Melodie PTY LTD

SUBSCRIPTION AGREEMENT

Welcome to the Melodie Music Pty Ltd (“Publisher”) terms for your subscription and use as a licensee of the Melodie music licensing platform located at https://melod.ie/. You or your organisation are referred to as the Licensee under this Subscription Agreement.

Please read this Subscription Agreement, our Privacy Policy and any other terms referenced in this document carefully.

  1. Definitions and Interpretation

    1.1 Definitions

    In this Subscription Agreement:

    “All Media Platforms” means all media now known or hereafter devised, including TV, Radio, Cinema, DVD & Data-storage devices, Online, Mobile, VoD and OTT services.
    “Authorised Users” means those employees and contractors of the Licensee who are to be given access to the Melodie Platform.
    “Business Day” means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.
    “Copyright” means:

    (a) any copyright under the Copyright Act;
    (b) any copyright under the law of a country other than Australia; and
    (c) rights in the nature of or analogous to the rights in (a) and (b) under the law of Australia or any other country (including future copyright and rights in the nature of or analogous to copyright).

    “Copyright Act” means the Copyright Act 1968 (Cth).
    “Commercial Use” means use of a Track in a Production.
    “Headcount” means the total number of employees or contractors directly employed or engaged by the Licensee as at the Subscription Start Date.
    “Invoice” means document entitled Invoice provided by the Publisher to the Licensee setting out the Licence Rights to be obtained by the Licensee subject to payment of the Subscription Fees.
    “Licence Rights” mean the right(s) to use the Track(s) applicable to the Subscription Type selected by Licensee subject to receipt of the corresponding Subscription Fees.
    “Melodie Platform” means the Publisher’s online music licensing platform called ‘Melodie’.
    “Performing Rights Organisation” means performing rights organisations and/or collecting societies including the Australasian Performing Rights Association Limited (ABN 42 000 016 099) (APRA) and their international affiliates.
    “Production” means an audiovisual production into which Track(s) have been synchronised, the details of which are to be notified by the Licensee to the Publisher prior to download of the Track(s).
    “Subscription Agreement” means the terms and conditions set out herein.
    “Subscription Fees” means the fees payable in accordance with clause 4 below.
    “Subscription Period” means the period described in clause 7.1.
    “Subscription Type” means the type or tier of subscription for which the Licensee pays the applicable Subscription Fees. Until further notice, the Subscription Type are limited to: Single, Business, Premium, and Enterprise.
    “Tax” means a tax (including any goods and services tax), rate, levy, duty (including mortgage duty and stamp duty) or impost (other than a tax on the income of the Publisher) and any interest, penalty, expense or fine in connection with any of them.
    “Track” means each sound recording, together with the associated musical work and lyrics.

    1.2 Interpretation

    In this Subscription Agreement, unless expressed to the contrary:

    (a) words in the singular include the plural and vice versa;
    (b) words or phrases defined in the Copyright Act will have the same meaning if used in this Subscription Agreement unless the contrary intention is shown or the meaning is inconsistent in the context;
    (c) headings are for convenience and do not affect the interpretation of this Subscription Agreement;
    (d) any gender includes the other gender;
    (e) a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Subscription Agreement;
    (f) if any act which must be done under this Subscription Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
    (g) a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;
    (h) if a word or phrase is defined in this Subscription Agreement then any other grammatical form of the word or phrase shall have a corresponding meaning;
    (i) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;
    (j) “includes” and similar words mean includes without limitation;
    (k) no clause of this Subscription Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
    (l) a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation;
    (m) a reference to this or any other agreement includes the agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the parties;
    (n) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
    (o) a reference to time is to local time in New South Wales; and
    (p) a reference to “$” or “dollars” refers to the currency of Australia from time to time.

