GRESHAM RIGHTS MANAGEMENT
General conditions for usage of GRM musical works
1. Royalty rate
1.1. Royalty Rates are published by the licensor for general information; the publication of a royalty rate does not constitute an offer to grant permission under that or any other royalty rate. The appropriate royalty rate or rate of royalty applicable to a music user will be determined by the licensor on the basis of all relevant information.
1.2. The licensor does not undertake to offer a licence or permit at the rates of charge shown under a royalty rate in respect of any performance which may take place before a licence is issued.
1.3. An applicant for a licence is required to give such information as may be necessary to enable the licensor to decide which royalty rate is applicable and determine the initial royalty payable. Licensee is requested to submit all relevant information to licensor.
1.4. If the music user uses Repertoire Works without a valid license agreement, music user will be liable for a surcharge of 250%, added to the normal GRM Royalty rate.
1.5. All licences issued by licensor are subject to the minimum annual license fee as published by the licensor.
2. Annual return
2.1 Licensee shall, not more than 30 days after the end of the licence quarter, or of receiving such a request, provide such information on the licensor’s reassessment form, or as otherwise agreed, as will enable the licensor to calculate the royalty due.
2.2 Where the information includes declarations of auditable data such as expenditure on the provision of music and/or of amounts received by way of receipts for lettings, box office receipts or other such financial data, it may be required to be certified by an accountant who is qualified to be appointed auditor to a public company or who is approved by the licensor for the purpose, showing for example the Licensee's total expenditure on the provision of music, and/or gross letting receipts during the preceding licence-year.
3. Payment of royalties
3.1 Royalties are payable quarterly in arrears against the Licensors usage information & invoice, and then on each quarter thereafter for the licence as invoiced, or as soon after that date as the invoice is delivered.
3.2 Where a Licensee has paid an estimated amount, in advance, on account of royalties, that amount will be adjusted at the end of the licence-year based on the details of performances held during that year as declared by the Licensee on the appropriate GRM form. These details will also form the basis of an on-account charge for the ensuing year.
3.3 If a Licensee does not complete and return the licensors reassessment form referred to in Condition 2.1 or fails to provide certified accounts as referred to in Condition 2.2, the licensor shall be entitled to estimate the relevant figures on the assumption that 90% of the licensee’s music usage is from the licensors repertoire catalog and submit an invoice for royalties at 200% of the agreed royalty rate in accordance with that estimate. Any such estimate shall be adjusted to conform to the actual figures when the Licensee has furnished the requisite details within 30 days of each quarter.
3.4 Where the licensor issues a permit for an occasional function or series of functions, the royalties due under that permit are payable against the Licensors invoice, or as otherwise stipulated by the Licensor.
3.5 All royalties are charged at the royalty rate in force at the beginning of the licence-year for which they due or, in the case of a permit, on the date of the event which it covers.
3.6 A yearly increase to the fee payable in terms of this agreement will be affected on 1 January each year, the fee shall increase by an amount equal to the percentage annual increase of the CPI as at 1 January of such year (for the purpose of this clause, “CPI” means the consumer price index for all urban areas published by Statistics South Africa or, in the event of this publication being discontinued or any change in the computation of this index, an index prepared or recommended by the auditors of GRM shall be adopted in place of the consumer price index).
4. Reporting of Usage data
Licensee shall furnish the Licensor, on forms which will be provided by the Licensor, or as otherwise agreed, with such particulars of the musical works publicly performed or broadcasted at the premises as are reasonably required to enable the royalties paid to be distributed to the parties interested in those works on a quarterly basis. Failing which, the Licensor will have the right to assume that 90% of the licensee’s music usage is from the licensors repertoire catalog and submit an invoice for royalties at 200% of the agreed royalty rate in accordance with that estimate. Any such estimate shall be adjusted to conform to the actual figures when the Licensee has furnished the requisite details within 30 days of each quarter.
5. Right of entry to premises
The Licensor, by its auditor or agent, shall have the right of access during normal business hours, and by arrangement with the Licensee, to any premises licensed by the Licensor, solely for the purpose of checking the particulars on which the royalty payable is calculated, for which purpose the Licensee shall make available all necessary records.
6. Infringement
The usage of GRM ’s Repertoire without the required Licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment as determined by the courts.
