We provide a range of services to independent artistes and record labels. You wish us to provide the Services described in Clause 2 below, and we are willing to provide such Services on the terms and conditions set out below.
1. Definitions and Interpretation
1.1 In this Agreement the following capitalised words and expressions have the following meanings: Agreement means this agreement and all Service Schedules attached from time to time by agreement between the parties;
Artist means any artist whose performance is featured on a recording or video forming part of the Licensed Content;
Digital Distribution means the making available of Recordings and/or Videos direct to consumers by means of electronic transmission of any kind (including by way of any method of downloading and streaming) by wire or wireless means, and includes the pre-loading of Recordings and Videos on any computer or other device;
Licensed Content means all content licensed to us under Clause 5 and under any Service Schedule; Licensed Territory as defined in the Service Schedule(s);
Net Receipts means 100% of our gross receipts in respect of all sales and other exploitation of the Licensed Content by us or by third parties under licence from us less only sales tax;
Record means any disc or other physical device (other than a computer or handheld device hard drive) that stores (but does not itself play) sound recordings and/or audio-visual recordings;
Recording means any audio-only recording in respect of which you have exploitation rights for the Licensed Territory at any time during the Term, but only to the extent of such rights;
Service Period means the period during which we agree to provide a given Service as specified in the applicable Service Schedule;
Service Schedule means a schedule which describes a Service to be provided by us hereunder;
Services means the service or services to be provided by us under this Agreement as set out in Clause 2;
Video means any promotional music video or long form video in respect of which you have exploitation rights for the Licensed Territory at any time during the Term, but only to the extent of such rights.
References to Clauses are to clauses in this Agreement. The words include and including must be read as introducing illustrative examples only, and they do not limit the sense or scope of the words preceding them.
Headings are inserted for convenience only and shall not affect the interpretation of this Agreement. The singular includes the plural and vice versa.
In writing or written means letters, emails, and online communication systems provided by us, more details of which appear in Clause 17.12.
2.1 In consideration of your undertakings below we agree to provide any of the following Service(s) to you: Batamusic Digital Distribution Services and any other Service mutually agreed by the parties from time to time, on and subject to the terms and conditions of this Agreement.
2.2 Full details of the Services to be provided and additional terms and conditions specifically relating to each Service, including the applicable Service Period(s), are set out in the Service Schedules published online by us.
The term of this Agreement (the Term) shall be a period commencing on the date of signature of this Agreement and continuing until the expiry (or earlier termination) of the last of the Service Periods and the fulfilment of all post-Service Period obligations by both parties.
4. Your Obligations
4.1 You agree:
4.1.1 to co-operate with us in all matters relating to the Services;
4.1.2 (if required by us) to appoint an individual named manager in relation to the Services who shall have the authority contractually to bind you on all matters relating to the Services (unless we are expressly notified to the contrary in respect of any issue by the manager); and
4.1.3 to provide, in a timely manner, such input materials and other information as we may reasonably require, and to ensure that such information is accurate in all material respect and compliant with our editorial policy.
5. Grant of Rights
5.1 Without limitation to any specific grant of rights in any Service Schedule, you grant to us during the Term in the applicable Licensed Territory all rights in your master recordings, videos, all artwork and metadata relating thereto, Artist names, approved photographs and biographies, and in your logos, trade names and trademarks, in each case necessary for us to provide each Service in the Licensed Territory, including without limitation:
5.1.1 the right to use the names and approved photographs and biographies of the Artists, and all track and album titles, cover artwork, and any trademarks and trade names embodied in the foregoing, and all promotional material supplied by you and approved by us to advertise, market and promote the sale and distribution of the Licensed Content;
5.1.2 the right to sub-license our rights and sub-contract our obligations hereunder, but solely for the purpose of providing the Services and provided that we remain primarily liable to you for our obligations;
5.1.3 the exclusive right to collect all royalties, fees and other income arising from the exercise of the rights granted above during the relevant Service Period(s); and
5.1.4 the right (but not the obligation), at our cost and subject to full consultation with you, to institute such proceedings as may be necessary either in our own name or in your name to restrain the sale, distribution or other exploitation of Licensed Content not authorised by you or us.
