PART D: LICENCE DETAILS
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S1
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an S TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff S, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The Licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended Licence Fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of the Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The Tariff S1 applies to the performance of background music in shops, stores, showrooms, offices, banking halls and similar premises.
6.2 The Tariff S1 does not apply to cafes, tea rooms, restaurants, etc., within or attached to shops and stores.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the "shop space" in which the music is rendered audible; the number of employees to whom the music is audible; and the hours in a day that the music is audible.
7.2 “Audible” means the heard and/or capable of being heard.
7.3 “Employees” means the number of employees and independent contractors.
7.4 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, whether or not the apparatus is owned by the employer or employee(s).
7.5 "Shop space" is defined as "the whole area from wall to wall of the whole of that part of the premises to which the public are admitted and in which the music is audible, with no allowances made for counters, shelves, display fixtures, etc."
7.6 The LICENCE FEE payable will be calculated by adding the following amounts:
7.6.1 An amount of R162.02 for every unit of 25 sq. metres of shop space or part thereof up to 200 sq. metres, per annum; and
7.6.2 An amount of R81.01 for every unit of 25 sq. metres of shop space or part thereof from 200 sq. metres to 400 sq. metres per annum: and
7.6.3 An amount of R40.49 for every unit of 50 sq. metres of shop space or part thereof above 400 sq. metres per annum, and
7.6.4 An amount of 81 cents for each hour per day (or part thereof) that the establishment is open, for each capacity unit of 25 employees (or part thereof), and
7.6.5 All the above are subject to a minimum annual Licence Fee of R531.67
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays. This definition does not apply to the number of days that the establishment is open, in which event the actual number of days, including weekends and public holidays shall apply.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Commencement Date or any anniversary of the Commencement Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee.
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return
(available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement, or on request.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 1 (one) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post, fax and/or e-mail within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and e-mail address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of e-mail or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by e-mail or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship between the Parties. *
S2
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an S TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff S, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The Licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended Licence Fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of the Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The Tariff S applies to the performance of background music in shops, stores, showrooms, offices, banking halls and similar premises.
6.2 The Tariff S does not apply to cafes, tea rooms, restaurants, etc., within or attached to shops and stores.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the "shop space" in which the music is rendered audible; the number of employees to whom the music is audible; and the hours in a day that the music is audible.
7.2 “Audible” means the heard and/or capable of being heard.
7.3 “Employees” means the number of employees and independent contractors.
7.4 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, whether or not the apparatus is owned by the employer or employee(s).
7.5 "Shop space" is defined as "the whole area from wall to wall of the whole of that part of the premises to which the public are admitted and in which the music is audible, with no allowances made for counters, shelves, display fixtures, etc."
7.6 The LICENCE FEE payable will be calculated by adding the following amounts:
7.6.1 A flat rate of R162.02 for every 25 sq. metres of background music in the malls, passageways, squares, ‘piazzas’ and any other open spaces forming part of a shopping complex. The fee for every floor or level will be calculated separately, and
7.6.2 The above is subject to a minimum annual Licence Fee of R531.67.
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays. This definition does not apply to the number of days that the establishment is open, in which event the actual number of days, including weekends and public holidays shall apply.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Commencement Date or any anniversary of the Commencement Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee.
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return
(available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement, or on request.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 1 (one) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post, fax and/or e-mail within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and e-mail address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of e-mail or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by e-mail or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship between the Parties. *
S3
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an S TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021__. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff S, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The Licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended Licence Fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of the Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The Tariff S applies to the performance of background music in shops, stores, showrooms, offices, banking halls and similar premises.
6.2 The Tariff S does not apply to cafes, tea rooms, restaurants, etc., within or attached to shops and stores.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the "shop space" in which the music is rendered audible; the number of employees to whom the music is audible; and the hours in a day that the music is audible.
7.2 “Audible” means the heard and/or capable of being heard.
7.3 “Employees” means the number of employees and independent contractors.
7.4 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, whether or not the apparatus is owned by the employer or employee(s).
7.5 "Shop space" is defined as "the whole area from wall to wall of the whole of that part of the premises to which the public are admitted and in which the music is audible, with no allowances made for counters, shelves, display fixtures, etc."
7.6 The LICENCE FEE payable will be calculated by adding the following amounts:
7.6.1 An amount of 81 cents for each hour per day (or part thereof) that the establishment is open, for each capacity unit of 25 employees (or part thereof).
7.6.2 The above is subject to a minimum annual Licence Fee of R531.67.
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays. This definition does not apply to the number of days that the establishment is open, in which event the actual number of days, including weekends and public holidays shall apply.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Commencement Date or any anniversary of the Commencement Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee.
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return
(available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement, or on request.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 1 (one) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post, fax and/or e-mail within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and e-mail address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of e-mail or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by e-mail or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship between the Parties. *
H1A
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an H1A TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff H1A, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The H1A Tariff applies to the performance of music in hotels, residential hotels, motels, boarding houses, banqueting suites, restaurants and similar premises.
6.2 The H1A Tariff applies to hotels awarded a grading of 3 stars or more as classified by the South African Tourism Board.