7. Termination
7.1. The Licensor shall be entitled to terminate this Agreement summarily by written notice to the other upon the occurrence of any one or more of the following events:
7.1.1. If the Licensee commits a material breach of this Agreement, including non-payment and/or late payment of any Fees, and fails to remedy the breach within fourteen (14) days after receiving written notice to do so; or
7.1.2. if the Licensee commits any act of insolvency as defined in the Insolvency Act, 1936 or any other applicable law; or
7.1.3. if the Licensee is wound up, whether provisionally or finally and whether compulsorily or voluntarily or be placed under, business rescue, debt rescue or any equivalent process; or
7.1.4. if the Licensee is the subject of any resolution passed for its winding up or dissolution.
7.1.5. In the event of termination of this Agreement for any reason the Licensee shall immediately cease any and all further use of the Catalogue (or any part thereof). The Licensee shall be entitled to continue to use any Production, subject to the payment of all Fees related thereto.
8. Warranties
8.1. The Licensee warrants that it shall –
8.1.1. at all times perform its responsibilities under the licence Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any Music Rights or other proprietary rights of the Licensor or any Music Right owner; and
8.1.2. is and shall remain for the duration of the licence Agreement, fully cognizant of and compliant with any laws, as well as relevant legislative or regulatory requirements (as may be amended from time to time) and/or rulings or codes of practice of any competent authority or industry body that has jurisdiction over and/or is relevant to the performance of its responsibilities under the licence Agreement.
8.2. The Licensor hereby warrants that:
8.2.1. It is entitled to license the Performing Right of its Repertoire in the Territories as provided for in the licence Agreement;
8.2.2. This would include performing the work in public, broadcasting the work or cause the work to be transmitted in a diffusion service.
9. Confidential information
9.1 The Receiving Party undertakes in favor of the Disclosing Party that it:
9.1.1 shall not disclose to any other person or party, any of the Confidential Information;
9.1.2 shall not disclose nor duplicate nor use by any means, either directly or indirectly, any such information without obtaining prior written consent from the Disclosing Party;
9.1.3 shall not make any use of the Confidential Information, other than in connection with this Agreement or any subsequent agreement which may be entered into between the Parties, and thereafter the Receiving Party shall make no further use, of any nature whatsoever, of the Confidential Information.
9.1.4 The obligations set out in this clause will, irrespective of the date of signature hereof, be deemed to have commenced on the date upon which any part or element of the Confidential Information was disclosed to the Receiving Party or became known to the Receiving Party and shall remain in force indefinitely or until the Confidential Information loses its confidential nature by becoming generally known in the industry.
9.2 Any information that:
9.2.1 was in the public domain prior to its disclosure by the Disclosing Party to the Receiving Party or subsequently became part of the public domain by publication or otherwise than by a wrongful act by the Receiving Party or any person to whom the Disclosing Party disclosed it; or
9.2.2 was in the Receiving Party’s possession prior to its disclosure by the Disclosing Party to the Receiving Party; or
9.2.3 was or is subsequently supplied to the Receiving Party by a third party otherwise than in breach of a similar undertaking in favour of the Disclosing Party; or
9.2.4 is legally owned or possessed by any third party or which is subject to the patents or intellectual property rights of any third party; or
9.2.5 is or has been lawfully published by any third party.
9.2.6 shall be excluded from the undertakings set out in this clause
10. Dispute resolution
10.1 If there is a dispute, deadlock, controversy or claim (a “Dispute”) between the Parties in respect of the license Agreement, including without limitation
any question regarding its existence, validity or termination, the Dispute will be resolved pursuant to the process set forth in this clause 10 (the “Dispute
Resolution Process”).
10.2 A Party to the license Agreement that wishes a Dispute to be resolved will give a written notice (a “Dispute Notice”) to the other Party within 10 (ten)
days of the dispute arising, whereupon each Party (or a designated representative of the Party) will attempt within 10 (ten) days in good faith to resolve
the Dispute by negotiation. Each Party to the Dispute will provide to the other Party all information reasonably requested by the other Party that is
relevant to the Dispute and not subject to confidentiality obligations to third parties or to a legally recognized privilege from disclosure. All negotiations
and settlement discussions to resolve a Dispute shall be treated as confidential settlement negotiations between the Parties and shall not be subject
to disclosure through discovery or any other process and shall not be admissible into evidence in any proceeding.
