ARTIST TERMS AND CONDITIONS
1. Definitions
Agreement means these Terms and Conditions plus any other annexures of, or schedules attached to the Terms and Conditions as well as the Track Upload Form
Agent means a person who is authorized by the Copyright Owner to enter into this Agreement to license the Track on their behalf; it also may refer to Holding Pattern when it enters Customer License Agreements on behalf of the Artist to license the Track to Customers.
Album means recordings consisting of more than one Track.
Artist/s means a person or persons whose performance is recorded on the Track for whom Holding Pattern has agreed to provide the storage and digital distribution of the Tracks in accordance with this Agreement.
Confidential Information means any information which either Party receives as a consequence of their relationship under this Agreement including but not limited to the following:
(a) Copyright Owner’s names or addresses;
(b) discussions between the Parties in relation to the Agreement
(c) this Agreement; and
(d) agreements with third parties.
Content means all Tracks, designs, icons, written and other materials located on the Web Site.
Copyright Owner means the Artist/s or any other person who is represented to Holding Pattern as the owner of the copyright in any Track.
Customer means a user who enters into a licence agreement (“Customer Licence Agreement”) with Holding Pattern, acting as agent on behalf of the Artist, in order to use a Track.
Derivative Work means a musical work or track based upon one or more Tracks.
Track means a studio recording of a musical work, or a musical work accompanied by a literary work, performed by the Artist/s to be stored on the Web Site that are available to be licensed by Holding Pattern to Customers under a Customer Licence Agreement.
Library means the digital catalogue of Tracks maintained by Holding Pattern.
Holding Pattern? means The Holding Pattern Pty Ltd. a private limited company situated at www.holdingpattern.com
Non-Permitted Use means any use not specifically allowed under this Agreement or the relevant Customer Licence Agreement.
Permitted Use means any use specifically allowed by this Agreement or the relevant Customer Licence Agreement
Consents means permission, release and/or consent to the use of a Track provided under this Agreement having regard to applicable law in any jurisdiction in the world that is either necessary or desirable to secure from or on behalf of the Copyright Owner or the estate or representative of the Copyright Owner in relation to that Track.
Registration Form means the registration form found at www.holdingpattern which must be completed by the Artist and submitted to Holding Pattern in order for Artist to Licence works to Holding Pattern
Term? means one (1) year.
Track Upload Form means the individual registration form that must be filled out by an Artist for each track they wish to license to Holding Pattern.
Customer Licence Agreement means a license agreement agreed by a Customer and Holding Pattern, acting as an agent on behalf of the Artist of the Track in order to use the Track
Web Site means the web site owned and operated by Holding Pattern at URL http://holdingpattern.com
2. Ownership of the Web Site
(a) Exclusive Owner
Holding Pattern is the exclusive owner of, or has a license to use all Web Site Content including all copyrights, trade marks, trade names, Web Site trade dress and/or other intellectual properties therein.
(b) Web Site Content
No Content from the Web Site may be copied, reproduced, republished, uploaded, posted, transmitted, exploited, or distributed in any way except as specifically permitted under this Agreement or the Customer Licence Agreement.
(c) No rights of Contribution
Contribution to this Web Site does not give the Artist/s any right, title or interest in or to any part of this Web Site or its Content.
(d) 3rd party 'Site Affiliates' and advertising
Holding Pattern may, entirely in its own discretion, link to other third party sites from the Web Site, or allow third parties to promote, sponsor, advertise, or otherwise encourage people to buy specific goods or services on the Web Site, and all and any revenue arising from such activities shall be payable entirely to Holding Pattern.
3. Grant of Rights
(a) Non-exclusive Licence
By contributing a Track to Holding Pattern, pursuant to the terms and conditions of this Agreement, Artist hereby grants Holding Pattern a worldwide, non-exclusive, right to use, distribute, and reproduce, and to license others to use, distribute and reproduce, for the fee set out in the Track Upload Form, a Track for the Term.
