1. Grant of Licence
1.1 Formation of this Agreement: By clicking “I agree” or otherwise signifying your acceptance of this Agreement or by downloading, copying or using any Content, you accept these Terms, and agree to be bound by this Agreement in relation to that Content.
1.2 Licence: We grant you a non-exclusive, worldwide, perpetual right and licence on and subject to the terms and conditions of this Agreement:
- to use, copy, edit, modify, manipulate, couple and synchronise the Content in any independently authored derivative or other work in any media now known or hereafter devised (including in-context works for advertising and promotion), which incorporates Content together with other substantial independently created works, including performances of the Content that are broadcast or streamed;
- to copy, publish, publicly display and perform, transmit, broadcast, telecast and distribute the Content world-wide; and
- to use the tags, meta data, designations, disclaimers, restrictions, annotations, information and documentation that are available on the Website or otherwise provided by us to you with, in or otherwise relating to Content internally to facilitate the foregoing with regard to the Content.
1.3 Nature of the Licence: The Licence is a personal, non-transferable licence to you:
- in relation to Standard Content – as an end-user of the Content; and
1.4 Retention of rights to Content: Subject only to the non-exclusive rights granted to you under this clause 1:
- we retain all Intellectual Property in or in relation to the Content; and
- you do not acquire any such Intellectual Property or any property or rights in or in relation to the Content except the non-exclusive right to use the Content in accordance with this Agreement.
1.5 Personal Information and Third Party IP: The Licence does not include, and we make no warranties with regard to, any Personal Information of any person or any Third Party IP that may be included or depicted in the Content.
1.6 Licence subject to compliance: The Licence is conditional on compliance by you with your responsibilities and obligations under this Agreement, including our receipt of full payment of the Licence Fee and any other amounts payable under this Agreement.
2 Permitted use and restrictions on use
2.1 Permitted use – Standard Content: If the Licence is a Standard Licence:
- you may download, access and use the Content, but may not forward or transmit it ;
- the individual who the Content through the Website is deemed to be that person unless at the time of download another individual was designated on the checkout page of this Website or otherwise in writing to us as the user; and
- you must comply with clauses 2.2, 2.3, 2.4 and 2.5.
2.2 Restrictions on use – Standard Content: You must not sell, offer to sell, resell, sublicense, rent, loan, assign or transfer or provide any Standard Content to any Third Party except as expressly permitted by this Agreement, and accordingly you must not:
- use Standard Content in whole or part to manufacture, distribute or sell records, CDs, jukeboxes, mp3s or any other predominantly audio product embodying it, in whole or in part, that is not synchronised or combined with other audio or musical content to create a derivative work as permitted in this Agreement (for example, you must not use it to create a CD or other music compilation to give away or sell);
- place Standard Content on or in any product or platform that makes it available in a manner such that a person can without extraordinary effort extract or access or reproduce it as an electronic file;
- use or display Standard Content in whole or part in an electronic format that enables it to be accessed or distributed or shared in any peer-to-peer or similar file sharing arrangement;
- resell Standard Content in whole or part as backgrounds, “hold“ music or ringtones;
- incorporate Standard Content in whole or part in any product or platform that results in its re-distribution or re-sale (such as music download sites, stock music CDs, electronic greeting card websites, web templates and the like); or
- use Standard Content in a design template application intended for resale, whether on-line or not, including a website template or electronic greeting card template.
2.3 Restrictions on use – all Content: You must not:
- make any change in any lyrics or music which comprises any Content;
- except as expressly permitted by clause 2.5:
- distribute, transmit or publicly display Content as a template, a stand-alone file or to others for consumption, reproduction or re-sale; or
- superficially modify any Content and sell or license it to others for consumption, reproduction or resale.
- use any Content in a pornographic, unlawful or defamatory context or manner, including use:’
- in connection with pornography, adult videos, adult entertainment venues, escort services, dating services, or the like;
- in connection with the advertisement or promotion of tobacco products; or
- depicting a person in the Content as engaging in acts of moral turpitude or criminal activity.