6.3 Where the Premises are let out for functions at which music is provided either by the management of the Premises the fees for such functions are calculated separately on a capacity basis.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the seating capacity of the rooms in which music is Performed.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R82.07 fee for every customer seating capacity up to the first 50 per annum; and
7.3.2 An amount of R65.53 fee for every customer seating capacity from 51 - 75 per annum: and
7.3.3 An amount of R54.58 fee for every customer seating capacity from 76 – 100 per annum; and
7.3.4 An amount of R43.36 fee for every customer seating capacity over 100 per annum.
7.3.5 The Licence Fee is subject to an annual minimum.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (
available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of music Performed in hotels, residential hotels, motels, boarding houses, banqueting suites, restaurants and similar premises, under the H1A licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
H1B
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an H1B TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff H1B, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 Samro may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The H1B Tariff applies to the performance of background music in hotels, residential hotels, motels, boarding houses, banqueting suites, restaurants and similar premises.
6.2 The H1B Tariff applies to all hotels and similar premises described in 6.1 above not situated in Premises carrying three stars or more as classified by the South African Tourism Board.
6.3 Where the Premises are let out for functions at which music is provided either by the management of the Premises the fees for such functions are calculated separately on a capacity basis.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the seating capacity of the rooms in which music is performed.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R54.58 fee for every customer seating capacity up to the first 50 per annum; and
7.3.2 An amount of R43.35 fee for every customer seating capacity from 51 - 75 per annum: and
7.3.3 An amount of R32.67 fee for every customer seating capacity from 76 – 100 per annum; and
7.3.4 An amount of R27.17 fee for every customer seating capacity over 100 per annum.
7.3.5 The Licence Fee is subject to an annual minimum Licence Fee of R912.58.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required Licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning.
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the Tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the Licence Conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (
available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S1 licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this Agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the Agreement.
36.2 Should any provision of this Agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
H1F
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is a H1F TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff H1F, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 Samro may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The H1F Tariff applies to the performance of music at in function rooms situated in hotels, residential hotels, motels, boarding houses, banqueting suites, restaurants and similar multi roomed establishments.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the seating capacity of the rooms where music is audible.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R18.03 per function per annum for each unit of 100 persons.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required Licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this Agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning.
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this Licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return
(available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the Licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee any amendment, Tariff amendment or General Amendment to this
Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire Agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S1 licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the Agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
H6A
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an H6A TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff H6A, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 Samro may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The H6A Tariff applies to the performance of background music in restaurants, cafes, coffee shops, ice cream parlours, tearooms refreshment chalets, workers eating houses and similar premises.
6.2 The H6BA Tariff applies to restaurants in hotels carrying three stars or more as classified by the South African Tourism Board.
6.3 Where both Live Music Performances and Background Music are used in the same Premises, the full charge will be made for the Live Music in terms of SAMRO’s applicable “E3” Tariff.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the seating capacity of the rooms in which music is Performed.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R82.07 fee for every customer seating capacity up to the first 50 per annum; and
7.3.2 An amount of R65.52 fee for every customer seating capacity from 51 - 75 per annum: and
7.3.3 An amount of R54.58 fee for every customer seating capacity from 76 – 100 per annum; and
7.3.4 An amount of R43.35 fee for every customer seating capacity over 100 per annum.
7.3.5 The Licence Fee is subject to an annual minimum Licence Fee of R1 222.01.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music performed in restaurants, cafes, coffee shops, ice cream parlours, tearooms refreshment chalets, workers eating houses and similar premises., under the H6A licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
H6B
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an H6B TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff H6B, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 Samro may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The H6B Tariff applies to the performance of background music in restaurants, cafes, coffee shops, ice cream parlours, tearooms refreshment chalets, workers eating houses and similar premises.
6.2 The H6B Tariff applies to all restaurants not situated in hotels carrying three stars or more as classified by the South African Tourism Board.
6.3 Where both Live Music Performances and Background Music are used in the same Premises, the full charge will be made for the Live Music in terms of SAMRO’s applicable “E3” Tariff.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the seating capacity of the rooms in which music is performed.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R54.58 fee for every customer seating capacity up to the first 50 per annum; and
7.3.2 An amount of R43.35 fee for every customer seating capacity from 51 - 75 per annum: and
7.3.3 An amount of R32.67 fee for every customer seating capacity from 76 – 100 per annum; and
7.3.4 An amount of R27.17 fee for every customer seating capacity over 100 per annum.
7.3.5 The Licence Fee is subject to an annual minimum Licence Fee of R912.56.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required Licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the Licence Conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 Informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 Is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and e-mail address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of e-mail or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by e-mail or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S1 licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the Agreement.
36.2 Should any provision of this Agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
PS
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is a PS TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff PS, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 This Tariff PS applies to the performances of music on the Public Schools premises, however described, and other similar premises.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fees for Public Urban Schools are calculated by reference to the Learner Capacity. The Licence Fees for Public Rural Schools are based on an Annual Basic Licence Fee.
