1.1 The Parties to this Agreement are –
1.1.1 [OWNER] and SLIKOUR ON LIFE Proprietary Limited [SOL]
1.2 The Parties agree as set out below.
In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –
2.1 “Accounting Period” means, in respect of each calendar year, each calendar quarter (ending in March, June, September and December of each year), provided only that the first Accounting Period will be deemed to have begun on the Effective Date and end on the earlier of 31 March, 30 June, 30 September and 31 December during the year in which the Effective Date falls;
2.2 “Aggregation Services” means The services related to SOL’s exploitation of Owner Content on DSPs namely:
2.2.1 exploitation of the Content on DSPs through aggregation deals;
2.2.2 DSPs promotion and DSPs campaign management services;
2.2.3 issuing royalty statements;
2.2.4 assistance with the management of ‘Take Down Notices’; and
2.2.5 assistance with the management of the Content on specific DSPs (e.g. YouTube Content ID Claims management).
2.3 “Agreement” means the written agreement set out in this document, read together with the Annexures hereto;
2.4 “Content” means the assets which are the object of the contractual exploitation under this Agreement and of the rights assigned in this respect under this Agreement and is controlled by Owner, e.g. music recordings and musical works, film recordings (e.g. music videos), images, (cover) artwork, booklets, texts, sheet music, advertising material and the associated Metadata (content controlled by Owner is hereinafter jointly referred to as “Content”). The assets making up the Content shall be listed in Annexure 1 to this Agreement.
2.5 “Digital Distribution” means all known and unknown forms of exploitation of Content, via all technical sales channels, in particular via the internet and other networks, and within the framework of (mobile) applications, via making available to the public and broadcasting (see clause 2 of this contact). Digital Distribution furthermore encompasses the (physical) distribution via “Disc-on- demand services”.
2.6 “Disc-on-demand services” means the production of a physical image carrier and/or sound recording carrier, whereby the content thereof (e.g. a music recording) are compiled according to the consumer’s wishes.
2.7 “Effective Date” means date of first release;
2.8 “Metadata” means the names of the artists (incl. pseudonyms), the authors and the publishers, if any, the artists’ biographies, the titles and codes of the various recordings and albums, the label, a description of the album, the text of the recorded musical work, the musical genre, concert information and other information which SOL considers to be necessary for the contractual exploitation.
2.9 Owner means authorized rights holder of the content.
2.10 “Owner Data” means any and all data submitted by Owner (or its authorized representatives) to SOL including any Metadata;
2.12 “Parties” means collectively, [……….] and [……….] and a “Party” shall mean each or either of them, as the context requires;
2.13 “Service Providers” means all contracting partners of SOL and/or any affiliate with whom SOL has entered, or may enter during the term of this Agreement, into an agreement on the distribution of Content, such as music recordings, film recordings, images, (cover) artwork, booklets, advertising material and associated data etc. This includes, without limitation, the following distribution partner categories: online sales platforms (e.g. itunes and beatport), video streaming platforms (e.g. YouTube), streaming services (e.g. Spotify), social media services (e.g. Facebook, Instagram, WeChat, Tik Tok, Snapchat) etc.
2.14 “Signature Date” means the date of last signature of this Agreement;
2.15 “South Africa” means the Republic of South Africa;
2.16 “Territory" means the entire World, including aircraft in flight, seafaring vessels and the Internet;
2.17 "VAT" means value-added tax payable in terms of the Value-Added Tax Act, No 89 of 1991. The purpose of this Agreement is to record in writing the agreement amongst the Parties in respect of the above and matters ancillary thereto.
3.2 Owner is the original owner of all rights in the Content or has been fully granted the rights in the contractual Content by the (original) rights owners for the purpose of exploitation by SOL and third-party companies(e.g. Service Providers etc.).
3.3 The object of this Agreement is the exploitation of the Content by SOL and SOL’s contracting partners (e.g. Service Providers), and the transfer of the associated rights for exploitation of this Content in any form and manner (in particular in audio and audio-visual product forms, such as single or album offers, etc.), in their entirety or in excerpts. The Parties agree that, with this Agreement, SOL is intended to be especially authorized to sublicense the rights granted herein and allow Service Providers and third persons to exploit the contractual content in all technical formats and products via digital distribution. In addition to the non-physical exploitation, SOL is furthermore intended to be authorized to exploit and to permit physical exploitation of the contractual content via Service Providers and other third parties through disc-on-demand services. The Owner hereby assigns to SOL the rights required for this exploitation of the contractual content. The Owner holds all exclusive exploitation rights in the contractual content required to fulfill the purposes of this Agreement (including corresponding agreements with artists, producers, authors etc.).