5.2 We agree that all rights in and to the Artists and the Licensed Content not expressly granted to us above, or in any Service Schedule, are hereby reserved to you to exploit at your sole discretion.
6.1 We agree that we shall not without your prior written consent:
6.1.1 edit, re-mix or re-sequence any Licensed Content SAVE THAT we may make basic edits to the metadata relating to Licensed Content for technical and administrative purposes only; or
6.1.2 edit or alter any artwork or promotional material except as strictly necessary to comply with national or local laws, rules, or regulations, or to comply with approved retailers’ and/or distributors’ requirements; or
6.1.3 use or permit the use of any Licensed Content or image of any Artist to advertise, endorse or promote any third party recording, product, service or brand; or
6.1.4 remove any metadata or security device (e.g. digital watermark) embedded in any Licensed Content.
6.2 We shall not be entitled to sub-license any of our rights to third parties except as expressly permitted under Clause 5.1.
7. Revenue Share
For each Service provided we shall be entitled to retain the share of revenue as set out in the applicable Service Schedule.
8.1 For each Service provided we will account to you for sales and other exploitation of the relevant assets, less commission due, in accordance with the relevant Service Schedule and this Clause
8. 8.2 We will keep full and accurate books and records of account in respect of each Service provided.
8.3 We shall send (or make available online) statements of account to you on the basis set out in the Service Schedule together with payment of sums due (if any).
8.4 We are obliged to account to you only in respect of monies actually received by us or credited against a previously paid advance and which wholly and identifiably relate to the exploitation of the relevant asset.
8.5 We will use all reasonable endeavours to make sure that any third party licensee or distributor accounts on a timely basis to us.
8.6 We shall include in our accounting in respect of each accounting period your share of all payments and credits received by us from such third parties during such accounting period.
8.7 All sums payable to you hereunder shall be payable in Pounds Sterling and shall be converted (if applicable) at the exchange rate existing at the date on which payment is made.
8.8 We may, without prejudice to any other rights we may have, set off at any time any liability you may have to us against any liability we may have to you.
8.9 We are entitled to deduct or authorise the deduction of any sums which may be demanded from us or our licensees by the governments or other fiscal authorities of the countries in which the assets are exploited. We will use all reasonable endeavours to provide you with a certificate or (where not available) other evidence of any such tax deductions or withholding, and shall, on request by you, provide you with such reasonable assistance as may be practicable to assist you in reclaiming such deduction or withholding or obtaining a tax credit for the same. At any time within three (3) years after any statement is delivered hereunder you shall have the right, after giving us at least thirty (30) days written notice, to appoint a qualified accountant or royalty auditor to inspect and take copies of our books and records with respect to such statement.
8.9.1 This inspection must take place where such books and records are kept.
8.9.2 No such inspection may be made more than once in respect of any statement.
8.9.3 No more than one (1) inspection may be made in any twelve (12) month period.
8.9.4 You agree to provide a copy of the final auditor’s report to us promptly upon completion.
8.9.5 Any inspection shall be at your sole cost and expense.
8.10 All royalty statements and accounts rendered by us to you shall be final and binding upon you unless written notice of objection is received by us within three (3) years after delivery.
9. Music Publishing Royalties
9.1 Unless otherwise provided in the Service Schedule(s), we agree to pay or procure the payment of all mechanical and other music publishing royalties due on the manufacture and/or distribution of Records hereunder and (if applicable) on the Digital Distribution of Licensed Content.
9.2 You agree that the musical compositions underlying the Recordings shall be available for licence on standard industry terms in all jurisdictions SAVE THAT:
9.2.1 if the USA and Canada form part of the Licensed Territory the following provisions shall apply: if you have agreed controlled composition provisions with any Artist for the USA and Canada you shall use reasonable endeavours to ensure that we shall have the benefit of such provisions in connection with the manufacture and distribution of Records embodying Licensed Content by such Artist in the USA and Canada subject always to the rights and requirements of the relevant local sub-publisher(s) or administrator(s); and
9.2.2 if you have agreed a free synchronisation licence provision with any Artist for the purposes of promoting that Artist’s Recordings you shall use reasonable endeavours to ensure that we shall have the benefit of such provision for the purposes of such promotion in the Licensed Territory subject always to the rights and requirements of the relevant local sub-publisher(s) or administrator(s). 9.3 For the avoidance of doubt you make no warranty as to the availability of any controlled composition or synchronisation licence provision in respect of any musical compositions and we shall be solely responsible (as between you and us) for the payment of all music publishing royalties due at whatever rate in respect of the sale and distribution of Licensed Content in the Licensed Territory.