7.2 “Learner Capacity” refers to the total number of registered Learners at the education institution.
7.3 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.4 The Licence Fee payable will be calculated based on the following amounts:
7.4.1 An amount of R2.48 per annum per Learner for Public Urban Primary Schools.
7.4.2 An amount of R3.74 per annum per Learner for Public Urban High Schools.
7.4.3 An amount of R124.85 per annum per school for Public Rural Primary Schools.
7.4.4 An amount of R249.70 per annum per school for Public Rural High Schools.
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of music performed on the Public Schools premises, however described, and other similar premises, under the PS licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
GH
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is a GH TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff GH, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The Tariff GH applies to the performance of music at Gymnasia, Health Studios, Fitness Centres and similar establishments where music is performed as an accompaniment to fitness or slimming classes.
6.2 Where no fitness classes per se take place, and only background music is provided, Tariff “S” will apply.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fees are calculated by reference to the average size of the fitness class and number of occasions on which music is performed as an accompaniment to fitness or slimming exercises, every individual class to be assessed separately.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R7.35 per class per annum for class attendance up to 19 persons.
7.3.2 An amount of R10.53 per class per annum for class attendance exceeding 20 persons; thereafter
7.3.3 The following reductions will apply: A 20% reduction for an average of 12 to 17 classes per week; thereafter
7.3.4 A 30% reduction for an average of 18 to 24 classes per week; thereafter
7.3.5 A 40% reduction for over 25 classes per week.
7.3.6 All the above are subject to a minimum annual fee of R301.52.
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of music performed at Gymnasia, Health Studios, Fitness Centres and similar establishments where music is performed as an accompaniment to fitness or slimming classes, under the GH licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
LIVE
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is a LIVE TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff LIVE, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The LIVE Tariff applies to the performance of music in “Music Concerts” staged in theatres, halls, stadiums, auditoriums and any other premises, however described, and to which admission is gained by payment at the door, by purchase of a ticket or by payment of membership subscription which includes the right of entry to one or more of such concerts.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to the venue capacity basis of the premises.
7.2 “Music Concert” means any non-theatrical presentation involving the performance in public of music.
7.3 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.4 The Licence Fee payable will be calculated based on the following amounts:
7.4.1 An amount of R19.84 per person per annum for a venue capacity of 1 to 1 000,
7.4.2 An amount of R15.88 per person per annum for a venue capacity of 1001 to 5000,
7.4.3 An amount of R11.90 per person per annum for a venue capacity of 5001 to 10 000,
7.4.4 An amount of R9.26 per person per annum for a venue capacity of 10 001 to 30 000,
7.4.5 An amount of R8.60 per person per annum for a venue capacity of 30 001 to 50 000,
7.4.6 An amount of R7.93 per person per annum for a venue capacity of 50 001 to 70 000,
7.4.7 An amount of R6.61 per person per annum for a venue capacity of 70 001 to 90 000,
7.4.8 An amount of R6.48 per person per annum for a venue capacity above 90 001.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of music Performed in “Music Concerts” staged in theatres, halls, stadiums, auditoriums and any other premises, however described, and to which admission is gained by payment at the door, by purchase of a ticket or by payment of membership subscription which includes the right of entry to one or more of such concerts, under the LIVE licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
MDJ
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an MDJ TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021_. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff MDJ, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The Tariff MDJ applies to the performance of recorded music by so-called mobile or travelling discotheques at functions.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fees are calculated based on a charge per annum irrespective of the size of the audience or the nature of the establishment or the number of functions that takes place.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated based on the following amounts:
7.3.1 An amount of R1 203.35 per annum.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of the performance of recorded music by so-called mobile or travelling discotheques at functions under the MDJ licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
E3
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is an E3 TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff E3, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The E3 Tariff applies to live music performances at hotels, clubs, night clubs, restaurants and other similar establishments, where expenditure on the provision of musicians is incurred either directly or by perquisites in exchange for services rendered.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to: the Expenditure on the Provision of Music subject to a minimum fee per day which music is performed.
7.2 “Customer Capacity” means the maximum number of persons which could be accommodated in the room where dancing takes place.
7.3 “Expenditure on the Provision of Music” means gross salaries, wages or other emoluments paid to orchestra conductors and/or leaders, players or musical instruments, singers, whether or not they are part of the house orchestra or are engaged for cabaret shows,
7.4 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.5 The Licence Fee payable will be calculated based on the following amounts:
7.5.1 2% (two percent) on Expenditure on the Provision of Music per annum as certified by an Auditor or an Accountant in a manner acceptable to SAMRO;
7.5.2 Subject to R0.54 fee per customer capacity per day;
7.5.3 Subject to a minimum fee of R1753.74 per annum.
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of live music Performed at hotels, clubs, night clubs, restaurants and other similar establishments, where expenditure on the provision of musicians is incurred either directly or by perquisites in exchange for services rendered, under the E3 licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
PC
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is a PC TYPE LICENCE.
