1. LICENSE TO USE PROJECTIONS

 

Ownership of Projections

     1.1 The Supplier and/or its licensors, as applicable, shall retain ownership of all Projections and all Intellectual Property Rights in such Projections. Nothing in the Licensing Agreement shall operate to, or be construed to, transfer or assign any rights of ownership in the Projections, except as expressly permitted under the Licensing Agreement.

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Licence to use Projections

    1.2 Subject to Clause 1.3 below and the other terms of the Licensing Agreement, the Supplier grants the Customer a non-exclusive, non-transferable, royalty-free licence to use the Projections solely for the Permitted Use during the Licence Period, and in accordance with these Terms.

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Withdrawal of licence to use Projections

    1.3 By written notice to the Customer having immediate effect, the Supplier may withdraw the licence set out in Clause 1.2, in whole or in part, if: (a) a licensor to the Supplier of any item that is part of the Projections withdraws the Supplier’s right to include such item in the Projections; (b) there is a claim or allegation that any Projection infringes the Intellectual Property Rights of a third party; and/or (c) the Projections are used in any way other than in accordance with the Licensing Agreement or these Terms.

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    1.4 On receipt of a written notice given under Clause 1.3, above, the Customer shall immediately stop using each Projection that is the subject of such notice and shall confirm in writing to the Supplier that all such use has stopped.

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Exclusions

     1.5 The Customer acknowledges that the Supplier does not own any rights in the Production (other than certain rights in the Projections as used in the Production).  Consequently, except to the limited extent permitted by Clause 2.6, below, nothing in these terms or the licensing Agreement grants the Customer any right to perform, record, film, photograph, copy or otherwise use the Production or any aspect thereof (including, but not limited to the script, music, lyrics, choreography direction or any performances of any of the foregoing) or make available any such performances, recordings, films, photographs or copies.​​

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      2. PERMITTED USE OF PROJECTIONS

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     2.1 For the purposes of the licence set out in Clause 1.2, above, this Clause 2 sets out permissions and restrictions relating to use of the Projections (the “Permitted Use”).

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     2.2 The Projections may only be used in: (a) rehearsals for the Production; and (b) performances of the Production presented to audiences.

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     2.3 The Projections may only be displayed at: (a) sites where rehearsals for the Production take place; and (b) the Venue.

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     2.4 The Customer shall not, and shall not permit any third party to, modify, alter or create derivative works of the Projections, save that the Projections may be skewed in order to compensate for the angle at which the Projections are projected at the stage for the Production. 

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     2.5 The Customer shall not, and shall not permit any third party to, make copies of the Projections, save that: (a) after downloading the Projections, the Customer may make the minimum number of copies of each Projection as are needed to rehearse and present the Production and for back-up purposes; and (b) in order to make the Projections compatible with the Customer’s projection equipment, the Customer may make versions of the Projections with amended file formats, sizes, codecs and/or compression rates, provided that there is no visible degradation to the quality of such Projections.

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     2.6 Where the Customer has permission from relevant rightsholders to take still photographs and/or video recordings of the Production, the Projections may appear in: (a) still photographs of performances of the Production at the Venue; (b) one official master video recording of a performance of the Production at the Venue (the “Master Video”); and (c) copies of such Master Video, whether such copies are in tangible media (for example, DVDs and computer drives) and/or intangible media (for example, online streams and downloads), provided that, in each such still photograph and in each frame of the Master Video, the Projections seen within the context of the Production (for example, on stage, or with actors in front of the Projections) and, as such, are not the sole subject of each such still photograph and frame, as applicable.

 

     2.7 Except as permitted in this Clause 2, the Customer shall not, and shall not permit any person to: (a) make the Projections available to any third party; (b) publish the Projections online or in any other media; or (c) use the Projections for any other purpose.

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     3. CHARGES AND PAYMENT

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     3.1 In consideration of the rights granted by the Supplier under the Licensing Agreement, the Customer shall pay the Charges to the Supplier in accordance with these Terms.

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     3.2 Following signature of the Licensing Agreement by both parties, the Supplier may issue an invoice for the Charges.  Unless the subject of a genuine dispute, the Customer shall pay the Charges within [TBA] days of receipt of such invoice.

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     3.3 The Charges do not include VAT.  If VAT is payable in respect of the Charges, the Customer shall pay such VAT, in addition to the Charges, at the prevailing rate, subject to the provision by the Supplier of a valid VAT invoice.

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     3.4 The Charges shall be paid free and clear of all deductions or withholdings whatsoever, save only as may be required by applicable law.  If any such deductions or withholdings are required by any applicable law, the Customer shall pay such sums as will, after such deduction or withholding has been made, leave the amount which would have been received by the Supplier under the Licensing Agreement in the absence of any such requirement to make a deduction or withholding.