4 GRANT OF RIGHTS
The Owner hereby assigns to SOL the following usage rights and entitlements, for the term of the Agreement and the agreed territory on an exclusive basis, for the purpose of exploitation (Digital Distribution) of the Content as follows:
4.1 Non-physical types of exploitation
4.1.1 Right to make the Content available to the public
The Owner hereby assigns to SOL all rights for the exploitation of the Content via all non-physical digital sales and exploitation methods through all technical sales channels, such as, in particular, the internet, telephone and mobile communications networks, data bank systems as well as any other comparable digital platforms (including, in particular, downloads/streaming via mobile telephones and/or mobile value-added services) for the purpose of making the Content publicly available.
4.1.2 Broadcasting rights
The Owner furthermore assigns the right to send the Content via sound and/or television broadcasting, including wired radio, cable and satellite broadcasting and similar transmission technologies (including internet-based broadcasting), and/or to publicly reproduce such broadcasts and to use the broadcasts in all contractual ways, irrespective of whether this is done in digitized or analogous form, via public service broadcasting or via privately owned broadcasting stations, including (fee-based) subscription television and radio, video text, on-demand services, near-on-demand services, pay TV and similar technologies and forms of exploitation (in particular also via IP TV, mobile TV, web radios and personalized (web) radios). Also included is the reproduction of the Content for an (un)defined group of users (e.g. hotels, hospitals, aircraft, automobiles, vessels, schools, etc.).
4.2 Physical types of exploitation
The Owner furthermore assigns to SOL the right to copy and disseminate the Content via the analogous or digital ‘Disc-on- demand service’. Included is its use on any type of data carrier, such as CD, DVD, Blue Ray, memory sticks, hard drives, etc.
4.3 Editing, film synchronization and advertising
The Owner assigns to SOL the right to edit the Content, in particular to use excerpts of it and to combine the Content with any type of film or image as well as with other services and elements (so-called synchronization)) by using any type of technical system and format (e.g. 3D, virtual reality, augmented reality, video games, e-learning etc.), for purposes of exploitation of such edited versions within the context of the contractual rights (in particular pursuant to clauses 2.1 and 2.2). Also included are in particular ringtones/ video tones and products created by service providers (e.g. ‘remix options’ for models such as Youtube’s Remix, Art-Track-Model and Beatport Remix Contest). In order to exploit the Content as contemplated in this Agreement, SOL shall furthermore have the right to convert the Content into new formats and to technically edit it. SOL is also assigned the right to combine the Content with advertising (e.g. in the context of trailers, pre-rolls, mid-rolls or post-rolls), to use it within the framework of advertising campaigns, and to place/display advertising in the environment of the Content (e.g. banner advertising); the above advertising measures are permitted for advertising the (sale of the) relevant Content itself as well as for advertising SOL, Service Providers or third-party products or companies. Also included is the right to allow third parties, such as final consumers, to edit and dub the Content and to enable interactive use.
The Owner has entered into agreements with the affected authors and holders of ancillary copyrights as well as other holders of rights in the Content, which allow the editing and synchronization of the Content and use in an advertising context, to the extent described above. SOL shall be obliged to consider and respect the personal rights of authors and performers. The licensing of the synchronization right to third persons and the authorization to use the Content for advertising purposes for products of third persons is – without prejudice to the following provisions of clause 2.3 – subject to approval of the Owner (email is sufficient) in each case. For clarification purposes the usage of the content for advertising the content itself (including synchronization) is permitted without further consent of Owner. No further consent is also required for advertisements of products of third persons with the content that are shown in the surrounding of the content or combined with the content (e.g. pre rolls, mid rolls, post rolls, commercial breaks/blocks in the content, banner advertising, pop-up ads, split screen ads etc.) whereas the permanent combination with a commercial or advertising film is subject to the approval of Owner. Further, such synchronizations made by end customers (e.g. user generated content) of a service provider (e.g. YouTube) are permitted without further consent whereby the permission covers solely the usage of the synchronized Content via the service of the Service Provider.
4.4 Unknown types of use
The object of the assignment of rights shall also be the assignment of rights in Content for types of use currently still unknown.
4.5 Audio samples
For promotion purposes, SOL is hereby authorised to offer, itself and/or via third parties, samples (e.g. audio samples) of the Content free of charge, via the types of use specified in clauses 4.1, 4.2 and 4.4.
4.6 Licensing/assignment to third parties, and third-party licensing rights
SOL shall have the right to partially or fully and on an exclusive or non-exclusive basis license and assign the rights and claims assigned hereunder to third parties (e.g. Service Providers etc.) for the purpose of selling the Content (including the versions pursuant to clause 4.3). The Owner shall furthermore assign to SOL the right to allow third parties (e.g. Service Providers etc.) to issue sub-licences to further third parties.