10. Change Control
10.1 We have the right from time to time and without notice to change aspects of one or more Services provided that such changes do not materially affect the nature, scope of, or the charges for such Service(s).
10.2 If we intend to make any other change to any Service for any other reason we shall notify you and the parties shall negotiate in good faith regarding the effects of such change.
10.3 We may cease to supply any one or more Services at any time on at least three months’ notice to you.
11. Warranties and Indemnity
11.1 You warrant that:
11.1.1 you have all necessary licences, rights, performer consents and moral rights waivers to grant the rights and licences expressed to be granted in this Agreement on the terms and conditions of this Agreement;
11.1.2 the Licensed Content is free from any liens, charges or other encumbrances which might prejudice or conflict with the rights granted in this Agreement;
11.1.3 to the best of your knowledge and belief there are currently no threatened or pending actions, claims or disputes regarding the Licensed Content or any of it that may adversely affect the Licensed Content or the supply of the Services hereunder;
11.1.4 you have not before the date hereof licensed or assigned any conflicting rights of any nature in the Licensed Content to any third party and will not do so after the date hereof;
11.1.5 none of the Licensed Content nor any part thereof is or will be contrary to any legislation or any codes, orders, regulations or applicable guidelines. In particular (but without limitation) no such content is or shall be defamatory, indecent or obscene, nor shall it, if released, constitute a contempt of court, or promote hatred, violence or illegal activities or discrimination based on race, sex, religion, national origin, physical disability or age; and
11.1.6 the provision of the Services by us under this Agreement will not give rise to an obligation on us to make any payment (including any royalty payment) to any Artist or any other third party except as expressly provided in this Agreement and any relevant Service Schedule.
11.2 We warrant that we have all the necessary power, authority and rights to enter into and to perform our obligations under this Agreement.
11.3 Each party (the Indemnifying Party) agrees to indemnify the other party (the Indemnified Party) and keep the Indemnified Party indemnified from and against any and all expenses, costs (including its own reasonable legal costs), liabilities, losses and damages incurred or suffered by the Indemnified Party arising out of a breach of any warranty of the Indemnifying Party above or in any Service Schedule.
12. Intellectual Property
12.1 You acknowledge that all copyright, trademarks and all other intellectual property rights in and to the Services and our name and logos, marks, signs, designs, workflows, software, algorithms, processes, data, databases, data systems and related materials are and will remain our exclusive property. No use of any of the foregoing may be made save as expressly permitted under this Agreement without our express prior written consent.
12.2 We acknowledge that as between us and you all copyright, trademarks and all other intellectual property rights in and to the Licensed Content and your name and logos, marks, signs, designs and related material are and will remain your exclusive property. No use of any of the foregoing may be made save as expressly provided under this Agreement without your express prior written consent.
13.1 This Clause sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents, consultants and subcontractors) to you in respect of:
13.1.1 any breach of this Agreement (including any and all Service Schedules);
13.1.2 any use made by you of the Services; and
13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
13.3 Nothing in this Agreement limits or excludes our liability for/in respect of:
13.3.1 death or personal injury resulting from negligence; or
13.3.2 fraud or fraudulent misrepresentation; or
13.3.3 misuse of your confidential information; or
13.3.4 payment of sums properly due and owing to you in the course of normal performance of this Agreement; or
13.3.5 other matters for which liability cannot be lawfully excluded or limited.
13.4 Subject to the above, we shall not be liable to you in contract, tort, misrepresentation or otherwise for any loss of revenue, profit, business opportunity or anticipated savings, or for any loss of goodwill or reputation, or for any indirect or consequential loss.
