herein, the license granted under these Terms and Conditions is personal and the Licensee shall not assign, sub-contract or otherwise transfer this license or any of its rights or obligations under these Terms and Conditions in whole or in part without the prior written consent of Publisher (unless as otherwise permitted hereunder).
8.3 The parties expressly agree that a person who is not a party to these Terms and Conditions shall not have the right to enforce any term or terms of these Terms and Conditions.
8.4 No delay or omission in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy and no single or partial exercise thereof shall preclude any other or further exercise of any other rights and remedies.
8.5 No waiver shall be binding or effectual unless expressed in writing and signed by the party giving it and such waiver shall be effective only in the specific instance and for the purpose given.
8.6 If these Terms and Conditions create any rights which would in the absence of this provision be enforceable by any person not a party to these Terms and Conditions, such rights shall not be enforceable.
8.7 These Terms and Conditions shall be construed in accordance with the laws of The United States of America and the parties submit to the exclusive jurisdiction of the United States courts (in the forum of Los Angeles County, CA).
8.9 Publisher shall have the right in its discretion to update the Website Terms and Conditions without notice (but any such update shall still apply to Licensee).
8.10 Any amendment to these Terms & Conditions shall be by mutual approval in writing.