4.7 Object of the assignment of rights and third-party rights
Covered by the above assignment of rights under clauses 4.1 through 4.6 and the associated licensing to Service Providers and/or other third parties are the ancillary copyrights, copyrights, data protection rights and personal rights (right to one’s own image), design rights, name rights, title rights, trademark rights, and other industrial property rights in the Content. The usage rights under copyright law in the musical works are always only assigned on a non-exclusive basis.
Also covered by the assignment of rights and in particular the associated authorisation to license rights pursuant to clause 4.6 are third-party rights in the Content, which are hereby also assigned to the extent of the above assignment of rights under clauses 2.1 through 2.6.
The Owner has accordingly obtained from such third parties within the scope of the above assignment of rights the rights required (i.a. for the assignment of these rights to SOL and other third parties (such as the Service Providers and their contracting partners) as well as the granting of sub-licenses according to the rules outlined in the Agreement).
4.8 The remuneration claims (as would be exercised by a collecting society or similar institution) of the producer of an audio recording/phonogram (especially statutory remuneration claims) that arise through the secondary use of the music, film and other recordings to which the Owner is entitled are hereby also assigned/transferred in full to SOL.
SOL, or its appointed agent, shall have the right to transfer these remuneration claims to a collecting society or an independent copyright management organization, or to register with a collecting society or an independent copyright management organization for such music, film and other recordings pursuant, as the (receiving) beneficiary.
The Owner shall be obligated to submit to SOL without undue delay any necessary information, registrations, authorisations and declarations (in particular powers of attorney), to the extent and in the form requested by the collecting society. Should declarations by third parties be required in this context, the Owner shall obtain them without undue delay and submit them to SOL. The Owner shall furthermore take, initiate and carry out any measures which may be required for such collection (e.g. declarations, invoices, registrations of music recordings). If SOL provides support with regard to such measures or carries out such measures, this shall not result in the Owner’s obligations ceasing to apply.
Covered by this assignment and/or transfer are all remuneration claims arising prior to or during the term of the Agreement. Should the debtor (e.g. a collecting society) correct the amounts collected or the payments made by SOL, such correction shall be covered by the Agreement even if it takes place after the end of the term. SOL shall also be entitled to any additional payments or disbursements resulting from the remuneration claim, and such payments or disbursements shall be split among Owner and SOL in accordance with clause 8.2. Should the correction show an overpayment or excess disbursement to SOL, Owner shall reimburse SOL or, upon a corresponding request by SOL, the relevant SOL creditor, for any overpayments, fully, and immediately upon a corresponding notification. This also includes the share to which SOL is entitled under clause 8.2.2. In the event of an overpayment or excess disbursement, SOL shall not be obligated to make repayments in relation to the Owner. This also applies to any amounts withheld by SOL pursuant to clause
8.2.2. The remuneration claims pursuant to clause 4.8 are assigned in full.
This Agreement shall be deemed to have come into full force and effect on the Effective Date and shall endure in accordance with clause 10 below.
6.1 SOL shall be entitled to withhold fees as detailed in clause 8 below.
7 METHODS OF SALE AND OWNER’S COOPERATION OBLIGATIONS AS WELL AS NAMING NAMES
7.1 Methods of sale The exploitation of Content shall be within the discretion of SOL. SOL shall in particular be free to choose the method of exploitation, the time of exploitation and the form of use of the Content. The agreement of sales terms with Service Providers and other third parties, in particular end consumer prices and remuneration terms in relation to third parties (e.g. Service Providers), shall be at the sole discretion of SOL. SOL shall apply the level of care of a diligent and prudent businessman when agreeing on the contract terms with the Service Providers and other third parties.
The Owner shall provide SOL with the complete meta data (including transmitted ISRC, bar code, GRID codes or label codes) early enough to allow SOL to use it for the Content exploitation and as directed by SOL.
The Owner shall immediately notify SOL by e-mail of any changes of the meta data.
7.3 SOL, its contracting partners and licensees of such contracting partners, is authorized but not obliged to name the persons entitled of the Content (in particular authors and artists) within the exploitation of Content. Owner is obliged to effectively obtain the corresponding waivers of the persons entitled to the Content.
The corresponding waiver agreements have been made and/or will be made between the Owner and the persons entitled for each single case.
7.4 The Owner is furthermore aware of the fact that it complies with common usage to skip the naming of the persons entitled in short image and advertising movies which are not longer than five minutes and in music videos. The same applies for audio samples used on internet distribution platforms. Owner shall inform the persons entitled about such common usage.
8 REMUNERATION FOR OWNER FOR THE EXPLOITATION OF THE RIGHTS AND CLAIMS SPECIFIED IN CLAUSE 4
8.1 Collection of proceeds from exploitation
SOL may fully collect all proceeds resulting from the contractual exploitation of the Content. This also applies to the remuneration claims pursuant to clause 4.8.
