The following is a legal agreement (the “Agreement”) between Incidental Musics Ltd., (“Licensor”), and you or the employer or other entity on whose behalf you are entering into this agreement (“Licensee”).
- The term “Content” as used herein refers to the Music available for license from the Website. The term “Music” shall mean the Compositions together with the Recordings. The term “Compositions” shall mean the music, lyrics, titles and arrangements of certain musical works; the term “Recordings” shall mean the master recordings, including any copyrights in the sound recordings therein, embodying the performance of the Compositions.
- The term “Account” means any user account created pursuant to this Agreement. All Content licensed from such Accounts shall be subject to this Agreement.
- The term “Production” shall mean a film, video, television series, advertisement, podcast, or another multimedia production created by Licensee for distribution in any medium now known or hereafter devised.
- The term “Website” shall mean Licensor’s website at incidentalmusics.ca, and other websites of Licensor, and its affiliates.
- Invoices. This Agreement, together with the payment terms on any invoices delivered to Licensee, set forth the terms and conditions governing Licensee’s use of all Content downloaded using the Account established hereunder.
- Term. The “Term” of this Agreement shall be one (1) year commencing on the date of opening Licensee’s Account (the “Effective Date”), and expiring on the first anniversary thereof. Following the initial term, this Agreement shall automatically renew for successive one-year periods (each a “Renewal Term”) unless canceled or terminated as hereinafter provided. Either party may terminate this Agreement immediately upon written notice to the other party if the other party breaches any of its material obligations under this Agreement. Cancellation or termination of this Agreement shall not affect: a) Licensee’s rights or obligations in respect of any Content downloaded and paid for by Licensee during the term of and pursuant to this Agreement; or b) Licensee’s obligation to pay Licensor for any Content downloaded prior to the expiration or other termination of this Agreement.
- License Fee. The license fees that Licensee shall pay for Content are set forth on Schedule “A”, annexed hereto and incorporated herein by this reference. In the event that Licensee wishes to upgrade the type of license for the Content, Licensee shall pay Licensor the difference in License Fees prior to Licensee’s use of the Content pursuant to such upgraded license.
- Non-Exclusive License. Subject to the type of license purchased by Licensee, as forth on Schedule “A”, and other limitations set out in this Agreement, Licensor grants to Licensee a perpetual, non‑exclusive, worldwide right and license to use the Content and portions thereof in synchronization and timed relation with the Production including the right to:
- edit, transpose, re‑mix and recombine the Content and portions or elements thereof in conjunction with the Production;
- to sell, lease, license, reproduce, manufacture, distribute, transmit, exhibit, market, exploit, and perform, the Content as used in the Production in any and all media now known or hereafter devised, and by any and all means, manner, devices, and methods now known or hereafter devised, including, without limitation, all forms of television (including, without limitation, conventional, over-the-air, specialty, pay, pay-per-view, subscription, educational, cable in the classroom, interactive, VOD, SVOD, NVOD, and hotel/motel exhibition, as transmitted or distributed by any and all methods [e.g., broadcast, cable, DTH, MDS, LMCS, SMATV, telecommunications, fiber optics, closed circuit, wireless and satellite] to all types of monitors and receivers), all types of non-theatrical exhibition (including, without limitation, common carriers), all forms of transmissions, distributions and exploitation by all means, methods and systems (including, without limitation, analog, digital and HDTV, the Internet, telephony, mobile releases, hand-held and wireless devices, private high speed digital services, and video-on-demand systems), including but not limited to streaming on-line, to all types of monitors, receivers and storage devices, and in all forms of audio-visual devices intended primarily for home use, personal use or otherwise, including, without limitation, videocassettes, videodiscs, DVDs, digital video recorders, and all other types of storage and retrieval devices; and
- to use, reproduce and perform the Content and portions thereof in trailers, radio advertisements and all other advertising, promotion and marketing of the Production.
- Copyright. All Content is protected by Canadian and international copyright laws and treaties. Licensor and/or the various artists who provide Content to Licensor (“Contributors”) own and/or control all rights, including the copyrights in and to the Content. Licensor and/or its Contributors reserve all rights in and to the Content not expressly granted to Licensee by the terms of this Agreement. In the event that Licensee incorporates any Content into a Production, all rights in and to such Content shall continue to be owned and/or controlled by Licensor or its Contributor(s), subject to Licensee’s rights to use such Content pursuant to the terms and limitations set forth herein. Licensee’s rights to use Content are conditioned upon Licensee making payment to Licensor for all amounts due Licensor.
- LICENSEE MAY NOT:
- Use Content together with pornographic, defamatory, or unlawful content or in such a manner that it infringes upon any third party’s copyright, trademark or other intellectual property rights.
- Except as expressly indicated herein, incorporate the Content into more than one (1) Production without paying the License Fee for each such Production.