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     4. COLLECTION AND DELETION OF PROJECTIONS

     4.1 Within 24 hours of receipt of payment, the Supplier shall provide the Licensee with a secure Google Drive link to access the licensed projections. The Licensee shall not share this link or access details with any third party..

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     4.2 Following receipt of such log-in details, the Customer may download the Projections from the Download Site.

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     4.3 On the first working day after the last day of the Licence Period, the Customer shall delete all Projections and any copies thereof and shall send an email to the Supplier confirming that such deletions have taken place.

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     4.4 Where the Supplier issues a notice to stop using a Projection under Clause 1.3, above, the Supplier may ask the Customer to delete such Projection.  In such circumstances, the Customer shall delete such Projection as soon as is reasonably practicable and shall send an email to the Supplier confirming that such deletion has taken place.

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     5. CREDIT

     5.1 The Credit shall be clearly noticeable in the following items relating to the Production: (a) all programmes; (b) all publicity materials created by or on behalf of the Customer, including, but not limited to, posters, flyers, emails, websites, social media pages and social media posts; (c) in the credits of the Master Video and all copies thereof (where there are credits in such Master Video and copies); and (d) in the description next to all copies of the Master Video made available online.

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     6. EQUIPMENT AND OPERATION

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     6.1 The Customer is responsible for undertaking or procuring the following: (a) providing all equipment and connectivity needed for downloading the Projections from the Download Site; (b) downloading and storing the Projections; (c) providing and operating all equipment needed to project the Projections within the Production; and (d) ensuring that such equipment is compatible with the Projections.

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     6.2 The Customer acknowledges that the best projection angle for the Projections occurs when the projector is horizontal to the ground and aimed at the centre of the back wall of the stage.

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     6.3 Unless stated otherwise herein, no IT support is provided under or in connection with the Licensing Agreement.

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     7. REPRESENTATIONS AND WARRANTIES

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     7.1 Each party represents and warrants that: (a) it has the power and authority to enter into and perform the Licensing Agreement; (b) the Licensing Agreement, when validly executed, will create obligations which are valid and binding on it and enforceable in accordance with its terms; (c) there are no actions, suits, proceedings or regulatory investigations pending, and, to the best of that party’s knowledge and belief, threatened against that party that, in either case, might adversely affect the ability of that party to meet and carry out its obligations under these terms or and Licensing Agreement; and (d) it is not subject to an Insolvency Event, and to the best of that party’s knowledge and belief, is not likely to be subject to an Insolvency Event in the immediate future.

 

     7.2 Except as expressly stated in this Clause 7, the Supplier excludes to the fullest extent permissible by applicable law all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Projections and the Licensing Agreement, whether imposed or implied by statute or by operation of law or otherwise.  Without prejudice to the foregoing, to the fullest extent permissible by applicable law, the Projections are provided “as is” and the Supplier does not make any representation or warranty concerning their condition, performance, suitability or qualities.

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     8. LIMITATIONS ON LIABILITY

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     8.1 Subject to Clause 8.2 and to Clause 8.3, the liability of the Supplier under or in connection with the Licensing Agreement, whether arising from contract, negligence or otherwise, shall not exceed an amount equal to the Charges paid, due to be paid and payable under this Agreement.

 

     8.2 Subject to Clause 8.3, neither party shall be liable for any of the following types of loss or damage even if such party has been advised of the possibility of such loss or damage: (a) special, indirect or consequential loss; (b) loss of profits; (c) loss of revenue; (d); loss of contracts; (e) loss of anticipated savings; (f) loss of business; (g) loss of use; (h) loss of goodwill; and (i) loss or damage arising from loss of, damage to or corruption of any data.

 

     8.3 The exclusions and limitations of liability set out in this Clause 8 do not apply to any liability arising from: (a) death or injury to persons caused by negligence; or (b) anything else which cannot be excluded or limited by applicable law.

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     9. TERMINATION

     9.1 Each Party may terminate the Agreement immediately on written notice: (a) if the other party is in material or continuing breach of the Licensing Agreement and fails to remedy such breach (if capable of remedy) within five Business Days of receiving written notice from the innocent party specifying the breach and requiring the breach to be remedied; and/or (b) if the other party suffers an Insolvency Event.

 

     9.2 For the purposes of this Clause 9, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

 

     9.3 Unless stated otherwise in the Licensing Agreement, termination of the Licensing Agreement, shall not affect either of the parties’ accrued rights or liabilities, or the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.

