B E T W E E N:
CONNECT MUSIC LICENSING SERVICE INC.,
a corporation incorporated pursuant to the laws of the Dominion of Canada
(hereinafter called 'CONNECT')
CAREFULLY READ THE FOLLOWING AGENCY AGREEMENT.BY CLICKING THE “ACCEPT” BUTTON, YOU (THE “Principal”) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON OR LEAVE THIS WEBSITE
WHEREAS Principal owns or controls in the Territory certain sound recordings (as hereinafter defined); and/or owns or controls in the Territory certain videos (as hereinafter defined);
AND WHEREAS CONNECT is engaged in the business as non-exclusive agent to issue blanket licences in Canada to third party users for various specific limited uses on behalf of various owners or holders of exclusive copyright interests in Canada of certain sound recordings and videos;
AND WHEREAS Principal has appointed CONNECT as its agent for the purposes set out herein;
AND WHEREAS the parties now desire to evidence the terms and conditions with respect to such appointment;;
AND THEREFORE WITNESSETH that in consideration of the mutual covenants contained herein, and other good and valuable consideration, the parties hereby agree as follows:
1. PREVIOUS AGREEMENTS
This agreement amends and consolidates all prior agreements and amending agreements as may have previously been entered into between Principal and CONNECT.
For the purposes of this Agreement,
- a) 'Sound Recordings' or 'Music Tracks' mean certain recordings of sound that embody performances of music or other sounds and shall have the same meaning as sound recording as defined in the Copyright Act (Canada) as amended and shall include recordings of sound in digital code and any other method now known or hereinafter invented in which Principal owns or holds an exclusive copyright interest for the Territory.
- (b) 'Videos' or 'Music Videos' mean certain audio-visual recordings that embody performances of music and shall have the same meaning as cinematographic work as defined in the Copyright Act (Canada) as amended and shall include videos embodied in digital code and any other method now known or hereinafter invented.
- (c) 'Territory' means Canada in which Principal owns or holds an exclusive copyright interest for the Territory.
- (d) 'CONNECT Executive Board of Directors' shall mean those officers elected at the CONNECT Annual Meeting, specifically the Chairperson, Past Chairperson, Vice Chairpersons (2) and Treasurer.
- (e) 'CONNECT Rates Committee' shall mean CONNECT member company Directors who have from time to time been elected to serve on this Committee.
3. GRANT AND APPOINTMENT
Principal hereby grants and appoints CONNECT as its non exclusive agent for the following purposes, to;
(a) licence third parties under CONNECT's licensing scheme for:
- (i) reproduction or to authorize reproduction of Sound Recordings in certain limited circumstances and/or distribution of such reproductions for lease to licensee's commercial subscribers; and
- (ii) public performance and/or communication to the public by telecommunication and/or to authorize communication to the public by telecommunication of Videos in certain limited circumstances and for such purposes to reproduce Videos.
- (b) administer, collect and distribute to Principal royalties arising from or in connection to Principal's right to remuneration for the public performance and communication to the public by telecommunication of eligible Sound Recordings and/or Music Tracks pursuant to the Copyright Act (Canada) as from time to time amended.
- (c) administer, collect and distribute to Principal, royalties arising from or in connection to the right of eligible makers to receive remuneration from manufacturers and importers of blank audio recording media pursuant to section 81 of the Copyright Act (Canada).
- (d) appoint such agents or otherwise authorize a collective society as is necessary or expedient for the purposes set out in (b) and (c) above.
This Agreement shall continue for an indefinite period, subject to early termination pursuant to clause 10 herein or at the end of any calendar quarter upon ninety (90) days prior notice of termination in writing from either party to the other party to this Agreement.
5. AGENT'S RESPONSIBILITIES
- (a) CONNECT shall actively solicit, negotiate and enter into licences with persons in the Territory wishing to reproduce and distribute Sound Recordings and/or persons in the Territory wishing to reproduce, distribute, perform and/or communicate to the public Videos.
