Terms & Conditions

This Agreement sets out the terms and conditions between Mushy Media (Pty) Ltd (registration number 2024/361199/07) with its registered address at Unit 17 Cederburg, The Willows Estate, Kings Avenue, Kelland, Gauteng, South Africa, 2194 (the “Company”) and you, as the person who is the owner and operator of the relevant social media account and who engages with our music services for the purpose of generating additional revenue on the terms of this Agreement (the “User”). By signing this Agreement electronically below and clicking “Agree and Submit” you agree to all the terms and conditions set out below and that this Agreement shall be legally binding on you.

1. INTERPRETATION

  1. 1.1 In this Agreement, unless the context clearly otherwise indicates:
    1. 1.1.1. “Agreement” means this Agreement together with the preceding form;
    2. 1.1.2. “Business Day” means any day other than a Saturday, Sunday or public holiday officially recognized as such in the Republic of South Africa;
    3. 1.1.3. “Catalogue” means the catalogue of musical works belonging to the Company and made available for use by the Company on any Platform;
    4. 1.1.4. “Intermediary” has the meaning ascribed thereto in clause 2.1.2;
    5. 1.1.5. “Musical Work(s)” any musical work(s) forming part of the Catalogue;
    6. 1.1.6. “Parties” means the Company and the User and “party” shall mean any one of them as the context may indicate;
    7. 1.1.7. “Platform” means any media-sharing platform on which the Catalogue or any Musical Work(s) forming part thereof is made available by the Company including, without limitation, YouTube, being the online, media sharing platform styled as such and operated by YouTube LLC;
    8. 1.1.8. “Signature Date” means the date upon which this Agreement is electronically signed and submitted by the User; and
    9. 1.1.9. “VAT” means value added tax, as levied under the Value Added Tax Act 89 of 1991 (as amended).
  2. 1.2. Words importing the singular shall include the plural and vice versa, words importing any gender shall include the other genders and words importing persons shall include partnerships and bodies corporate.
  3. 1.3. The head notes to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
  4. 1.4. If any provision in the abovementioned definitions and/or the preamble hereto is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in this clause 1, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement.

2. BACKGROUND

  1. The parties record that:
    1. the Company has made its Catalogue of Musical Work(s) available on certain Platforms;
    2. the Company makes use of an intermediary to collect revenue based on certain usage of the Musical Work(s) forming part of its Catalogue in relation to the Platforms (the “Intermediary”);
    3. the User wishes to make use of certain Musical Work(s) forming part of the Catalogue and the Company wishes to remunerate the User for such use on the terms of this Agreement; and
    4. the parties wish to enter into this Agreement to regulate the matters set out herein.

3. LICENCE

  1. The Company hereby grants the User a non-exclusive, worldwide, revocable licence to use the Musical Work(s) on the Platforms on which the Company makes them available subject to the terms and conditions set out in this Agreement. For the avoidance of doubt, the Company shall remunerate the User for Qualifying Use of the Musical Work(s) on the terms set out in clause 6 and in this Agreement.
  2. The license contemplated in clause 3.1 may be revoked by the Company at any time on 7 (seven) calendar day’s written notice to the User.

4. COMMENCEMENT AND TERMINATION

  1. This Agreement will commence on the Signature Date and continue indefinitely, subject to being terminated earlier in accordance with clause 4.2 below.
  2. This Agreement will terminate in the event that:
    1. the parties mutually agree in writing to terminate this Agreement;
    2. either party gives the other party no less than 7 (seven) calendar days’ written notice of termination; or
    3. either party becomes entitled to cancel this Agreement in accordance with clause 10 below.

