The following terms (the “Terms”) set out the agreement under which you grant to Moo Moo Music Pty Ltd (ACN 139 008 807) (with its licensees and assigns referred to as “Moo Moo Music”, “we”, “our” or “us”) the rights to incorporate your Tracks into our Music Library and Playlists and to allow Moo Moo Music Subscribers to perform the Tracks at their premises.
By checking the tick box next to the words "Yes, please enrol my song in the Moo Moo Music program" on our upload page, you agree that a legally binding agreement is formed between you and Moo Moo Music on these Terms. If you do not agree with these Terms, do not click the the box and do not upload any Tracks into the Music Library.
We may amend these Terms from time to time. We will do our best to notify you of any such changes, but it is your responsibility to regularly review this Agreement. If you do not agree with our proposed amendments to the Terms, you must notify us immediately, in which case we may terminate this Agreement.
1. Defined terms
1.1 Unless the context requires otherwise, any capitalised terms used in this Agreement which are not otherwise defined within a clause have the meaning set out in clause 21. Any terms defined in the Copyright Act 1968 shall have the same meaning in this Agreement unless otherwise defined or the context indicates otherwise.
2. Use of the Website
2.1 You agree to only use the Website to:
(a) upload your Tracks for our review; and
(b) manage your Tracks and the information you provide to us using the content administration tools provided by us.
2.2 You agree that your use of the Website does not give you any proprietary rights in relation to the content on the Website (with the exception of any such content contributed by you or for which you have been granted the necessary rights).
3.2 You may only register and use the Website if (being a natural person) you are at least 18 years old and are capable of forming a legally binding agreement with Moo Moo Music and (if registering on behalf of another person or legal entity) you have the authority of that person or entity to do so.
3.3 Moo Moo Music retains the ultimate discretion over who may become a Moo Moo Music artist. You must maintain the confidentiality of your member ID and password and use reasonable steps to protect them from unauthorised disclosure or use and to ensure that no person uses them to obtain unauthorised access to the Website. You will be solely responsible for any access to the Website and transactions and activities that occur on the Website when it is accessed with your member id and password.
4. Uploading, Reviewing and Selecting Tracks
4.1 You may upload any number of Tracks into the Music Library for our review.
4.2 We may select, at our sole discretion, any Track in the Music Library to be included in one or more Playlists. We will send you notice on the first occasion on which we select your Track to be included in any Playlist (“Selection Notice”).
4.3 If the Track you upload is a cover version (i.e. you are not the composer of the Underlying Work), then:
(a) in relation only to that file that you upload containing the cover version, the definition of “Track” in this agreement does not include the Underlying Work: and
(b) You must provide us with accurate and complete details of the composer(s) and the copyright owner(s) of the Underlying Work embodied on the Track.
5. Term of Licence Period
5.1 The term of the licence in each Track you upload into the Music Library shall commence upon your uploading the relevant Track to the Music Library and shall expire at the time your Track is removed from the Music Library.
5.2 You may remove any of your Track(s) from the Music Library by using the content administration tools provided for that purpose. Such a Track shall be deleted from the Music Library (and all Playlists) within at least 60 days after you have used those tools to remove your Track from the Music Library.
6. Our Rights in Tracks included in the Music Library
6.1 Upon uploading a Track to the Music Library:
(a) you grant us (but only during the term) a non-exclusive, life-of-copyright, world-wide licence, but not an obligation, to:
(i) copy, reproduce, sub-licence, distribute, sell, transfer, assign, modify or edit, communicate to or perform to the public or otherwise use all or any portion of that Track;
(ii) communicate and perform the Track to the public;
(iii) use your name and approved likeness, photographs and biographical material for the purpose of marketing and promotion of your Tracks, Moo Moo Music and the Music Library; by all digital means and media (whether now known or existing in the future) including the right to transmit, perform, distribute and promote each Track via the internet and via other forms of digital dissemination;
(b) within 14 days of receiving the relevant Selection Notice, if you are a member of APRA and if required by Moo Moo Music and if you agree, then you promise to obtain a ‘Licence Back’ from APRA in relation to the Selected Track(s) and provide us with all relevant documentation evidencing such a Licence Back, otherwise, we may not include the Track in any Playlist.