(b) Exclusive Licence
By selecting the “Commercial Licence” box on the Track Upload Form, the Artist/s thereby grants Holding Pattern a worldwide, exclusive, right to use, distribute and reproduce, and to license to others to use, distribute and reproduce a Track for Commercial purposes, for the fee set out in the Track Upload Form for the Term
(c) Rights to sell and promote
Holding Pattern may, entirely in its own discretion, choose what Tracks to sell, where & how the Tracks are to be promoted, sold, described, stored, tagged and categorised on the Web Site.
(d) Renewal
This license shall renew automatically for periods equal to the Term, unless terminated pursuant to clause 13 of this Agreement.
(e) Customer’s Rights
A Customer’s sole right to use and reproduce a Track shall be pursuant to the Customer Licence Agreement.
(f) Right to Modify
The Artist and Copyright Owner acknowledge and agree that this Agreement grants Holding Pattern and/or Customers the right to modify Tracks in order to suit file and storage in the Library and/or licensed use by a Customer but not to modify and/or use Tracks to make Derivative Works.
(g) Moral Rights
The Artist/s, for and on behalf of itself, and the Copyright Owner hereby waives and releases, to the extent permitted by law, Holding Pattern and its Customers from any claims or rights the Artist/s or the Copyright Owner may have under the moral rights doctrine with respect to any and all Tracks the Artist/s contributes to the Web Site and to the extent that such waivers are not permissible at law, consents to all acts and omissions by Holding Pattern and its Customers which would otherwise constitute an infringement of their Moral Rights.
4. Authorisation
By agreeing to this Agreement, the Artist/s authorizes Holding Pattern:
(a) Add to Library
to add the Track(s) the Artist contributes to the Web Site under this Agreement with each Track Upload Form;
(b) Licence Others
to license the Track(s) to third-parties pursuant to a Customer Licence Agreement, this Agreement and on such conditions as Holding Pattern in its sole discretion deems appropriate;
5. Payments
(a) License Fees
The licence fees or payments of any kind received by Holding Pattern from Customers as a result of its licensing the Track(s) the Artist contributes to the Web Site under this Agreement shall be paid to the Artist as provided in the Track Upload Form.
(b) Artist Fees
No fees, advances or payments of any kind shall be payable to either party for the storage and distribution of the Tracks.
6. Copyright and Other Rights
(a) Notice
The Artist is to provide a copyright notice for any Track it provides to Holding Pattern, and Holding Pattern shall affix as a notice to the Track under licence to Holding Pattern Pty Ltd [current year]
(b) Publicity
Holding Pattern shall have the right to use any of the Tracks submitted by Artist in connection with the conduct and promotion of its business and the Web Site for the duration of this Agreement.
(c) Trade marks
Holding Pattern may not use Artist’s trade name, trade marks or service marks in connection with any advertising or promotion unless it receives Artist’s prior written permission, not to be unreasonably withheld or delayed.
7. Submission of Tracks
(a) Supply
After agreeing to the terms and conditions of this Agreement, the Artist will send Holding Pattern a digital copy of the Track(s) using the instructions provided on the Web Site, or if that cannot be provided, a physical copy of the tracks to be encoded by Holding Pattern for submission on the Web Site. Artist shall also supply the Track Upload Form provided on the Web Site at www.holdingpattern.com along with any supporting promotional or other material such as artwork or metadata. Artist acknowledges that tracks provided for a Commercial Licence must be the higher quality detailed in the instructions provided on the Web Site.
(b) No Obligation
Notwithstanding this Agreement, Holding Pattern shall have no obligation to license or promote any Track submitted by Artist and accepted by Holding Pattern.
(c) Right of Removal
Notwithstanding this Agreement, Holding Pattern shall have the right, in its sole discretion, to decline to accept any Track submitted to Holding Pattern and to remove an accepted Track from its Web Site.
