Terms and Conditions (for Pay Per Use customers)
Definitions In these Terms and Conditions:
“broadcast” shall have the meaning ascribed thereto in section 6 of the Copyright Act of 1976;
“Desert View Records LLC” means Desert View Records LLC, with its principal place of business at desertviewrecords.com, in the United States;
“Desert View Works” means each Musical Work the copyright in which is owned or controlled in the United States by Desert View Records LLC and which is listed in the Desert View Records LLC music library accessible via the Website and/or the Sound Recording embodying the Desert View Works;
“Delivery Date” means, in relation to a Production, the date of delivery of the final version of the Production to the party that has commissioned it from the Licensee (or the party to which the Licensee is selling the Production, where it has not been commissioned), or where the Production consists of a series of episodes, delivery of the final episode;
“License Fee(s)” means the license fee payable by the Licensee to Desert View Records LLC at Desert View Records LLC’s then current license fee rate(s) as published on the Website for the relevant Desert View Works downloaded by the Licensee;
“Licensee” means the individual or company registered with the Website who wishes to obtain a license from Desert View Records LLC to exploit Desert View Works and/or the client of the individual or company registered with the Website, if that individual or company is working on behalf of a client who wishes to obtain a license from Desert View Records LLC to exploit Desert View Works;
“making available to the public” shall have the meaning ascribed thereto in section 106(6) of the Copyright Act of 1976;
“Musical Work” means any work consisting of music and any lyrics or words written to be used with the music (if applicable). It includes any part of such a work;
“Permitted Exploitation” means the usage that the Licensee selects when downloading the Desert View Works via the Website or the usage stated on any invoice manually sent by Desert View Records LLC and such other uses as Desert View Records LLC may agree to in writing on a case by case basis;
“Production” means an individual audio-visual production. For the purposes of the terms and conditions, the following shall be deemed to be an individual audiovisual production (without limitation):
(a) each single episode of a television series;
(b) each single audiovisual video, broadcast or streamed on a website;
(c) each single advertising commercial;
“Record” means any device, whether audio-visual and/or audio alone, embodying a Sound Recording in physical, non-physical, magnetic and/or other format whether now known or in the future developed, including, without limitation, vinyl. CD, DVD, Blu-Ray, permanent and/or semi-permanent download, digital streaming or any other device or media used for recording and emitting sounds whether alone or in conjunction with visual images and/or any form of reproduction, transmission or communication of sound whether known now or in the future developed and/or invented.
“Registration Date” means the date that the Licensee first downloads a Desert View Works via the Website;
“Adapted Version” means a piece of audio-visual material that is produced by editing the content of a Production into a different form. Adapted Versions will comprise substantially the same content as was contained in the original Production, but may include some new content, provided that it is related to the original content;
“Sound Recording” means a recording embodying a Musical Work for exploitation either via a Record or otherwise.
“Term” means a period of 3 months starting on the date of payment of the license fee, subject to any earlier termination in accordance with these Terms and Conditions;
“Territory” means, in the case of the distribution territory covered by this license, the United States and in the case of the synchronization territory covered by this license, the country in which the Licensee carries out its business in accordance with the Licensee’s Website registration details; and
“Website” means the Desert View Records LLC website at www.desertviewrecords.com.
2.1 Subject to these Terms and Conditions, Desert View Records LLC hereby grants to the Licensee a non-exclusive, non-transferable, revocable license during the Term to reproduce (including by way of synchronization and/or mechanical reproduction) Desert View Works(s) in the territory of the world into one single Production.
2.2 The license granted under clause 2.1 is of the copyright in both the Desert View Works and the specific Sound Recordings of the Desert View Works made available via the Website.
2.3 Subject to clause 2.1 above, there is no restriction on the number of different Desert View Works that the Licensee may reproduce in any single Production and the Licensee may reproduce a Desert View Work either in whole or in part in the single Production covered by this license.
2.4 The Licensee may edit or re-edit a Desert View Work to the required length for the purposes of production only, but this is the only form of editing or re-editing of a Desert View Work that is permitted under these Terms and Conditions. Any such editions or re-editions shall remain the copyright of Desert View Records LLC.
2.5 The license granted hereunder covers distribution of the Production containing Desert View Works worldwide for the Permitted Exploitation.
2.6 Provided that the synchronization of a Desert View Work into the Production takes place during the Term, the license granted hereunder will run in perpetuity in relation to that Production only.
2.7 The Licensee shall be entitled to sub-license any of the rights granted by Desert View Records LLC hereunder to a financially responsible third party provided that Licensee shall remain primarily liable to Desert View Records LLC for all of its obligations hereunder.