(c) Subject to the Terms of this Agreement, you retain your copyright and other rights in your Tracks.
6.2 For the avoidance of doubt, the rights you grant us in clause 6.1(a) include the rights to:
(a) communicate the Tracks to our Subscribers;
(b) perform the Tracks at our Subscribers’ premises;
(c) communicate the Tracks to and reproduce the Tracks on one or more media players or on fixed media, whether now known or existing in the future, including CDs, DVDs, memory sticks, tapes CD-ROMs (each a “Device”);
(d) copy, reproduce, transfer, distribute and sell such Device, including Device which feature your Track;
(e) sub-license any of our rights under this Agreement to any party, including our affiliates and related companies; and
(f) refrain from conducting any such activities or exploiting any of the rights granted under this Agreement.
7. Your Promises about Tracks
7.1 By uploading a Track to the Music Library, you promise us that:
(a) you own all relevant rights in each of your Tracks or have obtained all relevant rights to enable you to upload each Track and to authorise us to use each Track in accordance with these Terms;
(b) our communication or performance of each Track to the public or other use of each Track in accordance with these Terms will not infringe the proprietary rights (including, without limitation, any intellectual property rights) or rights of publicity and privacy of any other person or legal entity; and
(c) no Track, nor any electronic information or materials, that you provide to Moo Moo Music contains any viruses or other malicious computer programs or code that may damage, modify or delete any of the content on the Website or affect the proper operation of the Website.
7.2 You promise that you have the power and authority to upload each Track (including each Underlying Work embodied in each Track) into the Music Library and to grant us the rights set out in this Agreement.
7.3 You agree that you, and not Moo Moo Music, shall pay all costs related to the production and delivery (or uploading) of each Track and all costs related to your use of the Website.
8. Your Warranties and Representations
8.1 You agree that you will do all further things required by us, and which may be reasonable and necessary, for the purpose of confirming our right to exploit each of your Tracks in accordance with this Agreement.
8.2 Further to any other warranties and promises you make under this Agreement, you warrant that each Track:
(a) is and will remain unencumbered;
(b) will not infringe copyright (or any other right) in any other person’s work or copyright material;
(c) is not and will not be defamatory or obscene; and
(d) is not the subject of any suit, claim, action or other legal or administrative proceeding now pending or threatened which involves you or your Tracks other than those (if any) the full details of which have been provided in writing by you to us prior to the entering of this Agreement.
8.3 You promise us that:
(a) you have the right to enter into this Agreement and carry out your obligations under this Agreement (or in the event that registration is completed on your behalf by an officer, employee or agent, that person is authorised to act on your behalf and bind you to this Agreement); and
(b) all information you upload onto the Website or into the Music Library shall be accurate and true.
9. Royalties and Payments
9.1 In full and final consideration of the rights granted under this Agreement, Moo Moo Music shall pay you:
(a) for each Selected Track, a sum no less than the amount of the Playlist Royalty Pool multiplied by a fraction, the numerator of which is the number of times your Track was included in all Playlists during the relevant Accounting Period and the denominator of which is the number of all tracks (including your Tracks) included in all Playlists during the relevant Accounting Period (the “Playlist Fee”); and
(b) for each Track that is reproduced onto a Device and commercially sold, a sum no less than the relevant Device Royalty Pool multiplied by a fraction, the numerator of which is the number of your Tracks reproduced on the relevant Device and the denominator of which is the number of all tracks (including your Tracks) reproduced on the relevant Device (the “Device Fee”).
The Playlist Fee and the Device Fee are collectively referred to as the “Royalty”.
9.2 Subject to clause 9.3, we shall pay you your Royalty within 60 days of the end of each Accounting Period in which the Royalty accrued.
9.3 If the Royalty for any Accounting Period is less than $50, then we shall hold that Royalty until the total cumulative Royalty at the end of any particular Accounting Period amounts to $50 or more, unless agreed otherwise.
9.4 If you have not provided to Moo Moo Music all information and/or completed all forms reasonably required by Moo Moo Music to make such payment to you, then Moo Moo Music shall retain such Royalty, until the end of the Accounting Period in which such information has been provided. If necessary Moo Moo Music may deduct any applicable charges and administrative expenses together with any amounts required to be deducted under any statute, regulation, treaty or other law in connection with taxation or otherwise.