9. Artist’s Representations and Obligations
(a) Right to Enter Agreement
With respect to each Track the Artist provides to Holding Pattern under this Agreement, Artist represents and warrants that it is free to enter into this Agreement, is free to grant the rights granted under this Agreement, and has not previously made any grant, encumbrance or other disposition to others of such rights that would limit or alter the rights granted to Holding Pattern under this Agreement;
(b) Non-infringement of rights
Artist represents and warrants that each Track licensed to Holding Pattern pursuant to this Agreement is owned and controlled by Artist and that the publication, reproduction, distribution or use of the Track by Artist or Holding Pattern in any manner or media throughout the world will in no way infringe upon the copyright, proprietary rights or other personal rights of any person or entity;
(c) Consents
Artist represents and warrants that it has reviewed each Track and has secured, or will secure before licensing the Track to Holding Pattern pursuant to this Agreement, all necessary Consents for the subject(s) of the Track, in the form acceptable to Holding Pattern, and will maintain and, upon request by Holding Pattern, produce such Consents for Holding Pattern’s review and inspection;
(d) No consents
Artist represents and warrants that no other party’s permission or consent is required for Artist to enter into this Agreement;
(e) No Subsequent Agreement
Artist represents and warrants that it will not enter into any contracts or agreements after this Agreement that will in any way limit or alter Holding Pattern’s license rights in the Tracks granted to Holding Pattern under these Conditions;
(f) Notice of Infringement
If Artist learns of any claim or contest regarding Artist’s rights in relation to any Track submitted to Holding Pattern, Artist shall promptly notify Holding Pattern in writing of this claim or contest. Holding Pattern reserves the right, upon such notice, to remove the contested Track from its libraries.
(g) Registration of Tracks created in the United States
In the event that the Artist/s created the copyright work whilst in the United States, Artist represents and warrants to Holding Pattern that each track licensed to Holding Pattern pursuant to this Agreement has been registered with the United States Copyright Office.
10. DISCLAIMERS OF WARRANTY
(a) THE WEB SITE
HOLDING PATTERN MAKES NO WARRANTIES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE FUNCTIONALITY OF ITS WEB SITE, AND THE INFORMATION, DATA OR TRACKS CONTAINED THEREON. WHILE HOLDING PATTERN UNDERTAKES ALL REASONABLE EFFORTS TO MAINTAIN THE FUNCTIONALITY AND ACCURACY OF ITS WEB SITE, HOLDING PATTERN DISCLAIMS ANY AND ALL LIABILITY FOR ANY LOSS, DAMAGE, CLAIM, OR EXPENSE RESULTING FROM ARTIST’S USE OF THE WEB SITE. HOLDING PATTERN SHALL NOT BE LIABLE FOR ANY SERVER DOWNTIME OR LOST TRANSMISSIONS. ADDITIONALLY, HOLDING PATTERN SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR DETERIORATION OF TRACKS ON HOLDING PATTERN’S SYSTEM, OR FOR ANY SYSTEM FAILURES RESULTING FROM INTERACTING WITH THE WEB SITE
(b) NO LIABILITY FOR LOST PROFITS OR DAMAGES
IN NO EVENT SHALL HOLDING PATTERN BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR OTHER DAMAGES ARISING OUT OF THE DOWNLOADING, USE, DISPLAY, REPRODUCTION OR DISTRIBUTION OF ANY TRACK.
(c) INDIVIDUAL TRACKS SUBMITTED BY ARTIST
HOLDING PATTERN ALSO DISCLAIMS ANY OBLIGATION AND MAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL, AND SHALL HAVE NO OBLIGATION TO, LICENSE OR PROMOTE ANY GIVEN TRACK.
(D) BREACH BY CUSTOMER OF CUSTOMER LICENCE AGREEMENT
HOLDING PATTERN SHALL NOT BE LIABLE TO ARTIST FOR ANY BREACH OF ANY CUSTOMER LICENCE AGREEMENTBY A CUSTOMER OF THE WEB SITE. IN THE EVENT OF A BREACH A CUSTOMER LICENCE AGREEMENTOR INFRINGEMENT BY A CUSTOMER, HOLDING PATTERN’S SOLE RESPONSIBILITY SHALL BE TO PROVIDE ANY INFORMATION AVAILABLE TO HOLDING PATTERN REGARDING THE OFFENDING CUSTOMER, AND TO PROVIDE TESTIMONY IN COURT WHERE NECESSARY.
11. Indemnity
Artist agrees to hold Holding Pattern harmless from, and to indemnify Holding Pattern against, any and all losses, liability, damages and expenses, including reasonable attorneys fees, which Holding Pattern may incur or be obligated to pay, or for which Holding Pattern may be liable for or compelled to pay as a result of any action, claim or proceeding against Holding Pattern arising out of any breach by Artist of the Conditions and conditions of this Agreement.
