Take time to look through these Terms and Conditions carefully. You should understand that by ordering any of our products or services, you agree to be bound by these terms and conditions. If you have any questions, or if you want to clarify anything, please contact us. You should print a copy of these terms and conditions for future reference.When you place an order, you are deemed to have read our Terms and Conditions and to have accepted them. We will send you an email confirming our acceptance of the order. It is only when you receive this email that a contract is formed between us and you. That contract is subject to and incorporates our Terms and Conditions. By making an enquiry or placing an order through our Site which we may accept under our Terms and Conditions, you warrant that you are legally capable of entering into binding contracts; and you are at least 18 years old.
1.1 CUSTOMER appoints MUSIC FAKTORY to perform the services of negotiation of terms for and booking of the Artist in relation to the Engagement, and MUSIC FAKTORY agrees to act in that capacity, subject to all of the terms and conditions of this Agreement (the “Services”). CUSTOMER authorises MUSIC FAKTORY to enter into binding contracts with Artist on CUSTOMER’s behalf to perform at the Engagement. Notwithstanding the foregoing, at either MUSIC FAKTORY or Artist’s election, MUSIC FAKTORY may require that any agreements with Artists or their respective agencies be entered into directly between CUSTOMER and Artist, or with Artist’s agency as applicable;
1.2 CUSTOMER understands and acknowledges that MUSIC FAKTORY acts on the Artist’s behalf as an Employment Agency and not as Employment Business for the purposes of The Conduct of Employment Agencies and Employment Business Regulations 2003. MUSIC FAKTORY will negotiate and agree with the CUSTOMER the terms on which the Artist will perform the Engagement. MUSIC FAKTORY is authorised to sign relevant agreements on the Artist’s behalf;
1.3 To the fullest extent permissible CUSTOMER and MUSIC FAKTORY hereby opt out of The Conduct of Employment Agencies and Employment Business Regulations 2003 in all respects;
1.4 MUSIC FAKTORY act for the Artist as Agent but not as Principal and therefore shall have no liability to CUSTOMER in respect to any breach of or failure by the Artist to observe or perform any terms or conditions of the Engagement or agreement for the same.
RIGHTS AND DUTIES OF CUSTOMER
2.1 CUSTOMER warrants that the signatory to this Agreement over the age of eighteen (18);
2.2 The named person executing this Agreement on CUSTOMER’s behalf warrants and represents his authority to do so and such person hereby personally assumes liability for payment of any Fee(s) or monies due, jointly and severally with CUSTOMER;
2.3 During the Term CUSTOMER will: (i) act dutifully and in good faith towards MN2S; (ii) at all times act in a professional manner; (iii) supply MUSIC FAKTORY with any documents or materials, including details of any Intellectual Property Rights, as reasonably required by MN2S to perform this Agreement at its expense, and provide MUSIC FAKTORY with a licence to use CUSTOMER’s Intellectual Property Rights during the Term of this Agreement (including the right to grant sub-licences); (iv) pay any reasonable and pre-agreed “out of pocket” expenses incurred by MUSIC FAKTORY on CUSTOMER’s behalf, in addition to any amounts due to MUSIC FAKTORY within ten (10) days of a request by MUSIC FAKTORY ; (v) notify MUSIC FAKTORY of the details of any material circumstances which may impact on this Agreement or its performance; (vi) inform MUSIC FAKTORY in writing of any anticipated problems in respect of the Engagement; (vii) provide MUSIC FAKTORY with the information MUSIC FAKTORY reasonably requires to perform its obligations; (viii) keep private and confidential all information and provisions relating to this Agreement, the commercial terms herein or in respect of the Engagement, and all confidential, sensitive and personal information regarding Artists, MUSIC FAKTORY and its officers, directors, personnel and clients; (ix) not do anything which will harm the reputation of MUSIC FAKTORY or any Artist.