2.4 Moral rights: You must ensure that Content is not subjected to any treatment which is prejudicial to our personal, professional or business reputation, and do not infringe our moral rights or those of any other person who is the author of Content.
2.5 Notification of use – all Content: You must promptly notify us of each use of Content, either by email ([email protected]) or by the Contact page on this Website (https://www.andrewohalloranmusic.com). You agree that we may disclose the fact of the use, and your identity as a user, but must not disclose any Personal Information concerning you without your prior written consent.
3.1 Editorial Content: The Licence includes the licence to use Editorial Content in connection with the permitted use of other Content, and such licence is given on the same terms as the Licence, to the extent applicable.
3.2 Credit line: In the case of any use or publication of any Content (including Editorial Content), you must accompany the use with a credit line hyperlink to https://www.andrewohalloranmusic.com and a legend that reads “Stock media provided by Andrew O’Halloran Music” (or materially the same language).
4. General obligations applicable to you
4.1 Compliance with laws: You must:
- comply with all laws in any jurisdiction in which Content is used; and
- if in relation to the use of Content (including Standard Content) the law of any jurisdiction requires that rights be obtained from (or royalties be paid to) a PRO, you must obtain such rights and paying any required royalties.
4.2 Injunctive relief: You acknowledge and agree that:
- Content, or Intellectual Property contained in it, may possess a special, unique and extraordinary character which may make it difficult or impossible to assess the pecuniary damage which would be sustained by unauthorised use;
- irreparable injury could be caused to us by unauthorised use of the Content or that Intellectual Property; and
- we are entitled to seek injunctive relief in the event of a breach of this Agreement.
5. Licence Fee and other payments
5.1 Licence Fee: The consideration payable by you to us in respect of a Licence granted under this Agreement is the Licence Fee for that Content specified on the Content Page.
5.2 Licence Fee may be changed: Prices for Content indicated in this Website are subject to alteration by us without notice, except in respect of a Licence granted before the change comes into effect.
5.3 Payment: The prices stated in this Website are in Australian Dollars, and you must pay for Content in Australian Dollars, without any set off, deduction or withholding of any kind, including withholding tax or amounts charged for currency conversion.
5.4 VAT: Unless otherwise specified, prices stated in this Website do not include taxes (such as GST, VAT, sales or use taxes, customs duties and any related interest or penalties) attributable to the Licence or the supply of the Content (whether imposed on or invoiced to us or you) (“VAT”). If VAT is imposed on any supply under this Agreement, then you must pay an additional amount for VAT in the same manner and at the same time as the Licence Fee.
5.5 Withholding taxes: If you are required by law to withhold any amount from a payment due to us, or if a financial institution or other intermediary deducts from your payment to us any amount for tax, currency conversion or other services, the Licence Fee is increased by the amount that would cause the net amount actually received by us to equal the full amount of the Licence Fee payable for the grant of the Licence.
5.6 Grant of Licence final: The grant of a Licence is final, and we are under no obligation to refund any Licence Fee paid by you for Content under any circumstances, except as provided in this Agreement. However, if you request a refund, and we, in our discretion, agree to give you a refund, then:
- subject to paragraph (b), the Licence granted in this Agreement for the Content is rescinded as if never granted;
- we are entitled to deduct from the refund the amount of our costs incurred in making the refund; and
- any refund will be made by such means as we determine is appropriate.
6. Claims by or against third-parties
6.1 Infringements of our Intellectual Property: If you receive notice or become aware of any infringement or threatened infringement of the Intellectual Property in the Content (including by any common law passing off by reason of imitation or otherwise), then:
- you must promptly notify us, giving particulars and provide all information in relation to the infringement or threatened infringement;
- we may (but are not obliged to) commence proceedings in relation to the infringement or threatened infringement, and such proceedings and their settlement or compromise are to be under our control and at our expense; and
- if we commence proceedings, then you will at our request and cost provide reasonable assistance to us in relation to the proceedings.