12. Confidentiality
(a) Non-disclosure
Each of the Parties agrees not to disclose any Confidential Information to any person including employees or consultants except with the prior written consent of the other Party and then only on the basis that the confidentiality of the Confidential Information is maintained in the same manner as is required pursuant to this Agreement.
(b) Exclusions
The obligation to maintain confidentiality will not include information:
(a) which the receiving Party is required to provide to a third party by law; or
(b) which becomes public other than by a breach of this Agreement.
(c) Survival
The obligation contained in this clause will survive the expiration or sooner termination of this agreement and until the Confidential Information becomes generally known or available by publication, commercial use or otherwise than by breach of this Agreement.
13. Termination
(a) This Agreement may be terminated by Holding Pattern immediately, upon notice:
(i) In the event that Artist, or its officers, employees, representatives or agents is in material breach of the terms of this Agreement and has not cured its breach within 30 days’ notice of such breach; or?
(ii) If Holding Pattern decides to cease operation of its Web Site and/or services.
(b) This Agreement may be terminated by Artist immediately, upon notice:
(i) if Holding Pattern is in material breach of the terms of this Agreement and has not cured its breach within 30 days’ notice of such breach.
(c) This Agreement may be terminated by either Party:
(i) Upon the written notice to the email address of the other party as provided in the Registration Form provided however, that no such termination shall occur before the first Term of this Agreement.
(d) Termination of License for Specific Tracks:
Artist may terminate the license granted under this Agreement for one or more, but less than all, of its Tracks licensed under this Agreement upon written notice to the email address provided in the Registration Form provided however, that no such termination shall occur before the first Term of this Agreement or by selecting the “Not Available” status in relation to one or more, but less than all of your Tracks within your artist profile which is allocated to you upon registration at the Web Site;
(e) Removal of Tracks After Termination
Upon termination of this Agreement or of a license for a Track as provided for in sub clause (d) above, Holding Pattern shall make all reasonable efforts to remove the affected Tracks from the Web Site within thirty (30) days of its receipt of written notice, provided however, all such terminations remain subject to, and shall have no effect upon, any current licenses for the Track(s) to Users and any renewals thereof.
14. General Conditions
(a) Entire Agreement
This Agreement, the Registration Form and the Track Upload Form constitutes the entire agreement between the Artist and Holding Pattern, regarding any and all Tracks.
(b) Modifications
Holding Pattern reserves the right to amend this Agreement at any time by posting an amended version on the Web Site and continued registration of Artist with Holding Pattern after the revised Agreement has been posted signifies the Artist’s acceptance and agreement to be bound by the revised Agreement.
(c) Waiver
Any failure by Holding Pattern to enforce any provision of this Agreement shall not constitute a waiver of that provision or of any other provision in this Agreement.
(d) Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
(e) No Transfer or Assignment
This Agreement and the licenses granted hereunder may not be sublicensed, transferred or assigned by Artist, without the consent of The Holding Pattern.
(f) Governing Law
These Conditions and conditions of this Agreement are governed by and shall be construed in accordance with the laws of the state of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
(g) Headings
The headings in this Agreement are for convenience only and will not affect their interpretation.
CUSTOMER LICENCE AGREEMENT
USAGE LICENCE:
THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN YOU (“LICENSEE”) AND THE HOLDING PATTERN PTY LTD ("THE HOLDING PATTERN"). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND IS APPLICABLE TO ONLINE, DIGITAL AND PHYSICAL DELIVERY OF LICENSED MATERIAL.
You should read this Agreement in its entirety before you use or download any material appearing on this website or provided by Holding Pattern, its agents or representatives ("Licensed Material"). If you agree to be bound by the terms and conditions of this Agreement, click on the "I agree" button on the website. If you do not agree, click on the "remove" button on this website to decline this Agreement.
Holding Pattern warrants that it has the permission of the copyright owners of the Licensed Material to enter into this agreement with you.