8.2 Remuneration for Owner
The Owner shall participate as follows in the proceeds from the sale of the Content and the remuneration claims under clause 2.8 actually received by SOL :
8.2.1 Proceeds from the sale of Content (excluding proceeds described in the clauses 8.3 and other proceeds agreed in a possible exhibit to the Agreement)
The Owner shall receive 80% of the net proceeds (gross proceeds less applicable value added tax and excluding proceeds described in the clauses 8.2.2, 8.3 and in a possible exhibit to the Agreement) actually paid and actually received by SOL for the contractual exploitation of the Content. SOL shall retain the remaining 20% as a (sales) participation. Before calculating the shares for Owner and SOL, the following items shall be deducted from the net proceeds: sub-licencee fees, Service Providers’ media fees, agency commissions and sales commissions for third parties for the exploitation of the Content.
Remuneration shall not be paid to Owner for free copies, free downloads and similar free usages. Furthermore, it is allowed to promote the Content using the Content itself without remuneration.
8.2.2 Remuneration claims pursuant to clause 4.8
Furthermore, Owner shall receive 80% of the net proceeds (gross proceeds less applicable value added tax) generated and received by SOL pursuant to clause 4.8 (transferred remuneration claims). 20% of these proceeds shall remain with SOL.
8.2.3 Under no circumstances shall SOL be obligated to request a minimum remuneration from its (SOL’s) contracting partners (e.g. Service Providers).
Prior to payments being effected, SOL shall have the right to deduct – beside the above mentioned deductions – the items listed in clause 5.1 from any payments to be made to the Owner in accordance with 4.2.1 and 4.2.2. In case the usage of the musical works pursuant to clause 4.3 is part of the net proceeds monies referred to such usage of the musical works are not part of the calculation of the remuneration agreed in clause 4.2.
8.3 Proceeds from the use of musical works
Should SOL conclude an agreement with a Service Provider and with respect to this receive amounts from the Service Provider for the contractual exploitation of musical works (which are part of the Content), SOL shall pay out such amounts to the Owner, subject to the following provisions. In the absence of any expressed contractual agreement with the Service Provider regarding the exploitation of the musical works, SOL shall not be required to collect funds from the Service Provider.
For the avoidance of doubt: The Owner hereby expressly authorises SOL to assign the reproduction right in accordance with clause 4 of this Agreement (so called Mechanicals) required to use the musical works to the relevant Service Provider as compensation for payment of such monies. For the granting to Service Providers of such usage rights to musical works pursuant to clause 4, the Parties hereby agree as follows:
Under no circumstances shall SOL be obligated to demand a remuneration in the same amount the relevant collecting society or similar organization would demand with respect to their tariffs for the respective usage and/or a minimum remuneration from the Service Provider. SOL shall furthermore only be obligated to pay to the Owner amounts which SOL has actually received.
The Owner is obligated to let parties entitled to rights in the musical works (e.g. composers, lyricists, publishers) participate adequately in the proceeds pursuant to clause 8.3. The Owner hereby indemnifies SOL from and against any claims by such entitled parties with regard to the assignment of usage rights to musical works and the collection of such funds, and shall compensate SOL for any loss incurred due to claims asserted by such entitled parties (including reasonable legal costs). Clause 8.4 shall apply.
Should the Service Provider have paid amounts to third parties (e.g. authors), whether legitimately or not, SOL shall not be obligated to request payment of such amounts by the Service Provider. In such cases, the Owner shall be responsible for pursuing the remuneration claims.
SOL shall pay to the Owner only the remuneration agreed under clause 8 and possible other remuneration agreed in an exhibit to the Agreement. SOL shall not be obligated to pay any amounts going beyond this to the Owner or to make payments to third parties (e.g. authors etc.). The Owner has paid and/or shall adequately pay any parties who hold rights in the Content (e.g. authors, artists, producers of an audio recording, etc.), and shall let them participate adequately in the payments pursuant to clauses 8.2 and 8.3. The Owner shall fully indemnify SOL from and against any claims asserted by such rights holders.
8.5 Collection of funds
SOL shall collect amounts from transmitted and open bills of a Service Provider with the care of a diligent and prudent businessman, and shall send reminders regarding outstanding bills. However, SOL shall not be obligated to take measures going beyond the out-of-court and in-court collection of the amounts shown in the bills (e.g. audits). The last sub-clause in clause 8.3 shall supersede this provision. Also, SOL shall only be obligated to take measures if these are reasonable for SOL and are proportionate in view of the open amount.
8.6 Independent remuneration
For the avoidance of doubt: It is agreed that SOL is entitled to receive each and all participations and any other remuneration agreed in the clauses 8.2.1, 8.2.2 and 8.3 of the Agreement and in a possible exhibit to the Agreement separately and independently from each other participation and remuneration and each of such remuneration may not be deducted from and/or reduced by any other remuneration hereby agreed.
