PRATST’S CONTRACT – LICENSOR
1. INTRODUCTION
PRATST and the Licensor hereby agree to enter into the Agreement whereby PRATST will provide the Licensor with a platform to post their original Content to be made accessible to User and/or Licensees of the Site and the Licensor agrees to engage with PRATST under the terms of this Agreement and tender a monthly subscription fee to PRATST for the provision of its services.
2. INTERPRETATION
2.1. Key Terms to the Agreement
2.1.1. “PRATST” means the registered company PRATST, 2020/634010/07
2.1.2. “Site” means PRATST.com
2.1.3. “Content” means text, graphics, images, music, software, audio, video, information, short films, audio-visuals, sound recordings, compositions, other works of authorship and any other Intellectual Property.
2.1.4. “Intellectual Property” means incorporeal property such as but not limited to ideas, inventions, processes that derive from the mental labour, creativity, work of the mind and/or intellect of a human being.
2.1.5. “Agreement” means agreement contained in this document entered into between PRATST and the Licensor
2.1.6. “PRATST Content” means Content that PRATST makes available through the Site, including any Content licensed from a third party, but excluding Licensor Content.
2.1.7. “Licensor” means a person who completes PRATST’s profile registration process, activating a profile in order to submit, post, publish Content to the Site. The “Licensor” may also, where required and/or context permits be a person that uses in anyway the Site and refers to an individual, representing themself and/or, if applicable, acting on behalf of a group, business entity or corporation.
2.1.8. “Licensor Content” means Content that a Licensor posts, uploads, publishes, submits or transmits to be made available on the Site including but not limited to sound recordings, compositions, beats, audio-visuals or otherwise.
2.1.9. “Licensee” means a person or entity who licenses Content from the Licensor
2.1.10. “Collective Content” means, collectively, PRATST Content and Licensor Content.
2.1.11. “Parties” means PRATST and the Licensor.
2.1.12. “Party” means either PRATST or the Licensor as the context may require
2.1.13. “Law” means all statutes, regulations, ordinances, proclamations, bylaws, common law, international law, judicial precedents, administrative orders, directives, compliance notices, and any judgment, decision, order or rule of any court or tribunal within the relevant jurisdiction, approvals and any other regulatory tools, in each case having the force of law in South Africa and shall include any amendments, consolidations or replacements and any regulations made under any such statute.
2.2. The Parties agree that to the general interpretation of this Agreement:
2.2.1. the singular includes the plural and the plural includes the singular;
2.2.2. a reference to a gender includes a reference to each other gender;
2.2.3. a reference to a person includes a reference to a firm, company or other corporate body and its successors in law;
2.2.4. if a party consists of more than one person this Agreement binds them jointly and each of them severally;
2.2.5. a reference in this Agreement to “PRATST” or “Licensor” includes each of its successors in title;
2.2.6. any reference to an amount payable under this Agreement (including but not limited to the monthly prescription is a reference to that amount excluding VAT payable in respect of that amount, if any, which arises from a taxable supply made under this Agreement;
2.2.7. Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause 2 or elsewhere in this Agreement, shall be given effect to as if it were a substantive provision in the body of the Agreement.
2.2.8. Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;
2.2.9. Reference to "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time. Any reference to "business hours" shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
2.2.10. Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;
2.2.11. Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
2.2.12. No provision herein shall be construed against or interpreted to the disadvantage of a Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision;
2.2.13. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
2.2.14. The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
2.2.15. This Agreement incorporates the schedules and annexures to this Agreement which schedules shall have the same force and effect as if set out in the body of this Agreement. In this Agreement the words "clause" or "clauses" or "schedule" or "schedules" or “annexure” or “annexures” refer to clauses, schedules and annexures to this Agreement.
3. LICENSOR’S GENERAL OBLIGATIONS
3.1. The Agreement herein (including Privacy policy and Plagiarism Declaration) are a binding contract between the Licensor and PRATST.
3.2. By:
3.2.1. accessing, browsing, downloading, uploading and using the Site, the Licensor acknowledges and agrees to having read, understood, and agreed to the terms and conditions set out below in the Agreement.
3.2.2. transmitting, submitting, posting and publishing to the Site; registering a profile with PRATST and using the Site to post various Content to the viewing community or to access and view Content or other Licensor Content, the Licensor is agreeing to have read, understood and agreed to these Agreement.
3.3. This Agreement, as may be amended from time to time, apply to all our services directly or indirectly (i.e. via third parties) made available online, through any mobile device, by email, or by telephone.
3.4. PRATST reserves the right to modify and/or terminate these Agreement, or part thereof, from time to time without notice. It is the responsibility of the Licensor to ensure they ensure they are aware of any amendments to these terms and conditions.