RIGHTS AND DUTIES OF MUSIC FAKTORY
3.1 During the Term MUSIC FAKTORY shall: (i) act dutifully and in good faith towards CUSTOMER; (ii) at all times act in a professional manner; (iii) provide the Services for CUSTOMER pursuant to the terms hereof; (iv) comply with CUSTOMER’s reasonable written instructions in relation to the negotiation and contracting of the Engagement; (v) supply CUSTOMER with any documents or materials as reasonably required by CUSTOMER to perform this Agreement at its expense; (vi) notify CUSTOMER of the details of any material circumstances which may impact on this Agreement or its performance; (vii) make clear when dealing with third parties that it acts for CUSTOMER only to the extent provided for in this Agreement; (viii) not allow its interests to conflict with those of CUSTOMER; (ix) may, subject to the provisions of this Agreement, perform its duties as it sees fit; (x) comply with relevant laws and regulations, and maintain all necessary licences and approvals generally in its performance of this Agreement; (xi) not do anything which will harm the reputation of CUSTOMER or any Artist; and, (xii) employ sufficient competent and qualified personnel to carry out its obligations under this Agreement.
4.1 CUSTOMER shall provide all necessary and relevant information in relation to the proposed Engagement. MUSIC FAKTORY shall inform CUSTOMER within a reasonable period whether Artist accepts or refuses the Engagement proposed by CUSTOMER;
4.2 Upon receipt of confirmation of acceptance of an offer (subject to contract) by the Artist, MUSIC FAKTORY shall communicate the acceptance within two (2) Business Days from receipt;
4.3 MUSIC FAKTORY shall issue invoices for the Fee and any expenses in respect of the Engagement once this Agreement has been signed by both parties;
4.4 CUSTOMER shall promptly pay to Music Faktory any Fee or other money payable to MUSIC FAKTORY in connection with the Engagement, subject to and always in accordance with the Payment Terms. Any Fee or money shall be paid into MUSIC FAKTORY ’s specified client account by CUSTOMER, and shall always quote Music Faktory’s relevant invoice number as a reference. Time shall be of the essence in respect of all payments. Any failure to adhere to the Payment Terms will be a material breach and will result in the Engagement being cancelled and the contract terminated immediately.
ARTIST BILLING & ARTIST INTELLECTUAL PROPERTY RIGHTS
5.1 CUSTOMER warrants that it will provide the Artist with the Artist Billing as provided for in this Agreement or specified in the applicable Artist performance agreement in respect of the Engagement without alternation, amendment, addition or change of any kind unless agreed expressly in writing with Music Faktory (with Artist’s written agreement) to the contrary;
5.2 CUSTOMER acknowledges and agrees that all advertising, publicity, promotional materials and artwork generated and used by CUSTOMER in connection with the Engagement (or anyone connected to CUSTOMER in any way in respect of the Engagement, including sub-contracting parties) must be approved in writing by MUSIC FAKTORY prior to any such materials being made available to the public. Approval shall not be unreasonably withheld by MUSIC FAKTORY ;
5.3 CUSTOMER agrees that no other act may appear in such materials without prior written approval of MUSIC FAKTORY (with Artist’s agreement);
5.4 CUSTOMER will not make use of the Artist’s Intellectual Property Rights, name, likeness, bio or performance in any way not provided for in this Agreement, nor shall it do so in such a way as to suggest any endorsement or sponsorship of any third party without MUSIC FAKTORY ’s prior written consent (with Artist’s written agreement) which consent shall be given in the sole discretion of MUSIC FAKTORY and Artist. Any request from CUSTOMER for consent in accordance with this clause shall be answered by MUSIC FAKTORY within five (5) working days of such request. Where no response is provided by MUSIC FAKTORY , consent will be deemed to be denied.
