ADDITIONAL TERMS AND CONDITIONS OF LICENCE AGREEMENT (AS AT JANUARY 2020)

Public Performance Malaysia (PPM)Berhad 201601042369 (1213311V) (“PPM”), is a not-for-profit Licensing Body as declared by the Intellectual Property Corporation of Malaysia (MyIPO) pursuant to the Copyright Act 1987 (Act 332), to represent members of PPM in respect of joint licensing. PPM enables music users in Malaysia to conveniently obtain a collective licence from local, regional and international recording companies to publicly perform and/or reproduce and/or commercially rent and make available their copyright protected Music Recordings solely for public performance within Malaysia.

Without prejudice to licensing terms and conditions stated in PPM’s Licence Agreement (“Terms And Conditions of Licence Agreement”), the following terms and conditions (“Additional Terms And Conditions”) shall apply and be binding on all applicants of PPM (“Applicant”) –

Definitions

  1. The following expressions have the following meanings –
  2. Accounting Period Consecutive monthly periods terminating on the last day of every calendar month in the year.
    Affiliates Music collective management organizations or collecting societies and other rights holders of copyright located in the Territory and outside, that are represented by PPM.
    Commencement Date The date when the Applicant commences to do the Licensed Act or Acts controlled by PPM Members’ Rights.
    Communication All documents including notices, invoices, statements of account, demands, correspondence and etc.
    Information Data, details, documents, facts, figures, information, particulars, records (including personal data as defined in the PDPA) obtained in connection with the Licence and/or Licence Agreement.
    Interest Interest at the rate of one percent (1%) per month payable by the Applicant on any Licence Fees due and unpaid from the date of non-payment to date of full settlement.
    Licence A non-exclusive licence limited to the Territory granted by PPM to do the act specified in the Licence Agreement that is controlled by PPM Members’ Rights.
    Licensed Act The Licence is granted strictly for the acts that are specified in the Licence Agreement submitted by the Applicant and accepted by PPM.
    Licence Agreement Any agreement upon which the Licence is premised, arising from and binding upon PPM’s acceptance of the Applicant’s offer and which terms shall be these Additional Terms And Conditions and the Terms And Conditions of Licence Agreement.
    Licence Fees The royalties or fees payable by the Applicant for the Licence as determined by PPM based on its prevailing published standard tariffs.
    Licence Year A year of the Licence beginning on the Commencement Date and remain in force for a period of twelve (12) months from the Commencement Date.
    Music Recordings All sound, music video and/or karaoke recordings, whether existing now or coming into existence in the future, the copyright of which is owned and/or exclusively controlled by PPM members.
    PDPA Personal Data Protection Act 2010
    PPM Members The owners and/or exclusive licensees of Music Recordings who are authorizing members of PPM. A list of PPM members is available at www.ppm.my/home/membership#ppm-member-listing
    PPM Members’ Rights The rights mandated to and vested in PPM by its members to grant licence(s) to the public and to collect royalties and/or licence fees in respect thereof, in respect of all or any of the following acts controlled by copyright in relation to any of the Music Recordings in the Territory –
    a) the performance, showing or playing to the public;
    b) the communication to the public;
    c) the copying or reproduction (for the purposes of exercising the rights in paragraphs (a) and (b); and
    d) the commercial rental to the public for purpose of the performing, showing or playing to the public
    Territory Malaysia
  3. Words or expressions defined in the Additional Terms And Conditions have the same meanings when used in the Licence Agreement and Terms And Conditions of Licence Agreement.
  4. Unless the context otherwise requires –
    1. words denoting the singular shall include the plural and vice versa and words denoting persons shall include bodies corporate, unincorporated associations and partnerships.
    2. a reference to “include”, “includes” and “including” is read as if followed by the words “without limitation”.
    3. all references to statutes and/or their provisions include such statutes and/or provisions as amended, modified or re-enacted.
    4. “copyright” means the entire copyright subsisting under the laws of Malaysia.
    5. words or expressions defined in the Copyright Act 1987 have the same meanings when used in the Licence Agreement, these Additional Terms And Conditions and in any Terms And Conditions of Licence Agreement.

