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LICENSEE AGREEMENT MUSICAL-ALCHEMY
This Licensee Agreement (also referred as the ‘Agreement’) between you (‘you’ or ‘your’) and Musical-Alchemy, a company (‘Musical-Alchemy’ or ‘us’ or ‘our’), is valid from the date you buy a music license from us by choosing a license from the shopping cart from musical-alchemy.com. This is a contract and applies to the Sound Recordings, as defined below, bought by you from the Service, as defined below. This Licensee Agreement operates in conjunction with Musical-Alchemy’s Terms and Conditions applicable to the Service and available at www.musical-alchemy.com. In the event of any inconsistency between this Licensee Agreement and the Terms and Conditions, the terms of this Licensee Agreement shall govern but only to the extent to resolve the conflict.
If you do not agree to the terms of this Licensee Agreement and our Terms and Conditions do not buy your Music License or Sound Recordings from us at musical-alchemy.com.
ARTICLE 1 DEFINITIONS
1.1 The Service
The “Service” is defined as any Content, Music Licenses and Services available through http://www.musical-alchemy.com. The Service is also referred as “Us” or “Our”.
Musical-Alchemy and Content Providers are acting as Licensor, Musical-Alchemy is the company that grants the Music Licenses and makes the Service possible.
Any person or entity or their agent or the like who buys a Music License on musical-alchemy.com through acceptance of the Licensee Agreement. Licensee is also referred as “You” or “the Purchaser”.
1.4 Content Provider
Any person or entity or their agent or the like who makes Content, Licensed Material and Sound Recordings available for download on musical-alchemy.com by accepting and by agreeing to the Content Provider Agreement.
1.5 Music License
A Music License gives the Licensee permission to use the Licensed Material in accordance with this agreement.
1.6 Licensed Material
Licensed Material refers to sound recordings and music compositions, including lyrics, summarised as Sound Recordings. This Licensed Material is presented by Musical-Alchemy as a Music License. All references in this Agreement to Licensed Material will refer to each separate item of the Licensed Material as to the Licensed Material as a whole. Licensed Material is also referred to as “Content”.
1.7 Sound recordings
Sound Recordings is defined as any Sound Recording, including but not limited to stock music, production music, music cues, production elements, sound effects and the like (each one a “Sound Recording” and together “Sound Recordings”) recorded by a Content Provider.
Sound Recordings made available for downloading on musical-alchemy.com by a Content Provider or artists.
This site uses the Dutch definition of copyright (Auteursrecht). Copyright is the exclusive right of the creator of a Sound Recording, or their assignees, to publish and duplicate the Sound Recording, as stated in Dutch law.
Reproduction refers to all manner of copying or publication, in part or as a whole, of any Licensed Material by any media and any method, to any distortion, editing, cutting or manipulation of Licensed Material, in part or as a whole and to the creation of any derivations of the Licensed Material or any derivations in which Licensed Material is used.
2.1 Editing, Modification, Altering
Editing, Modification, Altering refers to the use of part of the Sound Recording by Licensee, this includes the editing, looping, enhancing or alteration of the Sound Recording, on condition that an alteration as such:
a. does not alter the fundamental character of the used part of the Sound Recording;
b. does not give rise to any copyright infringements or claims (including rights or claims on the basis of the copyright) regarding the edited Sound Recording on the part of the Licensee.
ARTICLE 2 LICENSE INCLUDES
2.1 Musical-Alchemy grants to Licensee a direct, non-exclusive, non-transferable, non-sub licensable worldwide right, to use and reproduce the Licensed Material. All Licensed Material must be downloaded within one (1) year of the date of purchase, by clicking the link in the email as mentioned in article 8 of this agreement. A Music License may include (when in accordance to article 3 and article 4):
a. a license to add Sound Recordings to an audio visual productions;
b. a license to publicly use the Sound Recordings in a place open to or generally available to the public or transmit the Sound Recordings by means of any device (internet, broadcast, telephone, wire, wireless phone, etc.) to the public.
2.2 Licensee may Edit, Modify or Alter the Licensed Material as necessary for its intended use, provided that any such editing, modification or alteration does not give rise to any ownership rights or claims, including copyright on the part of Licensee to the Licensed Material. The editing, modification or altering of the Licensed Material is only allowed if the editing, modification or altering is in accordance with the terms in article 4 of this agreement and it is obligated to preserve all Sound Recordings in their original form.