TRAVEL, ACCOMMODATION & RIDER
6.1 CUSTOMER agrees to pay for all Travel and Accommodation specified in respect of the Engagement, which amounts shall be paid by CUSTOMER in addition to Fee unless otherwise specified. MUSIC FAKTORY shall have the first option to book Travel and Accommodation for the Engagement on behalf of CUSTOMER, and MUSIC FAKTORY shall have authority to amend any Travel or Accommodation bookings in order to accommodate the Artist’s needs. Otherwise, tickets for Travel and Accommodation will be the responsibility of CUSTOMER to arrange, but must be approved by MUSIC FAKTORY in writing prior to their booking. All costs will be timely paid by CUSTOMER on request of MUSIC FAKTORY , and time shall be of the essence;
6.2 CUSTOMER shall provide and pay for all internal transport for the Artist’s equipment in respect of the Engagement from point of arrival in the country to hotel, between hotel(s) and venue(s) and to point of departure from the country (throughout the Engagement);
6.3 CUSTOMER shall ensure that in respect the Engagement all equipment and services necessary are provided, and all rider requirements, including but not limited to the Hospitality Rider & Catering, Technical Rider and Other Artist Requirements are strictly adhered to, and CUSTOMER acknowledges that it is solely responsible for the provision of all of the aforementioned unless otherwise agreed in writing. Failure to perform this contractual obligation will be deemed a material breach in respect of the relevant Engagement concerned, for which Artist may cancel the Engagement without any liability to MUSIC FAKTORY or Artist. CUSTOMER shall provide and pay (at its own cost) for a first class public address (PA) system and a first class stage lighting system for use by each Artist in connection with the Engagement and always in accordance with any Artist’s Technical Rider with confirmation of the foregoing in writing no later than fourteen (14) days prior to the Performance Date(s)/ Time(s). Any sound-mixing engineers (front-of-house or monitors) provided to work with the any Artist must be English-speaking;
6.4 CUSTOMER will discuss with MUSIC FAKTORY and agree upon any of Artist’s reasonable requests for specific stage décor, props, backdrop or equivalent;
6.5 CUSTOMER agrees to provide a full and detailed itinerary for travel to and performance at the Engagement. Such itinerary information is to be sent by letter, fax, or email to arrive at MUSIC FAKTORY ’s offices no later than twenty-one (21) days prior to the respective Performance Date(s)/ Time(s).
ARTIST ACCESS TO VENUE
7.1 CUSTOMER will make provision for Artist to carry out a sound check/rehearsal at the relevant Venue prior to the Engagement on the same day as the relevant Engagement, or otherwise as specified by MN2S or Artist pursuant to any performance agreement or Artist’s Rider;
7.2 CUSTOMER shall ensure that the Artist has the Venue Access as agreed in respect of the Engagement, and that where specified the public shall be admitted no earlier than provided. Artist will perform on the Performance Date(s)/Time(s) for the Performance Duration unless otherwise agreed between CUSTOMER and MUSIC FAKTORY (with Artist’s agreement) prior to the Engagement;
7.3 CUSTOMER acknowledges that subject to MUSIC FAKTORY ’s written request, Artist will have the sole and exclusive right, but not the obligation to sell souvenir programs, souvenir items and other merchandise at the relevant Venue of the Engagement, including recordings in any and all formats and media, in connection with, and at, the Engagement. The receipts thereof will belong exclusively to Artist. CUSTOMER will ensure suitable space is available at the relevant Venue for Artist’s merchandising at the Engagement where MUSIC FAKTORY have made a request under this clause;
7.4 In connection with any Artist performance CUSTOMER shall provide MUSIC FAKTORY with a mutually agreed number of general admission and VIP tickets for its own use. Artist’s complimentary tickets and guest list shall be as provided in the applicable performance agreement or Artist Rider.
8.1 CUSTOMER shall ensure that no audio or visual recording of any kind or by any means is made of the Artist’s performance at the Engagement unless otherwise agreed in writing with MUSIC FAKTORY (with Artist’s written approval or subject to agreement as applicable). For the avoidance of doubt, provided that no member of the audience shall be allowed to enter any venue with professional audio or audio-visual recording equipment, it is acknowledged that the use of mobile phones for audio or visual recording of an engagement by members of the audience shall not be a breach of the provisions of this clause;
8.2 CUSTOMER acknowledges that in respect of the Engagement, MUSIC FAKTORY and Artist shall be entitled (at its own cost) to record (and CUSTOMER shall at MUSIC FAKTORY ’s or Artist’s request co-operate and make provision for MUSIC FAKTORY or Artist to be able to record) the Engagement by any means, and that the recording party (either MUSIC FAKTORY or Artist) shall own all rights including all Intellectual Property Rights in relation to any such recordings and be free to use the recordings without restriction.