4. LICENSOR CONDUCT
4.1. Usage of the Site is solely at the discretion of PRATST and includes, but is not limited to, searching for, browsing, viewing, posting, downloading, registering Content on the Site.
4.2. The Licensor agrees that they may not use the Site in any manner that could damage, disable, overburden or impair the Site or the reputation of PRATST.
5. CONTENT
5.1. PRATST reserves the right to reject or remove from the Site any Content that it deems inappropriate. Any content that could put our community at risk will be removed. PRATST reserves the right to close any Licensor’s profile or remove content without notice to the Licensor.
5.2. The Licensor agrees to not submit Content which will violate or infringe upon the rights of any third party and/or that they do not hold the Copyrights for, unless permission has been granted in writing by the owner of the aforementioned rights (including granting PRATST all necessary rights outlined in the Terms and Conditions).
5.3. The Licensor agrees to be responsible for the Content which is submitted to PRATST and posted and assumes all risks relating to the Content’s publication and display, including but not limited to the Licensor’s reliance on accuracy and any claims relating to the intellectual property and/or other legal rights.
5.4. The Licensor agrees that no Licensor Content of any kind submitted to PRATST will contain libelous, defamatory or otherwise unlawful material.
5.5. PRATST takes no responsibility and assumes no liability for any Licensor Content submitted and posted by a Licensor or any third party.
6. REGISTRATION OF PROFILE
6.1. The Licensor agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
6.2. PRATST reserves the right to suspend or terminate the Licensors profile if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.
6.3. The Licensor is responsible for safeguarding their password and that they will take sole responsibility for any activities or actions under their profile, whether or not such activities have been authorized.
6.3.1. The Licensor will immediately notify PRATST of any unauthorized use of their profile.
7. LICENSOR’S REPRESENTATIONS AND WARRANTIES
7.1. The Licensor acknowledges and agrees that they are solely responsible for all Licensor Content that they make available through the Site and therefore, accordingly, represent and warrant that:
7.1.1. They either are the sole and exclusive owner of all Licensor Content that they make available through the Site or have all rights, licenses, consents and releases that are necessary to grant to PRATST and/or the Licensee the rights in such Licensor Content, as contemplated under these Terms;
7.1.1.1. Licensor shall inform Licensee upon delivery of the Licensor Content, which right(s) Licensor does not own or control.
7.1.1.2. Licensor shall provide Licensee with any documentation requested by Licensee evidencing rights to use the Licensor Content intended under this Agreement;
7.1.2. Neither the Licensor Content nor the posting, uploading, publication, submission or transmittal of the Licensor Content or PRATST’s use of the Licensor Content (or any portion thereof) on, through or by means of the Site will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights and/or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
7.1.3. The Licensor Content will not cause injury to any person or entity; and that the Licensor indemnifies PRATST for all claims resulting from the Licensor Content.
7.1.4. Licensor has the full right, power, and authority to enter into and fully perform this Agreement and all of Licensor’s obligations under this Agreement and to grant PRATST and the Licensee the rights granted in this Agreement.
7.1.5. Licensor has not granted and will not grant or attempt to grant to any other person, firm, corporation or entity, rights of any kind which are inconsistent with the grant of rights to Licensee or which would in any way impair the rights granted to Licensee under this Agreement during the Term.
7.1.6. Licensor explicitly warrants and represents that:
7.1.6.1. the Licensor Content contains NO unauthorized “Samples.”
7.1.6.1.1. “Samples” as used herein means any portion(s) or interpolation(s) of third party master recording(s) and/or composition(s), video(s) and/or other material(s), or portions thereof whether musical, lyrical or otherwise, not owned and/or controlled by Licensor.
7.1.6.2. the sale, distribution, and exploitation of the Licensor Content, or any uses of the Licensor Content contemplated herein shall not violate any law or infringe upon any common law or statutory rights of any person, corporation, or entity, including without limitation contractual rights, copyrights, trademarks, and rights of privacy or publicity;
8. GRANTING OF RIGHTS
8.1. Licensor hereby licenses the Licensor Content to Licensee for distribution and exploitation as follows:
8.1.1. The non-exclusive electronic, digital, and mobile rights in the Licensor Content to create digital and/or electronic copies and compilations, to distribute, to sell, and to publicly perform the Licensor Content via all electronic, digital, and mobile platforms owned and/or controlled by third parties with whom Licensee has or enters into agreements with during the Term (“Licensee Partners”).
8.1.2. perform the Licensor Content in streaming format on Licensee’s website or other websites owned and/or controlled by Licensee Partners
8.1.3. publicly display and make available for download, in whole or part, as part of the sale of the Licensor Content.
