Content Purchase: General Terms & Conditions
1. Definitions and interpretation
In this Agreement:
- Advance means the amount set out in Content Purchase Terms (if any).
- Author means the author of a work and includes the maker or creator of copyrighted subject matter other than a work as used or defined in the Copyright Act 1968 (Cth).
- Copyright means:
- any copyright under the Copyright Act 1968 (Cth);
- any copyright under the law of a country other than Australia; and
- rights in the nature of or analogous to the rights in (i) and (ii) under the law of Australia or any other country (including future copyright and rights in the nature of or analogous to copyright).
- Distribution Expenses means the reasonable direct out of pocket costs paid or incurred by Brown Cardigan Media or any of its sub-distributors relating to the exploitation of the Content, including but not limited to: technical costs; freight and shipping charges (if applicable); advertising, marketing and publicity costs relating to the distribution of the Content; customs and permit charges which may be required to secure the entry of the Content into a territory; censorship fees; storage costs; taxes imposed or levied by a jurisdiction or country of the Territory; legal costs and fees paid to obtain recoveries for infringement by a third party of the Content; additional customary and reasonable costs actually paid by Brown Cardigan Media in using the Content; music copyright royalties; costs of translating (into or from English) documents in connection with marketing the Content; costs of duplications of all Delivery Materials for the Content; currency exchange or bank transfer fees; directly related legal fees and disbursements; salaries, commissions, and the related costs of Brown Cardigan Media’s employees specifically employed to market and/or license the Content; any and all costs of producing Delivery Materials which the Content Owner is unable to deliver or does not deliver in a technically complete and accurate manner in accordance with this Agreement or as otherwise agreed with the Content Owner, and which Brown Cardigan Media thereby produces, together with an administration fee.
- GST means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Moral Rights means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future in respect of the Licensed Content under the Copyright Act 1968 (Cth) or under the law of a country other than Australia.
- Net Proceeds mean the gross monies actually received by Brown Cardigan Media from the direct exploitation of the Content, less any Distribution Expenses.
- Performers' Protection means the protections in performances granted to performers in Pt XIA of the Copyright Act 1968 (Cth) or under the law of a country other than Australia.
- Royalties means the Content Owner's entitlement to Net Proceeds (if any) as set out in Content Purchase Terms.
In this Agreement:
- words or phrases defined in the Copyright Act 1968 (Cth), as amended, must have the same meaning if used in this Agreement unless the contrary intention is shown or the meaning is inconsistent in the context;
- "related body corporate" must have the meaning as defined in the Corporations Act 2001 (Cth);
- this Agreement must not be interpreted adversely to a party only because that party was responsible for preparing it;
- headings are for convenience only and do not affect the interpretation of this Agreement;
- references to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture and association, and includes that person’s legal personal representatives, executors, administrators, successors and permitted assigns;
- every obligation entered into by two or more parties binds them jointly and each of them severally;
- where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
- "includes", “including” and similar expressions are not words of limitation;
- all monetary amounts are in Australian dollars; and
- reference to any agreement or other document annexed to or referred to in this Agreement includes any amendments to it and any documents in addition to or in substitution for it which has been approved in writing by the parties to this Agreement.
- In consideration of the Fee described in Content Purchase Terms item 3 paid to the Content Owner by Brown Cardigan Media, the Content Owner assigns absolutely to Brown Cardigan Media:
- the entire copyright throughout the Territory and all other rights of a like nature, whether vested, contingent or future, in the Content including all renewals and extensions of copyright; and
- all right, title and interest in the Content and any Delivery Materials in whichever manner of physical form they exist in;
- any and all rights of action and remedies (whether arising at common law or under any statute) in relation to the Content available to the Content Owner at the date of this agreement in respect of the Territory.
3. Delivery of Content
- The Content Owner will deliver the Content and any Delivery Materials as set out in Content Purchase Terms to Brown Cardigan Media via an upload link as set out in Content Purchase Terms or as otherwise advised by Brown Cardigan Media. In the event that the Content or any Delivery Materials are not delivered to Brown Cardigan Media immediately upon the Content Owner entering into this Agreement, Brown Cardigan Media shall have the right to terminate this Agreement, without prejudice to its other rights and remedies, and the Content Owner undertakes to immediately refund any part of the Fee paid by Brown Cardigan Media as of the termination date.