BOOKING AND REBOOKING ARTISTS
9.1 CUSTOMER warrants and undertakes that any subsequent rebooking of the Artist by the CUSTOMER for one or more further engagements within a period of one (1) year after the date of the Engagement shall be made through MUSIC FAKTORY . Should CUSTOMER own and/or operate venues other than the relevant Venue then this condition shall also be applicable for such other premises;
9.2 CUSTOMER shall instruct any third parties approaching it regarding booking the Artist MUSIC FAKTORY has booked on CUSTOMER’s behalf to negotiate solely with MUSIC FAKTORY during the Term and for one (1) year after Termination of this Agreement regarding any prospective engagements or any other commercial opportunities.
10.1 Subject to any additional insurance requirements as provided in the applicable performance agreement or Artist Rider, CUSTOMER warrants that it will be responsible for obtaining and maintaining his own comprehensive insurance in respect of the Engagement. Such insurance shall include, but not be limited to, full accident insurance, employer’s liability insurance, and public liability insurance and/or equivalent insurances in respect the Engagement, to a minimum of one million (1,000,000.00) Euro per occurrence indemnifying and holding MUSIC FAKTORY and each and every one of Artist and Artist’s travelling party harmless from claims and/or actions by or on behalf of any person, firm or corporation who suffers death, personal injury or property damage during or incidental to or in connection with any performance given under this Agreement;
10.2 The insurance policy described above shall name the Artist, each individual member of Artist, and their respective agents, employees, directors, officers, principals, representatives, and shareholders as additional insureds. In addition, CUSTOMER shall maintain in effect (a) workers’ compensation insurance (or the equivalent thereof if workers’ compensation insurance is not available) covering all of its employees, subcontractors, and other personnel under the control, direction, or authority of CUSTOMER, whether directly or indirectly, who are involved in the installation, operation, and/or maintenance of equipment provided by CUSTOMER, and (b) hired and non-owned motor vehicle insurance. CUSTOMER shall supply MUSIC FAKTORY and/or Artist with certificates of insurance showing coverage of the above at least ten (10) Business Days prior to any Performance Date(s)/ Time(s);
10.3 In the event CUSTOMER does not provide certificate of insurance described above by the foregoing deadline, MUSIC FAKTORY and Artist may, in their sole discretion, terminate this Agreement in respect of the Engagement without liability to CUSTOMER. If CUSTOMER has not provided certificates of insurance as set forth herein, the Artist may still elect to perform the show; provided, however, that CUSTOMER will be fully responsible for any events that would otherwise be covered by the insurance noted above, and shall fully indemnify and hold MUSIC FAKTORY and Artist harmless in respect of the Engagement;
10.4 The insurance policies described above will contain provisions requiring the insurance company to give each Artist at least ten (10) days prior written notice of any revision, modification, or cancellation. Any proposed change in certificates of insurance will be submitted to MUSIC FAKTORY and each Artist for written approval prior to any such change taking effect.
DOCUMENTS & REQUIREMENTS
11.1 CUSTOMER will supply MUSIC FAKTORY with documentation as MUSIC FAKTORY requires confirming the identity of the signatory of this Agreement and/or CUSTOMER;
11.2 CUSTOMER warrants that (at its own cost) it will be responsible for obtaining and maintaining his own work permits, visas and all other documents necessary or required by law in respect of the Engagement. Copies of such documents will be provided by CUSTOMER to MUSIC FAKTORY upon request;
11.3 CUSTOMER warrants that it will comply with all regulations and requirements of any national or local union(s) that may have jurisdiction over any of any materials, facilities, services, personnel or other things provided in respect of the Engagement;
11.4 CUSTOMER warrants that it shall ensure that the Venue for the Engagement fully complies with all health, safety and security regulations and directions in force at the time of the Engagement, and that the Venue is licenced properly in all respects. CUSTOMER shall provide details of any risk to the health and/or safety of the Artist performing at the Engagement and the steps that the CUSTOMER has taken to prevent or control such risk (including supplying a copy of a risk assessment of the Venue/site equipment and working conditions);
11.5 CUSTOMER warrants that it shall make adequate arrangements to ensure each and every Artist’s personal security during the Engagement;
11.6 CUSTOMER warrants that it will comply with any reasonable additional administrative requests to supply all such documents concerning the Engagement as are required by MUSIC FAKTORY in order to provide to Artist or permit Artist to perform the Engagement;
11.7 CUSTOMER agrees that in the event of any breach (acts or omissions) of this Agreement by CUSTOMER that MUSIC FAKTORY reasonably considers is detrimental to the interests of the Artist, MUSIC FAKTORY will have the right to provide details of the same to the Agents’ Association of Great Britain who may in turn provide this information to its members.