10.3 If the Parties are unable to resolve the Dispute through negotiation within 20 (twenty) business days of the date that the Dispute Notice was delivered
or such longer period as agreed to by the Parties, then the Dispute shall be determined in accordance with the provisions of clause 11 (Arbitration).
11. Arbitration
11.1 This clause is a separate, divisible agreement from the rest of this licence Agreement and shall:
11.1.1 Not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the license Agreement and not to this clause. The Parties intend that any such issue shall be subject to arbitration in terms of this clause; and
11.1.2 remain in effect even if the license Agreement terminates or is cancelled.
11.2 Save as may be expressly provided for elsewhere in the license Agreement for the resolution of particular disputes, any other dispute arising out of or in connection with the license Agreement or the subject matter of the licence Agreement including any dispute concerning:
11.2.1 the existence of the license Agreement apart from this clause;
11.2.2 the interpretation and effect of the licence Agreement;
11.2.3 the Parties' respective rights or obligations under the license Agreement;
11.2.4 the rectification of the licence Agreement;
11.2.5 the breach, termination or cancellation of the licence Agreement or any matter arising out of the breach, termination or cancellation; or
11.2.6 damages in delict, compensation for unjust enrichment or any other claim, whether or not the rest of the licence Agreement apart from this clause is valid and enforceable, shall be decided by arbitration as set out in this clause.
11.3 The Parties shall agree on the arbitrator who shall be an attorney, advocate or a retired judge. If agreement is not reached within 10 (ten) business days after any Party calls in writing for such agreement, the arbitrator shall be an attorney, advocate or retired judge nominated by the Registrar of the Arbitration Foundation of Southern Africa (“AFSA”) for the time being.
11.4 The request to nominate an arbitrator shall be in writing outlining the claim and any counterclaim of which the Party concerned is aware and, if desired, suggesting suitable nominees for appointment as arbitrator, and a copy shall be furnished to the other Parties who may, within 7 (seven) days, submit written comments on the request to the addressor of the request.
11.5 The arbitration shall be held in Johannesburg, South Africa in English, and the Parties shall endeavor to ensure that it is completed within 90 days after notice requiring the claim to be referred to arbitration is given.
11.6 The arbitration shall be governed by the Arbitration Act, 1965, or any replacement Act and shall take place in accordance with the Commercial Arbitration Rules of AFSA or in the case of a body replacing AFSA, any equivalent rules prescribed by such body ("the Rules").
11.7 Nothing contained in this clause 17 shall prohibit a Party from approaching any court of competent jurisdiction for urgent interim relief pending determination of the dispute by arbitration.
11.8 The arbitration shall not interrupt or suspend the operation of this Agreement.
11.9 Any decision and/or determination of the arbitrator in relation to any dispute shall not be final and binding on the Parties, and any Party shall be entitled to lodge an appeal against such decision to a panel of arbitrators in accordance with Rules. The decision of the panel of arbitrators in respect of such appeal shall be final and binding on the Parties. Should the Parties not appeal or fail to appeal against any decision and/or determination of an arbitrator within the prescribed time periods (as set out in the Rules), the decision and/or determination of the arbitrator in relation to any dispute shall be deemed to be final and binding on the Parties.
11.10 The costs of the arbitration shall follow the result as determined by the Arbitrator, but until the decision has been made, shall be borne equally by the Parties.
12 Addresses for legal processes and notices
12.1 The Parties choose as their domicilia citandi et executandi for all purposes under the licence Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the following addresses:
LICENSOR:
Physical Address: Unit 15, 1 Melrose Boulevard, Melrose Arch
E-mail: andrew@gresham.co.za
Attention: Andrew Mitchley
LICENSEE: (As provided in licensee application form)
Physical Address:
E-mail:
Attention:
12.2 Any legal process to be served on any of the Parties may be served on it at the physical address specified for it in clause 12.1 and it chooses that address as its domicilium citandi et executandi for all purposes under the licence Agreement.
12.3 Any notice or other communication to be given to any of the Parties in terms of the licence Agreement shall be valid only if it is given in writing, provided that any notice given by email shall be regarded for this purpose as having been given in writing.
12.4 A notice to any of the Parties which is delivered to the Party by hand at the physical address
specified for it in clause 12.1 shall be deemed to have been received on the day of delivery, provided it was delivered to a responsible person during ordinary business hours.