Applicant’s Obligations, Warranties and Undertakings

  1. The Applicant warrants and undertakes that –
    1. it shall provide only true and accurate Information in the Licence Agreement.
    2. it shall give such Information as PPM may require or request to enable PPM to provide an accurate assessment of the standard tariff applicable and Licence Fees payable.
    3. it shall make available all necessary records to PPM, its auditors, authorised agents or representatives, for the purpose of checking the particulars submitted by the Applicant for the calculation of Licence Fees.
    4. it shall pay the Licence Fees to PPM on time, without any demands from PPM and without any deductions or set-off.
    5. any failure to pay Licence Fees that are due is a breach of the Licence Agreement by the Applicant. Continuing to do the Licensed Act licensed by the Licence without paying Licence Fees due is not only a breach of the Licence Agreement but the Applicant further commits an offence under the Copyright Act 1987, or any revision or amendment thereof, including infringement of copyright and breach of PPM Members’ Rights.
    6. the Applicant shall bear and be liable for all duties, stamp fees, levies and/or taxes.
    7. it shall give assistance and co-operation and shall permit access and entry to PPM, its duly authorized employees or agents to premises licensed by the Licence or occupied, controlled or managed by the Applicant, at all reasonable hours, for the purpose of safeguarding the Music Recordings and PPM Members’ Rights from infringement or unlicensed use including to ascertain or verify the amount of Licence Fees that should be paid by the Applicant or to check compliance by the Applicant with the terms of the Licence Agreement.
    8. it shall promptly notify PPM in writing of any change (including but not limited to ceasing from carrying on the business) in the Information that have been supplied to PPM including changes that may increase the amount of Licence Fees payable. The Applicant shall, in any event, notify PPM with supporting documents within fourteen (14) days of the occurrence of any such change.
    9. if required by PPM, it shall provide to PPM, the Music Usage Reports in the prescribed form/format and within the time stipulated by PPM in its Music Usage Report form or such other time agreed to by PPM during the term of the Licence and upon PPM’s request, the Applicant shall display prominently on its premises to which the Licence applies, any PPM approved logo, mark or other identification relating to grant of the Licence. On any termination of the Licence and Licence Agreement, the Applicant shall immediately cease displaying such logo, mark or identification.
    10. it shall pay all expenses and/or legal costs incurred by PPM to recover any Licence Fees due and owing by the Applicant.
    11. it shall not edit, reproduce, re-mix, re-record or alter any Music Recordings for any purpose unless expressly and specifically permitted by the Licence.
    12. it shall not do any act controlled by PPM Members’ Rights without licence from PPM as such unlicensed use infringes copyright and/or contravenes the law. The Applicant shall also not permit, cause, authorise or aid any unlicensed use by others.
    13. it shall not sub-licence, assign or otherwise transfer the Licence, in whole or in part unless with written consent of PPM. Any attempts by the Applicant to do so shall be void and of no effect.
    14. if it sells, assigns, transfers or divests ownership of the business that is operating or being carried on at the licensed premises (as described in the Licence Agreement) to another entity or person (“New Owner”), the Applicant shall cause, require and procure that the New Owner submits a completed Licence Agreement to PPM, and thereafter notify PPM with supporting documents within fourteen (14) days of this change. If the Applicant neglects or fails to do so for any reason, the Applicant shall, for all purposes, be deemed to continue to own and/or be responsible for the licensed premises and shall remain liable to pay Licence Fees to PPM until such time as the New Owner is licensed by PPM in respect of the said premises. The Applicant acknowledges and agrees that unless licensed by PPM, the doing or exercise by the New Owner of any acts within PPM Members’ Rights infringes copyright of PPM Members.
    15. it unreservedly accepts and agrees that the Licence is granted subject to these Additional Terms And Conditions and any Terms And Conditions of Licence Agreement.

Standard Tariffs

  1. PPM’s published standard tariffs are not exhaustive and do not constitute an offer to grant a licence or permission under that or any other tariff. The appropriate standard tariff applicable to any Licence shall be as determined solely by PPM on the basis of the Information provided by the Applicant and any other information obtained and/or derived by PPM.
  2. PPM reserves the right to revise the standard tariffs from time to time, taking into account considerations including inflation, preceding calendar year’s Consumer Price Index as published by the Department of Statistics, Malaysia, administrative costs and costs of doing business. PPM will announce in advance any change to the standard tariffs and the date when the change will take effect on its website www.ppm.my. If reasonably possible, PPM will also give prior notice of the change to the Applicant.
  3. Standard tariffs that are not published on PPM’s website will be supplied upon request in writing by the Applicant.