2.3 Licensee may store the Licensed Material in a digital library, network configuration or similar arrangement to allow the Licensed Material to be accessed by employees, partners and clients of Licensee, so long as the conditions under which the License is granted will be maintained.
2.4 Musical-Alchemy has made reasonable efforts to ensure that it is authorized by Content Providers to sell the Sound Recordings provided by them in the form of Music Licenses. If local law states that royalties have to be paid, this risk is for the Licensee.
2.5 All rights not expressly granted by Musical-Alchemy are hereby reserved.
2.6 Adjustments in the translation of the lyrics or song title of Licensed Material are permitted, provided that it is clearly indicated.
ARTICLE 3 USAGE AND DURATION OF THE MUSIC LICENSE
A Music License is bound to duration, usage and price of the Music License. The price of the Music License is specified in the Shopping Cart and the Terms and Conditions.
3.1 The usage and duration of the Music Licenses are further specified on the site Musical-Alchemy.com in the Shopping Cart. The prices are also calculated on the basis of the information mentioned in this article. If you want to extend a Music License please email us at email@example.com.
3.2 Usage: specifies the use of the Music License, these are divided into four categories:
- Game/ Movie/ Documentary
- News item/ Sports item
- TV show/ Radio show
- Promotion/ Commercial
3.3 Duration: specifies the length of the Music License in number of months:
- 3 Months
- 6 Months
- 12 Months
3.4 A Music License to use Licensed Material with visual productions and synchronize the Licensed Material to television programs, radio commercials, TV commercials, websites (in a streaming format only), corporate videos, power point presentations and the like, during the Term and Usage options as set in the Shopping Cart shall not be applicable to any Term or Usage created after the Term's expiration/termination or change of Usage options. This Licensed Material remains subject to all applicable copyright laws and in no way should be construed to grant Licensee copyright of the Content.
All other rights in and to the Licensed Material are explicitly reserved by Musical-Alchemy and/or its Content Providers, as applicable.
ARTICLE 4 RESTRICTIONS
4.1 The licensee is not permitted to:
a. use the Licensed Material by other means than chosen as such in the Shopping Cart on www.musical-alchemy.com, as stated in and in accordance with article 3 of this agreement;
b. make the Licensed Material available in any form to allow a third party to download, distribute or share the Licensed Material in similar ways;
c. to offer the Licensed Material to the market as a standalone file, for example as a digital download; the Licensed Material must be incorporated in Licensee’s work;
d. use the title or subtitle of the Licensed Material as the title of any work of the Licensee;
e. create and reproduce adaptations;
f. Reproduce the Licensed Material or to distribute and publicly perform adaptations of the Licensed Material;
g. use the Licensed Material as a component of a larger musical composition, including but not limited to “sample-based” musical productions;
h. use the Licensed Material to manufacture, distribute or sell audio-only products, whether in the form of compact discs (CD’s), cassettes, phonographs, digital downloads or any other format or media now known or hereafter devised;
i. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute or act as an intermediary or provider, or otherwise grant rights to third parties to the Licensed Material or the rights granted under this agreement.
4.2 Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of the Licensed Material or a substantial part of it.
4.3 Licensed Material shall not be incorporated into an intro, a leader, a commercial, a presentation, a ringtone, a sound bite, a teaser, a documentary, a trailer, a promotion, a compilation, an impression or game or film music, without obtaining the prior consent of Musical-Alchemy.
4.4 Unlawful and illegal use of Licensed Material is strictly prohibited, whether directly or indirectly. Licensee shall also comply with any applicable regulations and/or industry codes.
4.5 While efforts have been made to correctly caption the information related to the Licensed Material, Musical-Alchemy does not warrant the accuracy of such information.
4.5 Licensee will ensure in every logical en possible way that it is not allowed for others to download, republication, retransmission, reproduction or other use the Licensed Material.
ARTICLE 5 CONDITIONS OF LICENSED MATERIAL
Licensee should examine all purchased Licensed Material for possible defects (whether digital or otherwise) before using the Licensed Material. Musical-Alchemy shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any licensed Material.
ARTICLE 6 INTELLECTUAL PROPERTY
6.1 No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the Music License contained in this agreement. Musical-Alchemy grants Licensee no right or license, express or implied, to any Licensed Material except as expressly stated in this agreement and in the Shopping Cart section on the site; musical-alchemy.com.