9.5 Moo Moo Music may receive income from advertising on the Website or inserting advertising in Playlists. You shall not be entitled to any portion of such income.
10.1 At the time we pay you your Royalty we shall provide you with a statement setting out how your Royalty was calculated (each an “Accounting Statement”).
10.2 Moo Moo Music shall keep accurate accounts and records of the payments made to you and the calculation of such payments.
10.3 Within 1 year of Moo Moo Music providing you with a particular Accounting Statement, upon providing us with at least 14 days notice, at your cost, you may inspect Moo Moo Music’s accounts and records relating to that particular Accounting Statement provided that such inspection does not interfere with our normal business operations and that no records may be removed from our premises.
10.4 If such inspection reveals an underpayment, Moo Moo Music will make good that underpayment.
11. Your indemnities to us
11.1 You agree to forever indemnify Moo Moo Music (including Moo Moo Music's officers, employees, agents, contractors or related companies, “the indemnified”) against any and all liability, loss, claims, demands and/or expenses which any of the indemnified may incur as a result of:
(a) any breach by you of this Agreement; and/or
(b) your dealings with any third party.
12. Limitation and exclusion of liability
12.1 Moo Moo Music will not be liable (or be deemed to be liable) to you for any default, failure or delay resulting from:
(a) a Force Majeure Event; or
(b) any unauthorised acts or omissions of third parties.
12.2 The Website is presented “as is” without representations of any kind including, without limitation, representations about fitness for a particular purpose, non-infringement, security or accuracy. You acknowledge your understanding that there are inherent risks, which are outside of our control, in the operation of any website or the transmission of content over the Internet including delays, errors, faults, failures or downtime of the Website or of third party technology. Accordingly, we do not warrant that the Website or services provided from the Website will be free from such risks or that your use of the Website will be uninterrupted or error free. To the maximum extent permitted by law and save for these Terms, all other terms (including any implied terms), conditions, warranties, statements, assurances and representations are expressly excluded.
12.3 If any of the exclusions or limitations set out in clause 12.2 are declared illegal or void or you claim that there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by these Terms, to the maximum extent permitted by law, Moo Moo Music’s entire liability and your exclusive remedy is limited, at our discretion, to:
(a) with respect to the supply of goods:
(i) the re-supply of the goods; or
(ii) the payment of the cost of having the goods re-supplied; and
(b) with respect to the supply of services:
(i) the re-supply of the services; or
(ii) the payment of the cost of having the services re-supplied.
12.4 Subject to the preceding, in no event will we (including our officers, agents, employees, contractors or related bodies corporate) be liable to you for any:
(a) direct loss; or
(b) indirect or consequential loss,
even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of this Agreement.
12.5 Subject to clause 12.3, our liability to you shall not exceed an amount greater than the Royalty payable to you under this Agreement.
13. Resolution of Disputes
13.1 If a dispute arises out of, or in any way in connection with, or otherwise relates to the agreement between you and us, or the breach, termination, validity or subject matter thereof, or as to any related claim at law, in equity or pursuant to any statute, then before resorting to litigation or any other form of dispute resolution, the parties must use best efforts to negotiate a resolution to the dispute in good faith for a period of up to 7 days.
13.2 If the dispute cannot be resolved within 7 days of the dispute arising, Moo Moo Music may serve you notice requiring that the dispute be referred to arbitration administered by the Australian Commercial Disputes Centre (“ACDC”).
13.3 The arbitration shall be conducted in Sydney in accordance with the ACDC Rules for Arbitration which are operating at the time the dispute is referred to the ACDC and which terms are hereby deemed incorporated into this Agreement between you and us.
14.1 We may terminate this Agreement immediately by notice in writing to you for any or no reason.
14.2 You may terminate this Agreement immediately, by notice in writing to us, if we:
(a) enter into or resolve to enter into any agreement, composition or compromise with, or assignment for the benefit of our creditors or any class of them otherwise than for the purposes of an amalgamation or reconstruction;
(b) go into “administration” or appoint or have a “liquidator” appointed as those terms are defined in the Australian Corporations Act 2001;
(c) permanently cease providing the services of the Website and the Moo Moo Music system; or
(d) we default in our performance of this Agreement.