5. USER UNDERTAKINGS AND ACKNOWLEDGEMENTS

  1. The User and all content published by the User:
    1. shall comply with any and all terms and conditions and community guidelines of all relevant Platforms, sites, forums, or other applications on which it uses any Musical Work(s) or any parts thereof;
    2. shall comply with any and all applicable laws and regulations in any jurisdiction in which any Musical Work(s) or any parts thereof are used by it or form part of its content;
    3. shall not infringe or violate any rights or intellectual property rights of any other person; and
    4. shall not utilize any Musical Work(s) or parts thereof in a manner that is likely to prejudice the good name and reputation of the Company or its employees.
  2. The User shall give the Company no less than 7 (seven) calendar days’ written notice should it at any time decide to cease using any Musical Work(s) from the Company’s Catalogue altogether for any period of time or for the time being.
  3. The User acknowledges and agrees that the Company is the sole, exclusive, and unencumbered owner of all Musical Work(s) and the Catalogue and all intellectual property including all copyright, in all forms and in all territories, in relation to all such Musical Work(s) and the Catalogue.
  4. It is recorded that, in order to allow the Company to accurately track the User’s channels and to confirm their identity for any payments under this Agreement, and as a condition to any payment being made by the Company under this Agreement, the User shall have provided all information and/or documents requested in the preceding form to the Company. The User hereby warrants in favor of the Company that all information and/or documents submitted by it as part of the preceding form and/or application are true, accurate and complete in all respects and are not misleading.

6. PROFIT SHARE AND PAYMENT

  1. The parties record that:
    1. the Intermediary monitors usage of the Musical Work(s) on the Platforms and shall monitor the usage thereof by the User;
    2. the Intermediary collects and pays over revenue to the Company based on the usage of the Musical Work(s) on the Platforms over any monthly period; and
    3. the Intermediary retains 10% (ten per cent) of such total revenue collected by it and pays the remainder to the Company (“Net Revenue”).
  2. For all purposes of this Agreement “Qualifying Usage” means usage of any Musical Work(s) by the User which meets the following criteria:
    1. the relevant Musical Work(s) must be used in short form content and on the following short form platforms only: TikTok, Instagram, and YouTube Shorts, and Qualifying Usage does not include use thereof in longer format content or other platforms such as traditional YouTube videos unless specifically otherwise agreed by the Company in writing on a case by case basis;
    2. the relevant Musical Work(s) must be used for the majority of the duration of the video or content and the video or content itself must be at least 10 (ten) seconds long; and
    3. the relevant Musical Work(s) must use at least 25% of the video or content’s volume and, in any event, must be clearly audible and with no other music playing over it or in the background (save for sound effects that do not prevent or detract from the relevant Muscial Work(s) being clearly audible), failing which the usage may not be detected and the Company will not be held liable for any payment in relation to such use where any Musical Work(s) are not detected by the Company or its agents/intermediaries.
  3. Notwithstanding anything to the contrary in this Agreement, the licence granted under this Agreement extends only in relation to Qualifying Usage in respect of the relevant Musical Work(s) and no amount, remuneration or Profit Share shall be payable by the Company in relation to usage that does not meet the criteria of Qualifying Usage.
  4. Upon receipt by the Company of any Net Revenue from the Intermediary in relation to any Qualifying Usage of any Musical Work(s) by the User, the Company shall:
    1. calculate its anticipated tax liability in relation to such Net Revenue based on the prevailing applicable tax rates and the Company’s reasonably anticipated income for the relevant tax period (“Estimated Tax”); and
    2. Deduct the Estimated Tax from the Net Revenue to calculate the After Tax Revenue. A profit share of 60% to 75% (sixty to seventy-five percent) of the After Tax Revenue will then be paid to the User, based on monthly view count and any applicable referral bonuses (the “Profit Share”).
  5. For the avoidance of doubt, there shall be no adjustment of any Profit Share payment to the User if and in the event that it transpires that the Company’s actual tax liability differs from its anticipated tax liability as contemplated in clause 6.4.1. Any determination made by the Company pursuant to clause 6.4.1 shall be final.
  6. All amounts set forth in this Agreement shall exclude VAT, which shall be paid by the Company to the User in addition to the Profit Share, if applicable.
  7. All amounts contained in the Profit Share shall be exclusive of any applicable taxes, surcharges, and/or deductions which may be assessed by any governmental entity against the User arising under this Agreement. It is expressly stated that the Company shall not be responsible for any such applicable taxes, surcharges, and/or deductions and that the User undertakes and warrants any such applicable taxes, surcharges, and/or deductions shall be paid directly by them.
  8. Any Profit Share shall be paid by the Company into the User’s bank account nominated in writing for that purpose within 5 (five) Business Days after receipt by the Company of any Net Revenue in respect of Qualifying Usage by the User, provided that the User acknowledges and agrees that:
    1. Without prejudice to any other provision in this Agreement, any Profit Share in respect of Qualifying Usage within any calendar month, shall be paid 2 (two) calendar months after the end of that calendar month. By way of example, the Parties record and agree that Profit Share in respect of Qualifying Usage in the month of June will be paid at the end of the month of August, etc. Accordingly, and for the avoidance of doubt, no payment shall be made in the first 2 (two) calendar months following the Signature Date, but any payment in respect of those months shall follow in the 2 (two) calendar months that follow respectively; and
    2. In the event that this Agreement is terminated or the User gives any written notice as contemplated in clause 5.2, the User shall not be entitled to payment of, and hereby forgoes, any Profit Share in respect of any Qualifying Usage after such termination or after such notice period expires (as the case may be). For the avoidance of doubt, the User shall remain entitled to any Profit Share in respect of any Qualifying Usage prior to such termination or the expiry of such notice period (as the case may be).
  9. For the avoidance of doubt, the Company shall at no time be liable to pay any Profit Share or any other amount to the User if it has not received the relevant Net Revenue from the Intermediary in respect of the relevant Qualifying Usage of any Musical Work(s) by the User.
  10. Should the payment date fall on a day other than a Business Day, the Remuneration shall be paid on the first Business Day thereafter.
  11. The Company shall be entitled to set off against any Profit Share any amount due by the User to the Company from time to time.
  12. For the avoidance of doubt, payment in full or in part of any Profit Share shall be without prejudice to any claims or rights of the Company against the User arising from this Agreement.
  13. The Company may from time to time, in its sole and absolute discretion, offer a referral program to Users selected by the Company. Any such offer may be made in writing to the relevant User and the Company reserves the right to withdraw, cease and/or amend the terms of any such referral program at any time by written notice to the relevant User subject to the terms specified in any such offer.

