BMD END USER CONTENT RENTAL LICENSE AGREEMENT
THIS CONTRACT CONSTITUTES A BINDING AGREEMENT PURSUANT TO WHICH BROADWAY MEDIA DISTRIBUTION, INC ("BMD") SHALL RENT TO THE RECIPIENT (i) SCENIC PROJECTIONS, DIGITAL DROPS, PROJECTIONS PASS AND/OR CUSTOM PROJECTION DESIGN ("PROJECTIONS") AND IF APPLICABLE, (ii) CERTAIN HARDWARE(S) OR SOFTWARE(S) USED TO CONTROL THE PROJECTIONS ("PLAYBACK"), SOLELY FOR USE IN CONNECTION WITH A LAWFULLY PRODUCED LIVE PERFORMANCE.
THE CUSTOMER, RENTEE, LICENSEE, PERSON(S) AND/OR ORGANIZATION(S) ("RECIPIENT") ASSUMES THE RESPONSIBILITY TO READ AND UNDERSTAND THESE PUBLICLY AVAILABLE TERMS AND CONDITIONS OF THE END USER CONTENT RENTAL LICENSE AGREEMENT; AND MUST ACCEPT THIS AGREEMENT AND MAKE MANIFEST SUCH ACCEPTANCE, AND AGREED THAT; (i) PAYMENT TO BMD, (ii) ACCEPTANCE OF DELIVERY or (iii) SIGNATURE BELOW; SHALL CONSTITUTE EXPLICIT AGREEMENT ACCEPTANCE.
Recipient assumes the responsibility to read and understand the complete terms and conditions of this Agreement and must accept this Agreement and make manifest such acceptance, and agrees that; payment to BMD, acceptance of Delivery or signature below;
"Recipient" shall mean the Customer, Rentee, Licensee, Person(s) and/or Organization(s) who execute this Agreement and/or use the Projections.
"Projections" shall mean the materials defined hereunder, which include Scenic Projections, Digital Drops, Projections Pass and/or Custom Projection Design.
"Rental Term" shall mean the period of time, determined in weekly increments, that this License shall apply for the use of the Projections. The initial Rental Term for Scenic Projections shall be 4-weeks, available for weekly extensions thereafter through BMD or its authorized resellers. The initial Rental Term period for all other Projections shall be limited to the following; (i) Digital Drops non-exclusive license is granted for perpetual use by the Recipient, whereas the Projections cannot be sold, transferred, given or encumbered in any way or method without the expressed consent of BMD, and; (ii) Projection Pass non-exclusive license shall be 4-weeks, unless additional weeks have been licensed in advance through BMD or its authorized resellers, and; (iii) the Playback Rental Term shall be determined by BMD at the time of the License or Rental, in most cases, through the BMD internet e-commerce website.
"Playback Fee" shall mean the usage fee for hardware or software as defined below for a period of time as determined in conjunction with the Rental Term. Additional usage is subject to fees as determined by BMD, partially included hereunder.
"Content Rental Fee" shall mean the License fee for the Projections for the time included in the Rental Term. Changes in price, discounts or promotional prices publicly available after the first date of the Rental Term, advertised by BMD or its authorized Resellers; shall be deemed separate to the Content Rental Fee.
"Reseller" shall mean authorized third-party companies who provide BMD products and/or services to their customers, who may become a Recipient through authorized transactions external to BMDs direct communication.
TERMS AND CONDITIONS
1. License. Subject to the terms and conditions set forth hereunder, (a) the Licensor of the Projections, Broadway Media Distribution, Inc. (“BMD”), will convey the necessary rights and privileges and grant a non-exclusive license (“License”) to the Recipient, which may not be assigned, and provided in exchange for; (i) acceptance of this Agreement and (ii) the full payment of any money due and owing; which includes, the Content Rental Fee, which is paid to BMD directly, via internet e-commerce or through an authorized reseller and, if applicable; the Playback Fee; which shall collectively constitute the “Rental Fees”. (b) Projections shall include; (i) all of the contents of the file(s), video(s), image(s), film(s) and other digital media; or (ii) other media provided, which may include related written materials or documentation files. (c) This Agreement identifies the totality of the rights and License granted, and all other rights are reserved to BMD. License granted to Recipient are for the Projections and shall be (i) non-exclusive; (ii) limited to the use and display during the Performance Dates; (iii) as a scenic design component in conjunction with the Play, and; (iv) used in its original form only, unless modified by BMD. (d) The Term of; (i) this Agreement shall begin on the date of execution, and; (ii) the License shall commence on a date that is not yet certain between the first date of the Rental Period and three (3) business days later, and expiring on the last day of the Rental Period (the “Rental Term”). (f) Any Rental Fees due shall be paid in advance of the first date of the Rental Term. (e) Per the discretion of Licensor, Recipient may be granted additional rights, which shall be subject to all terms and conditions herein, and billed accordingly, and such rights may include; (i) changes, modifications, addition of features or new functionality, and/or; (ii) extension of License dates or Rental Term. (g) Recipient agrees and acknowledges that (i) any violation of any copyright provision(s) or the foregoing may result in the immediate termination of this Agreement and License connected therewith, and; (ii) BMD shall not be liable to Recipient or any third party for any direct or indirect costs arising from such termination(s).