- Resell, redistribute or transfer any Content except as specifically provided in Paragraph 9 hereinafter, by;
- Uploading any Content to a website to attempt to redistribute the Content.
- Publicly making available any Content as a standalone file in any digital format shall be deemed to be an attempt to redistribute the Content.
- Using Content in a manner that competes with Licensor’s business will be deemed to be an attempt to redistribute the Content. Neither the Content nor any derivative work containing the Content may, in whole or in part, be included in any other clip media/stock product, library, collection, or set of clips for distribution or resale. These restrictions apply even if the Content has been significantly altered.
- Use any Content (in whole or in part) as a jingle, trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services.
- Falsely represent, expressly or by way of reasonable implication, that any Content was created by Licensee or a person other than the copyright holder(s) of that Content.
- Use automated programs, applets, bots or the like to access the Website or any Content thereon for any purpose, including, by way of example only, downloading Content, indexing or caching the content of the Website.
- Refunds. Licensor shall be under no obligation to refund the fees paid under the Agreement under any circumstances.
- Limited Assignability. Licensee may not sell, rent, load, give, sublicense, transfer, or otherwise assign to anyone, Content or the right to use Content. Licensee may however be entitled to assign all or a portion of the rights and licenses granted herein for the purpose of authorizing or permitting the exhibition, broadcast, transmission, performance or reproduction of the Production, and portions thereof, and Licensee shall be entitled to assign this Agreement in its entirety to any person, firm or corporation acquiring ownership of or production rights to the Production, provided that such third party has no rights in the Content except as incorporated into the Production.
- Removal of Content. Upon notice from Licensor or if Licensee learns that any Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable, Licensee shall promptly notify Licensor of any such claim. If commercially reasonable, Licensee will cease any future use of the removed Content at Licensee’s own expense. Licensor may provide Licensee with comparable Content free of charge, but subject to the other terms and conditions of this Agreement.
- Indemnification by Licensee. Licensee agrees to indemnify and hold Licensor, its officers, employees, shareholders, directors, managers, members and suppliers harmless against any damages or liability of any kind arising from any use of any Content other than the uses expressly permitted by the Agreement, including arising from and/or in connection with the development, production, distribution and/or exploitation of the Production. Licensee further agrees to indemnify Licensor for all costs and expenses that Licensor incurs in the event that Licensee breaches any of the terms of the Agreement or any other agreement with Licensor. Licensor shall notify Licensee, in writing, of any such claim or threatened claim. Licensee shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. Licensor agrees to cooperate with Licensee in the defense of any such claim and shall have the right to participate in any litigation at Licensor’s own expense.
- Warranties and Representations
- Licensor warrants and represents that:
- Licensor is the owner (or a licensee with the right to sublicense as provided herein) of all right, title and interest in and to the Content, and Licensor has the right to enter into this Agreement and to grant the rights granted herein, subject to the limitations and exclusions set forth herein.
- Unaltered Content when downloaded and used in full compliance with the Agreement and with applicable law, will not infringe any copyright, trademark or other intellectual property right, nor will such unaltered Content violate any third parties’ rights of privacy or publicity;
- Licensor warrants and represents that:
- To the extent that Licensor may now or in the future be entitled to same, the Licensor hereby waives and relinquishes in favour of Licensee and its assignees and licensees all “moral”, “author’s” and analogous rights pursuant to the Copyright Act (Canada);
- Unaltered Content does not and will not violate any Canada law, statute, ordinance, or regulation.
- While Licensor makes commercially reasonable efforts to ensure the accuracy of keywords and descriptions on the Licensor Premier sites, Licensor makes no warranties and/or representations regarding such keywords or Content descriptions.
- Licensor makes no representations or warranties whatsoever other than those expressly made in this paragraph.
- Indemnification by Licensor:
- Subject to the terms hereof, and provided that Licensee has not breached the terms of this or any other agreement with Licensor, Licensor shall defend, indemnify, and hold Licensee harmless from those claims for direct damages which are directly attributable to Licensor’s breach of the foregoing warranties and representations, together with reasonable attorneys’ fees arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the distribution or use of Content downloaded and used by Licensee pursuant to this Agreement violates Licensor’s warranties contained herein.
- This indemnification is conditioned upon Licensee notifying Licensor, in writing, of any such claim or threatened claim together with a written demand for indemnification, no later than five (5) business days from the date Licensee knows or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to Licensee (e.g., Content name and number, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed to Licensor at firstname.lastname@example.org with a hard copy mailed to Licensor, Incidental Musics c/o 201 – 120 WEST 3RD AVENUE, VANCOUVER, BC, V5Y 1E9 CANADA, Attention: General Counsel, via Certified Mail, Return Receipt Requested, or overnight courier, recipient’s signature required. Licensor shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. Licensee agrees to cooperate with Licensor in the defense of any such claim and shall have the right to participate in any litigation at Licensee’s own expense. Licensor shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
- Notwithstanding anything to the contrary contained herein, Licensor shall not be liable for any damages, costs or losses resulting from claims arising out of: (i) modifications made by Licensee to Content; (ii) the context in which the Content is used by Licensee; or (iii) any breach by Licensee of this Agreement or of Licensee’s representations and warranties contained herein.