7. RELATIONSHIP OF THE PARTIES

The relationship of the parties shall be governed by the terms of this Agreement and nothing contained herein shall be deemed to constitute a partnership, joint venture, employer/employee agreement or the like between them nor to constitute one party being the agent of the other for any purpose.

8. LIABILITY

The User shall be liable to and hereby indemnifies the Company from and against any liability, loss, damage or claim arising from their breach of this Agreement, their breach of any obligations imposed on them in law or otherwise from their intentional or negligent acts (including, without limitation, any consequential losses).

9. FORCE MAJEURE

If either party is prevented, whether in whole or in part, or delayed from performing any of its duties, functions or obligations under this Agreement, whether timeously or at all, due to an act of God (which for the purposes hereof shall mean war, political riots, civil commotions, insurrection, sabotage, legal prohibitions or restrictions, fire, floods, storms, earthquakes or other similar natural disasters), then such failure shall not constitute a breach under this Agreement, and the obligation to perform shall be suspended to the extent and during the continuance of such prevention provided that the parties shall use their reasonable commercial endeavors to minimize any delay occasioned thereby.

10. BREACH

  1. Either party (“the innocent party”) shall have the right, at its election, to terminate this Agreement forthwith by giving notice in writing to the other party (“the breaching party”) in the event that:
    1. the breaching party commit any breach or permit the commission of any breach of any material obligation or warranty contained in this Agreement and, in respect of such a breach capable of remedy, fail to remedy that breach within 5 (five) Business Days after the giving of written notice to that effect by the innocent party to the breaching party; or
    2. the breaching party repeatedly breaches any of the terms and/or conditions of this Agreement in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of this Agreement.
  2. The cancellation of this Agreement or exercising of any right conferred by this clause 10 shall be without prejudice to any claims hereunder then accrued or to any further or other rights or remedies of either party, whether under this Agreement or otherwise in law, and whether for damages or otherwise.

11. SPECIFIC PERFORMANCE

Save as expressly provided for in clauses 4 or 10 above, neither party shall be entitled to cancel this Agreement and the parties’ remedies arising from a breach of any provision of this Agreement shall be limited to a claim for relief of an interdictory nature, immediate and specific performance and/or payment of all of the defaulting party’s obligations in terms hereof, with or without a claim for damages.