2. GRANTOF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be Performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, Perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the ___ day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff PC, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 The Tariff PC applies to the performance of music in “Music Concerts” staged in theatres, halls, stadiums, auditoriums and any other premises, however described, as defined below, and to which admission is gained by payment at the door, by purchase of a ticket or by payment of a membership subscription which includes the right of entry to one or more of such concerts.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fee is calculated by reference to the Venue Capacity.
7.2 “Music Concert” means any non-theatrical presentation involving the performance in public of music.
7.3 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.4 The Licence Fee payable will be calculated based on the following amounts:
7.4.1 Licence fee as 2% (two) percentage of Annual Gross Revenue.
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 informing the Licensee of any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and email address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of email or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by email or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous agreement between the Parties, whether tacit, oral or written in respect of background music Performed in “Music Concerts” staged in theatres, halls, stadiums, auditoriums and any other premises, however described, as defined below, and to which admission is gained by payment at the door, by purchase of a ticket or by payment of a membership subscription which includes the right of entry to one or more of such concerts, under the PC licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties. *
MC
LICENCE AGREEMENT
1. TYPE OF LICENCE:
1.1 This licence is a MC TYPE LICENCE.
2. GRANT OF LICENCE:
2.1 SAMRO, subject to the Licensee complying with the terms of the Agreement, grants the Licensee a Licence to Perform, or permit to be performed, any of the Works of Music for the time being in SAMRO’s Repertoire, at the Premises.
2.2 The Licence is a ‘blanket licence’. The Licensee is therefore entitled to, at the Premises and during the period that the Agreement is in force, perform any of the Works of Music in SAMRO’s Repertoire. The licence fee is payable irrespective of whether the Licensee elects to Perform SAMRO’s Repertoire or not.
3. COMMENCEMENT DATE:
3.1 This Licence will commence on the 1st day of ___________ 2021___. (“Commencement Date”)
4. PAYMENT OF LICENCE FEE:
4.1 In consideration for the Licence Granted to the Licensee, the Licensee must pay to SAMRO an annual Licence Fee calculated in accordance with the SAMRO Tariff MC, as amended from time to time (“Licence Fee”).
4.2 The Licence Fee is payable annually, in advance, within 30 days (including weekends and public holidays) of the date of invoice.
4.3 The Licence Fee is based on the information provided by the Licensee. The licensee warrants that all information provided to SAMRO is true, correct and up to date.
4.4 SAMRO may amend the Tariff and Licence Fee payable, with 3 (three) months’ prior written notice of any such amendment to the Licensee.
4.5 The Licensee is liable for payment of the amended licence fee from the date that the amended Tariff becomes effective.
4.6 If any increased Licence Fee becomes payable as a result of a change in the manner and extent of the Performance or usage of SAMRO’s Repertoire, the Licensee must forthwith pay the proper proportion of such increased fee from the date of such change in the manner or extent of Performance of music.
4.7 If the amended Licence Fee is less than that which the Licensee previously paid, the pro-rata balance in respect thereof will be set off as a credit against the Licence Fee payable for the next ensuing year or, at the Licensee’s option, refunded.
4.8 SAMRO will have the right, at any time during the subsistence of the Agreement, to reassess and check the Licence Fee payable by the Licensee and the parameters upon which the Licence Fee is payable.
5. DURATION, COMMENCEMENT AND PLACE
5.1 The Licence will commence on the Commencement Date.
5.2 The Licence will continue in force for an indefinite period or until terminated by either Party in accordance with clause 16 below.
5.3 This Agreement is deemed to be concluded at SAMRO’s physical address recorded herein above.
PART E: SAMRO TARIFF
6. SCOPE OF TARIFF
6.1 This Tariff MC applies to the performance of background music by means of radio’s, and disc or tape players in motor coaches, taxis and mini buses of South African Registry.
7. LICENCE FEES AND DEFINITIONS
7.1 The Licence Fees are calculated by reference to the maximum seating capacity of each motor coach.
7.2 "Performance" includes performance by means of a disc player, tape machine, other devices for playing musical works, and includes performance by means of a radio and/or television set or diffusion loudspeakers, Whether or not the apparatus is owned by the employer or employee(s).
7.3 The Licence Fee payable will be calculated as follows:
7.3.1 An amount of R42.23 per seat per annum.
7.3.2 The above is subject to a minimum annual fee of R91.73 per vehicle.
PART G: GENERAL LICENCE CONDITIONS
8. CRIMINAL OFFENCES
8.1 The Licensee acknowledges that the use of SAMRO’s Repertoire without the required licence constitutes an infringement of copyright and is an offence in terms of the Copyright Act 98 of 1978, punishable by a fine and/or imprisonment.
9. DEFINITIONS
9.1 In these Licence Conditions:
9.1.1 “Affiliated Society/ies” means any persons that are Collecting Societies (or which perform a role similar to Collecting Societies) in jurisdictions outside South Africa with which SAMRO is for the time being affiliated. A list of Affiliated Societies appears on SAMRO’s website and is amended from time to time.
9.1.2 “Collecting Society/ies” means a society for the protection of intellectual property or collection of royalties and similar consideration for the use of any intellectual property rights in any jurisdiction(s) in the World (including any ‘collecting society’ established under the Copyright Act 98 of 1978, as amended).