Extent of the License
3.1 Any rights not granted pursuant to the terms of this Agreement are reserved by Desert View Records LLC, including without limitation:
3.1.1 the right to make adaptations and arrangements of and alterations to the Desert View Works and/or the Sound Recordings including the right to alter the lyrics or add new lyrics thereto to or to provide translations of the Desert View Works or new lyrics in other languages or to add music or authorize others to do so;
3.1.2 the right to make literary versions of the Desert View Works or literary works based upon the Desert View Works throughout the Territory or any part thereof and to print publish and sell such literary versions (as well as the dramatic versions aforementioned) throughout the Territory or any part thereof;
3.1.3 the right to use or permit others to use so-called sampled extracts from any of the Sound Recordings embodying Desert View Works;
3.1.4 the use of the lyrics or any part thereof from the Desert View Works with music other than that written to be used with such lyrics or hereby authorized for use with the lyrics
3.1.5 the right to print, publish, lease, hire and sell and cause to be printed, published, leased, hired and sold copies of the Desert View Works in the Territory and to collect any royalties or fees payable by reason thereof;
3.1.6 subject to clause 2.1, the right with respect to audio and audio visual devices within the Territory to grant licenses for the manufacture and sale of mechanical and electrical reproduction of the Desert View Works upon sound carriers and sound and visual carriers whether physical, digital or otherwise howsoever whether known or invented; and
3.1.7 the right to broadcast the Desert View Works and make the same available to the public other than in connection with a Production.
3.2 The provisions of these Terms and Conditions authorize the making of the Production for the Permitted Exploitation only. In the event that a copy of the Production or the soundtrack thereof is made or used in any way for any other purpose (including, without limitation, retail sale, rental and/or lending, cinematic performance) whether by the Licensee or any other party then that copy shall not be licensed under these Terms and Conditions and a separate license will be required from Desert View Records LLC.
3.3 It is the responsibility of the Licensee to obtain all necessary consents, permissions and/or licenses (whether from third parties or otherwise) required for the exploitation of the Desert View Works and any applicable Production and to pay all applicable fees in relation thereto.
3.4 During the Term and for a period of six months thereafter, the Licensee will keep accurate books and records regarding its use and exercise of the license granted hereunder. At any time during the Term (and for a period of six months thereafter) upon reasonable notice Desert View Records LLC shall be entitled to audit and review these books and records to ensure that the Licensee is exploiting the Desert View Works in accordance with this Agreement.
3.5 The right to mechanically reproduce any Desert View Work granted by Desert View Records LLC to the Licensee hereunder shall be limited to a maximum of twenty thousand (20,000) Records in aggregate. Mechanical exploitation of a Desert View Work by Licensee (and any of Licensee’s sub-licensees, affiliates and/or other authorized third parties) in excess of this number shall be subject to Desert View Records LLC and Licensee entering into a separate variation and extension of this Agreement and subject to Licensee paying an additional fee for such usage. Such fee will be calculated in accordance with Desert View Records LLC’s usual rates from time to time in force and as set out in Desert View Records LLC’s published rate card, which is available by email request to firstname.lastname@example.org.
License Fees and payment
4.1 In consideration of the license granted by Desert View Records LLC hereunder, the Licensee shall pay to Desert View Records LLC the License Fee(s), which shall be non-refundable.
4.2 Desert View Records LLC may, at their sole discretion, elect to grant a free non-exclusive license to Licensee in respect of a Desert View Work(s) allowing the Licensee to try such Desert View Work(s) with a Production solely for the purposes of checking compatibility (“Try Before You Buy”), provided that under no circumstances shall Licensee be entitled to exploit (commercially or otherwise) such Desert View Work(s), either as part of that Production or otherwise, unless and until Licensee has paid the applicable License Fee and complied with all other terms and conditions of this Agreement.
4.3 A License Fee is payable each time that a Desert View Work is downloaded by the Licensee for use in the Production SAVE FOR those Desert View Works downloaded pursuant to the Try Before You Buy arrangement. The License Fee(s) shall cover reproduction of the Desert View Work into one Production. If the Licensee wishes to reproduce the Desert View Work into more than one Production, an additional License Fee shall be payable in respect of each such Production. Please contact Desert View Records LLC for details of such additional license fees at: email@example.com
4.4 The License Fee(s) must be paid by debit card, credit card or Paypal via the Website and are subject to applicable taxes, which shall be payable by the Licensee. For the avoidance of doubt, Desert View Records LLC shall be under no obligation to provide the Licensee with any Desert View Work or Sound Recording of the same until the License Fee(s) has been paid in full SAVE FOR those Works and Sound Recordings licensed by Licensor to Licensee pursuant to the Try Before You Buy arrangement as set out in clause 4.2 above.