- Brown Cardigan Media shall view the Delivery Materials within 30 days or, if more time is necessary, a reasonable time after receipt to determine its technical acceptability. Content Owner agrees to be bound by Brown Cardigan Media’s judgment with respect to technical and quality standards.
- If Brown Cardigan Media determines that the Content or any of the Delivery Materials unacceptable for any reason (including technically unacceptable) Brown Cardigan Media may either:
- Notify Content Owner that the Content or any of the Delivery Materials are unacceptable. Upon receipt of such notice, Content Owner shall promptly resubmit to Distributor at Producer’s expense alternative Delivery Materials and the same procedure shall be followed; or
- terminate this Agreement, without prejudice to its other rights and remedies, and the Content Owner undertakes to immediately refund any part of the Fee paid by Brown Cardigan Media as of the termination date.
4. Advance and Royalties
- Subject to the provisions of this Clause 4, and after the recoupment of the Advance, Brown Cardigan Media agrees to pay the Royalties (if any) to the Content Owner.
- For the avoidance of doubt, the Content Owner acknowledges that the Advance constitutes an advance recoupable from any money payable by Brown Cardigan Media to the Content Owner.
- Brown Cardigan Media shall forward to the Content Owner a royalty report within thirty (30) days following the end of each calendar quarter. Payment of funds due to the Content Owner will be made after receipt of an appropriate invoice from the Content Owner but in any event not before thirty (30) days following the end of each applicable reporting period. If during any accounting quarter, royalties payable to the Content Owner are less than One Thousand Dollars (AU$1,000.00), then Brown Cardigan Media will not be obliged to pay the Content Owner such funds at the end of that reporting period and may carry those funds over to the next reporting period.
- No more than once a year and only once in respect of each royalty report, the Content Owner (only via an independent and sufficiently qualified auditor) shall have the right to inspect (at Content Owner's expense) Brown Cardigan Media’s books and records with respect to the Content and royalty reports provided under this Agreement at Brown Cardigan Media’s premises. The cost of such audit(s) shall be borne by the Content Owner unless Brown Cardigan Media's records are found to be inaccurate by five (5%) percent or $10,000 or more due to the Producer; whichever is higher, then the cost together with underpayment shall be paid by Brown Cardigan Media.
- Brown Cardigan Media may cross-collateralise all Net Proceeds for the purpose of recoupment of the Advance and Distribution Expenses.
- Brown Cardigan Media shall direct any funds payable to the Content Owner to the bank account set out at Content Purchase Terms, or such other bank account as directed by Content Owner in writing.
The Content Owner warrants that:
- it is the sole legal and beneficial owner of the copyright in the Content granted to Brown Cardigan Media in this agreement, and that it has the legal authority to enter into this agreement;
- the Content Owner has not licensed, charged, encumbered or assigned to any other person, in whole or in part, any rights in the Content, or has in any way dealt with the Content in a manner inconsistent with the Content Owner's obligations under this agreement;
- the Content including any artistic works, literary works and dramatic works used in the Content and the musical works and sound recordings synchronised with the Content, do not, and will not, in any way infringe the copyright or any other rights of any person or entity;
- there is no present or prospective claim, proceeding or litigation in respect of the copyright in the Content which may impair, limit, inhibit, diminish the rights in the Content in the Territory that are assigned to Brown Cardigan Media pursuant to this Agreement;
- it has obtained, and will maintain in good standing, all consents necessary to exploit use the Content in the Territory during the remainder of the term of copyright in the Content including:
- the authority of the owners of the copyright in the underlying literary works, scripts and other dramatic works adapted for use in the Content;
- the authority of the owners of the copyright in the musical works and sound recordings synchronised with the Content; and
- the authorisations in relation to performer's protections from persons whose performance is used in the Content;
- except for the public performance licensing of the musical works and sound recordings used in the sound-track of the Content, no residual payments to any person whose performance, services or work is incorporated in the Content, will be required to be made by the Content Owner to enable it to exploit the Content in the Territory during the remainder of the term of copyright in such works or material other than works that are incorporated in the Content;
- it has obtained Moral Rights waivers or consents to ensure that the exercise of the rights granted to Brown Cardigan Media pursuant to the terms of this agreement, include consents to alterations to the Content an unrestricted basis;
- no individual appearing in the Content is entitled to the benefit of any Performers' Protections;
- the Content will not, unless Brown Cardigan Media’s consent is first obtained, contain any advertising material for which compensation, direct or indirect, has or will be received by the Content Owner or to its knowledge by any other person, firm or corporation;
- the Content is not pornographic, defamatory, or could be considered libelous, obscene, or illegal; and
- Brown Cardigan Media has the right to use the names, likenesses and biographies of the Content's scriptwriters and directors and persons whose performance is used in the Content for the purposes of advertising, promotion and publicity of the exploitation of the Content in the Territory.