9.1.3 “Day” unless otherwise indicated means business days excluding weekend and public holidays.
9.1.4 “General Amendment” means an amendment made by SAMRO, from time to time, to these Licence Conditions, on notice to the Licensee.
9.1.5 “Licence Conditions” means the licence terms and conditions contained in this document, as amended from time to time in accordance with this agreement.
9.1.6 “Licence Year” means a period of 12 (twelve) calendar months commencing on the Validity Date or any anniversary of the Validity Date during the subsistence of the Agreement.
9.1.7 “Members” means the companies, organisations, persons and entities who are, during the term of the Agreement, members of SAMRO (including the members of the Affiliated Societies), and who have licensed, assigned and/or mandated the licensing of the Performance of Works of Music owned and/or controlled by them to SAMRO and/or the Affiliated Societies, as the case may be.
9.1.8 “Party’ and/or “Parties” shall mean either of the parties to this Agreement and/or both of the Parties as the case may be.
9.1.9 “Performance” has the meaning ascribed to it in the Copyright Act 98 of 1978, as amended from time to time, and the words “Perform” and “Performed” and “Performing” will have the same meaning
9.1.10 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013, as amended from time to time.
9.1.11 “Premises” shall mean the premises listed herein and in any related schedule, as updated by the Licensee from time-to-time.
9.1.12 “SAMRO’s Repertoire” and/or “Repertoire”, means all Works of Music of SAMRO’s Members in respect of which SAMRO holds rights of Performance, including the Works of Music of the Members of the Affiliated Societies. A list of all SAMRO’s Members, as updated from time to time, is available on SAMRO’s website.
9.1.13 “Tariff Amendment” means an amendment made by SAMRO, from time to time, to the tariff applicable to this Licence, on notice to the Licensee.
9.1.14 “Territory” means the Republic of South Africa, the Kingdom of Lesotho, the Kingdom of Swaziland and any other jurisdiction in which SAMRO is operational from time to time directly and not through an Affiliated Society.
9.1.15 “Work of Music” means the whole or a part of a musical work or of a musical work in combination with lyrics, words or any other literary work written for the purpose of accompanying the music, such as a song.
9.1.16 In this document all references to natural persons shall also refer to juristic persons and vice versa.
10. WARRANTIES:
10.1 SAMRO warrants that it has the necessary approvals, licences and authorities to grant the Licence. SAMRO, authorised by written deeds of assignment, controls in the Territory, amongst others, the performing rights in the Works of Music of its Members and of the Members of the Affiliated Societies.
10.1.1 The Licensee warrants that it will, for the duration of the Agreement, comply with all laws applicable to the performance of its obligations in terms of this Agreement.
10.1.2 The Licensee warrants that all information provided to SAMRO by the Licensee or on its behalf, is complete, true, correct and up to date.
10.1.3 If it appears that the Licensee is a non-existent entity, and/or have not been registered as a juristic person at the relevant registrar’s office, as at the date of signature of this Licence Agreement the person accepting the licence conditions will be personally liable in terms of the Agreement, and will be bound by the terms and conditions thereof as if such person was referred to and incorporated in the Licence Agreement as the Licensee. .
10.1.4 No term or condition contained in this Licence Agreement shall be interpreted in such a way that it waives or deprives the Licensee of any rights which the Licensee may have in terms of any applicable laws or to avoid any obligation SAMRO has in terms of any applicable laws or to set aside or override the effect of any provision of such laws or to authorise or do anything that is unlawful in terms of any law.
11. CONDITIONS
11.1 If the Premises are temporarily or permanently used for any Performances or entertainment different in number or type from those forming the basis upon which this licence has been granted to the Licensee by SAMRO, the licence granted in terms of the Agreement will not extend to or be deemed to authorise such different Performances or entertainment.
11.2 Without limiting the generality of clause 11.1 above, the Licence will not extend to or authorise:
11.2.1 the Performance in their entirety of oratorios and other choral works or of excerpts therefrom which excerpts are of more than 20 minutes’ duration;
11.2.2 the Performance of ballets, or dramatico-musical works such as operas, musical plays, revues or pantomimes in so far as they consist of material written expressly therefor;
11.2.3 the Performance of any excerpt from any Work of Music if accompanied by dramatic action, dumb show, costume, scenic accessories, or other visual representation of the same work;
11.2.4 the Performance of any Work of Music accompanied by any words other than those (if any) published or otherwise associated therewith by the copyright owner; any such work in any altered or rearranged form, or with such costume or action as to produce parodied or burlesque effects; or any such work adapted to a dramatic form;
11.2.5 the Performance (except by means of duly authorised records and/or radio or television receiving sets) of vocal excerpts from dramatico-musical works as aforesaid if the right of such Performance is forbidden or reserved by the copyright owner;
11.2.6 the Performance of Works of Music from beyond the boundaries of the Premises; and/or
11.2.7 the recording of any Work of Music or any portion thereof.