Licence Fees

  1. All Licence Fees are payable in full by the Applicant within fourteen (14) days from the date of PPM’s invoice (“Due Date”). If PPM fails to receive full payment by the Due Date, PPM reserves the right to charge Interest on any unpaid amount of the Licence Fees from the date of non-payment to date of full settlement.
  2. Licence Fees paid are not refundable, whether in full or partially.
  3. PPM reserves the right to vary the Licence Fees due or payable by the Applicant including to vary the same to the higher rate according to its prevailing published standard tariffs if there is any material change in the way that the Applicant has used or uses the Music Recordings or if the Applicant does not provide true or accurate Information in the Licence Agreement or fails to provide Information upon PPM’s request to enable PPM to determine and/or verify the Licence Fees payable and/or to check the particulars submitted by the Applicant.
  4. PPM, by its auditor or authorised agents or representatives, shall have the right of access during normal business hours, and by arrangement with the Applicant, to any premises licensed by PPM or occupied, controlled or managed by the Applicant, for the purpose –
    1. to verify the amount of Licence Fees due or payable by the Applicant;
    2. to check the particulars of any matters upon which the Licence Fees are based on or calculated; and/or
    3. to check compliance with the Licence and Licence Agreement.
    PPM may also check or verify the above by any reasonable means including to examine the Applicant’s books and records, receipts, invoices and other documents, and to take copies of relevant parts thereof. If after such examination or if the Applicant fails to submit the particulars and/or documents requested by PPM, the Applicant shall, for all purposes, be deemed to have agreed to and be bound to pay the Licence Fees as unilaterally assessed and fixed by PPM.
  5. PPM reserves the right to revise the licence tariffs from time to time as it considers fit, taking into account considerations including inflation, preceding calendar year’s Consumer Price Index as published by the Department of Statistics, Malaysia, administrative costs and costs of doing business.

Licence

  1. The Licence is granted strictly for the acts that are specified in the Licence Agreement submitted by the Applicant and accepted by PPM. The doing of any acts other than the Licensed acts will require a further Licence from PPM, failing which the Applicant commits copyright infringement and breach of Licence Agreement.
  2. Unless with written consent of PPM, the Licence is not assignable or transferrable and may not be sub-licensed by the Applicant. Any attempt to do so shall be void and of no effect.

Licence Period and Termination

  1. The Licence Agreement and the Licence shall be deemed to have commenced on the Commencement Date and shall continue from Licence Year to Licence Year until –
    1. terminated forthwith by PPM giving notice in writing to the Applicant upon the Applicant’s breach of any terms of the Licence Agreement and if the breach is remediable, upon the Applicant’s failure to remedy the breach within fourteen (14) days of PPM’s written demand to do so; or
    2. terminated forthwith by the Applicant giving notice in writing to PPM, together with supporting documents, within fourteen (14) days upon the Applicant ceasing to use the Music Recording, ceasing to carry on business, becoming a bankrupt or going into receivership, administration or passes resolution for its winding-up.
  2. Any termination of the Licence and Licence Agreement shall be without prejudice to any rights that may have accrued prior to termination and no part of any Licence Fees paid shall be refunded to the Applicant.

Survival of Rights and Obligations

  1. The payment obligations, warranties and undertakings of the Applicant shall survive any termination of the Licence and Licence Agreement and the terms of the Licence Agreement which by their nature would survive such termination, shall so survive.