12.5 Each notice by email to a Party at the email address specified for it in clause 12.1 shall be deemed to have been received (unless the contrary is proved) within 4 (four) hours of transmission if it is transmitted during normal business hours of the receiving Party or within 4 (four) hours of the beginning of the next business day after it is transmitted, if it is transmitted outside those business hours.
12.6 Notwithstanding anything to the contrary in this clause 12, a written notice or other communication actually received by any of the Parties (and for which written receipt has been obtained) shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.
12.7 Any Party may by written notice to the other Party change its physical or postal address or email address for the purposes of clause 12.1 to any other physical or postal address or telefax number provided that the change shall become Signature on the 7th (seventh) day after the receipt of the notice.
13 Audit rights
In respect of any Fee or other amount payable at any time to the Licensor, the Licensor may require any information or documentation from the Licensee reasonably required to enable the Licensor to determine whether the Fee or any other amount due to the Licensor has been correctly assessed and/or determined and/or calculated by the Licensee. Any information or documentation requested by the Licensor (or its nominated agent) shall be furnished promptly by the Licensee, no later than 3 (three) business days from receiving written notice from the Licensor (or its nominated agent). If any discrepancies are found by the Auditor which differ by more than 5% (five percent) from the Licensee’s assessment and/or determination and/or calculation, the Licensee shall be liable for any costs incurred in the conducting of such audit. In addition, the Licensee shall pay to the Licensor any deficit identified in the auditor’s assessment and/or determination and/or calculation within 30 (thirty) days of the date of such report from the auditor.
14. Breach
In the event Licensee fails to account to Licensor, pay the Royalties or breach any of the other terms hereof, then in addition to the Licensor’s other rights and remedies, the Licensor may give written notice to the Licensee that, unless the default is remedied within thirty (30) days from the date of the notice, this Agreement will automatically terminate. Such termination shall render the distribution of all works for which royalties have not been paid, actionable as acts of infringement under, and fully subject to the remedies provided by the Copyright Act. A waiver of any breach by Licensee hereunder shall not constitute a waiver of any succeeding breach whether similar or dissimilar.
15. General
15.1 Severance: If any provision of the license Agreement, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
15.2 Entire Agreement:
15.2.1 The license Agreement constitutes the entire agreement between the Parties in regard to its subject matter.
15.2.2 The license Agreement shall supersede all previous agreements entered into between the Parties, including all credit agreements and supplier agreements.
15.2.3 None of the Parties shall have any claim or right of action arising from any undertaking, representation or warranty not included in the license Agreement.
15.3 Variations: No agreement to vary, add to or cancel the license Agreement shall be of any force or effect unless recorded in writing and signed by or on behalf of all of the Parties.
15.4 No Waiver: The failure by any of the Parties to enforce any provision of the license Agreement shall not affect in any way that Party’s right to require performance of the provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself.
15.5 Remedies: No remedy conferred by the license Agreement is intended to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise. Each remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, by statute or otherwise. The election of any one or more remedy by a Party shall not constitute a waiver by such Party of the right to pursue any other remedy.
15.6 General Co-operation: The Parties shall co operate with each other and execute and deliver to each other such other instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights and the intended purpose of the license Agreement.
15.7 Assignment: The Parties may at any time, and without penalty, cede and/or assign any of its rights or delegate any of its obligations under this Agreement, on prior written notice to the other Party.
15.8 Signature:
15.8.1 The licence Agreement is signed by the Parties on the dates and at the places indicated.
15.8.2 The licence 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.
15.8.3 The persons signing the licence Agreement in a representative capacity warrant their authority to do so.
15.8.4 The Parties record that it is not required for the licence Agreement to be valid and enforceable that a Party shall initial the pages of the licence Agreement and/or have its signature of the licence Agreement verified by a witness.
15.9 Survival of Rights, Duties and Obligations: Termination of the licence Agreement for any cause shall not release any Party from any liability which at the time of termination has already accrued to another Party or which thereafter may accrue in respect of any act or omission prior to such termination.
15.10 Benefit of the Agreement: The licence Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or either of them.
15.11 Applicable Law and Jurisdiction:
15.11.1 The licence Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
15.11.2 Subject to clause , the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, South Gauteng Division, Johannesburg in any dispute arising from or in connection with the licence agreement