6.2 Trade names, trademarks, logos or service marks, including the names of all music collections, Licensee acknowledges and agrees that these are and shall remain the sole property of Musical-Alchemy and/or their respective owners. Licensee shall not contest the validity of these, now or in the future.
6.3 Licensee will immediately notify Musical-Alchemy if it becomes aware or suspects that any third party has gained access to the Licensed Material through Licensee, or is wrongfully using the Licensed Material, in whole or in part, or is violating any of (the providers of) Musical-Alchemy’s intellectual property rights, including, but not limited to copyrights.
ARTICLE 7 ELECTRONIC PAYMENTS
Licensee and Musical-Alchemy agree that the Music License must be paid electronically. Via PayPal or IDEAL as present on the musical-alchemy.com site. When payment of the Music License is received by Musical-Alchemy, the Licensed Material will be automatically sent to the email address associated with Licensee’s account.
ARTICLE 8 FREE MUSIC
A Licensee who wishes to use free music on the site musical-alchemy.com must agree to this Licensee Agreement. All provisions of this Agreement shall also apply to him with the exception of the provisions on payments. Musical-Alchemy can never be held liable for the use of free music. In addition, all other provisions on liability in this Agreement shall apply to the use of free music by Licensee.
ARTICLE 9 AN EXCLUSIVE MUSIC LICENSE
If desired a Licensee can buy an exclusive Music License. The conditions and price for this will be agreed to by all parties involved. Musical-Alchemy and Licensee will therefore correspond with the Content Provider and to what extent this agreement will apply to the exclusive Music License.
ARTICLE 10 WARRENTY AND LIMITATION OF LIABILITY
10.1 Musical-Alchemy warrants that:
a. the Licensed Material will be free from defects in material and workmanship. The only remedy for a breach of this warranty is the replacement of the Licensed Material;
b. Musical-Alchemy has all necessary rights and authority to enter into and perform this Agreement;
c. The Licensed Material in the form as delivered by Musical-Alchemy and in accordance with this agreement will not be an infringement or a violation on any copyright, intellectual property right or privacy right. Nevertheless Licensee is responsible for any payments that are required by all worldwide organizations (for instance BUMA Stemra) that promote exploitation of music and protect copyright. Licensee is also responsible for any payment of amounts that may be due compliance of any other terms of any (collective) agreement(s) as a result of the use of the Licensed Material.
10.2 Without limitation Musical-Alchemy shall not be liable to Licensee or any other person or entity for any (indirect, incidental) damages, cost or loses arising out of this agreement. Musical-Alchemy shall not be liable for any damages, costs or losses arising as a result of modification made to the Licensed Material or in the context in which Licensed Material is used by Licensee. Musical-Alchemy does not make any other express or implied warranties, regarding the Licensed Material or its delivery systems, including, without limitation, any implied warranties of merchantability for particular purpose.
10.3 Licensee acknowledges that the website of Musical-Alchemy can be subject to interference or may possibly be offline due to maintenance. For this Musical-Alchemy cannot be held liable. Musical-Alchemy and or any other party involved in creating producing or distributing the site cannot be held liable by the Licensee for any damages resulting from use of Licensee including but not limited to the results from mistakes, omissions, interruptions, deletion of files or electronic mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction, or unauthorized access thereto.
ARTICLE 11 UNAUTHORIZED USE AND TERMINATION
11.1 Any use of a Licensed Material outside this agreement constitutes an infringement of copyright and provides the ability to take action against it by Musical-Alchemy. This also includes the use beyond the agreed upon time-limit of the Music Licenses. Licensee is liable for such copyright infringement, this liability also applies to claims of third parties.
11.2 Without prejudice and in addition to other penalties, Licensee agrees that in the event of any unauthorized use, a payment of five times the value of the unauthorized used Licensed Material must be made to Musical-Alchemy.
11.3 In the following cases, this agreement will be summoned by Musical-Alchemy:
a. if Musical-Alchemy finds out that the Licensed Material is used in any unauthorized fashion;
b. if there are other violations to the Licensed Material or to this agreement;
Upon termination, Licensee must immediately stop using the Licensed Material and destroy the Licensed Material.