14.3 Clauses 7, 8, 9.2, 11 and 12 shall survive termination of this Agreement for any reason. Further, if you validly terminate this Agreement, then our rights in clause 6 continue until the expiration of the Accounting Period in which you terminate this Agreement.
15. Entire agreement
15.1 These Terms constitute the entire agreement between you and us and supersede and merge all prior agreements, representations or other understandings, written or oral, between the parties.
16.1 The relationship between you and us is one of independent contractors and nothing in these Terms constitutes a relationship of employer and employee, principal and agent, partnership or joint venturers between you and us.
17.1 Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
18. Governing law and jurisdiction
18.1 All matters arising from or relating to this Agreement and all the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance and enforcement shall be governed by the laws of New South Wales, Australia without regard to conflicts of law principles. The parties agree to unconditionally submit themselves to the exclusive jurisdiction of the courts of New South Wales.
19. Assignment and novation
19.1 You may not assign any rights or transfer any benefits under this Agreement without our prior written consent.
19.2 We may assign our rights and obligations at our sole discretion.
20.1 Any delay or failure by us at any time to exercise any power or right under this Agreement is not a waiver of our rights at any later time to insist on performance of that or any other provision of this Agreement.
21.1 In this Agreement, the following words will be taken to have these meanings:
“Accounting Period” means each 6-month period ending on each 30 June and 31 December.
“Agreement” means the legally binding agreement between you and Moo Moo Music including these Terms.
“Force Majeure Event” means an event, occurrence or cause beyond the control, and not caused by the negligence, of Moo Moo Music including, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions and any errors, faults, failures or down time of the Website or of third party technology providers including, but not limited to, service providers such as internet service providers and carriers.
“APRA” means your collecting society (if any) and includes the Australasian Performing Right Association (APRA) and the Australasian Mechanical Copyright Owners’ Society (AMCOS) or any worldwide affiliate organisations for example, ASCAP, BMI, SESAC and Harry Fox.
“Licence Back” means a direct licence from APRA of its rights (if any) in the Track, enabling you to grant us the rights under this Agreement.
“Royalty” has the meaning given to it in clause 9.1.
“Music Library” means each and every sound recording which is uploaded via the Website or otherwise into Moo Moo Music’s music database.
“Playlist” means each and every Track selected by Moo Moo Music to be included in music playlists which may be accessed by Subscribers and which Tracks may be performed on our Subscribers’ premises.
“Playlist Royalty Pool” means the aggregated total fee payable to each and every Moo Moo artist with one or more Selected Track(s) included in all Playlists as notified from time to time by Moo Moo Music. The current Playlist Royalty Pool can be viewed here.
“Selection Notice” has the meaning given to it in clause 4.2.
“Selected Track” means a Track which has been selected by us to be included in a Playlist.
“Device” has the meaning given to it in clause 6.2(c).
“Device Royalty Pool” means the aggregated total fee payable in each Accounting Period to each and every Moo Moo artist with one or more Selected Track(s) included on a particular Device as notified from time to time by Moo Moo Music. The relevant Device Royalty Pool shall be determined by Moo Moo Music at our sole discretion.
“Subscribers” means Moo Moo Music’s customers which subscribe to our services and are provided access to Playlists (including Tracks) which they may perform at their premises.
“Track” means a digital data file embodying a sound recording and an Underlying Work together with any and all other copyright material embodied in that file (including each together and separately) and which has been uploaded by you into the Music Library.
“Underlying Work” means any and all underlying musical works (including any accompanying lyrics) which are embodied on a Track.
“Website” means the web-pages together with the services, software and content available at the URL www.moomoomusic.com and www.moomoomusic.com.au
“You” or “your” means you the person who enters this Agreement with Moo Moo Music on these Terms or, if the context requires otherwise, the person who completes registration on behalf of another person or entity.
21.2 In these Terms except to the extent that the context otherwise requires; words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and trusts and vice versa; words denoting any gender include all genders; a reference to a document or agreement includes reference to that document or agreement as changed, novated or replaced from time to time; and reference to a time and date concerning the performance of an obligation by a party is a reference to the time and date in Sydney, New South Wales, even though the obligation is to be performed elsewhere.