12. ENTRY UPON THE PREMISES
12.1 The Licensee must allow representatives of SAMRO to inspect the Premises, at any time during office hours, for the purposes of checking the particulars upon which the Licence Fee payable by You is assessed, as well as Your compliance with these Licence Conditions.
13. LICENCE FEE PARAMETERS
13.1 The Licensee must within 30 days of the last day of each Licence Year, for purposes of calculating the Licence Fee payable, provide SAMRO with a Licence Parameter Return (available on the SAMRO website), indicating any and all changes to the licence parameters set out in this Agreement.
14. FAILURE TO MEET REPORTING OBLIGATIONS
14.1 Should the Licensee fail to furnish the Licence Parameter Return referred to in clause 13.1 above within the required time period, SAMRO will be entitled to invoice the Licensee based on the licence parameters upon which the preceding invoice was based.
14.2 The provisions of clauses 14.1 do not absolve the Licensee of its obligation to provide SAMRO with its amended and correct Licence Parameter Returns and SAMRO will not be precluded from demanding delivery of the said returns.
14.3 In the event that the Licence Fee payable based on the Licence Parameter Return is greater than the Licence Fee payable in terms of clause 13.1, the Licensee will be liable for the difference between the two amounts, together with interest on such difference.
15. MUSIC USAGE RETURN
15.1 The Licensee must, for the duration of the Agreement and on a quarterly basis, submit to SAMRO the following information regarding each and every Work of Music Performed at the Premises: the name of the Work of Music; the name(s) of each composer; the name(s) of the arranger; the name(s) of the performer; the name(s) of the publisher; and the number of times each Work of Music was Performed.
15.2 The Information must be delivered to SAMRO by way of post and/or e-mail, within 30 (thirty) days (including weekends and public holidays) of the last day of each quarter.
15.3 The Information must be recorded on a music Music Usage Return Form which is available from SAMRO in electronic form.
15.4 Each Music Usage Return must be signed by the Licensee.
15.5 SAMRO requires the information set out in clause 15.1 in order to allocate the funds it collects to its Members in accordance with its system of distribution. The Licensee acknowledges that failure to provide this information could result in SAMRO’s Members not being remunerated for the Performance of their Works of Music.
15.6 In the event that the Licensee fails to provide SAMRO with the Music Usage Return, SAMRO may at its discretion secure the services of a third party to collate and prepare the Music Usage Return for the Licensee. The Licensee will be liable for all the costs associated with the collation and preparation of the Music Usage Return by such third party.
15.7 In view of the fact that this is a ‘blanket licence’, it is specifically recorded that the information required to be submitted by You in terms of this clause 15 does not in any way have a bearing on or relate to the quantum or calculation of the Licence Fee payable by the Licensee to SAMRO.
16. TERMINATION
16.1 Either Party may terminate the Agreement and in so doing terminate the licence granted to the Licensee providing the other with 3 (three) months’ prior written notice.
16.2 In the event that the Licence Agreement is terminated in accordance with 16.1, the Licensee will remain liable for any and all amounts payable to SAMRO for the licence up to and including the date of termination of the Agreement.
16.3 Upon the termination of this contract by either Party, the Licensee will no longer have the authority to Perform SAMRO’s Repertoire.
17. CHANGE IN LICENCE PARAMETERS
17.1 Notwithstanding, and in addition to, Your obligation to provide SAMRO with Music Usage Returns, and for purposes of allowing SAMRO to adjust the Licence Fee payable by You, You must also notify SAMRO in writing of any change in:
17.1.1 the manner or extent of the Performance of music, as described herein.
17.1.2 the ownership of the Licensee or its business and/or
17.1.3 trading name(s) of the Licensees business and/or the Premises; and
17.1.4 the date of any of the changes referred to in this clause 13.
17.2 This notice must be given in writing to SAMRO and sent by registered post and/or email within 14 (fourteen) days of such change.
17.3 The Licensee acknowledges if it fails to furnish SAMRO with the information set out in clause 17, will have a detrimental effect on SAMRO’s Members, resulting in SAMRO’s Members not receiving the compensation to which they are entitled.
18. TARIFF AMENDMENTS
18.1 Subject to your right to terminate this Agreement, provided for in clause 16 above, SAMRO may at its own discretion amend its Tariff at any time.
18.2 Any Tariff Amendment will take effect 3 (three) months after the date upon which SAMRO notifies the Licensee of such the amendment to the Tariff.
18.3 You must, within 14 (fourteen) days of being requested in writing to do so, furnish SAMRO with any and all information required for the assessment of Licence Fees payable by virtue of any Tariff Amendment.
18.4 SAMRO reserves the right to make such variations in this tariff as it considers appropriate when licensing premises or performances which, in its opinion, do not fall within the scope of this tariff.
19. GENERAL AMENDMENTS
19.1 Subject to your right to terminate this Agreement provided for in clause 16 above, SAMRO may at its own discretion, amend the terms upon which this Licence is granted at any time.
19.2 The Licensee agrees to be bound by any and all General Amendments from the date specified in the General Amendment Notice.
19.3 SAMRO may, at its own discretion, amend any errors which are self-evident errors including but without limitation spelling, punctuation, reference, grammar or similar or any other defect that does not materially affect the meaning and intent of this Licence Agreement.