- (b) CONNECT shall grant licences as aforesaid under the terms and conditions in, and pursuant to, licence agreements, including certain blanket licence agreements for which the CONNECT Executive Board of Directors shall have given its prior approval and for each such licence CONNECT shall obtain the CONNECT Rates Committee's instructions as to the licence user fees to be paid by a proposed third party licensee. CONNECT may prepare standard form user licence agreements for the approval of the CONNECT Executive Board of Directors.
- (c) Principal reserves the right to prohibit the licensing by CONNECT of one or more of its Sound Recordings and/or Videos at any time upon prior written notice to CONNECT. Any such notice shall not affect licences issued by CONNECT prior to receipt of such notice unless CONNECT is expressly required, pursuant to such notice, to make all efforts to cease the reproduction and distribution of Sound Recordings and/or the reproduction, distribution and performance and/or communication to the public of Videos which have been previously licensed.
- (d) CONNECT shall collect and receive all payments on behalf of Principal made or to be made under licences granted by CONNECT and shall pay to Principal all such payments subject to the provisions of clause 6 herein.
- (e) CONNECT shall appoint as agent or otherwise authorize a collective society or collective societies to collect and distribute royalties to CONNECT arising from or in connection with the right of Principal to receive remuneration for the public performance and for communication to the public by telecommunication of eligible Sound Recordings and/or Music Tracks which Principal owns or holds exclusive rights pursuant to the Copyright Act (Canada) as amended.
- (f) CONNECT shall appoint as agent or otherwise authorize a collective society or collective societies to collect and distribute royalties to CONNECT arising from or in connection with the right of makers to receive remuneration from manufacturers and importers of blank audio recording media pursuant to section 81 of the Copyright Act (Canada) as amended for eligible Sound Recordings which Principal owns or holds exclusive rights pursuant to the Copyright Act (Canada) as amended.
6. CONNECT's REMUNERATION
- (a) For services provided by CONNECT pursuant hereto, CONNECT shall deduct and retain from all payments collected for Principal's account from CONNECT's licensees, a percentage of the monies so collected, subject to adjustment(s) which may be approved from time to time by the CONNECT Executive Board, ('Service Charge'). A statement of all monies collected, all amounts due and outstanding and all expenses directly or indirectly charged to Principal's account shall be provided with each payment as required in paragraph 5(d) of this Agreement.
- (b) Principal agrees that the Service Charge for services rendered by CONNECT hereunder may be revised on at least thirty (30) days' written notice by CONNECT to Principal, except that the effective date of any such revision shall not be less than sixty (60) days from the date of such notice to Principal.
7. INSPECTION OF RECORDS
CONNECT is expressly authorized to exercise any right of Principal to inspect the books, records and documents of any CONNECT licensee to whom CONNECT issues a blanket licence pursuant hereto. In the absence of express instructions to the contrary, CONNECT is authorized, in the event of disagreement or any dispute with any such Licensee to enter into settlement discussions which, in CONNECT's discretion, should be undertaken; however, no settlement agreement will be executed by CONNECT on behalf of Principal prior to Principal's instructions with respect thereto.
8. REPRESENTATIONS AND WARRANTIES
- (a) Principal represents and warrants that it has the rights for Sound Recordings and Videos in which it holds copyright interests from time to time for the purposes set out in clause 3.
- (b) Principal represents and warrants that the Sound Recordings and Videos were recorded in compliance with applicable union agreements including but not restricted to A.F. of M., and that there are no liens or encumbrances on the Sound Recordings or Videos, and that all contributors to the Masters were paid or will be paid, with the exception of any third party 'user fees' payable for use of the Masters.
- (c) Principal shall indemnify and hold CONNECT harmless from and against any and all claims, demands, liabilities, losses and expenses, including, without limitation, reasonable legal fees and court costs, arising out of or in any way related to Principal's breach of its representations and warranties herein or breach or failure to comply with the provisions of this Agreement.
- (d) Principal warrants and agrees to provide CONNECT with notice of its copyright interests in Sound Recordings and Videos as may change from time to time.
- (e) CONNECT represents and warrants that it is a corporation incorporated under the laws of Canada and has the legal capacity to carry out its obligations under this agreement.