2. Delivery. This License includes the rental of Projections, which shall be delivered to Recipient at the e-mail address provided to BMD via internet e-commerce purchase, from an authorized reseller or another method deemed appropriate by BMD, and, if applicable, deliver the Playback via internet transfer or parcel delivery service (collectively “Delivery”). (a) As written above, Recipient shall select (i) rental of BMD-supplied Playback hardware or software to control the Projections, or; (ii) elect to use the Projections with customer-supplied hardware or software of Recipient’s sole expense, limited to the supported Playback options regularly offered during the Rental Term. (b) If Playback rental is selected, Recipient shall complete the “Playback Order Form” as supplied by BMD via email or another method as provided by BMD, upon completion of this Agreement, and return fully completed no less than three (3) weeks prior to the start of the Rental Term to avoid $150.00 late order fee and/or up-to Agreement cancellation. (c) BMD shall assist with the delivery of the Projections within reason, and; (i) Recipient may install the Projections on no more than two (2) computers or Playback hardware(s) and/or software(s) during the Rental Term, and; (ii) installation in excess of License is prohibited, including exclusion of additional copies for backup or archival purposes. (d) For the avoidance of doubt, this Agreement does not include any equipment required for viewing the Projections, including (i) projectors, computers, tablets, televisions or (ii) other audiovisual equipment (the “Equipment”). Recipient may obtain Equipment from BMD or an alternative third-party at Recipient’s sole expense. (e) Recipient is responsible for any timeline and cue creation of the Projections or Playback as applicable.
3. Access. Projections and Playback may require activation controlled by the Access Key or another authorization method as determined by BMD, and if such procedure(s) is not followed, then the items will cease to function until activation has been completed. (a) Upon expiration of the Rental Term, (i) access, usage and License to Projections will become null and void, and (ii) functionality of the Projections, and if applicable, the Playback, may be automatically revoked without notice. (b) If the last day the desired usage occurs after the Rental Term, Recipient is required to make advance reservation as to avoid unplanned interruptions, and alert BMD of the request for additional time, of which additional fees must be prepaid prior to the granting of any License extension. (c) Projections contain technological measures designed to prevent unlicensed and illegal use; and (i) enforcement technology limits Recipient’s ability to install and uninstall the Projections no more than a finite number of times.