  2. Grant of Licence

    2.1 In consideration for payment of the Subscription Fees to the Publisher by the Licensee, the Publisher grants the Licensee during the Subscription Period:

    (a) the non-exclusive, non-transferable right to access and use the Melodie Platform for the purpose of evaluating Track(s) for possible synchronisation into Production(s); and
    (b) upon the Licensee downloading Track(s) for synchronisation into a Production, a perpetual, worldwide, irrevocable, non-exclusive, non-transferable licence to reproduce the downloaded Track(s) into the soundtrack of the Production, for use in All Media Platforms, in accordance with the Licence Rights applicable to the Subscription Type. When more than one Track is licensed, the Licence is granted separately with respect to each Track. Each Track may only be sourced and downloaded via the Melodie Platform and only during the Subscription Period.

    2.2 Subject to the applicable Licence Rights, the grant of rights under this Subscription Agreement expressly does not permit the Licensee to:

    (a) use or reproduce any Track(s) for a work or subject matter other than in a Production;
    (b) use or resell any Track(s) as a stand-alone item;
    (c) edit, modify, alter, adapt any element of any Track(s) or create any derivative works without the Publisher’s prior written consent except to incorporate a Track into the Production; or
    (d) remove the watermark of a Track(s) when evaluating Track(s) prior to their authorised downloading;
    (e) use any Track(s) for any purpose other than the Licence Rights corresponding with the payment of the Subscription Fees.

    2.3 The Licence Rights granted in this Subscription Agreement are granted separately with respect to each Track selected by the Licensee.

    2.4 The Licensee’s rights granted by this Subscription Agreement are subject to any rights vested in a Performing Rights Organisation. Notwithstanding anything else in this agreement, the Licensee understands and acknowledges that no licence is granted to the Licensee to perform in public or communicate to the public the Track(s). Performances in public and communication to the public of the Track(s) shall be subject to the parties responsible for such activities holding valid and subsisting licences from the parties holding such rights, where such rights are granted under relevant local law.

    2.5 The Licence Rights granted under this Subscription Agreement are granted solely to Licensee and Licensee acknowledges it may not sub-license the rights granted under this Subscription Agreement to any other person or entity. In the event multiple persons in a Licensee organisation utilise the applicable Licence Right under this Subscription Agreement (a “User”), the Licensee agrees it is principally and wholly responsible for the use of the Licence Rights by its employees and contractors in accordance with this Subscription Agreement.

    2.6 The Licence Rights granted under this Subscription Agreement permit only the Business, Premium and Enterprise Subscription Types to sublicense a Production. For the avoidance of doubt, a User operating under a Single Subscription Type is not permitted to and must not sublicense a Production.

    2.7 All Subscription Types may utilise a Track for Commercial Use.

    2.8 Upon downloading Track(s), Publisher shall make available upon request an end-user licence agreement on the Melodie website detailing further terms in respect of a Track(s) for a User (End User Licence Subscription Agreement).

    2.9 To the extent of any inconsistency between the provisions of this Subscription Agreement and the End User Licence Subscription Agreement, the terms of this Subscription Agreement shall prevail.

    2.10 All rights in the Track not expressly granted to the Licensee under this Subscription Agreement remain with the Publisher, including but not limited to the right to make changes to the Track or use any part of the lyrics or title of the Track as the title or subtitle of the Production. You acknowledge and agree the Publisher owns the Copyright in any and all part of the Track and the recording of the Track.

  3. Names and Likeness

    3.1 The Licensee must obtain the Publisher’s written consent for any use of each Track composer’s name, likeness and biography for the purpose of promoting the Track(s) or any form of publication of the Track(s).

  4. Subscription Fees

    4.1 The Licensee agrees to pay to the Publisher the Subscription Fees applicable to relevant Subscription Type (selected by the Licensee and approved by the Publisher) either (i) monthly in advance or (ii) yearly in advance in accordance with the applicable Subscription Type.

    4.2 Depending on the total number of Authorised Users and Headcount of the Licensee (which the Licensee will be required to disclose honestly and in good faith upon application), the Licensee may only be eligible to subscribe to a certain Subscription Type.