If you enter into this Agreement or if you purchase a licence to use Licensed Material in accordance with the terms of this Agreement on behalf of another person ("principal"), the licence granted and restrictions and limitations set out below apply to your principal as well as to you as a representative of your principal. Should you cease to be authorised to act on behalf of your principal, your principal may continue to operate under this Agreement.
In this Agreement, "Licensee" refers to and includes you, your principal and any third party as the context permits.
1. Definitions:
Agreement
means these Conditions and any License Details plus any other annexures of, or schedules attached.
Audio Products
means any product in any format or media now known or hereafter devised, embodying sound alone, including, without limitation, compact discs (CDs), cassettes, phonograph records and digital downloads.
Book
Means a literary work written by an author/s to be stored on the Web Site that is available to be licensed by Holding Pattern to a User under a Customer Licence Agreement.
Breach
means any breach of, or failure to comply with, any representation, warranty, covenant or agreement made or undertaken in this Agreement.
Broadcast
means to cause or permit others to cause the performance, telecast, broadcast, transmission, streaming, exhibition or distribution of the Licensed Material
Commercial Revenue
means any revenue generated in connection with a Commercial Use.
Commercial Use
means any use of Licensed Material in any Media for exploitation as part of, adjacent to, or in connection with, any product, program, service, site, audiovisual content, or media, including but not limited to any form of advertising, endorsement, promotion or marketing of any goods or services
Conditions
Means these terms and conditions.
Confidential Information
means any information which either Party receives as a consequence of their relationship under this Agreement including but not limited to the following:
(a) Copyright Owner’s names or addresses;
(b) discussions between the Parties in relation to the Agreement
(c) the terms and conditions of this Agreement; and
(d) any agreements with third parties.
Consents
means permission, release and/or consent to the use of a Track or Book provided under this Agreement having regard to applicable law in any jurisdiction in the world that is either necessary or desirable to secure from or on behalf of the Copyright Owner or the estate or representative of the Copyright Owner in relation to that Track or Book.
Content
means all Tracks, Books, designs, icons, written and other materials located on the Web Site.
Copy
means to duplicate or otherwise make copies of the Work solely for the purpose of Broadcasting the Work.
Copyright Owner
means the Artist/s or the Author/s or any other person who is represented to Holding Pattern as the owner of the copyright in any Track or Book.
Customer
Means any User (whether an individual, corporation, or other) who purchases a license to use a Track from The Holding Pattern.
Customer Licence Agreement
means a license agreement executed between a User and Holding Pattern, acting as an agent on behalf of the Artist of the Track that is the subject of the User Agreement.
Edit
means use by Licensee of less than an entire Licensed Material, including the editing, looping, enhancing, adapting or modifying in any other way of the Licensed Material.,
The Holding Pattern
Means Holding Pattern Pty Ltd of P.O. Box 128, Bondi Junction, Sydney NSW 1335, Australia
Licensed Material
means the sound recordings (the "Masters") and musical compositions embodied on the Masters (the "Songs") of the Tracks as well as Books offered for licensing by Holding Pattern and selected for use by Licensee (such Masters, Songs and/or Books so selected, collectively the "Licensed Material"). Any reference to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.
Media
means, unless otherwise stated in the Rights and Restrictions, any and all media, now known or hereafter devised.
Non-permitted use
means any use not specifically allowed under the terms and conditions of this Agreement.
Permitted Use
means any use specifically allowed by the terms and conditions of this Agreement.
Rights and Restrictions
means the information and Licence Details: (i) accompanying the Licensed Material on any website where the Licensed Material is offered for licensing (including all areas of the purchase process); (ii) in any invoice or order receipt; and (iii) in any other written communication accompanying the Licensed Material. Such Rights and Restrictions may include, without limitation, a description of the Licensed Material, the permitted scope of use, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
License Details
means the page to which these Conditions are attached setting out the details of the License to the Licensed Materials, including Rights and Restrictions.
Term
Means the term as identified in the Licence Details.
Territory
means worldwide
Track/s
means a recording or recordings of a musical work, or a musical work accompanied by a literary work, performed by the Artist/s to be stored on the Web Site that are available to be licensed by Holding Pattern to Users under a Customer Licence Agreement.
Use
means the specific use identified in the Licence Details
User
means any visitor to the Web Site.