Personal Data Protection and Data Management

  1. The Applicant consents to PPM using the Information for the purposes of –
    1. licensing, administering and enforcing PPM Members’ Rights (and the rights of PPM’s Affiliates).
    2. administering the Applicant’s relationship with PPM including with respect the Licence and Licence Agreement, any future agreements, matters relating to PPM Members’ Rights, general licensing matters and enquiries.
    3. pursuant to the Credit Reporting Agencies Act 2010, Central Bank of Malaysia Act 2009 and including other applicable or related regulations and legislation.
    4. purposes of PPM’s business and relating thereto including use of PPM’s and/or its Affiliates’ services and activities for the advancement or promotion of the music industry.
    5. research and analysis related to the music industry including analysis of the types of consumers for the Music Recordings, market trends, public preferences, choice or taste in music.
  2. The Applicant consents and agrees that PPM may provide the Information to –
    1. affiliates and subcontractors and/or agents appointed in connection with the matters set out in 17(a) to (e) above.
    2. law enforcement bodies from time to time in relation to any intended or potential action for breach of Licence Agreement or infringement of copyright or otherwise where PPM is under a legal obligation to disclose such Information.
    3. PPM’s members and other music collective management organizations for the purpose of establishing if further copyright licences are needed and related administration and/or enforcement activities.
  3. The Applicant also agrees and consents that PPM may use the Information to contact the Applicant by any reasonable means of communication regarding music related services that may be of interest to the Applicant. If the Applicant, at any time, does not wish for its details to be used or continued to be used for these marketing purposes by PPM, the Applicant may contact PPM at info@ppm.my.
  4. The Applicant warrants that it has obtained the consent of any individual whose personal data the Applicant provides or shares with PPM for the purposes outlined in these Additional Terms And Conditions.

Governing Law and Jurisdiction

  1. The Licence and Licence Agreement shall be governed by and construed in accordance with Malaysian laws. The Applicant and PPM hereby submit to the non-exclusive jurisdiction of the courts of Malaysia
  2. The Applicant unreservedly agrees that all disputes arising from or concerning the Licence and/or the Licence Agreement shall be instituted in courts in Kuala Lumpur shall be determined by courts located in Kuala Lumpur, Malaysia (including subordinate courts, appellate courts and the Intellectual Property Court of the High Court of Malaya in Kuala Lumpur), notwithstanding that the Applicant is residing in or has its place of business outside the jurisdiction of the courts of Kuala Lumpur. The Applicant undertakes that it shall not challenge the provision in this clause.

Service of Legal Process

  1. The service of any writ, cause papers, court documents or any legal process (“Court Documents”) may be made on the Applicant by sending the Court Documents or a copy thereof by registered or AR registered post to the Applicant’s address as stated in the Licence Agreement or such other address as the Applicant may notify PPM in writing.

Variation

  1. PPM may from time to time vary the Additional Terms And Conditions as well as any Terms And Conditions of Licence Agreement imposed for a grant of the Licence. Notice of changes or variations to the Additional Terms And Conditions and the date when they will take effect shall be published in advance by PPM on its website www.ppm.my and the Applicant agrees that this constitutes and shall for all purposes be deemed to constitute sufficient and effective notice to it as it is obliged to keep itself informed of such changes. Notice of variation to any Terms And Conditions of Licence Agreement will be given in writing by PPM addressed to the Applicant’s contact information and details as supplied by the Applicant and retained in PPM’s records.

Waiver

  1. Any failure or delay by PPM in exercising its right or remedy under the Licence Agreement shall not constitute or be construed as a waiver of that right or remedy unless otherwise agreed by PPM in writing.

Invalidity

  1. If at any time any provision of any Licence Agreement is or becomes or is held by any court of competent jurisdiction to be illegal, invalid or unenforceable in any respect, such provision shall be severed and the remainder of the provisions shall continue in full force and effect.

Notices

  1. All Communication required to be given under or pursuant to the Licence and/or Licence Agreement shall be in writing and shall for all purposes be deemed received by the Applicant on the date when the Communication or a copy thereof is delivered and left at the Applicant’s address as stated in the Licence Agreement or such other address as the Applicant may notify PPM in writing; or if the Communication is via email or facsimile, on the date when the Communication is shown as sent by the report or record generated by the computer or facsimile machine; or on the third working day following the date of posting if the Communication is delivered by registered post. The Applicant agrees that it is not necessary for PPM to prove or show actual receipt of the Communication by the Applicant or any acknowledgement of receipt by the Applicant.

Third Party Rights

  1. The Licence and Licence Agreement do not create any right enforceable by any person not a party to it unless otherwise agreed by PPM in writing.