6.2 Claimed infringement of Third Party IP: If you receive notice or become aware that a Third Party claims that any Content infringes their Third Party IP (including by any common law passing off by reason of imitation or otherwise), then:
- you must promptly notify us giving particulars and provide all information in relation to the claim;
- we may (but are not obliged to) defend the claim, and, if we do, then you will at our request and cost provide reasonable assistance to us in relation to the defence; and
- you must comply with any instruction we give you in relation to the Content the subject of the claim, including:
- to remove the Content from your computer systems and storage devices (electronic or physical);
- to cease any future use of the Content; and
- to permit the inclusion of statements or material in any tag or notification accompanying the use of the Content.
6.3 Substituted Content: If either or both of subparagraphs 6.2(c)(i) and (ii) apply, and you comply with those subparagraphs, then we will either (at our option):
- refund the Licence Fee for the applicable Content; or
- without charge, provide you with other Content that we determine, with your consent, is comparable.
6.4 Exclusion: Our obligations under clause 6.3 do not apply in relation to any claim referred to in clause 6.2 which
- arises out of modifications made to Content by you or made after the Content has been downloaded by you;
- arises out of the particular context in which the Content is used; or
- relates to any Editorial Content,
and do not apply unless you are and remain in full compliance with this Agreement.
7. Representations and Warranties
7.1 Express warranties: We warrant with regard to Content that:
- we have the right and authority to enter into and grant the rights in the Content granted to you in this Agreement, subject to all applicable limitations and exclusions in this Agreement; and
- when Content is downloaded and used in compliance with this Agreement and applicable law and with respect to which you have fulfilled your responsibilities and obligations under this Agreement, including your payment of the Licence Fee and all other amounts under this Agreement, the Content does not:
- infringe any Intellectual Property of any Third Party; and
- violate any privacy or publicity rights of any Third Party.
7.2 Exception: The above representations and warranties do not apply with respect to any Third Party IP in Content or with respect to Editorial Content.
7.3 Non-excludable warranties: You have or may have warranties under either or both of:
- the Australian Consumer Law; and
- the law of other jurisdictions,
which may not be excluded or limited. This clause 7.3 applies despite any other provision of this clause 7, but it is your responsibility to determine the applicability of any such laws.
7.4 Exclusion of warranties: Except for the warranties under clauses 7.1 and 7.3, all conditions, warranties, representations and liability, whether express or implied, and whether arising under statute or the general law, are excluded.
7.5 Exclusion of liability in other jurisdictions: This Website is controlled and operated from Australia, and we make no representation that any Content (including PRO Content) is appropriate for downloading or use in other locations. If you download or use Content in a location outside Australia, you are responsible for compliance with applicable local laws in relation to your use of this Website, and downloading and using Content.
7.6 Your representations and warranties: You represent and warrant that:
- you are (both in relation to Australia and the jurisdiction in which you are domiciled or resident, if not Australia) of legal age and of full legal capacity;
- you are aware that, by taking the action required to form this Agreement, you create binding legal obligations set out in this Agreement between you and us;
- if you are entering into this Agreement on behalf of your employer or other person, you have the full right and authority to enter into and perform this Agreement on behalf of such person, so that this Agreement is a binding Agreement of such person, enforceable against such person in accordance with its terms; and
- all information provided to us by you or under your User ID is accurate and true, including all information relating to credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
7.7 Consequences of breach of warranty: If you are in breach of a representation or warranty under clause 7.6, then, in addition to all rights and remedies available against any other person arising out of that breach, you are personally liable to us in respect of that breach.
8. Indemnity and Limitation of liability
8.1 Our indemnity: Subject to this clause 8, we agree to indemnify you from and against any direct loss (including reasonable legal costs and expenses) or liability suffered or incurred by you arising or resulting from a breach of this Agreement (including breach of a representation or warranty) on our part.
8.2 Your indemnity: Subject to this clause 8, you agree to indemnify us from and against any direct loss (including reasonable legal costs and expenses) or liability suffered or incurred by us arising or resulting from a breach of this Agreement (including breach of a representation or warranty) on your part.
8.3 Conduct of claim: The indemnity under clause 8.1 or 8.2 is subject to timely notification of the claim by the indemnified party, and, where the claim for indemnity arises from a claim, demand or cause of action against the indemnified party by a Third Party, to the indemnifying party having the right to undertake and conduct the defence of any such claim, demand or cause of action.