Work
means the production or program embodying the Licensed Material
Web Site
means the web site owned and operated by Holding Pattern at URL http://holdingpattern.com
The headings in these Conditions are for convenience only and will not affect their interpretation.
2. Licence Grants and Restrictions.
a) Holding Pattern grants to Licensee and its principal, in accordance with the License Details and in the Territory, a non-transferable right to use the Licensed Material.
b) Use of the Licensed Material is strictly limited to the Use, Term of Use, Territory, Exclusivity and any other restrictions specified in the Rights and Restrictions or as otherwise notified to Holding Pattern and contained in the License Details. Licensed Material shall not be used contrary to any Rights and Restrictions or Licence Details.
c) Nothing contained in this Agreement shall be deemed to grant Licensee the right to manufacture, Edit, distribute or sell:
i) the Licensed Material;
ii) the Work in the form of home videos (DVDs/VHS) or other similar tangible audiovisual products or
iii) Audio Products embodying any of the Licensed Material.
f) Licensed Material shall not be incorporated into a logo, trademark or service mark.
g) Licensee shall not use the Licensed Material in any defamatory, libellous, scandalous, misleading, pornographic or otherwise unlawful manner.
h) Licensee shall not copy (electronically or otherwise) the Licensed Material except for the purpose described in the Licence Details
i) One copy of the Licensed Material may be made for backup purposes only, but may be used only if the original Licensed Material becomes defective, destroyed or otherwise irretrievably lost. The Licensed Material must not be downloaded to create, establish or form any part of an online interactive music catalogue, nor may it be used in relation to any business similar to or in competition with that operated by Holding Pattern at this site.
(j) By licensing a Track for ‘Exclusive Commercial Use” Licensee acknowledges that the track will still be available for other Licensees to license for “Personal Use”
(k) Licensee further acknowledges that the quality of that Track licensed for “Personal Use” may be inferior to a track licensed for “Commercial Use”.
(l) Licensee acknowledges that by licensing any Track, they consent to Holding Pattern providing their name and the name of any project for which the licence will be used to the Artist.
(m) Licensee warrants that wherever reasonably practicable, the authorship of any licensed Tracks will be credited in all Commercial Use.
3. Term:
This Agreement will continue for the term set out in the Licence Details from the date of its acceptance (Term”) unless:
b) Otherwise terminated in accordance with the terms of this Agreement; or
c) Customer exercises any option to renew the Licence, in which case, until the end of any and all renewed licenses.
4. Payments and Fees
a) Holding Pattern grants to you a licence to use the Licensed Material subject to the terms and conditions of this Agreement and the License Details in consideration of the fee payable in respect of the Licensed Material. The fee payable in respect of each item of Licensed Material is as set out in its License Details.
b) All fees and prices are subject to change at the sole discretion of Holding Pattern.
c) Fees owing to Holding Pattern for the purchase of a licence to use Licensed Material will be deducted from your nominated bank account in accordance with the credit card details provided by you to Holding Pattern upon completion of the Licence Details.
d) Payment of any fee or price owing to Holding Pattern for the purchase of a licence to use Licensed Material entitles you to use the Licensed Material, subject to the terms and conditions of this Agreement as well as the Licence Details
e) Agreement to purchase a licence to use the Licensed Material shall be deemed to be concluded at the time at which you download the Licensed Material from this site.
f) The license granted hereunder shall be of no force or effect until such time as Holding Pattern has received payment of the license fee. The Licensee shall not use any Holding Pattern Licensed Material until all Holding Pattern Fees are paid in entirety.
g) All sums payable under this Agreement shall be paid in Australian dollars (“$A”) and if any sum payable pursuant to this Agreement is calculated in a currency other than A$, it shall be converted to the relevant exchange rate of the National Australia Bank for the currency in question at the close of business on the due date. Customary bank fees or charges, foreign exchange losses or fluctuations, currency regulations, duties and any other related expenses are the sole responsibility of the User.
5. Licensee’s Representations and Obligations
a) Licensee represents and warrants that it has all necessary rights and authority to enter into this agreement
b) Licensee represents and warrants that if licensing the Licensed Material on behalf of a third party, Licensee is authorised to act as an agent on behalf of that third party and has full power and authority to bind the third party to this Agreement and Licensee shall be bound and liable for any failure of such third party to comply with the terms of this Agreement.