20. CONSUMER PRICE INDEX ADJUSTMENTS
20.1 The Licence Fee payable by the Licensee will be adjusted automatically each year, on 1 July, in accordance with the official Consumer Price Index (CPI) as published by Statistics South Africa.
20.2 The notice periods provided for in clause 18 above in respect of Tariff Amendments will not apply to amendments to the tariffs relating to CPI adjustments.
21. VALUE ADDED TAX
21.1 The Licensee must pay to SAMRO, in addition to the Licence Fee due under any Tariff, a sum in respect of Value Added Tax calculated at the relevant statutory rate in respect of such Licence Fee.
21.2 SAMRO will provide the Licensee with an Original Tax Invoice in relation to the fee payable.
22. INTEREST ON OVERDUE AMOUNTS
22.1 Any Licence Fee which is payable and remains unpaid for a period in excess of 30 (thirty) days from the date of the invoice, will attract interest at the current legal rate, calculated in accordance with the interest rate prescribed by the Minister of Justice in accordance with the Prescribed Rate of Interest Act 55 of 1975, as amended.
22.2 Such interest will be calculated monthly in advance and is payable by the Licensee to SAMRO on demand.
23. PERSONAL INFORMATION
23.1 Subject to any applicable laws, the Licensee authorises SAMRO to:
23.1.1 use any Personal Information that SAMRO for the purposes of processing, executing and administering the Agreement; calculating Licence Fees; collecting the Licence Fees;
23.1.2 informing the Licensee of any SAMRO news and information or information relating to the Agreement;
23.1.3 Informing the Licensee any amendment, Tariff amendment or General Amendment to this Agreement.
23.1.4 access the Licensees Personal Information from credit bureaux relating to the Licensees payment profile for purposes of financial risk assessment, fraud prevention and debtor tracing and that we may disclose the necessary Personal Information to any such credit bureaux.
23.1.5 obtain, capture store, process, analyse and use the Licensees personal information for SAMRO marketing purposes in relation to SAMRO’s business of managing its Repertoire.
23.1.6 divulge the Licensees Licence status to any third party. By this SAMRO means that it may divulge to any third party whether or not the Licensee is licensed by SAMRO and the licence type that the Licensee is or was licensed for.
23.1.7 retain the Licensees Personal Information referred to in this clause for as long as SAMRO is required to do so in terms of applicable laws or in order to exercise or protect any of our rights under this Agreement.
23.1.8 disclose the Licensees Personal Information to SAMRO’s duly appointed agents, representatives or service providers in order to attend to the items listed in clauses 23.1.1 to 23.1.9 and to conduct our business as a collecting society.
23.1.9 if and to the extent that we are required to do so, to comply with any applicable law.
23.2 SAMRO is obliged to take all necessary and reasonable steps to protect the Licensees Personal Information.
24. COMMUNICATION BETWEEN YOU AND SAMRO
24.1 Subject to any applicable laws, the Licensee authorised SAMRO to communicate with it by means of telephone, e-mail, fax, text or any mobile phone messaging services to the Licensees mobile device, laptop and/or computer.
24.2 Subject to any applicable laws, the Licensee authorises SAMRO to use such communication methods to:
24.2.1 market or promote SAMRO’s services and those of its suppliers and/or clients and/or members and/or affiliates;
24.2.2 inform the Licensee about matters relating to SAMRO, its members and affiliates and changes relating to these matters.
24.2.3 provide the Licensee with information that SAMRO believes may be of particular interest or relevance to the Licensee or this Agreement.
24.2.4 advise the Licensee of the status of your account and/or any amounts owing by the Licensee to SAMRO.
24.2.5 remind the Licensee of forthcoming dates on which payment of the Licensee’s licence fees or returns may be due; and
24.2.6 communicate with the Licensee in any way necessary to execute this Agreement.
25. BREACH
25.1 Should either Party (the “defaulting party”) breach any of the provisions of the Agreement and the breach is material or the defaulting party fails to remedy that breach within 14 (fourteen) Business Days after receipt of a written notice from the non-defaulting party, requiring it to remedy that breach, the non-defaulting party will be entitled, without prejudice to any remedies which it may otherwise have in terms of the Agreement or at law, to immediately terminate the Agreement on the occurrence of the material breach or on the expiry of the 14 (fourteen) Business Day period as the case may be.
25.2 Either Party may, without prejudice to any other rights herein, at any time and by giving 14 (fourteen) days written notice, forthwith terminate the Agreement if:
25.2.1 either Party have any reason to reasonably believe that either of you or anyone employed by either of you or acting on your behalf, whether with or without your knowledge, engages in a fraudulent practice in connection with the Agreement; or
25.2.2 either Party commits an act of insolvency, or initiates business rescue proceedings, or is placed under a provisional or final winding up, or reaches a compromise with creditors.
25.3 The termination of the Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights which specifically or by their nature survive the termination of the Agreement or any rights in law, including but not limited to the right to claim damages, specific performance or an interdict.