PROMOTION OF ENGAGEMENTS
12.1 CUSTOMER (at its own expense) will be in charge of the promotion and publicity for the Engagement (including any royalties due to the society of authors or similar, and/or any fines arising from incorrect promotion, publicity, flyering or postering), and hereby acknowledges neither MN2S nor any Artist will be responsible for or bound in any way to provide promotion or publicity in respect of the Engagement or for any expenses in respect of the same;
12.2 CUSTOMER may advertise the Engagement on his/ her social media pages, and/or on his/her website as appropriate. CUSTOMER shall ensure that in any social media posts it tags both the Artist for the Engagement, as well as MN2S, using the hashtags and handles of the parties.
13.1 CUSTOMER and MUSIC FAKTORY acknowledge that by virtue of entering into this Agreement and in consequence of the Engagement they may become privy to information regarding each other and the Artist which is not generally available to the public (“Confidential Information”). Each party warrants and undertakes to make no use of Confidential Information whatsoever or disclose the same to any third party without the prior written consent of the party to which the Confidential Information relates. Each party acknowledges that the disclosure or threatened disclosure of any Confidential Information may cause irreparable harm the other or Artist and the harmed party shall have the right to seek injunctive relief to prevent any such disclosure of Confidential Information.
FEES & PAYMENT
14.1 In consideration for MUSIC FAKTORY performing the Services CUSTOMER agrees to pay the Fee to MUSIC FAKTORY in respect of and as specified in respect the Engagement: (i) during the Term; and, (ii) after the Term, but where the Engagement was contracted during the Term. CUSTOMER acknowledges that the Fee shall include an agency commission payable to MUSIC FAKTORY in consideration of the Services, and that MUSIC FAKTORY will provide an invoice for the Fee together with any expenses properly and necessarily incurred by MUSIC FAKTORY on CUSTOMER’s behalf or in connection with the Artist’s performance at the Engagement;
14.2 In the event the Fee for the Engagement or any other sum due under this Agreement is not paid by CUSTOMER on time, interest shall be payable from the due date until payment, and whether before or after judgment, at 8 % per annum over the Bank of England base interest rate from time to time.
15.1 It is a condition of this Agreement that CUSTOMER effects at its own cost and expense cancellation insurance (details of which shall be supplied upon request), to cover any losses incurred by reason of any non-appearance of the Artist due to cancellation by any party or by Artist, or due to a Force Majeure event or any other events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement, and to ensure that MUSIC FAKTORY is properly paid when due all sums payable to MUSIC FAKTORY under this Agreement in any event;
15.2 In the event of cancellation of the Engagement by CUSTOMER, one hundred percent (100%) of the Fee shall be payable to MUSIC FAKTORY ;
15.3 CUSTOMER shall be deemed to have notified MUSIC FAKTORY of cancellation of the Engagement in the event that CUSTOMER breaches any term of this Agreement and fails to cure such breach as provided herein. In such circumstances any Artist shall (without prejudice to any of its other remedies) be entitled to withdraw its services (in relation to the Engagement), the balance of any Fee(s) due will be payable immediately and all monies already paid shall be retained by MUSIC FAKTORY and Artist as applicable;
15.4 CUSTOMER warrants and represents that upon cancellation by CUSTOMER that it will remain responsible for and will pay within two (2) business days of MUSIC FAKTORY ’s written demand all non-refundable expenses, Travel and Accommodation costs, and other such costs associated with transportation, accommodation, and expense reimbursements for the Artist and its entourage.