9 DEDUCTIONS, ACCOUNTING AND PAYMENT
The Owner shall not be entitled to participate in any value added taxes, similar taxes or other duties paid to SOL under law. Such amounts shall always be deducted prior to calculating the Owner’s participation.
Prior to effecting payments, SOL shall have the right to deduct the following items from all amounts due for payment to the Owner under this Agreement (see clauses 8.2 and 8.3):
Should the Owner’s accounting balance not cover deductible fees, the Owner shall pay the outstanding balance to SOL immediately after a corresponding notification.
9.2 Accounting regarding the amounts to which the Owner is entitled in accordance with clauses 8.2 and 8.3
SOL shall only be obligated to pay out amounts which it has actually received and which are payable to the Owner under this Agreement.
Accounting shall be carried out once per calendar quarter within 30 days from the end of the relevant accounting quarter. The account statement shall separately show the following items, provided that these are covered by this Agreement:
Objections against the accuracy of an account statement are only permitted within nine months from receipt of the account statement, and must be sent in writing and must be furnished with grounds, stating in detail the error in the account statement.
Should a Service Provider or third person assert refund claims against SOL on account of returns and/or technically and/or legally (partially) incomplete sales of Content in relation to the Service Provider’s or third person’s (final) customers, SOL shall have the right to charge the Owner in full for such claims asserted by the Service Provider or third person. In such cases, SOL shall have the right to offset any accounting balances resulting from the different remunerations in favour of the Owner under this Agreement against the refunds to Service Providers or third person. Should such accounting balances in favour of the Owner not suffice, the Owner shall pay the difference within two weeks from a corresponding request by SOL. It is hereby confirmed and agreed that, in the above cases, SOL shall not be obligated to reimburse its (sales) participation, the handling fee pursuant to clause 8.3 and/or any other payments to which SOL may be entitled under this Agreement; any refunds resulting from returns and incomplete sales shall be fully borne by the Owner.
9.4.1 Payments shall be made after the issue of the account statement, within a period of 30 days from the issue of a proper invoice by the Owner. The minimum payment amount for each statement shall be R500 net; smaller sums shall be shown in the following account statements and shall be paid out once the threshold of R500 has been reached.
9.4.2 If the Owner wishes to nominate a bank account outside South Africa to receive payments from SOL pursuant to this Agreement, the Owner must notify SOL in writing of this, in which case –
22.214.171.124 any payments made by SOL to such foreign bank account shall be made in ZAR and any loss incurred by the Owner as a result of bank charges or currency exchange rates shall be for the account of the Owner;
126.96.36.199 to the extent required by law, the Owner and SOL shall use their reasonable commercial endeavours and will co-operate in good faith to procure, at the cost of the Owner, that exchange control approval is given by the Financial Surveillance Department of the South African Reserve Bank in respect of any and all payments to be made by SOL under or arising from this Agreement to the Owner’s foreign bank account; and
188.8.131.52 if for any reason SOL and/or the Owner are unable to procure such exchange control approval in circumstances where it is required by law, the Owner must nominate in writing a South African bank account for purposes of receiving payments from SOL under or arising from this Agreement and SOL shall be entitled to withhold any such payments until the Owner has done so.
9.4.3 Notwithstanding any other provisions of this Agreement, if in any Accounting Period a portion of the Gross Publishing Income is received by SOL in a currency other than ZAR, then for purposes of calculating the Gross Income received by SOL during such Accounting Period, SOL shall be deemed to have received such amounts in ZAR, the amount of which ZAR will be calculated by applying the applicable average daily rate of exchange from such foreign currency to ZAR as at the date on which SOL received such payment, as provided by the online accounting system used by SOL from time to time.
9.4.4 Payments shall be made plus statutory value added tax, provided that SOL has corresponding obligations under South African Vat legislation. The Owner shall make SOL aware by e-mail of the requirement to pay value added tax, and shall submit the originals of any necessary documents required in this context without undue delay upon a corresponding request by SOL. Each invoice must state the Owner’s tax identification number, and must comply with the requirements of applicable tax law.
9.4.5 Should SOL not receive the Owner’s invoices for the accounting months of a previous year within a 12 month period from the end of the calendar year, the Owner’s remuneration claims for such previous year shall be forfeited.
After this date, the Owner’s claims in connection with invoices which were not transmitted will be forfeited without compensation and shall become time barred.
9.5 Taxation abroad
Should the Owner have its registered place of business outside South Africa, SOL shall have the right to withhold the taxes due under South African tax law (e.g. withholding tax) and any other statutory charges from the remuneration until the Owner has provided SOL duly and in a timely manner with the documents and declarations required for effecting payment (e.g. the original of the tax exemption certificate issued by the competent tax authority as required under the relevant double taxation agreement).