8.1.4. with prior written approval from Licensor, include the Licensor Content in audio and/or audiovisual compilation(s) for sale via physical distribution, and in such cases, to manufacture, make copies of, distribute, and sell physical embodiments of the Licensor Content;
8.1.5. release, advertise, and sell electronic files or equivalent electronic form(s) of the Licensor Content and to permit others to do so under the trademark “PRATST” or under any trademark used by Licensee;
8.1.6. sub-license the rights granted by Licensor to Licensee in this Agreement as necessary to Licensee Partners, solely to fulfill the purposes of this Agreement including but not limited to those rights necessary to promote, market, advertise, distribute and sell the Licensor Content to consumers. Licensee’s grant of rights to Licensee Partners for use of the Licensor Content shall always be subject to the terms and limitations of this Agreement.
9. INTELLECTUAL PROPERTY
9.1. The Site and Collective Content are protected by copyright, trademark, and other Laws and regulations of the Republic of South Africa and any other applicable international law.
9.2. Copyrights; All content on the Site, including but not limited to design, text, software, technical drawings, configurations, graphics, audios, videos, other files, and their selection and arrangement are subjected to Copyright laws. All rights are reserved. Copyrights in the Content that is displayed on the Site are held by their respective owners. All trademarks on the Site either trademarks or registered trademarks of the Site or any third-party contributors and/or licenses and may not be copied, imitated, or used, in whole or in part, without the prior written permission. All page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of PRATST and/or its affiliates, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of PRATST. Other trademarks, registered trademarks, product names, and company names or logos displayed on the Site are the property of their respective owners
9.3. The Licensor acknowledges and agrees that the Site and Collective Content, including all associated Intellectual Property rights, are the exclusive property of PRATST and its third party contributors and/or licenses and affiliates. The Licensor will not remove, alter or obscure any copyright, trademark, service mark or other intellectual property rights notices incorporated in or accompanying the Site or Collective Content. The Licensor will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, download, broadcast or otherwise exploit the Site or Collective Content, or any related information to which you may have access; except as expressly permitted in writing by the owner.
9.4. No licenses or rights are granted to the Licensor by implication or otherwise under any intellectual property rights owned or controlled by PRATST or its third party contributors and/or licenses, except for the licenses and rights expressly granted in this Agreement and/or in writing by the respective owner(s).
9.5. PRATST is not in a position to determine who has the prevailing claim to use any particular Content posted to the Site. Such matters are to be resolved directly by the parties concerned in the alleged misuse of their Content.
9.6. PRATST does not claim any ownership rights in any Licensor Content. PRATST does not warranty or represent Licensor Content.
10. WARRANTIES
10.1. The Site and Collective Content are provided “as is”, without warranty of any kind, either express or implied. PRATST assumes no responsibility for any damages suffered by the Licensor, including, but not limited to, loss of data from delays, non-deliveries of content or email, errors, system down time, mis-deliveries of Content or email, network or system outages, file corruption, or service interruptions caused by the negligence of PRATST, its third party contributors and licensors, associates and affiliates, or the Licensor’s own errors and/or omissions.
10.2. PRATST warrants that it will take all reasonable steps and measures as required by law to ensure that confidentiality of information transmitted through the Site is maintained.
10.3. No advice or information, whether oral or written, obtained by the Licensor from PRATST or through the Site shall create any warranty not expressly stated in writing.
11. LIMITATION OF LIABILITY
11.1. The Licensor acknowledges and agrees that the entire risk arising out of their access to and use of the Site and Collective Content remains with the Licensor and that under no circumstances, including, without limiting to, negligence, shall PRATST, its affiliates, officers, directors, employees, agents, or third party contributors be liable for any direct, indirect, incidental, special or consequential damages arising from or in connection with the use of or the inability to use the Site or Collective Content contained on the Site, or resulting from unauthorized access to or alteration of the Licensor’s transmissions or data, or other information that is sent or received or not sent or received, including but not limited to, damages for loss of profits, use, data, loss of goodwill, service interruption, computer damage or system failure, costs of substitute services and/or products or other intangibles, or from any communications, interactions or meetings with other Licensors of the Site or other persons with whom the Licensor communicates or interacts with as a result of use of the Site, even if PRATST has been advised of the possibility of such damages and whether or not it was foreseeable.
11.2. The Licensor acknowledges that this is a reasonable allocation of risk.
11.3. The Licensor is solely responsible for all their communications and interactions with other Licensors and/or Users of the Site and with other persons with whom they communicate or interact with as a result of using the Site.
11.4. The Licensor understands that PRATST does not screen or inquire into the background of any Licensors of the Site, nor does PRATST make any attempt to verify the information of Licensors of the Sites.
11.5. PRATST makes no representations or warranties as to the conduct of Licensors of the Site or their compatibility with any current or future Licensors of the Site.
