1. The Motion Picture Licensing Company South Africa (Pty) Ltd ("MPLC") grants the licensee ("LICENSEE") a non-exclusive licence ("Licence") to publicly perform copyrighted motion pictures and other programmes from any legally obtained source intended for personal, private, home use only - such as DVDs, in its premise(s), under the Terms and Conditions specified in this Umbrella Licence Agreement (“Agreement”).
2. MPLC warrants and represents that it has secured the appropriate rights, under the Copyright Act of 1978, and as specified in the definition of performance contained in Section 27 of the Copyright Act of 1978, to grant the rights contained in this Agreement.
3. "Term" shall mean the period beginning on the "Start Date" listed on the Umbrella Licence Application (“Application”) and shall continue thereafter for periods of one (1) year each, unless cancelled by either party at the end of said period or any subsequent period, upon sixty (60) days advance written notice. Each one (1) year period during the Term is referred to herein as a "Contract Year". If the LICENSEE does not timely notify MPLC of intent to terminate, the Agreement will remain in effect for the entire Contract Year, and the LICENSEE will be responsible for the entire annual fee due to MPLC hereunder. No refunds or credits will be made by MPLC in the event of early termination by the LICENSEE.
4. The public screenings authorised by the Agreement shall take place in the premise(s) identified in the Application or as the LICENSEE otherwise notifies in writing. The sole purpose of such performances is to entertain and/or educate authorised viewers and the audience will be limited accordingly. No specific titles, or any characters from such titles, or producers’ names will be advertised or publicised to the general public, and no admission or other fee will be charged to the audience.
5. The agreed licence fee for the first Contract Year of this Agreement is specified on the Application, which amount is payable to MPLC. Subsequent contract years may include adjustments based on various factors, including, but not limited to adjustments which: (i) reflect any change from the previous year’s Consumer Price Index (CPI), and/or (ii) reflect an increase in the number of attendees at performances conducted pursuant to the Agreement. On an annual basis, or upon request by MPLC, the LICENSEE shall furnish MPLC with the information MPLC may require to determine the licence fee for subsequent Contract Years. The licence fee for each subsequent Contract Year shall be due and payable no later than each anniversary date during the term of the Agreement into an account nominated by MPLC.
6. The specific titles, which may be publicly performed by the LICENSEE under the Agreement, are motion pictures produced and/or distributed by MPLC-affiliated motion picture companies only. MPLC represents that it or its motion picture company licensors may not possess the appropriate rights to certain individual titles, or, due to the expiration of those rights during the term of the Agreement, MPLC may send the LICENSEE at any time during the term of the Agreement binding notices that certain titles cannot be or may no longer be publicly performed under the Agreement. Such notices shall be binding and effective upon the LICENSEE when received.
7. The LICENSEE may publicly perform the specific titles covered by the Agreement by means of lawfully manufactured and distributed media acquired by LICENSEE from any legitimate source. The responsibility for obtaining the motion pictures and other programmes is that of the LICENSEE, and the costs of acquiring such media are to be borne solely by the LICENSEE and are separate and distinct from the agreed public performance licence fee.
8. The LICENSEE may not unlawfully duplicate, edit or otherwise modify the motion pictures or other programmes obtained for public performance purposes under the Agreement.
9. Any separate fees which may be due to music publishers, or collection societies for music publishers, for the right to publicly perform the music contained in any of the motion pictures or other programmes covered by the Agreement, are solely the LICENSEE’s responsibility and are not the responsibility of MPLC.
10. The Agreement may not be assigned by the LICENSEE, without the prior written consent of MPLC, except that the LICENSEE shall have the right to assign the Agreement in connection with a merger, consolidation or sale of its assets and business, provided that the LICENSEE guarantees payment of licence fees if the assignee does not pay in a timely manner for fees owed. The Agreement may be assigned by MPLC.
11. Any notice provided for herein or service of process shall be given in person; by registered post; by reputable overnight carrier; or by facsimile; addressed to the party to be notified as listed on the Application. The date of personal service or facsimile of any such notice shall constitute the date of service and the date of service in respect of service by registered post shall be seven days after posting.
12. If either party to the Agreement commits a breach of any provision of the Agreement and fails to remedy such breach within seven (7) days after receiving written notice from the other party requiring it to do so, then the party aggrieved by such breach shall be entitled, without prejudice to its other rights in law and as set out in the Agreement, to cancel the Agreement or to claim specific performance of any obligation, whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved party’s right to claim damages.
13. In the event of termination of the Agreement, there shall be no refund of the licence fee. A waiver by MPLC or by the LICENSEE of any specific breach by the other shall not constitute a waiver of any prior, continuing or subsequent breach of the same, or any other provision of the Agreement. If any part of the Agreement shall be determined unenforceable, the remainder of the Agreement shall remain in full force and effect.
14. In the event that MPLC engages an attorney to enforce its rights under the Agreement by virtue of the breach on the part of the LICENSEE, of any term of the Agreement, the LICENSEE agrees to pay the reasonable costs and reasonable attorney fees incurred by MPLC.
15. The LICENSEE guarantees that the information provided by the LICENSEE is true, correct and complete in all respects. The Agreement has been duly authorised and constitutes a legal, valid and binding obligation upon the LICENSEE and is enforceable by its Terms and Conditions, which may be updated by MPLC.
16. Any and all rights not granted to the LICENSEE in the Agreement are expressly reserved to MPLC and/or its motion picture licensors.
17. To the extent that, prior to the commencement date of the Agreement, the LICENSEE may have infringed upon rights held by MPLC, MPLC hereby agrees that it will not seek legal recourse or assert any claim for any and all such possible infringements. MPLC makes this warranty only with respect to rights held by it, and is not empowered or authorised to make any such representation or warranty with respect to rights held by others.
18. The Application and these Terms and Conditions contain the full and complete agreement between MPLC and the LICENSEE and shall be construed in accordance with the laws and exclusive jurisdiction of South Africa.
19. Save as specifically provided to the contrary in the Agreement, any disputes arising from or in connection with the Agreement or the termination hereof shall, at the request of any party to the dispute, be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (or its successor-in-title) by an arbitrator appointed, in the absence of agreement, by the President of the Cape Bar Council (or its successor-in-title). Notwithstanding anything to the contrary contained herein, any party shall be entitled to apply for, and if successful, be granted an interdict from any competent Court having jurisdiction. For the purposes of this clause and for the purposes of having any award made by the arbitrator being made an order of Court, the parties hereby submit themselves to the exclusive jurisdiction of the Cape Local Division of the High Court of South Africa. This clause is severable from the rest of this Agreement and shall remain in full force and effect notwithstanding the termination of this Agreement.
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“MPLC Umbrella Licence” is a registered trade mark of Motion Picture Licensing Company (International) Limited.