6. Performing Rights Payments
Nothing contained herein shall be deemed to constitute a waiver of any fee which, as a result of the use of any Masters, Songs and Books contemplated by this Agreement, shall become due and payable to the relevant performing or other rights society (e.g., ASCAP, BMI, SESAC, APRA, PPCA, AMCOS or foreign equivalent) or pursuant to union or collective bargaining requirements. Licensee agrees to submit, and to instruct any third party acquiring rights to the Work to submit, to all relevant performing rights societies, in any part of the Territory in which the Work is to be Broadcast, such filings, including so-called "cue sheets," and further agrees to take such actions as are necessary, in keeping with common industry practice, to enable such performing rights societies to monitor and administer those performing rights fees payable to the copyright owners of the Songs embodied in the Work.
7. Ownership of the Web Site
a) Exclusive Owner
Holding Pattern is the exclusive owner of, or has a licence to use all Web Site Content including all copyrights, trade marks, trade names, Web Site trade dress and/ or other intellectual properties therein.
b) Web Site content
No Content from the Web Site may be copied, reproduced, republished, uploaded, posted, transmitted, exploited, or distributed in any way except as specifically permitted under these Conditions or the Conditions of the User Agreement.
8. DISCLAIMERS OF WARRANTY
a) THE WEB SITE
YOU MAY HAVE RIGHTS UNDER STATUTORY CONSUMER PROTECTION LAWS INCLUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH). THE FOLLOWING DISCLAIMER OF WARRANTIES AND LIABILITY LIMITATIONS APPLY SUBJECT TO ANY RIGHTS YOU MAY HAVE UNDER SUCH LAWS. HOLDING PATTERN MAKES NO GUARANTEES, WARRANTIES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE FUNCTIONALITY OF ITS WEB SITE, AND THE INFORMATION, DATA OR TRACKS CONTAINED THEREON. WHILE HOLDING PATTERN UNDERTAKES ALL REASONABLE EFFORTS TO MAINTAIN THE FUNCTIONALITY AND ACCURACY OF ITS WEB SITE, HOLDING PATTERN DISCLAIMS ANY AND ALL LIABILITY FOR ANY DIRECT OR INDIRECT LOSS, DAMAGE, CLAIM, OR EXPENSE RESULTING FROM LICENSEE’S OR ANY OTHER USER’S USE OF THE WEB SITE. HOLDING PATTERN SHALL NOT BE LIABLE FOR ANY SERVER DOWNTIME OR LOST TRANSMISSIONS. THE LICENSED MATERIAL IS PROVIDED TO YOU BY HOLDING PATTERN ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. UNDER THE AUSTRALIAN CONSUMER LAW, THERE ARE CERTAIN CONSUMER GUARANTEES WHICH CANNOT BE EXCLUDED, INCLUDING GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR PURPOSE, SUPPLY BY DESCRIPTION, REPAIRS AND TITLE. HOLDING PATTERN SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR DETERIORATION OF TRACKS ON THE HOLDING PATTERN’S SYSTEM, OR FOR ANY SYSTEM FAILURES RESULTING FROM INTERACTING WITH THE WEB SITE.
b) NO LIABILITY FOR LOST PROFITS OR DAMAGES
CERTAIN LEGISLATION, INCLUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH) MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS UPON HOLDING PATTERN WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. TO THE EXTENT THAT HOLDING PATTERN IS ENTITLED TO DO SO, HOLDING PATTERN LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO: IN THE CASE OF GOODS, AT HOLDING PATTERN’S OPTION: THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; THE REPAIR OF GOODS; THE PAYMENT OF THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS; OR OF THE PAYMENT OF HAVING THE GOODS REPAIRED. IN NO EVENT SHALL HOLDING PATTERN BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR OTHER DAMAGES ARISING OUT OF THE DOWNLOADING, USE, DISPLAY, REPRODUCTION OR DISTRIBUTION OF ANY TRACK.