4. Hardware. Any hardware provided by as part of the Playback (the “Hardware”) requires timely return to BMD or its sub-agent(s) (the “Hardware Owners”) by the last day of the Rental Term. (a) Recipient agrees to keep and maintain the Hardware until its return to Hardware Owners (i) at their own cost and expense, and; (ii) in a good state of repair, and shall; (iii) fully inspect the Hardware within forty-eight (48) hours of delivery and accept the Hardware in good condition and function. (b) Recipient shall inform BMD upon demand of the exact location of any Hardware, and Hardware Owners and BMD reserve the right to inspect or observe its use at any time. (c) For the avoidance of doubt, Hardware will be shipped on the first day of the Rental Term. (d) If Recipient fails to return the Hardware by the last day of the Rental Term; (i) continued usage is deemed periodic rental subject to the terms of this Agreement, and billed the weekly rental rate, as listed on the BMD website during the Rental Period, in addition to any applicable Content Rental Fee extensions as determined by BMD at that time, and; (ii) Pro-rata calculations for possession, and other time-delimited calculations of this Agreement are made using a 30-day month and 7-day week. (e) Hardware must be returned in the same condition as obtained. Recipient will incur all costs associated with hardware, (i) not returned within twelve (12) weeks of the first date of the Rental Term; (ii) lost or stolen; or (iii) damaged and in need of repair to return to the same condition at the date of shipment, with normal wear and tear excepted. (f) Recipient shall alert BMD of malfunctioning or non-functional Hardware and BMD will use commercially reasonable efforts to provide an adequate replacement if possible, considering that; (i) If Hardware is non-functional upon Delivery, Recipient MUST call BMD at that time to qualify for any consideration of partial refund or replacement, and (ii) Recipient indemnifies BMD and Hardware Owners for any personal injury or loss incurred during the use or while in possession of Playback, Hardware and/or Projections. (g) The outbound shipping and processing of the Hardware is included in Playback Fee, and; (i) shall be shipped via ground parcel delivery only, which in most cases is delivered to the Recipient within ten (10) days from the first date of the Rental Term, therefore; (ii) BMD suggests requesting the Hardware a minimum of two (2) weeks prior to technical rehearsals of the Play; in addition; (iii) outbound shipment shall be made via UPS, USPS or select international shipping couriers, and if courier does not provide service to the delivery address as provided in the Playback Order Form, the Hardware will not be delivered, and the Playback Fee will be refunded less processing costs as determined by BMD, however (iv) re-delivery due to Recipient not present during delivery is subject to (i) additional delivery charges; (ii) restocking fee of ten (10) percent of Playback Fees and; (iii) any additional charges for redelivery. (h) Return shipment of the Hardware shall be (i) the sole responsibility of the Recipient, and; (ii) insured for the total Playback Fee. (i) If Recipient is permitted early possession of Hardware prior to the Rental Term, such possession shall be subject to all provisions of this Agreement, but the return of Hardware, if later than the Rental Term, shall not change. (j) Recipient acknowledges its sole and exclusive remedy for Hardware failure shall be restricted to the repair or replacement of Hardware delivered defective, if any. (k) Hardware or related accessories or cables returned dirty, unwrapped, snarled or with tape residue will be subject to a cleaning fee, minimum $25.00 per item.
5. Cancelation. Upon Delivery, no returns, exchanges or reimbursements shall be provided to the Recipient. (a) Cancelation in advance of Delivery, (i) must be made with BMD directly, (ii) two (2) business days after execution of this Agreement is subject to a cancellation charge of ten (10%) percent of the total Rental Fees, and five (5) business days after execution is subject to a cancellation charge of twenty-five (25%) percent of the total Rental Fees, and (iii) thereafter any Playback Fee is subject to one-hundred (100%) percent charge and no refunds shall be given under any circumstances. (b) Cancellations after five (5) business days after execution of this Agreement due to acts of God (illness, death or weather), shall be rescheduled within six (6) months of the Rental Term and (i) Recipient shall be charged only the Playback Fee, or (ii) if not rescheduled, a service charge of fifty (50) percent of the Rental Fees will be incurred. (c) For the avoidance of doubt, changes in Performance Dates which require adjustment to Rental Term shall be classified as cancelations. (d) Any Hardware not accepted at delivery attempt will be charged in full unless the Recipient provides seven (7) business days notice to BMD of change to delivery address.
6. Additional Requirements. The Recipient understands its requirement and its sole responsibility to cue, play, output and time the Projections, and if applicable, use, return transport and set up Playback. (a) If applicable, Playback rentals require specific technological requirements as listed on the BMD website. (b) BMD shall provide support of the Projections and Playback within reason, and will make minor adjustments to the Projections per the sole judgment of BMD. (c) Any printed program for the Play must include the ownership billing, (i) Scenic Projections provided through special arrangement with Broadway Media Distribution (BMD), and; (ii) all person(s) handling the cueing, timing, application or other design, hardware or software service in conjunction with the Projections, shall be labeled as a(n) “AV Technician” or “Projection Technician”, and not to be construed as the originator of the Projections in any way. (d) Recipient (i) may deliver photos showing the Projections in use, and/or any news or publicity-related material(s), and; (ii) upon BMD’s receipt thereof, Recipient grants universal usage rights for internal and public display of all submitted materials, and; (iii) Recipient should not submit any materials for which it has not obtained releases from all persons whose performance or creative work is depicted therein.