9.6 Auditing rights
The Owner may cause the accounting documents of SOL to be inspected by a certified accountant or auditor at SOL’s place of business, after prior appointment, on a business day (Monday through Friday) during office hours between 9 a.m. and 5 p.m. Only the accounting documents which directly relate to the Owner’s Content and which cover the accounting period of 12 months prior to the audit shall be the object of such audit. The auditing right may only be exercised once per contract year. Any differences resulting from the audit shall be offset against any open claims of SOL, or, if SOL does not have open claims, will be paid out to the Owner with the balance of the next but one account statement. The auditing rights, including any resulting additional claims, shall become time-barred after expiry of one year from receipt of the relevant account statement.
The term of this Agreement shall commence on the date of your first release and shall endure for three (3) years (referred to as the Initial Term) and shall cover the Content listed in Annexure 1 to this Agreement which list may be updated from time to time.
In the event of an (extra)ordinary termination, it shall be the Owner’s sole responsibility to inform the Service Providers and third parties of the change of their (digital) distribution partner. SOL shall only be obligated to inform the Service Providers once within two weeks by electronic means (e.g. e-mail) that the Content may no longer be offered. SOL shall not be liable for any delays on the part of the Service Providers, except if SOL itself is responsible for such delays.
If and as long as payments from the Service Providers or third persons for the exploitation of Content are still being received by SOL after the termination, such payments shall be accounted for by SOL to the Owner in accordance with the provisions of this Agreement. In particular, the participations of SOL pursuant to the Agreement and clause 9.1 shall be applicable in this case. It shall be the Owner’s responsibility to inform the Service Providers and third parties in this event that payments are no longer to be affected to SOL.
11 WARRANTIES AND INFRINGEMENTS
11.1 The Owner agrees and warrants that this Agreement, and in particular the assignment and transfer of rights and claims under clause 4, shall cover all Content controlled by the Owner, and that the Owner has not entered into any contracts which would stand against the exploitation as contemplated hereunder.
11.2 The Owner warrants that the rights and remuneration claims assigned under this Agreement exist, and that the exploitation of the rights and remuneration claims assigned to SOL under this Agreement do not infringe upon third-party rights (in particular not through the use of unauthorised samples) or otherwise affect third-party rights and/or statutes. This includes in particular, without limitation, all copyrights, design rights, ancillary copyrights, name rights, title rights, trademark rights, personal rights, data protection rights and other rights required for exploitation (including obtaining and paying for third-party usage rights which may be required) associated with the contractual Content (including the design of its packaging and cover as well as the design of advertising material).
11.3 The Owner has furthermore entered into contracts with all entitled parties, which allow and ensure without restrictions the assignment of rights as contemplated under this Agreement. This also includes the right to use data of right holders (e.g. their picture, name, etc.) in accordance with the corresponding data protection laws (e.g. the GDPR).These contracts also include a confirmation on the part of the entitled parties that they are entitled to assign the rights to the Owner.
11.4 Furthermore, the Owner confirms that it is entitled to assign the contractual rights and claims to SOL and to authorize SOL to assign such rights to service providers and third parties, and to allow service providers and third parties to (sub)license the Content to third parties.
11.5 The Owner has adequately paid or will adequately pay all parties involved in the production of the Content.
11.6 The Owner hereby indemnifies SOL from and against any third-party claims associated with the above contractual representations and warranties, and shall reimburse SOL for any losses and expenses incurred on account of a breach of these representations and warranties. In the event of a breach of the representations and warranties, SOL shall have the right to withhold the Owner’s funds in an amount of compensation expected; claims for damages going beyond this shall remain unaffected. Should claims be asserted against SOL by third parties, the Owner shall take all available legal steps in order to defend against such claims, shall provide SOL with the information and documents required for a defense and shall issue the required declarations.
11.7 The Owner shall promptly notify SOL by e-mail of any illegal Content and/or illegal exploitation.
11.8 In the event of an alleged infringement caused by the Content, SOL and its Service Providers and third-party contracting partners shall have the right to block the affected Content until the issue has been finally clarified. Whenever the Owner notifies SOL by e-mail of the unlawfulness of the use of Content, SOL shall block such Content within three business days (business days shall be the days from Monday through Friday, not including official public holidays).
11.9 The right to assert claims against the Owner in such cases is expressly reserved. SOL shall only remove the blocking once the claimant has confirmed in writing that the claims do not exist, or when a court has determined in a final and conclusive manner that the claims are unjustified.