c) INDIVIDUAL TRACKS SUBMITTED BY ARTIST
HOLDING PATTERN ALSO DISCLAIMS ANY OBLIGATION AND MAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL, AND SHALL HAVE NO OBLIGATION TO, LICENSE OR PROMOTE ANY GIVEN TRACK OR BOOK.
d) BREACH BY USER OF USER AGREEMENT
HOLDING PATTERN SHALL NOT BE LIABLE TO LICENSEE FOR ANY BREACH OF ANY USER AGREEMENT BY A USER OF THE WEB SITE. IN THE EVENT OF A BREACH A USER AGREEMENT OR INFRINGEMENT BY A USER, HOLDING PATTERN’S SOLE RESPONSIBILITY SHALL BE TO PROVIDE ANY INFORMATION AVAILABLE TO HOLDING PATTERN REGARDING THE OFFENDING USER, AND TO PROVIDE TESTIMONY IN COURT WHERE NECESSARY.
9. Indemnity
Licensee agrees to hold Holding Pattern harmless from, and to indemnify Holding Pattern against, any and all losses, liability, damages and expenses, including reasonable attorneys fees, which Holding Pattern may incur or be obligated to pay, or for which Holding Pattern may be liable for or compelled to pay as a result of any action, claim or proceeding against Holding Pattern arising out of any breach by Licensee of the terms and conditions of this Agreement.
10. Confidentiality
a) Non-disclosure
Each of the Parties agrees not to disclose any Confidential Information to any person including employees or consultants except with the prior written consent of the other Party and then only on the basis that the confidentiality of the Confidential Information is maintained in the same manner as is required pursuant to this Agreement.
b) Exclusions
The obligation to maintain confidentiality will not include information:
i. which the receiving Party is required to provide to a third party by law; or
ii. which becomes public other than by a breach of this Agreement.
c) Survival
The obligation contained in this clause will survive the expiration or sooner termination of this agreement and until the Confidential Information becomes generally known or available by publication, commercial use or otherwise than by breach of this Agreement.
11.Termination
a) This agreement may be terminated by Holding Pattern immediately, upon notice:
i) in the event that Licensee, or its officers, employees, representatives or agents is in material breach of the terms and conditions of this Agreement and has not cured its breach within 14 day’s notice of such breach; or.
b) This Agreement may be terminated by Licensee, immediately, upon notice, if Holding Pattern is in material breach of these Conditions, and has not cured its breach within 30 day’s notice of such breach.
12. Moral Rights
The Licensee warrants that they will not breach any of the Author’s or Artist’s moral rights in relation to the Licensed Material as set out in this Agreement, whether or not in the course of reproducing in a material form, publishing, transmitting or exhibiting the Licensed Material or otherwise.
13. Reservation of Rights
All rights which are not expressly granted by Holding Pattern to Licensee pursuant to this Agreement and the Licence Details, including all promotional materials or any other property owned or controlled by Holding Pattern are specifically reserved by Holding Pattern.
14. General Conditions
a) Entire Agreement
This Agreement constitutes the entire agreement between the Licensee and Holding Pattern.
b) Modifications
The terms and conditions of this Agreement may be modified only upon a mutual written agreement, signed by both parties.
c) Waiver
Any failure by Holding Pattern to enforce any provision of this Agreement shall not constitute a waiver of that provision or of any other provision in this Agreement.
d) Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
e) No Transfer or Assignment
This Agreement and the license granted hereunder may not be sublicensed, transferred or assigned by Licensee, without the consent of Holding Pattern.
f) Governing Law
These Conditions and conditions of this Agreement are governed by and shall be construed in accordance with the laws of the state of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
g) Audit/ Certificate of Compliance
Upon reasonable notice, Holding Pattern may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where Holding Pattern reasonably believes that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at Holding Pattern’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Holding Pattern.
h) Withdrawal
Upon notice from Holding Pattern, or upon Licensee's knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Holding Pattern may be liable herein, or if Holding Pattern withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic and physical) and, if possible, cease any future use at its own expense. Holding Pattern shall provide Licensee with comparable Licensed Material (which comparability will be determined by Holding Pattern in its reasonable commercial judgment), free of charge, but subject to the other terms and conditions of this Agreement and the License Details.