ARTICLE 12 INDEMNIFICATION
12.1 Licensee shall defend, indemnify and hold harmless Musical-Alchemy and their directors, employees and controlled affiliates from all damages and liabilities (including reasonable legal costs and attorneys' fees) arising from claims of third parties in connection with the use of the Licensed Material by Licensee outside this agreement or in connection with any actual or alleged breach of this agreement by Licensee.
12.2 Music Licenses are only used in accordance with this Agreement. Licensee may not act contrary to this Agreement or act in contrary to payments under this contract.
The maximum liability of Musical-Alchemy under this Agreement is limited to 1000 (thousand) Euros regardless of the size of the Music License, furthermore Musical-Alchemy will be held unaccountable.
12.3 The party who is seeking indemnification will immediately inform the other party of such claim.
ARTICLE 13 MISCELLANEOUS TERMS
13.1 Musical-Alchemy, either through its own employees or through a third party, can verify that Licensee complies with the conditions agreed to in the Licensee Agreement. If Licensed Material is used outside of the usage and duration as granted in the Music License on the site musical-alchemy.com and outside this Agreement, a certificate of conformity must be signed by an official. The costs are borne by Licensee. The certificate cannot be signed before it has been approved by Musical-Alchemy. If there is an underpayment of more than 5% on the payment of Music Licenses owed by the Licensee to Musical-Alchemy, Licensee must still pay the missing amount of the underpayment and Licensee will also reimburse all additional administrative costs. If Licensee refuses to cooperate with the above measures, the Music License will be withdrawn without retroactive repeal, there will be no refund and the Licensed Material of this Licensee Agreement can no longer be used by Licensee.
13.2 Licensee shall protect the Licensed Material against unauthorized use by third parties. If it concerns a digital version, Licensee shall protect the Licensed Material by a firewall and indicate that the copyright of the Licensed Material, in possession of Licensee, is owned by Content Provider.
13.3 Upon notice from Musical-Alchemy any Licensed Material may be subject to a claim of infringement of another’s right for which Musical-Alchemy may be liable, Musical-Alchemy may require Licensee to immediately and at its own expense:
a. stop using the Licensed Material;
b. delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical);
c. ensure that its clients do likewise.
Musical-Alchemy shall provide Licensee with comparable Licensed Material (which comparability will be determined by Musical-Alchemy in its reasonable commercial judgment) free of charge, but subject to the other Terms and Conditions of this Licensee Agreement.
13.4 The remaining provisions shall not be affected if it appears that provisions of this agreement shall be illegal, invalid or unenforceable. Such provisions shall be revised only to the extent they perform in stock.
13.5 Only the express written provision of distance may be construed as a waiver of any provision of this Agreement. No other conduct of the parties to this Agreement shall be construed as a waiver of any provision of this Agreement.
13.6 This Agreement is intended for business customers of Musical-Alchemy. No provision of this Agreement may be added or deleted unless made in writing and signed by Musical-Alchemy and Licensee. If a conflict arises over agreed provisions, the provisions in this Agreement will apply.
13.7 All Music License fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or purchaser (if any).
13.8 This Agreement is governed by Dutch law. All disputes arising out of or relating to this Agreement or the enforceability thereof or the business relationship with the parties is settled by mediation, by a mediator who falls under the rules of the NMI (Nederlands Mediation Instituut, Dutch Mediation Institute) as applicable on the date of the commencement of the arbitration, the arbitration will be held in the Netherlands. The mediation procedure shall be conducted in Dutch or in English and all documents should be hold in Dutch or in English. The decision is binding on the parties. The prevailing party shall be entitled to reasonable legal costs in connection with the claim or defence be compensated. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Despite the foregoing, Musical-Alchemy has the right to initiate legal proceedings against a Licensee for an interim recovery or to obtain any measure Musical-Alchemy considers it desirable or necessary. Parties agree that the mediation process must be started within six (6) months after the event giving rise to the claim occurred.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE, IN ADDITION TO THIS LICENSEE AGREEMENT READ AND AGREED TO THE TERMS OF SERVICE AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN.
BY BUYING MUSIC LICENSES OF MUSICAL-ALCHEMY.COM AND/OR USE OF THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN, AS APPLICABLE, AND GRANT MUSICAL-ALCHEMY THE RIGHTS SET FORTH HEREIN.