    4.3 In the event that either the total number of Authorised Users or Headcount exceeds the maximum permitted under the applicable Subscription Type at any time during the Subscription Period, the Licensee shall be liable to pay on demand to the Publisher the difference between the Subscription Fees actually paid and the Subscription Fees payable for the tier of Subscription Type which accommodates the increased Authorised Users and/or Headcount, and the Licensee will be deemed to have upgraded its subscription to that next tier Subscription Type.

    4.4 The Subscription Fees are exclusive of any and all royalties and/or fees that may be payable to a Performing Rights Organisation. The Licensee is responsible for ensuring that such Performing Rights Organisation is aware of the use of the Track(s) in the Production, including but not limited to providing a cue sheet as set out in clause 5 where applicable.

  5. Cue Sheets and Credit

    5.1 Where applicable, for each Production identified in this Subscription Agreement, the Licensee agrees to provide the Performing Rights Organisation and the Publisher with the necessary information including a music cue sheet.

    5.2 Subject to and in accordance with the practices of the broadcaster, the Licensee will use reasonable endeavours to credit the Publisher in each and every transmission of the Production containing the Track with notice to the effect of “Music courtesy of Melodie Music”.

  6. Licensee’s Representations and Warranties

    6.1 The Licensee represents and warrants that:

    (a) it is not suffering from legal incapacity which in any way affects, or might in the future affect, its ability to execute or deliver or comply with its obligations under this Subscription Agreement;
    (b) this Subscription Agreement constitutes its legal, valid and binding obligations and is enforceable against it by the Publisher in accordance with its terms;
    (c) it will not sell or otherwise distribute or exploit the Track(s) except in accordance with the applicable Licence Rights paid for under the Invoice;
    (d) the execution and delivery of, and the compliance with its obligations under, this Subscription Agreement do not contravene any law or directive from a government body, any agreement or instrument to which it is a party, any of its obligations to any other person; and
    (e) except as notified to the Publisher in writing prior to the date of this Subscription Agreement, it does not enter into this Subscription Agreement as trustee of any trust.

    6.2 The Licensee acknowledges that the Publisher enters into this Subscription Agreement in reliance on the representations and warranties.

  7. Subscription Period and Termination

    7.1 This Subscription Agreement, and the Licensee’s subscription, commences on the date the Licensee accepts this Subscription Agreement and pays the first instalment of the Subscriptions Fees, and continues until terminated in accordance with either of clauses 7.2 and 7.3 below.

    7.2 This Subscription Agreement may be terminated by agreement between the Parties.

    7.3 This Subscription Agreement may be terminated by either party if the other party materially breaches this Subscription Agreement and does not remedy such breach within 14 days of written notice by the other party.

    7.4 Termination of this Subscription Agreement by either Party will not prejudice any rights accruing to either party prior to termination, including but not limited to licence rights relating to Track(s) to the extent already validly incorporated into any Production.

  8. Warranties

    8.1 The Publisher warrants:

    (a) it has the right to grant to the Licensee all rights granted hereunder; and
    (b) it has full power and authority to enter into this Subscription Agreement.

  9. Liability and Indemnities

    9.1 To the full extent permitted by law, Publisher excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

    9.2 To the full extent permitted by law, Publisher excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Subscription Agreement.

    9.3 This Subscription Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, Publisher limits its liability in respect of any claim to, at Publisher’s option:

    (a) in the case of goods:
        (i) the replacement of the goods or the supply of equivalent goods;
        (ii) the repair of the goods;
        (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        (iv) the payment of having the goods repaired, and

    (b) in the case of services:
        (i) the supply of the services again; or
        (ii) the payment of the cost of having the services supplied again.

    9.4 To the full extent permitted by law, the Publisher’s total liability under this Subscription Agreement is the applicable Licence Fee paid by Licensee to Publisher in the previous 12 months. The Licensee indemnifies the Publisher on demand against any liability, loss, cost or expense caused or contributed to by (i) any failure by the Licensee to comply with any provision of this Subscription Agreement (including without limitation any warranty), or (ii) the Licensee’s use of the Track(s).