12. CONFIDENTIALITY

The User acknowledges that any information, documents, materials, knowledge, know-how, trade secrets and proprietary interests vesting in and belonging to or relating to the Company and or an associated company or their business, disclosed to the User, their employees and/or representatives at any time by or on behalf of the Company which is not in the public domain is confidential and may not be used or disclosed to any third party (whether during the negotiations preceding, during the course of and/or after the termination of this Agreement) for any reason whatsoever save as may be strictly necessary for the due and effectual performance and implementation of this Agreement.

13. SUPERSESSION

Unless expressly provided to the contrary in this Agreement, this Agreement cancels and supersedes all prior negotiations and agreements entered into between the parties relating to the matters set forth herein.

14. DATA PROCESSING

  1. The User undertakes to comply with the Protection of Personal Information Act, 4 of 2013 and any other applicable data or privacy laws in its performance of and implementation of this Agreement and the transactions contemplated therein.
  2. The User hereby consents to the Company processing its personal information for purposes of implementing this Agreement and the transactions contemplated therein.

15. ASSIGNMENT

Neither party shall cede, assign, transfer, make over or encumber any of its rights or obligations under this Agreement without the prior obtained written consent of the other party, which consent shall not be unreasonably withheld or delayed.

16. NOTICES AND DOMICILIA

Each of the parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement at their respective addresses set out on the cover page hereof.

17. DISPUTE RESOLUTION

  1. In the event of there being any dispute or difference between the Parties arising out of this Agreement, the said dispute or difference shall on written demand by any Party be submitted to arbitration in Johannesburg in accordance with the AFSA rules, which arbitration shall be administered by AFSA (the Arbitration Foundation of South Africa).
  2.  Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the parties to the dispute or failing agreement within 10 business days of the demand for arbitration, then any party to the dispute shall be entitled to forthwith call upon the chairperson of the Johannesburg Bar Council (or the successor to that body) to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 20 years’ standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the parties to the dispute.
  3. Any party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.
  4. Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
  5. Any arbitration in terms of this clause 17 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
  6. This clause 17 will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.
  7. The Parties agree that the written demand by a party to the dispute in terms of clause 17.1 that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.

18. GENERAL

  1. Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause whatsoever shall not release either party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.
  2. Entire Agreement and Variation: No alteration, consensual cancellation, variation of, or addition to this Agreement shall be of any force or effect unless reduced to writing and signed by both parties. This Agreement contains the entire agreement between the parties and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
  3. Further Assurance: The parties shall cooperate with each other and execute and deliver to the other of them such other instruments and documents and take such other actions as may be reasonably requested of either of the parties from time to time in order to carry out, evidence and confirm its rights and the intended purpose of this Agreement.
  4. Indulgences: No indulgence, leniency or extension of time which any party (“the grantor”) may grant or show to the other shall operate as an estoppel or in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
  5. Governing law: This Agreement shall be governed by and interpreted in accordance with the law of the Republic of South Africa. All disputes, actions and other matters in connection with this Agreement shall be determined in accordance with such law.
  6. Jurisdiction: Subject to clause 17, the Parties hereby consent and submit to the non-exclusive jurisdiction of any Magistrate’s Court in Johannesburg having jurisdiction over the area in which the Company’s registered office is located, in any dispute arising from or in connection with this Agreement.
  7. Invalidity: Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
  8. Severability: Each undertaking in this Agreement shall be construed as a separate undertaking and if one or more of the undertakings contained in this Agreement is found to be unenforceable or in any way unreasonable (including any restraint of trade) the remaining undertakings shall continue to bind the parties. To the extent possible in any jurisdiction to which this Agreement may apply or in which this Agreement may be enforced, if any undertaking contained in this Agreement is found to be void but would be valid if the period of application thereof were reduced or if some parts of the undertaking were deleted, the undertaking in question shall apply with such modification as may be necessary to make it valid and effective.
  9. Reliance: Each of the parties acknowledges and agrees that in entering into this Agreement and any documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty or representation. The only remedy available to it for breach of such warranties or representations shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
  10. Cumulative Rights and Remedies: The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.
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