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CosMind TERMS & CONDITIONS

1. GENERAL
1.1 CosMind Records & Publishing (hereinafter referred to as „CosMind“) operates a B2B internet platform for production music. CosMind provides users (henceforth ‘users’) music recordings (henceforth ‘recordings’) and the music works underlying the same (henceforth ‘work’, and a recording and work together shall also henceforth be referred to as a ‘title’) for use in audiovisual and audio productions (for example in films, television, advertising, software) and distributes the licences necessary for use.

1.2 There is no entitlement to the provision of audio or data carriers. The scope of provision lies in the sole discretion of CosMind.

1.3 Users can listen to titles directly from the online catalogue (henceforth ‘catalogue’), at music-search.cosmind.com and obtain the same against payment of the necessary licences for use in media productions in accordance with the applicable price list.

1.4 By using the offering on the website, the user irrevocably declares its agreement to the application of the following General Terms of Business in their valid version for the relationship between CosMind and the user. Contrary, deviating or supplementary conditions to these General Terms of Business on the part of the customer are excluded. Any general terms of business on the part of the user which are referenced in the forms of the user or in the websites of the user are hereby expressly rejected. A contractual relationship between CosMind and the user shall only become effective on the basis of these General Terms of Business.

1.5 These General Terms of Business together with the user’s licence application approved in writing by CosMind shall form the licence agreement for the use of the catalogue titles (for contractual conclusion please see the following Number 4).


2. USER REGISTRATION
2.1 Registration with user name and password is required for the use of all features of the catalogue. CosMind will verify the user’s registration and then activate it.

2.2 The registration necessary for use of the catalogue is performed on music-search.cosmind.com and involves the determination of a username and a password. The user is required to enter the requisite data correctly and in full.

2.3 Registration and activation can be refused on important grounds in individual cases. There is no entitlement to registration and activation.

2.4 The user may not provide access data to third parties. Access data must be protected against unauthorised third-party use.

2.5 The user undertakes to indemnify CosMind from any liability that arises due to the unauthorised use of access data, provided the user is not able to prove that it is not responsible for the unauthorised use.

2.6 Changes to the user data must be promptly entered into the user profile.


3. PROVISION OF TITLES
3.1 The titles are provided to the user after successful registration under the condition that the download function is released for the download of selected file formats from the catalogue on the website. The user can browse the catalogue on the website for suitable titles using various search functions; the user can also play the titles directly and view information regarding each individual title.

3.2 In the event a licence agreement for the use of a musical piece is not concluded within 12 weeks of downloading the musical piece, the user is no longer permitted to use the musical piece as part of the production or otherwise. The file obtained by download must be deleted upon expiry of the above-mentioned period. The exception to this regulation is internal storage for archive purposes.

3.3 In any case, the user acquires no rights whatsoever to the use of the titles provided, reserving the conclusion of a licence agreement on further use according to Numbers 4 to 6 of these General Terms of Business.

3.4 The user is notified that the recording of titles using digital recording devices or software during the use of the play function of the online catalogue is deemed an unauthorised act of duplication and that an authorised use of the titles provided is only possible after the due download of the file and proper licencing in accordance with Number 4 of the General Terms and Conditions.


4. CONCLUSION OF A LICENCE AGREEMENT WITH COSMIND
4.1 In the event the rights required for the intended use of the title are not or not exclusively protected by the Society for Musical Performing and Mechanical Reproduction Rights, Berlin and Munich (henceforth ‘GEMA’), the user undertakes to conclude a licence agreement with CosMind for the use of the title in the event a title is to be used for a production.

4.2 In the case of TV commissioned productions and/or TV own productions, the film production rights in Germany are issued by GEMA. Further details are stipulated in GEMA’s deed of assignment, in particular under § 1 i) Paragraph 3, accessible at www.gema.de.

4.3 The licence is issued exclusively under the terms of the valid price list applicable at the time of the provision of the requisite licence applications or copy notices. The respective bases of calculation for the relevant licence fee can be found under Number 6.1 of these General Terms of Business with reference to the valid price list. The user shall be provided price lists by CosMind upon request.

4.4 The user undertakes to provide CosMind precise details regarding the type and scope of the use of the title(s) by no later than two weeks after completion of the production. In addition, the user shall also send a copy of the music information (known as the ‘cue sheet’) submitted to the collecting society together with this information. The conclusion of a licence agreement and the respective notification of the requisite information must always however occur prior to the release of the production.

4.5 Conclusion of the licence agreement requires the submission of a licence application by the user. This may only occur with the use of the licence application template accessible at https://www.cosmind.com/COSMIND_LIZENZANTRAG_2020.pdf indicating all the required information. The signed licence application has to be sent to CosMind by email in a scanned PDF format or by regular mail.

4.6 The user, or respectively the client, is only permitted to use the title upon the written release declaration by CosMind (email suffices) and the complete payment of the relevant licence fee in accordance with the following Number 6 in the scope of rights granted pursuant to the following Number 5.