7. Modifications. Alterations, additions or improvements to the Projections content or Playback hardware(s) or software(s) is restricted without advance written consent of the BMD. (a) Recipient may not (i) modify, adapt, translate, sublicense, rent, lease, or loan all or any portion of the Projections, or; (ii) create any derivative works from all or any portion of the Projections, or; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source material of the Projections, or; (iv) remove or obscure BMD copyright or trademark notices, or the copyright and trademark notices of third parties that BMD has included, or; (v) use the Projections in any manner that is illegal or not authorized by this Agreement. (c) Alterations, modifications and edits to the Projections are subject to approval by BMD, and shall be; (i) billed at a rate of $150.00 per hour with a two (2) hour minimum for each instance edits are requested, and; (ii) submitted no later than four (4) weeks prior to first day of the Rental Term.
8. Indemnification. As consideration for its rental and use of Projections, and if applicable rental and use of Playback; Recipient acknowledges the aggregate liability of BMD, Hardware Owners and BMD affiliates, under or in connection with this Agreement, shall be limited to Rental Fees, if any. (a) Recipient agrees to indemnify BMD, Hardware Owners and the authors/owners of the Play against and from any and all charges, costs, expenses and liabilities that BMD may incur as a result of any demands, claims or actions brought by reason of the making of, production, shipping, operation, and/or use of the Projections or Playback. (b) Recipient is required to obtain the appropriate liability insurance of a minimum $1,000,000 coverage amount; sufficient to cover all liability claims for injuries to others that the Projections or Hardware may cause and shall include the proper insurance to cover any loss incurred as a result thereof. BMD and Hardware Owners reserve the right to obtain a copy of the insurance certificate with “Broadway Media Distribution, Inc” included as an “also-insured” party; and any such document shall be delivered to BMD within five (5) business days of request; and Hardware shall become due immediately and any License shall be revoked upon failure to provide such documentation.
9. Limited Warranty. BMD and Hardware Owners make no warranty, expressed or implied, regarding the Hardware, including without limitation any warranty or merchantability or fitness for any purpose. (a) While BMD have gone to great lengths to insure stable operation of the Projections and Playback, no warranty is offered or implied as to the suitability of or for Recipient’s particular purposes. (b) The Projections and Playback provided are “AS IS”, and BMD, its suppliers and/or affiliates, make no warranties, conditions, representations, or terms (express or implied whether by statute, common law, custom, usage, or otherwise) as to its use or performance; including without limitation non-infringement of third party rights, merchantability, integration, satisfactory quality, or fitness for any particular purpose, except for, and to the extent, that a warranty may not be excluded or limited by applicable law.
10. Conclusion. Recipient assumes the responsibility to read and understand the complete terms and conditions of this Agreement and must accept this Agreement and make manifest such acceptance, and agrees that; payment to BMD, acceptance of Delivery or signature below; shall constitute implicit acceptance and execution; and therefore allowing the full enforcement of all terms and conditions contained herein. (a) An executed original of this Agreement shall be returned to BMD. (i) BMD shall be under no obligation to take any action pursuant to this Agreement unless accepted by BMD. (b) This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties, however, (i) nothing herein shall be construed as consent by BMD for the responsibilities of this Agreement or the License to be assigned, transferred, pledged, hypothecated, sublet or lent by Recipient to anyone without prior written consent of BMD, including; (ii) Recipient shall not pledge or encumber the Projections or Playback in any way. (c) Except for government agency or institution, including public schools, the Recipient signatory named hereunder, both as individuals, jointly and severally, and as a business or trade name, shall each personally guarantee the faithful performance of the Agreement irrespective of the Recipient name first written above. (d) This Agreement shall be governed by the laws of the State of New York. (e) Recipient’s default or breach of any provision hereof, or upon the happening of any event expressed herein; (i) BMD shall have, in addition to all legal remedies available, the right to take possession of any or all items without demand or notice, without any court order or other process of law and; (ii) Recipient hereby waives any and all damages occasioned by said taking.
FOR PRODUCTS AND OR SERVICES NOT COVERED UNDER THIS EUCRLA PLEASE CONTACT BMD FOR THE REQUIRED CONTRACT, WHICH CONSENT AND AGREEMENT IS REQUIRED PRIOR TO PRODUCT DELIVERY. FAILURE TO COMPLY FORFEITS ANY REQUIREMENTS OF BMD AND ANY APPLICABLE PRODUCT ORDER MAY BECOME NON-REFUNDABLE IN CERTAIN CIRCUMSTANCES PENDING BMD REVIEW.