8.4 Limit of our liability to you: Subject to clause 8.6, and to the extent permitted by any applicable law, our maximum liability to you under this Agreement in relation to the indemnity under clause 8.1 or otherwise in respect of a breach by us of this Agreement in relation to any Content is limited:
- where it is found or established that there has been a breach of clause 7.1 – to the amount for which you become liable (including reasonable costs and expenses) in defending the claim made by a Third Party which arises from that breach; or
- in relation to any other breach – to the amount of the Licence Fee actually paid by you in relation to the Licence of that Content.
8.5 Limit of your liability to us: Subject to clause 8.6, and to the extent permitted by any applicable law, your maximum liability to us under this Agreement in relation to the indemnity under clause 8.2 or otherwise in respect of a breach by you of this Agreement in relation to any Content is limited:
- in relation to any act or thing done by you as referred to in paragraph 6.11(a) or (b) – to the amount (including reasonable costs and expenses) for which we become liable in defending or resisting any claim based on the act or thing done by you; or
- in relation to any breach on your part under this Agreement – to the amount of the Licence Fee paid or payable by you in relation to the Licence of that Content.
8.6 Non-excludable liability: The limitation of liability under clause 8.4 or 8.5 does not apply to the extent that such limitation is excluded or prohibited by the law applicable to the claim giving rise to the liability.
8.7 No liability for indirect loss: Neither party is liable under this Agreement and each party excludes liability under this Agreement or otherwise in law, in contract, tort or otherwise, for any indirect, special, economic or consequential loss or damage suffered or incurred by that party or any of those indemnified under this agreement, including (to the extent comprised in the foregoing) any loss of chance, opportunity, profits or loss of revenue, whether or not the party was or should have been aware of the possibility of such damage.
8.8 Force majeure: We are not liable for any loss arising from or the failure to perform this Agreement due to any Force Majeure Event.
8.9 Time limit for making claim: Except to the extent prohibited by any applicable law, no action or proceedings in or with any court, tribunal or authority arising out of the Licence or the provision of Content may be brought by you more than one year after the cause of the action has accrued.
9.1 Grounds of termination: If:
- a Force Majeure Event occurs preventing the supply of Content or the continued supply of Content;
- you are in breach of this Agreement and you fail to cure the breach or other failure to comply with this Agreement within 14 days of written notice from us to do so; or
- we give you notice that the continuance of the Licence or your continued use of Content infringes or may infringe any Third Party IP, or, in our opinion, is likely to give rise to the risk of action alleging such infringement,
then we may by and upon written notice to you terminate the Licence of the Content with immediate effect.
9.2 Consequences of termination: On termination, you must immediately:
- stop using the Content and refrain from any further use of it; and
- delete or remove the Content from computer systems and storage devices (electronic or physical);
- where applicable, ensure that any person who is or may be using the Content through your agency, authority or permission complies with paragraphs (a) and (b).
9.3 Accrued rights preserved: Termination of this Agreement (however occurring) does not extinguish or affect any rights or obligations which have accrued to the time of or by reason of termination (including the obligation to pay and remit to us the Licence Fee due and payable or accrued as at the time of termination).
10.1 Amendment: We may vary these Terms at any time without notice to you, and a variation is taken to be made when it is actually notified to you or when these Terms as varied are published on this Website (whichever is sooner). No such variation applies in respect of any Licence which has been granted by us prior to the time at which the variation has been notified to you. Accordingly, you should review these Terms prior to requesting or applying for a Licence.
10.2 Notice: If we wish to give you notice, we may do so you personally, or by post, fax or email, or by any other means (including by use of social media) in its discretion. If you wish to notify us, you must do so by email to [email protected]
10.3 Severance: A provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless to do so would materially change the intended effect of this Agreement. A provision of this Agreement which is unenforceable or partly unenforceable in one jurisdiction does not affect its enforceability in any other jurisdiction.
10.4 Entire agreement: The Agreement supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to its subject matter, other than the general disclaimers and other Use Terms and Conditions referred to on the Home page of this Website.