13.5 Without prejudice to Clause 13.4, our entire aggregate liability to you whether arising in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise arising by reason of or in connection with this Agreement shall be limited to ₦1,000.
14.1 Either party may terminate this Agreement immediately by notice to the other:
14.1.1 in the event that the other is in breach of any of its material obligations under this Agreement provided that, if the breach is capable of remedy, the other fails to remedy the breach within fourteen (14) days of receiving notice of it; or
14.1.2 the other goes into liquidation (whether compulsory or voluntary) otherwise than for the purposes of a bona fide amalgamation or reconstruction; or
14.1.3 if an administrator or receiver or similar officer is appointed over the whole or any part of the other’s assets; or
14.1.4 if the other enters into any arrangement for the benefit of or compounds with its creditors generally; or
14.1.5 if the other threatens to do any of the things mentioned in clauses 14.1.2, 14.1.2, 14.1.3 or 14.1.4; or
14.1.6 if a similar occurrence to the above occurs in any other jurisdiction;
14.1.7 if the other ceases or threatens to cease to carry on business. 14.2 Termination of this Agreement pursuant to this Clause 14 shall not affect any rights or remedies of either party which may have arisen as a consequence of any breach or which have accrued to either party under this Agreement up to the date of termination. 14.3 Upon the expiry of any Service Period under this Agreement all rights herein granted by you to us in respect of that Service shall immediately and without further formality revert to you, except to the extent required by us for the provision of any other Service, and subject to our post-term rights of collection and (if applicable) sell-off.
15. Assignment and Sub-Licensing
15.1 We have the right in our absolute discretion to sub-license any or all of the rights granted to us under this Agreement to third party sub-licensees.
15.2 We have the right to assign this Agreement or any of our rights under this Agreement in whole or in part to any third party provided that we will remain primarily liable for our obligations unless and to the extent that the assignee enters into an agreement directly with you to observe all such obligations.
16.1 This Agreement contains the entire understanding and agreement of the parties relating to its subject matter and supersedes in all respects any previous or other existing arrangements, agreements or understandings between the parties whether oral or written in relation to the Services.
16.2 No amendment to this Agreement or any Service Schedule will be effective unless it is in writing and signed by or on behalf of both parties.
16.3 In the event of any conflict between a Service Schedule and the main body of this Agreement the relevant parts of the Service Schedule shall prevail.
16.4 Each party undertakes to the other that it will treat as confidential information which is related to the business affairs of the other party and which is marked as ‘Confidential’. Each party may share information related to this agreement with those with whom the party has a contractual relationship who are materially affected by that information.
16.5 In the event that any provision or part of a provision of this Agreement is, or is held to be, illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction that provision or part will be deemed severed and the remainder of this Agreement will be deemed in full force and effect.
16.6 No failure or delay by either party in exercising any right or remedy under this Agreement shall operate as a waiver of that right or remedy, and no single or partial exercise by any party of any right or remedy shall preclude any further exercise of that right or remedy or the exercise of any other right or remedy.
16.7 No waiver or discharge of any breach shall be effective unless in writing signed by the party giving the waiver.
16.8 The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights and remedies provided in law or otherwise.
16.9 Neither party shall be in breach of this Agreement nor bear any responsibility or liability for any losses arising out of any delay or failure in the performance of its obligations under this Agreement due to events beyond its reasonable control commonly referred to as events of force majeure PROVIDED THAT the defaulting party shall promptly notify the other party of the nature and reasons for the delay or failure and shall use its reasonable endeavours to mitigate the effects of any default as soon as possible. If any such force majeure event continues for a period of more than three (3) months either party may terminate this Agreement thereafter by written notice to the other party without prejudice to the rights of the parties existing prior to such termination.
16.10 At its own expense each party shall execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement and the rights expressed to be granted under this Agreement.
16.11 Any third party which is not a party to this Agreement shall have no rights to rely upon or enforce any term of this Agreement.
16.12 Notices under this Agreement shall not be valid unless in writing. A party may change its notice details by serving notice of the change on the other party in accordance with this clause. In the absence of earlier receipt any notice served under this Agreement shall be deemed to have been duly served.