12 CONTRACTUAL TERRITORY
The assignment and transfer of rights and claims and the exploitation are unrestricted with regard to territory and shall apply world- wide. For content for which the Owner does not hold the world-wide exploitation rights, the territory shall, subject to proper notification of SOL via e-mail or via other agreed method, be restricted to the territory notified to SOL. The Owner shall inform SOL of the territory in the form of meta data. Territorial restrictions must be expressly specified by the Owner as described above. If no restriction as to territory is specified, the territory shall be unrestricted in accordance with sentence 1 above. The Owner shall be liable in relation to SOL for any losses and claims resulting from this.
13 OWNER’S OBLIGATIONS
Owner shall: a) be solely responsible for the proper and adequate submission of the Content to SOL; b) ensure that correct and complete Metadata (including publisher, author, composer and performer Metadata) is provided at all times; c) ensure that the Content is commercially and technically satisfactory for exploitation on DSPs and SOL reserves the right to refuse, upon notification to Owner, to accept any Owner Content that does not meet the standard requirements, guidelines, policies and/or specifications set out by SOL and/or by the relevant DSPs from time to time; d) provide SOL with all information reasonably requested to fulfil its obligations hereunder (including in relation to handling any Infringement Notices) and promptly cooperate with SOL to resolve any operational and/or technical issues relating to the SOL-appointed platform or the DSPs’ platforms; e) fulfil any obligations directly applicable to it; f) comply with all applicable laws, governmental regulations and requirements relating to distribution, exploitation and/or marketing of the Content; and g) subject to any confidentiality obligations, promptly notify SOL in writing of any dealings with third parties which may limit and/or affect SOL’s ability to perform its Services hereunder.
SOL shall be liable without restrictions if a loss was caused intentionally or with gross negligence. SOL shall also be liable for slightly negligent breaches of essential contractual obligations where the breach of such obligations endangers the achievement of the purpose 20 of the Agreement, and for a breach of obligations, the fulfilment of which enables the proper execution of the Agreement in the first place, and in compliance with which the Parties will trust under normal circumstances. In this event, SOL shall, however, only be liable for the foreseeable damages which typically occur in this type of contract. SOL shall not be liable for the slightly negligent breach of obligations other than those specified in the previous sentences. The above limitations of liability shall not apply in the event of the death of an individual, bodily injuries or adverse health effects. If SOL’s liability is excluded or limited, this shall also apply to the personal liability of its representatives and vicarious agents.
Owner is aware of the fact that entering into this Agreement is an important decision for Owner. Owner hereby grants (non) exclusive rights to SOL and, with respect to this, entitles SOL and third persons (e.g. licensees of SOL) to use the contractual Content (exclusively) in line with the Agreement. Thus, SOL recommends Owner to review this Agreement carefully and to ask for legal advice by an independent lawyer, specialised in media law.
The Owner shall send all e-mails to firstname.lastname@example.org
SOL shall have the right to assign and/or otherwise transfer this Agreement as a whole or any individual rights or obligations hereunder to third parties, including its affiliates, without the Owner’s approval being required. Should declarations by the Owner be required for such assignment and transfer, the Owner shall issue such declarations without undue delay upon a corresponding request by SOL. Transfers and assignments by the Owner require prior written approval by SOL.
Modifications of, and amendments to, this Agreement must be set out in writing in order to be valid; this shall also apply to any changes of this written form requirement itself. In the context of modifications of, or amendments to, this Agreement, the written form shall be deemed to be complied with as follows: The reciprocal electronic transmission via e-mail by the Parties of an electronic document furnished with their signatures, provided that both Parties’ signatures are displayed in the electronic document.
Should individual provisions in this Agreement be invalid or should this Agreement contain a gap, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced in mutual consent by a valid provision which corresponds to the spirit and purpose of the invalid provision and comes as close as possible to the economic content of the provision to be replaced. Should a gap be found, the aforesaid shall apply mutatis mutandis.
16 INTELLECTUAL PROPERTY RIGHTS
16.1 SOL hereby acknowledges that all title to and ownership of the Content, remain vested in Owner and nothing in this Agreement shall be deemed or construed to transfer ownership or title to SOL or any third-party.
16.2 Owner grants to SOL the right to and to authorise its sub-licensees and sub-contractors to use Owner’s relevant trademarks, logos and designs for use in connection with advertising of the availability of the Content on DSPs and, subject to Owner’s prior written approval, with the promotion of the SOL’s services.
17 PERSONAL INFORMATION
17.1 The Parties acknowledge that by providing Services under this Agreement, SOL may process Owner’s personal data, as included in the Content, the Owner Data and the Owner’s marketing materials.
17.2 SOL processes Owner’s personal data in line with the Protection of Personal Information Act (4 of 2013), the terms, procedures, organizational and technical measures (amongst other ensuring a level of security appropriate to the risk) as included in this Agreement. SOL will notify Owner without undue delay after becoming aware of any personal data breach and provide reasonable information in its possession to assist SOL to meet its obligations to report a personal data breach as required by law. Such notification shall not be interpreted or construed as an admission of fault or liability by SOL.