- Choice of Law / Jurisdiction. Any legal action or proceeding concerning the validity, interpretation and enforcement of the Agreement, matters arising out of or related to the Agreement or its making, performance or breach, or related matters shall be brought exclusively in the courts of the Yukon Territory, Canada, in the courts of Whitehorse, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.
- Licensee Authority. Licensee warrants and represents that Licensee has the full right and authority to enter into this Agreement.
- Credit Attributions and Copyright Notices. If any other provider of stock media is accorded credit in the Production, Licensee shall accord credit and provide a copyright attribution to Licensor in the Production in the same size, color and prominence as other stock media. Such credit and attribution shall be in substantially the following form:
“[Song title], [Artist]
Courtesy of Incidental Musics Ltd.”
- Termination. In the event that Licensee breaches any of the terms of the Agreement or any other agreement with Licensor, Licensor shall have the right to terminate Licensee’s Account without further notice. Such termination shall be in addition to Licensor’s other rights at law. Licensor shall be under no obligation to refund any fees paid by Licensee in the event that Licensee’s Account is terminated by reason of any such breach or breaches.
- Licensor’s Remedies. In the event of any breach or alleged breach of this Agreement by Licensee, other than Licensee’s failure to pay to Licensor the License Fee, Licensor’s sole remedy shall be to bring an action seeking monetary damages. Licensor shall not have the right to terminate or rescind the license granted to Licensee under this Agreement or to enjoin or restrain the use of or the exhibition, distribution, advertising, or exploitation of the Production incorporating the Content, provided however that Licensor hereby reserves the right to injunctive relief with respect to any use of the Content to which are not granted to Licensee under this Agreement if Licensee shall fail to cure such breach within fifteen (15) days of written notice thereof.
- Fitness and Merchantability. Licensor does not warrant that the Content, the Websites, or other materials, will meet Licensee’s requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Content is solely with Licensee.
- LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY PROVIDED IN THE PARAGRAPH TITLED “INDEMNIFICATION BY LICENSOR”, LICENSOR’S TOTAL AGGREGATE LIABILITY TO LICENSEE, OR TO ANY THIRD PARTY CLAIMING THROUGH LICENSEE, ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE WEBSITE AND/OR CONTENT CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE FOR LICENSEE’S USE OF THE APPLICABLE CONTENT. NEITHER LICENSOR NOR ANY OF ITS OFFICERS, EMPLOYEES MANAGERS, MEMBERS, SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE TO LICENSEE OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE’S USE OF THE CONTENT, LICENSOR’S BREACH OF THE AGREEMENT, OR OTHERWISE EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
- In the event of any discrepancy between the terms of any invoice or the equivalent documentation issued by Licensor and the terms of this Agreement, the terms of this Agreement shall in all cases control.
|License Type||License Limitations||License Fee|
|Student Film/Personal Use||· Permitted uses: Non-commercial personal project or student film, to be available via online streaming or for schools/education centres, temp tracking;
· Non-permitted uses: any form of commercial, for-profit, or revenue-generating uses;
· Maximum project budget: CDN$5,000.
|Student/Film Festival||· Permitted uses: Non-commercial personal project or student film, to be available via online streaming or for schools/education centres, film festival screenings;
· Non-permitted uses: any form of commercial, for-profit, or revenue-generating uses, paid-online streaming, distribution, theatrical release or DVD release;
· Project maximum budget: CDN$10,000.
|Small Budget||· Permitted uses: single or recurring use in a film production, television series, radio production, instructional video, podcast, or web-series, to be available via online streaming, festival screening, television broadcast, theatrical release, DVD release, and/or digital download;
· Non-permitted uses: Advertising;
· Project maximum budget: CDN$25,000.
|Medium Budget||· Permitted uses: single or recurring use in a film production, television series, radio production, instructional video, podcast, or web-series, to be available via online streaming, festival screening, television broadcast, theatrical release, DVD release, and/or digital download;
· Non-permitted uses: advertising.
· Project maximum budget: CDN$100,000.
|Advertising/Unlimited Use||· Permitted uses: unlimited uses;
· Project maximum budget: CDN$250,000.
The fees charged by Licensor do not include any taxes, duties or other government charges. Licensor will invoice Licensee for the amounts of any such taxes, duties or other charges which Licensor is required to collect, including without limitation, sales and use taxes and value added taxes. Licensee must pay such amounts to Licensor upon receipt of Licensor’s invoice.