10.5 Assignment: This Agreement is personal to you, and you have no interest in this Agreement which is capable of being assigned, transferred or otherwise dealt with. We have the right at any time to assign or transfer all or any part of our interest in this Agreement without the requirement of your consent or of notice to you.
10.6 Governing law and jurisdiction: This Agreement and your use of this Website are be construed in accordance with and governed by the law of and applicable to New South Wales, Australia. You agree to submit to the non-exclusive jurisdiction of the New South Wales courts in relation to any matter arising under or in relation to the meaning or application of these Terms.
11. 1 In these Terms, except where the context otherwise indicates:
- Cleared for Sampling means, in relation to an item of Content, an item of Content on the Content Page which is ticked or checked or otherwise designated as “Cleared for Sampling”;
- Content means any work, including a musical composition, a music or other audio file, a project file, music lyrics, sound effects, video footage, photographs, literary work, or other audio-visual and digital media work, that is displayed on or accessed through this Website;
- Content Page means the page of this Website where Content information and previews are displayed or provided for users of this Website;
- Copyright Act means the Copyright Act 1968 of Australia;
- Force Majeure Event means any circumstance beyond our reasonable control which results in our being unable to give effect or continued effect to a Licence or to observe or perform on time a material obligation under this Agreement including a telecommunications failure, incompatibility of or a defect in hardware or software, or an order or directive of a court, tribunal or other official person;
- Intellectual Property means intellectual and industrial property rights throughout the world, whether conferred by statute, common law or equity, and whether or not registered or registrable, and including rights in respect of or in connection with copyright, computer programs, literary works or other works (including, in relation to us, intellectual property in Content and in this Website), and whether or not existing at the time of formation of this Agreement;
- Licence, in relation to particular Content, means the licence granted by us to you to use that Content on the terms of this Agreement;
- Licence Fee means the fee payable by you in consideration for the grant of a Licence in respect of Content as specified on this Website;
- Personal Information has the meaning given by the Privacy Act 1988 of Australia;
- Standard Content means Content which is not PRO sContent;
- Standard Licence means a Licence of Content which is Standard Content;
- these Terms means these Licence Agreement Terms and Conditions as in force from time to time;
- Third-party IP means Intellectual Property owned by or belonging to any person other than you or us;
- this Agreement means each and any contract between us and you on these Terms in relation to specific Content, formed as described in clause 1.1;
- this Website means the internet website with the internet address https://www.andrewohalloranmusic.com, and includes the intellectual property contained in or displayed on that website;
- use (as a verb), in relation to Content, has the widest possible meaning, and includes download, upload, reproduce, perform, modify, synchronise with other material, and back up, and use (as a noun) and user have corresponding meanings; and
- you means (and your refers to) the person referred to in clause 1.1.
11.2 In these Terms, except where the context otherwise indicates:
- the terms “work” and “literary work” and other expressions related to copyright material have the same meaning as defined in the Copyright Act;
- words or expressions such as “includes”, “including”, “for example” and “such as” are not words or expressions of limitation;
- the word “person” includes a body corporate, partnership, association, body politic, and governmental or statutory body;
- if a term is defined, then a different part of speech or a different form of that term has a corresponding meaning;
- a reference to a statute includes a reference to:
- that statute as from time to time amended or replaced;
- regulations, rules, orders or other subordinate legislation in relation to that statute; and
- any statute or legislation of any jurisdiction applicable to this Agreement which is equivalent to or corresponds with the statute or legislation referred to in subparagraphs (i) and (ii);
- a reference to an organisation or body includes a reference to:
- an organisation or body that succeeds to the functions of the firstmentioned organisation or body; and
- an organisation or body of or in another jurisdiction which performs functions equivalent to those of the firstmentioned organisation or body;
- the singular includes the plural and vice versa; and
- a word indicating a gender includes the other genders.
11.3 If two or more persons apply for a Licence or become party to this Agreement, then these Terms bind them jointly and each of them separately.
11.4 Headings in these Terms are to be ignored in the interpretation of these Terms.