17.3 SOL shall assist Owner with responding to requests of data subjects. Furthermore, SOL shall make available to the Owner all information necessary to demonstrate compliance with the obligations laid down in this Clause and allow for and contribute to audits, including inspections, conducted by the Owner or another auditor mandated by the Owner. The costs hereof shall be borne by the Owner.
18 BREACH AND DISPUTES
18.1 In the event of any Party ("Defaulting Party") committing a breach of any of the terms of this Agreement and failing to remedy such breach within a period of [30 (thirty)] days after receipt of a written notice from any other Party ("Aggrieved Party") calling upon the Defaulting Party so to remedy, then the Aggrieved Party shall be entitled to claim specific performance of the terms of this Agreement and/or to claim and recover damages from the Defaulting Party.
18.2 The Parties agree that any costs awarded will be recoverable on an attorney-and-own-client scale unless the Court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client scale.
18.3 The Aggrieved Party's remedies in terms of this clause are without prejudice to any other remedies to which the Aggrieved Party may be entitled in law.
19 GENERAL WARRANTIES
19.1 Each Party hereby warrants to and in favour of the other that – 20.1.1 it has the legal capacity to enter into this Agreement;
19.1.2 insofar as it is a juristic entity, it has taken all necessary corporate action required to empower and Ownerise it to enter into this Agreement;
19.1.3 this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;
19.1.4 the execution of this Agreement and the performance of its obligations hereunder does not and shall not –
184.108.40.206 contravene any law or regulation to which that Party is subject; 220.127.116.11 contravene any provision of that Party's constitutional documents; and
18.104.22.168 conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it;
19.1.5 to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of this Agreement;
19.1.6 it is entering into this Agreement as principal (and not as agent or in any other capacity);
19.1.7 insofar as it is a juristic entity, the natural person who signs and executes this Agreement on its behalf is validly and duly Ownerised to do so;
19.1.8 no other party is acting as a fiduciary for it; and
19.1.9 it is not relying upon any statement or representation by or on behalf of any other Party, except those expressly set forth in this Agreement.
19.2 Each of the representations and warranties given by the Parties in terms of clause 6.1 shall –
19.2.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
19.2.2 continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
19.2.3 prima facie be deemed to be material and to be a material representation inducing the other Parties to enter into this Agreement.
20.1 Subject to clause 21.2, neither Party shall, at any time after the Signature Date, notwithstanding any termination or expiration of this Agreement, directly or indirectly disclose, or directly or indirectly use, whether for its own benefit or that of any other person, any information –
20.1.1 regarding the contents of this Agreement; or
20.1.2 relating to the other Party or any of its subsidiaries or its assets and affairs, including all communications (whether written, oral or in any other form) and all reports, statements, schedules and other data concerning any financial, technical, labour, marketing, administrative, accounting or other matter, (collectively, the "Confidential Information");
20.2 Notwithstanding the provisions of clause 21.1, Confidential Information may be used by either Party for the purposes of exercising its rights and performing its obligations in terms of this Agreement and Confidential Information may be disclosed by either Party ("Disclosing Party") –
20.2.1 to the extent to which the prior written consent for such disclosure has been obtained from the other Party;
20.2.2 to the extent to which disclosure is required by law (excluding contractual obligations);
20.2.3 to the extent to which it is made public other than as a result of any breach of this Agreement or any other agreement; or
20.2.4 in respect of information which was already in the possession of that Party prior to its disclosure by the other Party to that Party or is independently developed by that Party without reference to the Confidential Information.
20.3 This clause 21 shall not apply to any disclosure made by a Party to its professional advisors or consultants, provided that they have agreed to the same confidentiality undertakings, or to any judicial or arbitral tribunal or officer, in connection with any matter relating to this Agreement or arising out of it.
21 NOTICES AND DOMICILIA
21.1 The Parties select as their respective domicilia citandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under this Agreement, the said physical addresses as well as the following email addresses – provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
21.2 All notices to be given in terms of this Agreement will be given in writing and will - 22.2.1 be delivered by hand or sent by way of email;
21.2.2 if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
21.2.3 if sent by email during business hours, be presumed to have been received on the date of successful transmission of the email. Any email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
21.3 Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 21.
22 BENEFIT OF THE AGREEMENT
This Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties.
23 GOVERNING LAW
23.1 This Agreement will in all respects be governed by and construed under the laws of South Africa.
23.2 The Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, (Johannesburg) in any dispute arising from or in connection with this Agreement.
Except as otherwise specifically provided herein, each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement.
25.1 This Agreement is signed by the Parties on the dates and at the places indicated below.
25.2 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.
25.3 The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.