11.6. The Licensor agree to take reasonable precautions in all communications and interactions with other Licensors and with other persons with whom they communicate or interact as a result of using the Site, particularly if they decide to meet offline or in person.
12. INDEMNIFICATION
12.1. The Licensor hereby indemnifies, defends, and holds PRATST and their affiliates and officers, directors, owners, agents, information providers, licensors, and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities and costs (including reasonable attorneys' fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by the Licensor of these Agreement.
12.2. The Licensor shall use their best efforts to cooperate with PRATST in the defense of any claim. PRATST reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Licensor
13. PAYMENT TERMS
14. TERMINATION
14.1. PRATST reserves the right, at its sole discretion, to discontinue or terminate the Site and to terminate these Terms, at any time and without prior notice.
14.2. The Licensor may terminate this Agreement at any time with written notice to PRATST.
15. BREACH
15.1. Should either Party (Defaulting Party) breach of any of the provisions of this Agreement, then the other Party (Aggrieved Party), shall give the Defaulting Party 14 (fourteen) days’ written notice or such longer period of time as the Aggrieved Party may specify in the notice and may reasonably be required, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party may:
15.1.1. claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations that are due for performance; or
15.1.2. cancel this Agreement upon written notice to the Defaulting Party where the breach constitutes a material breach;
15.1.3. in either event without prejudice to the Aggrieved Party’s right to claim damages or to exercise any other rights that the Aggrieved Party may have under this Agreement or in Law.
15.2. The Aggrieved Party may summarily cancel this Agreement at any time by giving to the Defaulting Party notice of the cancellation if;
15.2.1. the Defaulting Party commits a material breach of this Agreement which cannot be remedied;
15.2.2. the Defaulting Party is, other than for the purposes of reconstruction or amalgamation, placed under voluntary or compulsory sequestration, winding-up, judicial management, business rescue or the equivalent of any of these in any jurisdiction;
15.2.3. a judgment against the Defaulting Party in respect of which no appeal lies or in respect of which the period for lodging an appeal (excluding any period to seek condonation) has expired and remains unsatisfied for a period of at least 30 days; or
15.2.4. the Defaulting Party makes or offers to make a general assignment or any arrangement or composition with or for the benefit of its creditors generally (or any class of its creditors) for releasing it wholly or partially from its debts.
15.3. Any cancellation of this Agreement by the Aggrieved Party is effective on receipt of a notice of cancellation by the Defaulting Party (in the case of an irreversible material breach) or the date of the breach.
15.4. Any cancellation is without prejudice to any claim that either Party may have in respect of any breach of the terms and conditions of this Agreement by the other Party arising prior to the date of cancellation.’
16. APPLICABLE LAW AND JURISDICTION
16.1. This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
16.2. The parties herewith consent to the jurisdiction of the Magistrate’s Court which includes the jurisdiction of the Regional Court in respect of any legal proceedings arising out of this Agreement as well as the cancellation or the interpretation thereof. Notwithstanding the aforesaid, PRATST shall still be entitled to institute proceedings against the Licensor in the High Court.
17. NOTICES AND DOMICILIUM
17.1. The Parties select as their respective domicilia citandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under this Agreement, the said physical addresses as well as the following contact details:
17.1.1. PRATST:________________________________________________________
__________________________________________________________
__________________________________________________________
17.1.2. Licensor: ________________________________________________________
__________________________________________________________
__________________________________________________________
17.2. provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address, contact number, telefax number or by email address by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
17.3. All notices to be given in terms of this Agreement will be given in writing and will –
17.3.1. be delivered by hand or sent by telefax or by electronic mail;
17.3.2. if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
17.3.3. if sent by telefax during business hours, be presumed to have been received on the date of successful transmission of the telefax. Any telefax sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
17.3.4. if sent by email during business hours, be presumed to have been received on the date of successful transmission of the email. Any email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
17.3.5. Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received.
18. MODIFICATION OF TERMS AND CONDITIONS
18.1. From time to time PRATST may modify these Agreement in its sole discretion. When such modification is made, PRATST will post a revised version of these Agreement on the Site. Modifications will be effective when they are posted. PRATST is not required to provide the Licensor with notification that any such modification has been made. It is the Licensor’s responsibility to review these Agreement from time to time to be aware of any such modifications. Each time the Licensor accesses Site, they will be deemed to have accepted any such modifications.
19. GENERAL
19.1. This Agreement constitute the entire Agreement between the Licensor and PRATST and governs the use of the Site superseding any prior agreements between the Licensor and PRATST. The Licensor also may be subject to additional terms and conditions that may apply when making use of affiliate services, third-party contents or third-party software.
19.2. No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
19.3. PRATST's failure to exercise or enforce any right or provision of this Agreement and/or indulgences granted to the Licensor shall not constitute a waiver of such right or provision.
19.4. All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
19.5. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