Cue Sheets AND PERFORMING RIGHTS
5.1 For the Production covered by these Terms and Conditions, the Licensee shall:
5.1.1 provide the relevant production company, broadcaster, website owner or other third party with a cue sheet containing sufficient information to allow such third party to properly register the performance usage with all applicable local performing rights collecting society (including without limitation in the United States the Performing Rights Society (PRS”) and the Phonographic Performance Limited (“PPL”) and other analogous organizations throughout the world). For the avoidance of doubt, the cue sheet must as a minimum contain the details set out in Schedule 1. All Performance and other similar rights will normally be cleared by the performing organization, broadcaster or website owner (not the producer). This is usually done through a blanket license arrangement with the PRS and PPL in the US or similar relevant societies in overseas territories. Any queries in this respect should be raised with Desert View Records LLC at firstname.lastname@example.org;
5.1.2 provide Desert View Records LLC with a copy of such cue sheet within 7 days of the Delivery Date, or on the date that the Production is first communicated to the public if there is no Delivery Date; and
5.1.3 to the best of its ability, upon request by Desert View Records LLC on no more than a semi-annual basis, provide Desert View Records LLC with details of any broadcast or performance of a Production in the Territory.
Termination of Agreement
6.1 Upon expiry of the Term, the license granted hereunder terminates and the Licensee must renew its license via the Website.
6.2 Desert View Records LLC shall have the right to terminate the license granted under these Terms and Conditions immediately by notice to the other party if the Licensee:
6.2.1 commits a breach of these Terms and Conditions which is not capable of remedy; or
6.2.2 commits a breach of these Terms and Conditions which is capable of remedy but which has not been so remedied within 14 days of notice thereof;
6.2.3 is dissolved, becomes insolvent or otherwise unable to pay its debts, ceases to trade, has a trustee, administrator or receiver appointed, has a resolution passed for its winding up or liquidation or makes a general assignment, arrangement or composition with or for the benefit of its creditors.
6.3 For the avoidance of doubt, following expiry of the Term or termination of the license granted under these Terms and Conditions the Licensee may not download any further Desert View Works or reproduce any Desert View Works downloaded prior to such expiry or termination and shall permanently delete all copies of Desert View Works (excluding those reproduced into Productions in accordance with these Terms and Conditions).
7.1 You agree at all times to keep Desert View Records LLC fully indemnified from and against any losses, claims, demands and expenses actual and/or adjudged by a court or tribunal of competent jurisdiction which Desert View Records LLC may sustain by reason of any breach of any provisions hereof by the Licensee or any warranty, representation or undertaking given by the Licensee hereunder being untrue, inaccurate or unfulfilled.
7.2 Neither party shall exclude or limit liability to the other for personal injury (including sickness and death) resulting from the negligence or wilful default of itself.
7.3 Except as set out herein, the total liability of Desert View Records LLC to Licensee in contract, tort or otherwise for breaches by Desert View Records LLC of its obligations under this Agreement is limited to the amount payable by Licensee to Desert View Records LLC under this Agreement provided that Licensee notifies Desert View Records LLC in writing of any potential claim arising under this Agreement within a reasonable time (and no later than thirty (30) days) of Licensee first becoming aware of such potential claim. Desert View Records LLC shall not be liable to Licensee for any loss of business, contracts, profits, anticipated savings, goodwill, or revenue or for any indirect or consequential loss whatsoever incurred by Licensee, whether or not they have advised in advance of the possibility of any such loss.
8.1 The Licensee shall include in each and every Production containing Desert View Works licensed hereunder a suitable credit in the name of Desert View Records LLC where music credits are given.
8.2 The Website Terms and Conditions shall apply to the Licensee’s use of the Website to download Desert View Works. In the event of any conflict or inconsistency between these Terms and Conditions and the Website Terms and Conditions, these Terms and Conditions shall prevail.
8.3 Other than as set out herein, the license granted under these Terms and Conditions is personal and the Licensee shall not assign, sub-contract or otherwise transfer this license or any of its rights or obligations under these Terms and Conditions in whole or in part without the prior written consent of Desert View Records LLC.
8.4 The parties expressly agree that a person who is not a party to these Terms and Conditions shall not have the right to enforce any term or terms of these Terms and Conditions pursuant to the Contract (Rights of Third Parties) Act 1999.
8.5 No delay or omission in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy and no single or partial exercise thereof shall preclude any other or further exercise of any other rights and remedies.
8.6 No waiver shall be binding or effectual unless expressed in writing and signed by the party giving it and such waiver shall be effective only in the specific instance and for the purpose given.
8.7 If these Terms and Conditions create any rights which would in the absence of this provision be enforceable by any person not a party to these Terms and Conditions, such rights shall not be enforceable.
8.8 These Terms and Conditions shall be construed in accordance with the laws of the United States and the parties submit to the exclusive jurisdiction of the courts of the United States.