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     10. DEFINITIONS AND INTERPRETATION

     10.1 In this Agreement: “Agreement” means the overall agreement between the Supplier and the Customer, consisting of the Licensing Agreement and these Terms and Conditions, as varied, novated, supplemented, amended, or replaced from time to time in accordance with its terms; “Business Day” means any day which is not a Saturday, Sunday or public or bank holiday in England; “Charges” means the charges set out in the Licensing Agreement; “Credit” means the wording identified as such in the Licensing Agreement; “Customer” means the party identified as such in the Key Term; “Download Site” means an online storage site where the Projections are made available for download by the Customer; “Insolvency Event” means that a party: becomes unable, admits that it is unable or is declared unable to pay its debts within the meaning of section 123 or section 268 of the Insolvency Act 1986 (as amended) or suspends or threatens to suspend making payments on any of its debts; ceases or threatens to cease to carry on the whole or a substantial part of its business; has levied upon its property or assets any distress or execution (or analogous process); proposes or enters into any voluntary arrangement, compromise, or composition or scheme of arrangement with or for the benefit of all or any class of its creditors; has passed any resolution to be wound up (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency), has presented against it any petition to be wound up and such petition is not withdrawn or dismissed within fourteen days or has an order for its winding up made against it; is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it; has a receiver or administrative receiver appointed over all or any of its undertaking, property or assets; applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; has any bankruptcy petition presented against it, makes a bankruptcy order or has a bankruptcy order made against it; has made an application for a debt relief order, or a debt relief order is otherwise made in relation it; is dissolved or otherwise ceases to exist; or the equivalent of any of the events, proceedings or steps described above occurs in relation to such party under the laws of any jurisdiction; “Intellectual Property Rights” means all copyright and related and neighbouring rights, database rights, rights in computer software and instructional materials and semiconductor topographies, design rights (whether registered or unregistered), patents, patent applications, the right to claim priority from and/or file divisional applications in respect of a patent or patent application, rights to inventions, trade marks and get-up, goodwill and the right to sue for passing off and unfair competition, moral rights, domain names, applications for and the right to apply for any of the above and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, which subsist now or will subsist in the future in any part of the world; “Licence Period” means the period of time starting on and including the start date set out in the Licensing agreement and ending on and including the end date set out in the Licensing Agreement; “Master Video” has the meaning given in Clause 2.6; “Permitted Use” has the meaning given in Clause 2.1; “Production” means the Customer’s production of the theatrical work identified as such in the Licensing Agreement; “Projections” means the media files (which include videos and still images) listed in the Licensing Agreement and which are to be provided by the Supplier under these Terms for inclusion in the Production; “Supplier” means James Welsh trading as Cinematic Theatre Projections; “Terms and Conditions” means this document; and “VAT” means value added tax or any similar or substituted turnover or sales tax, in the UK or elsewhere.

 

     10.2 Unless otherwise stated: (a) reference to a statute or statutory provision includes a reference to any statutory amendment, consolidation or re-enactment of it to the extent in force from time to time and all orders, regulations, instruments or other subordinate legislation made under it to the extent in force from time to time; (b) “writing” or “written” includes email; (c) the interpretation of general words shall not be restricted by words indicating a particular class or particular examples; and (d) time shall not be of the essence for the performance of any obligation.

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     11. GENERAL

     11.1 Neither party shall be liable for any failure to perform any of its obligations under this Agreement to the extent that the failure is directly caused by an event beyond the reasonable control of that party which is not attributable to its fault or negligence.

 

     11.2 The Customer acknowledges that any use of the Projections that is not in accordance with the terms of these terms and conditions may result in irreparable damage to the Supplier and that, consequently, the Supplier shall be entitled to apply for equitable relief for any threatened or actual breach of such terms.

 

     11.3 The Customer may not assign, transfer, grant any security interest over or hold on trust all or any of its rights under this Agreement or any interest in them.

 

     11.4 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or establish the relationship of employer and employee or principal and agent between the parties or establish a fiduciary relationship between the parties. 

 

     11.5 These Terms and Conditions, with the Licensing Agreement, constitute the entire agreement between the parties and replaces all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 

 

     11.6 The parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of these terms other than those which are expressly stated in these terms and conditions.

 

     11.7 Neither party shall have any remedy in respect of any statement not set out in these terms and conditions upon which it relied in entering into the Agreement, unless the statement was made fraudulently.

 

     11.8 No variation of these terms and conditions shall be effective unless it is in writing signed by or on behalf of each party.

 

     11.9 A failure or delay in exercising, or a single or partial exercise of, any right or remedy under these terms and conditions or provided by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.  A waiver of a breach of these terms and conditions shall not constitute a waiver of any other breach.

 

     11.10 The Terms and Conditions and any non-contractual obligations arising in connection with it are governed by and construed in accordance with English law, and the English courts have exclusive jurisdiction to determine any dispute arising in connection with these terms and conditions, including disputes relating to any non-contractual obligations.