- The Content Owner agrees to defend, indemnify and hold Brown Cardigan Media and any related body corporate and personnel harmless from and against any and all claims, liabilities, judgments, penalties, and taxes, civil and criminal, and all costs, expenses (including, without limitation, legal fees) arising out of or relating to Brown Cardigan Media’s use or exploitation of the Content or any breach or alleged breach of any agreement or warranty by the Content Owner.
- To the fullest extent permitted by law, Brown Cardigan Media or any employee, agent, officer or director will not be liable for any loss suffered by any Content Owner or other person arising out of or in connection with is use of the Content or relating to this Agreement, whether direct or indirect, including loss of revenue, loss of use or value of any data or equipment including software, wasted management, operation or other time (whether any of the foregoing are direct, indirect or consequential), loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, and whether caused by tort (including negligence), breach of contract or otherwise, except in respect of any liability for death or personal injury or any other liability which cannot be excluded or limited under applicable law.
7. Breach and Termination
- In the event of a breach of this Agreement by Brown Cardigan Media, the Content Owner shall not be entitled to rescind or terminate this Agreement or any of the rights granted hereunder nor shall the Content Owner be entitled to restrain, enjoin or otherwise impair the exploitation, advertising, promotion or publicity of the Content. Without limiting clause 4(b), it is expressly understood and agreed that the Content Owner’s sole remedy in the event of any breach shall be an action at law for damages, if any.
- In the event of any termination by Brown Cardigan Media, Brown Cardigan Media shall have no further obligations to make any payments (whether of the Advance or otherwise) to the Content Owner and the Producer shall immediately repay to Brown Cardigan Media, all unrecouped portions of the Advance (whether in whole or in part) upon demand. Brown Cardigan Media right to terminate is not to the exclusion of any other rights or remedies which Brown Cardigan Media might have. Brown Cardigan Media may decline to exercise any of such rights or remedies as Brown Cardigan Media may deem fit, without jeopardizing any future exercise of the rights and remedies available to Brown Cardigan Media.
8. GST and Withholding Tax
If the Fee is expressed as being exclusive of GST in the Content Purchase Terms, and iff GST is payable in respect of payments made by Brown Cardigan Media to the Content Owner under this Agreement, the amounts payable will be increased by the amount of the GST, provided that:
- the Content Owner is registered for the purposes of GST; and
- the Content Owner will provide Brown Cardigan Media with an invoice that complies with the form of "tax invoice" specified in the GST regulations.
- All notices required pursuant to this Agreement must be in writing in English. All notices required to be sent to Brown Cardigan Media under this agreement should be sent via email to [email protected] Content Owner will be sent notices via email using the email address set out in Content Purchase Terms.
- In relation to email, receipt is deemed to be acknowledged by the recipient by a delivery receipt notification generated by the recipient’s email system after sending of the email containing the notice or to which the notice is attached. Emailing notices must constitute sufficient and effective delivery when delivered to the recipient’s email account, whether or not the specific electronic communication is accessed or read.
10. General Provisions
This Agreement is subject to the laws of the New South Wales, Australia. The courts of the state or territory listed in [New South Wales, Australia] have exclusive jurisdiction over any disputes arising in respect of this Agreement.
10.2 No partnership or agency relationship
Nothing contained in this Agreement must be deemed to constitute partnership between the parties. Nothing contained in this Agreement must deem either party to be the agent of the other party. Neither party must engage in any conduct or make any representation which may suggest to any person it is for any purposes, the agent of the other party.
10.3 Entire agreement
This Agreement sets out the entire agreement between the parties with respect to the Content. It replaces all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter. This Agreement may not be modified except by written agreement signed by each party.
10.4 No waiver
Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
10.6 Further assurances
Each party must promptly execute all documents and do all things necessary or desirable to give full effect to the arrangements set out in this agreement.