4.7 Insofar as the performance and broadcasting rights as well as the mechanical duplication rights to the work are protected by GEMA or another collecting society, these shall be retrieved by the user from GEMA or the other collecting society. In this case, the user is obligated to duly enter the used works with the required information on the corresponding GEMA registration forms and to forward the same to GEMA; one copy of which is to be sent to CosMind. The approval required by CosMind for the use of the title shall be deemed issued upon submission of these lists.

4.8 In the event the performance and broadcasting rights to recordings are protected by the Gesellschaft zu Verwertung von Leistungsschutzrechten mbH (Collecting Society for Neighbouring Rights, henceforth ‘GVL’) or another collecting society, these must be retrieved by the user from GVL or the other collecting society. In this case, the user is obligated to duly enter the used titles with the requisite information on the registration forms and to forward the same to GVL; a copy of which is to be sent to CosMind.


5. SCOPE OF RIGHTS GRANTED
5.1 The rights of use that are to be granted by CosMind shall only be deemed issued upon the payment of the respective licence fee to the account of CosMind in accordance with Number 7 of these General Terms of Business.

5.2 The scope of the licence granted shall be determined by the information on the intended uses in the licence application as well as the release declaration by CosMind.
Amendments to the scope of use or the supplement of further uses in the form of another type of use or playing time of the title shall always require the conclusion of a new licence agreement.
The use right to the titles released by CosMind is strictly limited to audio-visual uses; with the exception of telephone queues and audio books / audio plays, which do not exclusively or primarily comprise one title. The exclusive audio use of a title therefore requires the advance express consent by CosMind in writing (email suffices).

5.3 Upon conclusion of the licence agreement, the user shall not be granted any use rights in the name of the artist or title whatsoever. Use in the name of the artist and/or title requires the advance written consent of CosMind.


6. LICENCE FEES, CONTRACTUAL PENALTY
6.1 The licence fees are calculated in accordance with the price list valid on the day on which CosMind receives the licence application or copy notice. The licence fees are calculated on the basis of the notice (licence application) sent to CosMind and are based on the type of the production, the selected types of use, the area of distribution, the length of the licence as well as the playing time of the title.

6.2 For any use performed without due licencing or in excess of the scope of the existing licence, at least twice the licence fee shall be payable. CosMind reserves further claims for compensation.

6.3 The user shall be provided price lists by CosMind upon request.


7. TERMS OF PAYMENT
The respective licensee shall be sent an invoice upon release. The invoice must be paid in net and without any deductions within 14 days of receipt.

8. WARRANTY AND GUARANTEES
In the case of exploitation rights duly acquired by CosMind, CosMind shall release the user from all legitimate third-party (musicians, conductors, producers, etc.) claims, reserving any deviating regulations as part of these General Terms of Business. This excludes all claims on the part of GEMA or other copyright collecting societies and GVL or other collecting societies for neighbouring rights.

9. AVAILABILITY AND LIABILITY
9.1 User has not right to uninterrupted availability of the internet platform. In exceptional cases, temporary downtimes and unavailability may occur, for example due to maintenance or malfunctions at the hosting partners of CosMind, due to causes in the sphere of user or for other reasons beyond the control of CosMind.

9.2 CosMind has no influence over the content and design of the referenced websites. In this respect, CosMind accepts no responsibility for risks or damages of any kind which are caused by the knowledge, visit or use of the referenced websites. In this respect, CosMind expressly distances itself from all content displayed on all websites referenced by this website and expressly states that it does not make their content its own.


10. COPY SPECIMEN
The user is asked to provide CosMind a copy specimen (DVD or digital format) promptly after completion of the respective production.

11. SHOWREEL
CosMind is permitted to use the respective released production in excerpts, i.e. limited to parts of the production which are accompanied with the contractual titles, for the purposes of self-promotion. CosMind is permitted in particular to use these excerpts (with reference to the user where applicable) on the CosMind website and/or websites of CosMind sub-publishers, as well as in social networks, YouTube channels etc. In this respect, the user grants CosMind the excerpt rights to the production without restriction in terms of time and place and guarantees the existence of these rights as well as possession of the corresponding authorisation over these rights.

12. DATA PROTECTION
Due to the statutory obligations of CosMind to provide information regarding data handling in connection with the use of the website, reference is made to the Data Privacy Policy.

13. FINAL PROVISIONS
13.1 Should one provision of these General Terms of Business be or become ineffective or unenforceable, this shall not thereby affect the validity of the remaining provisions. In the event of the ineffectiveness or unenforceability of a provision of these General Terms of Business, the valid and enforceable provision which comes closest to the ineffective or unenforceable provision proposed between the parties shall automatically apply.

13.2 Amendments to these General Terms of Business require compliance with the written form. This likewise applies to the cancellation of the written form requirement.

13.3 The exclusive place of performance of all obligations and the exclusive place of jurisdiction for all disputes arising from this contractual relationship is the company headquarter of CosMind.

13.4 The legal relationship between the user and CosMind is subject to German law under exclusion of the UN Convention on Contracts for the International Sale of Goods, irrespective of the nationality and habitual place of residence of the user.

In the event of ambiguity or difference in interpretation of the translated English version of these terms and conditions, the German text shall at all times prevail.
Version: January 2020