By MUSIC FAKTORY / Artist
15.5 CUSTOMER agrees that MUSIC FAKTORY and/ or the Artist may (including but not limited to Force Majeure circumstances) cancel the Engagement without any liability by giving the CUSTOMER notice thereof at least thirty (30) days prior to the Performance Date(s)/Time(s) of the relevant Engagement;
15.6 In the event of cancellation of the Engagement by MUSIC FAKTORY or the Artist (save in the case of breach by CUSTOMER), MUSIC FAKTORY shall use reasonable efforts to re-schedule the relevant Engagement, or if not possible will refund any Fee as applicable to CUSTOMER less any non-refundable expenses incurred by such Artist and/or MUSIC FAKTORY ;
15.7 MUSIC FAKTORY shall have no liability to CUSTOMER for any cancellation of the Engagement, or for any other breach, default, act or omission of the Artist in respect of the Engagement;
16.1 In this clause, ‘Force Majeure’ means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement. The following are a non-exhaustive list of events that are deemed to be Force Majeure events: sickness or illness (evidenced with a doctor’s note), disability, injury or death of Artist, Artist’s family or Artist’s band member(s); an accident to Artist or at the Venue; act of god; civil unrest; terrorism; strike; epidemic; major interruption in or delay of transportation services; war conditions; emergencies; severe weather rendering an engagement impossible, infeasible or unsafe;
16.2 For the avoidance of doubt in the event of cancellation due to any Force Majeure event, and whether or not Artist is ready, willing and able to perform, CUSTOMER shall remain responsible for the Fee and all pre-agreed expenses, transportation, accommodation, expense reimbursements and any other payments or compensation;
16.3 Notwithstanding anything contained herein, general inclement weather shall not be deemed a force majeure event, and CUSTOMER shall remain liable for payment of the Fee(s) plus all other expenses (including for example transportation and accommodation). MUSIC FAKTORY and Artist shall have the sole right to determine in good faith whether any such weather conditions may fall within the definition of a force majeure event under this Agreement, or may be treated as such;
16.4 In the event of a Force Majeure that prevents or delays the Engagement from going ahead for any reason, MUSIC FAKTORY may suspend its performance of this Agreement and its obligations in respect of the Engagement, which may include a cancellation of the Engagement. MUSIC FAKTORY and Artist shall have no liability to CUSTOMER and such events shall not relieve CUSTOMER of obligation to pay the Fee. Notwithstanding the foregoing, in such event, MUSIC FAKTORY shall consult with the relevant Artist to perform a rescheduled engagement at the same or another venue on the same or an alternative date, and if available and acceptable to Artist, Artist will perform the rescheduled engagement on the same terms as the prior prevented or delayed Engagement (taking into account any payment of any fee which Artist has already been pre-paid and which has not been returned to MUSIC FAKTORY ). Any lost costs due to a Force Majeure event will be the responsibility of CUSTOMER;
16.5 In the event of a Force Majeure that prevents or delays the Artist from performing at the Engagement, CUSTOMER shall use best endeavours to minimise the effects of that event to the fullest extent possible;
16.6 CUSTOMER warrants that it shall indemnify and hold harmless MUSIC FAKTORY and any Artist against all liabilities and losses for any Force Majeure event that prevents or delays Artist from performing at the Engagement.