9. INSPECTION BY PRINCIPAL
Principal or its authorized representative shall have the right, upon prior written notice of at least five (5) days to CONNECT, to inspect the records and books of CONNECT pertaining to the subject matter of this Agreement. Principal or its authorized representatives shall have the right to make copies or have copies made of any documents or books of CONNECT pertaining to the subject matter of this Agreement.
- (a) If either Principal or CONNECT shall default in the performance of any of the terms or provisions of this Agreement to be performed by it, and such default shall not be cured within thirty (30) days after written notice of such default is given by the non defaulting party to the defaulting party, then at any time after the expiration of such notice, the non defaulting party may give written notice of not less than five (5) days to the defaulting party of its election to terminate this Agreement. Such right of termination shall not be exclusive of any other remedies or means of redress to which the non defaulting party may be lawfully entitled, it being intended that all such remedies be cumulative.
- (b) If either Principal or CONNECT shall be dissolved, or file a voluntary petition in bankruptcy, or should an order be entered pursuant to any law relating to bankruptcy or insolvency appointing a receiver or trustee for said party, then Principal or CONNECT, as the case may be, may give written notice of not less than thirty (30) days to the party filing such petition or bankruptcy or subject to such order of its desire to terminate this Agreement, which termination shall occur on the date specified in the aforesaid notice.
CONNECT shall not assign this Agreement without the express written consent of Principal, which consent may be reasonably withheld.
12. GOVERNING LAW
This Agreement shall be deemed to have been made in the Province of Ontario and shall be governed and construed in accordance with the laws of the Province of Ontario and the Dominion of Canada. All claims and proceeding arising from or related to this Agreement shall be adjudicated solely by a court or by a tribunal of competent jurisdication in the Province of Ontario, in the judicial district of Toronto and the parties hereby attorn to the jurisdiction thereof.
CONNECT acknowledges and agrees that Principal retains all right, title and interest in and to the Master Records and Videos and/or Music Tracks, and any related packaging, and to all works reproduced therein and therefrom. CONNECT acknowledges that the rights granted to CONNECT herein do not include, in any manner or for any purpose, any rights of title or ownership to the Master Records and Videos and/or Music Tracks.
Any notices, demands or other communications given pursuant to this Agreement shall be made in writing and shall be deemed to have been made and properly given if sent by registered mail, return receipt requested, or if delivered by facsimile or e-mailed (e-mailing of notices requires the party being notified to provide confirmation of receipt before being considered duly delivered) to the addresses below:
CONNECT Music Licensing
1235 Bay St., Suite 900
Toronto ON M5R 3K4
Telephone: (416) 922-8727
Facsimile: (416) 962-7797
Attention: Membership and Distribution Department
and shall be deemed received, in the case of registered mail, on the date of receipt and, in the case of electronic delivery, on the business day following the date sent. In the case of postal interruption, by strike or otherwise, all notices shall be personally delivered or transmitted by a non mail process.
If any of the provisions of this Agreement or their application to any person or circumstance are to any extent illegal, invalid or unenforceable, the remainder of this Agreement shall be construed as if such illegal, invalid or unenforceable provision had never been contained in it.
16. FORCE MAJEURE
If at any time during the Term of this Agreement by reason of any act of God, fire, earthquake, flood, explosion, strike, labour disturbance, civil commotion, act of Government, its agencies or officers, any order, regulation or any other cause or causes beyond either party's control, the performance of either party's obligations hereunder is delayed, interrupted or prevented, then the performance of such obligation shall be excused to the extent so delayed, interrupted or prevented, provided that the excused party used best efforts to perform.
The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
Les parties aux présentes confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient redigés en anglais seulement.
Either party may disclose the existence of and the terms of this Agreement to any person, firm or corporation. However, all transactions carried on pursuant to this Agreement, including all information exchanged between the parties in relation to audit, grant of rights and the contents of any correspondence or dealing between the parties hereto respecting such matters shall at all times be treated in a confidential manner by both parties hereto and shall not be disclosed by either party to any other person or to any firm or corporation without the express prior written consent of the other party, save and except for such confidential disclosure as may be reasonably necessary to either party's solicitors, directors, officers, auditors, subsidiaries or parent firms or corporations or save and except disclosed pursuant to an order of a court or tribunal of competent jurisdiction.