26. LEGAL COSTS
26.1 If either of the Parties institutes legal action against the other for breach of the Agreement, then the party in breach will be liable for all legal costs arising from such legal action, calculated on the attorney-and-own-client scale, the costs of Counsel on brief at the higher scale, and the costs of tracing the party in breach’s whereabouts, as well as Value Added Tax, calculated at the current statutory rate on these legal costs, as well as all other costs and expenses incurred resulting from or related to such legal proceedings.
27. CONFIDENTIALITY
27.1 Both Parties must keep confidential and not disclose to any person, without the prior written consent of the other the details of the Agreement, the details of negotiations leading to the formulation of the Agreement and any information whatsoever handed over to either Party during the course of negotiations, as well as details of any transactions or agreements contemplated in the Agreement (the “Confidential Information”).
27.2 The Parties agree to keep all Confidential Information confidential and to disclose it only to the officers, directors, employees, consultants, Affiliated Societies and professional advisors who have a need to know (and then only to the extent that it is necessary); are made aware that the Confidential Information should be kept confidential; are aware of the disclosing party’s undertaking in relation to the information in terms of the Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
27.3 The obligations of both Parties in relation to the maintenance and non-disclosure of Confidential Information in terms of the Agreement do not extend to information that:
27.3.1 is disclosed to the receiving party in terms of the Agreement but at the time of such disclosure was known to be in the lawful possession or control of that party and not subject to an obligation of confidentiality,
27.3.2 is or becomes public knowledge, otherwise then pursuant to a breach of the Agreement by the party disclosing such Confidential Information;
27.3.3 is required by the provisions of any law, statute or regulation or during any court proceedings or by the rules and regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure where applicable or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure; or
27.3.4 is required to be disclosed by a party to any of its respective group of companies or any employees of such group of companies to the extent that it is necessary for the proper performance by that party of its obligations as set out in the Agreement.
28. DOMICILIA CITANDI ET EXECUTANDI
28.1 The Parties choose the following postal, fax number and e-mail address indicated herein above for any written notice with regards to the Agreement:
28.2 Notice or communication will be deemed to have been duly given:
28.2.1 10 (ten) days after posting, if posted by registered post to either Parties postal address
28.2.2 on delivery, if delivered to either Parties physical address;
28.2.3 if sent by fax to the fax number, on the day of successful transmission thereof. Any facsimile sent outside of such normal business hours will be presumed to have been received on the following day
28.2.4 if sent by e-mail to the e-mail address, on the day of successful transmission thereof, unless and until the contrary is proved by the addressee.
28.3 Either Party may change their addresses and details mentioned herein above to any other postal or physical address in the Republic of South Africa, by giving notice in writing to the other of your intention to do so.
28.4 Notwithstanding what is set out herein above, neither Party will:
28.4.1 be entitled to commence legal proceedings by delivery of any notices by way of e-mail or fax; and
28.4.2 be entitled to change your domicilia by way of correspondence sent by e-mail or fax.
29. GOOD FAITH
29.1 The Parties agree to act in the utmost good faith in respect of your obligations towards each other in terms of the Agreement.
29.2 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to you and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of the Agreement.
30. CESSION, ASSIGNMENT AND TRANSFER
30.1 The Licensee is not entitled to cede, assign or transfer any of its rights, title or interest in the Agreement without SAMRO’s consent, which consent must not be unreasonably withheld.
31. APPLICABLE LAW
31.1 The Agreement will be interpreted and governed in accordance with the law of the Republic of South Africa.
32. INDULGENCE
32.1 No relaxation or indulgence which may be granted by either of the Parties to the other will be construed as a waiver by either Party of any of rights arising out of the Agreement, nor will it in any way prejudice either Party’s rights or preclude either Party from exercising any of your rights in the future.
33. ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties in regard to the subject matter thereof and supersedes any previous Agreement between the Parties, whether tacit, oral or written in respect of background music Performed in shops, stores, showrooms, offices, banking halls and similar premises in South Africa and other Territories, under the S1 licence type.
34. WARRANTIES AND REPRESENTATION
34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
35. VARIATION, CANCELLATION AND WAIVER
35.1 No addition to, variation, waiver of any right or consensual cancellation of the Agreement will be of any effect unless in writing and signed by or on behalf of both Parties.
36. SEVERABILITY
36.1 The terms of this Agreement shall be deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the Agreement.
36.2 Should any provision of this agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall continue to be of full force and effect.
37. RELATIONSHIP OF THE PARTIES
37.1 The Agreement does not constitute the Parties to be the agent of the other nor create a partnership, joint venture or similar relationship the Parties.- COMMENCEMENT DATE:
This Licence will commence on:
If the LOA is not currently signed by the authorized signatory (Director, Executive etc) you can have it emailed using the email address listed on the LOA only when it is signed by the authorized signatory.
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SIGNATORIES
FOR AND ON BEHALF OF THE LICENSEE: (music user only)
Who warrants that he/she is duly authorised to sign this Agreement and is fully aware of the stipulations contained
herein.
FOR AND ON BEHALF OF SAMRO:
SAMRO Licensing Management
SAMRO - Music User Application