LIABILITY AND RELIEF
17.1 In the event of an alleged material breach in respect of the Engagement, CUSTOMER agrees that the maximum damages which CUSTOMER may seek to recover will be limited to necessary out-of-pocket expenses directly incurred by CUSTOMER relating to the Engagement, including reasonable out-of-pocket costs, taking into account any amounts that CUSTOMER recovered or could have recovered using its best endeavours to mitigate its damages;
17.2 CUSTOMER recognises that any breach or threatened breach of this Agreement may cause MUSIC FAKTORY irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the other party, CUSTOMER acknowledges and agrees that MUSIC FAKTORY is entitled to the remedies of specific performance, injunction and other equitable relief;
17.3 Under no circumstances will MUSIC FAKTORY or any Artist be liable to CUSTOMER or any third party in contract, tort or otherwise for any indirect, incidental, special, consequential, punitive, exemplary or similar damages that result from the parties performance or non-performance hereunder, including but not limited to loss of revenue or loss of profits, even if CUSTOMER and/or Artist has been advised of such possibility of such damages;
17.4 CUSTOMER will indemnify and hold harmless MUSIC FAKTORY and any Artist (and their personnel, representatives, principals, band members, officers, employees, directors and travelling party) in respect of any loss, damages, costs or third party claims (including legal costs on an indemnity basis) that MUSIC FAKTORY or any Artist incurs as a result of CUSTOMER’s breach of any warranty, undertaking or agreement contained within this Agreement, or as a result of any claim for personal injury or property damage or otherwise brought by or on behalf of any third party person, firm or corporation as a result of or in connection with the Engagement, which claim does not result from the gross negligence of MUSIC FAKTORY or the Artist;
17.5 MUSIC FAKTORY shall have no liability for any act or omission of CUSTOMER and/or third party, or in the case of a Force Majeure event. Any failure by the Artist to perform the Engagement (whether adequately and/or at all) shall not be deemed a breach of any agreement by MUSIC FAKTORY . For the avoidance of doubt CUSTOMER shall have no remedy against MUSIC FAKTORY or the Artist in such circumstances, and shall be solely liable for any money paid in respect of the Engagement;
17.6 CUSTOMER warrants that in the event the Engagement does not go ahead for any reason whatsoever (including without limitation due to; cancellation, suspension, or Force Majeure) neither MUSIC FAKTORY nor the Artist will be required to refund any monies paid in respect of the Engagement. CUSTOMER shall fully indemnify and hold harmless MUSIC FAKTORY in any circumstances where it fails to provide for any Artist perform at the Engagement, for any reason;
17.7 Without prejudice to any of MUSIC FAKTORY ’s other rights and remedies under this Agreement, in the event that CUSTOMER is in breach of its obligations under this Agreement, MUSIC FAKTORY shall be entitled to suspend its obligations under this Agreement until such time as the breach is remedied.
18.1 Unless provided otherwise in this Agreement, either party may terminate this Agreement at any time by giving notice in writing to the other party if: (i) the other party commits a material breach of this Agreement and such breach is not remediable; (ii) the other party commits a material breach of this Agreement which is not remedied within thirty (30) days (five (5) days with respect to any payments to MUSIC FAKTORY or Artist as applicable) time from receiving written notice of such breach (email being deemed sufficient for delivery); (iii) the other party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within five (5) days after the other party has received notification that the payment is overdue; or (iv) any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled;
18.2 MUSIC FAKTORY may further terminate this Agreement if CUSTOMER brings MUSIC FAKTORY or Artist into serious disrepute, or is CUSTOMER is convicted of an offence involving negligence, fraud or dishonesty, or is prevented from performing its obligations;
18.3 Subject always to any payment obligations of CUSTOMER, either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party is subject to, indicates, takes any steps in anticipation of, or has no realistic prospect of avoiding, any event or procedure which: causes it to cease business; concerns bankruptcy or an inability pay debts; concerns any liquidation or administration; concerns it being wound up; concerns its assets being controlled, seized, frozen or recovered; including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process;
18.4 On termination all outstanding invoice and other sums owed to MUSIC FAKTORY by CUSTOMER shall be paid within thirty (30) days of termination or of receipt of a valid VAT invoice;
18.5 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination, and clauses which by their nature are intended to survive termination shall do so;
18.6 Subject to applicable law and except as otherwise provided for in this Agreement, MUSIC FAKTORY shall have no liability to CUSTOMER for damages, special or punitive compensation or otherwise by reason only of the termination of this Agreement.