    9.5 Subject to clauses 9.1 to 9.4 above, the Publisher indemnifies the Licensee on demand against any liability, loss, cost or expense caused or contributed to by any failure by the Publisher to comply with any provision of this Subscription Agreement (including without limitation any warranty).

    9.6 The indemnities in this Subscription Agreement are continuing obligations, separate and independent from the other obligations of the parties and survive the termination of this Subscription Agreement.

  10. Dispute Resolution

    10.1 If there is a dispute between the Parties in relation to this Subscription Agreement, the Parties agree to the following dispute resolution procedure.

    10.2 The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute any agreement between them (Initial Meeting).

    10.3 If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer to the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

    10.4 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Subscription Agreement, by law or in equity.

  11. General

    11.1 Supervening legislation: Any present or future legislation which operates to lessen or vary in favour of the Licensee any of its obligations in connection with this Subscription Agreement or to postpone, stay, suspend or curtail any rights of the Publisher under this Subscription Agreement is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.

    11.2 Notices: Any notice in connection with this Subscription Agreement will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.

    11.3 Force Majeure: A Party is not liable for its inability to perform, or delay in performing, any of its obligations under this Subscription Agreement if that inability or delay is due to any circumstance(s) beyond its reasonable control.

    11.4 Relationship of parties: This Subscription Agreement is not intended to create a relationship between the Parties of partnership, joint venture or agency.

    11.5 Assignment: The Licensee must not assign or otherwise dispose of any right under this Subscription Agreement without the prior written consent of the Publisher. The Publisher’s rights under this Subscription Agreement are assignable.

    11.6 Waiver or variation of rights: A right in favour of the Publisher under this Subscription Agreement and a breach of an obligation of the Licensee under this Subscription Agreement can only be waived by an instrument duly executed by the Publisher. No other act, omission or delay of the Publisher will constitute a waiver binding, or estoppel against, the Publisher. A single or partial exercise or waiver by the Publisher of a right relating to this Subscription Agreement will not prevent any other exercise of that right or the exercise of any other right.

    11.7 Powers, rights and remedies: Except as expressly stated to the contrary in this Subscription Agreement, the powers, rights and/or remedies of a Party are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Subscription Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party or any other person.

    11.8 Entire agreement and understanding: In respect of the subject matter of this Subscription Agreement: (a) this Subscription Agreement contains the entire understanding between the Parties; (b) all previous oral and written communications, representations, warranties or commitments are superseded by this Subscription Agreement and do not affect the interpretation or meaning of this Subscription Agreement; and (c) each of the Parties has relied entirely on its own enquiries before entering into this Subscription Agreement.

    11.9 Severance: If all or any part of any clause of this Subscription Agreement is illegal or unenforceable, it will be severed from this Subscription Agreement and will not affect the continued operation of the remaining provisions.

    11.10 Legal advice: The Licensee acknowledges that there has been an adequate opportunity to obtain independent legal advice as to the meaning and effect of this Subscription Agreement before it was signed by the Licensee.

    11.11 Confidentiality: The Parties acknowledge that the terms of this Subscription Agreement are confidential and will not be disclosed to any person for any reason other than the Parties’ professional advisers or as required by law.

    11.12 Updating Terms and Conditions: Publisher reserves the right to change these Terms and Conditions and the Melodie platform in any way by giving the Licensee notice electronically including to the email address the Client has registered with Publisher. If the Licensee does not agree to these Terms and Conditions, Licensee must immediately cease using the Melodie platform.

    11.13 Governing law and jurisdiction: This Subscription Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

For any questions or notice, please contact the Publisher at:

Melodie Music Pty Ltd (ACN 608 788 110)
9 Glebe St
Glebe NSW 2037
Australia
Email: [email protected]