19.1 If any dispute arises between the parties out of, or in connection with, this Agreement, the matter shall be referred to the MUSIC FAKTORY Contact or CUSTOMER Contact (as applicable), and the parties shall use reasonable endeavours to resolve it. If the dispute is not resolved within 28 days of the referral being made, the parties shall resolve the matter through mediation in accordance with the London Court of International Arbitration Mediation Rules.
19.2 Until the parties have completed the steps referred to in this clause and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration.
19.3 Nothing contained in this Agreement shall oblige MUSIC FAKTORY to commence legal proceedings against any third party in any circumstances.
20.1 Any notice given by a party under this Agreement shall be in writing and in English and be sent to the MUSIC FAKTORY Contact or CUSTOMER Contact (as applicable). Notices may be given by email.
21.1 Definitions and interpretation:
“Business Day” means a day other than a Saturday, Sunday or public or bank holiday;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, image rights, database rights, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case whether registered or not.
21.2 The following terms where they appear in this Agreement, shall have the meaning as specified above in the Key Terms of this Agreement above: Accommodation; Additional Schedule Information; Artist; Artist Billing; Artist Services; CUSTOMER Contact; Fee; Hospitality Rider & Catering; MUSIC FAKTORY Contact; Other Artist Requirements; Payment Terms; Performance Date(s)/ Time(s); Performance Duration; Technical Rider; Travel; Venue; Venue Access;
21.3 In this Agreement: (i) a reference to this Agreement includes its schedules, appendices and annexes (if any); (ii) a reference to a ‘party’ includes that party’s personal representatives, successors in interest and permitted designees and assigns; (iii) a reference to a gender includes each other gender; (iv) words in the singular include the plural and vice versa; (vi) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; (v) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form; (vi) a reference to legislation is a reference to that legislation as in force at the date of this Agreement or amended, extended, re-enacted or consolidated from time to time; (vii) a reference to legislation includes all subordinate legislation made as at the date of this Agreement or from time to time under that legislation;
21.4 The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement. Nothing in this Agreement purports to limit or exclude any liability in respect of personal injury and death, or for fraud or fraudulent misrepresentation;
21.5 Each party shall at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement;
21.6 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party;
21.7 No announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). The parties shall consult on the form and content of any such announcement or other public disclosure, as well as the manner of its release.
21.8 CUSTOMER may not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without MUSIC FAKTORY ’s prior written consent. MUSIC FAKTORY may assign this Agreement or any payments arising hereunder. Notwithstanding the foregoing, either party may perform any of its obligations and exercise any of its rights granted under this Agreement through an affiliate, provided that it gives the other party prior written notice including the identity of the relevant affiliate. Each party acknowledges and agrees that any act or omission of its affiliate in relation to its rights or obligations under this Agreement shall be deemed to be an act or omission of that party itself;
21.9 Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law;
21.10 The parties are independent businesses and are not partners or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Save as expressly provided for in this Agreement, none of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf;
21.11 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such required deletion or modification, the parties shall negotiate in good faith to agree the terms of an alternative provision;
21.12 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy. A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given;
21.13 Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to them and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform their obligations under or in connection with this Agreement;
21.14 If there is a conflict between the terms contained in the main body of this Agreement and the terms of the schedules, appendices or annexes to this Agreement, the parties agree that they will discuss the conflict in good faith in order to give effect to the commercial intentions of the parties at the time of contracting;
21.15 Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
21.16 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed exclusively in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
22.1 This Agreement will not take effect until signed by both parties, and where executed in counterparts, shall not be effective until each party has signed one counterpart and delivered it to the other. Notwithstanding the foregoing in the event that the CUSTOMER has by its actions evidenced an intention to be bound by the Agreement (including by way of example paid a deposit or part thereof and/or receipt by MUSIC FAKTORY of written confirmation of the booking of the Engagement) then there shall be deemed to be a binding contract in place between the parties irrespective of whether a signed copy of the Agreement has been returned to MUSIC FAKTORY ;
22.2 The person executing this Agreement on CUSTOMER’s behalf warrants and represents his authority to do so and such person hereby personally assumes liability for payment of any Fee(s) or monies due, jointly and severally with CUSTOMER.