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Archive Membership Agreement (pre September 2016)

THE EDUCATIONAL RECORDING AGENCY LIMITED

MEMBERSHIP AGREEMENT

THIS AGREEMENT is made on

BETWEEN                           a  company  registered   in   England   under company

number 3174777 whose registered office is at                 (“the Member”) of the one

part and THE EDUCATIONAL RECORDING AGENCY LIMITED whose registered office is at Verulam House, 60 Gray’s Inn Road, London WC1X 8LU (“ERA”) of the other part.

WHEREAS:

  1. The Member owns controls or administers or represents persons who own control or administer the Mandated   Rights to the extent specified in the Membership Registration Form as amended from time to time.
  2. The Member wishes to appoint ERA as agent to manage and administer the Mandated Rights in the Works subject to the terms and conditions of this Agreement.
  3. The parties have considered and assessed the market effect of this Agreement including the terms of the Membership Registration Form and neither believe nor intend that the provisions are anti-competitive or have any anti-competitive effect.

NOW IT IS HEREBYAGREED as follows:-

1.        APPOINTMENT OF ERA

1.1. The Member hereby appoints ERA for the duration of the agency to act as the Member’s agent in the Territory to manage and administer the Mandated Rights in the Works in accordance with the terms of this Agreement. Other than as expressly provided in the Membership Registration Form ERA’S appointment shall be as the sole and exclusive agent of the Member to the exclusion of all other parties including the Member.

1.2.Without prejudice to the generality of Clause 1.1 and to the provisions of Clause 6 ERA shall have the following sole and exclusive powers (but not obligations) in its capacity as agent for the duration of the agency:-

1.2.1 to exercise the Mandated Rights by instituting and operating Licensing Schemes and granting  individual   licences under Licensing Schemes in relation to one or more Works;

1.2.2 to negotiate and enter into agreements with either those who require licences to exercise the Mandated Rights or their representatives in the form of Standard Licensing Agreements;

1.2.3 to collect and give a good receipt for all royalties fees and other monies arising in relation exercise of the Mandated Rights in the Territory;

1.2.4 to verify by audit or otherwise whether or not the parties in whose favour licences have been granted and those with whom ERA has entered into agreements in relation to the Mandated Rights are complying with the terms and conditions thereof;

1.2.5 to determine by negotiation or otherwise the terms and conditions on which licences are granted in the exercise of the Mandated Rights including the royalties fees or other monies payable for such licences;

1.2.6 to appoint sub-agents to exercise some or all of the Mandated Rights in the Territory subject nevertheless as provided herein;

1.2.7 to amend and vary and agree to amendments or variations in relation to any licence Licensing Scheme or Standard Licensing Agreement subject to the provisions of Clause 1.3.2.

1.3 APPROVAL OF LICENSING SCHEMES AND RESERVATION OF CERTAIN POWERS TO MEMBERS.

 1.3.1 ERA shall not have the power to introduce any new Licensing Scheme or new Standard Licensing Agreement or to agree any substantial amendment of any Licensing Scheme or Standard Licence Agreement (including without limitation with respect to the members of such Licensing Schemes) unless the members of ERA who have authorised ERA to act as their agent for the exercise of any Mandated Rights relevant to the new Licensing Scheme or Standard Licensing Agreement have unanimously approved or ratified the basic terms and conditions thereof (including for the avoidance of doubt those relating to the amount of royalties fees or other monies payable thereunder or the principles for the calculation thereof). The Member acknowledges and agrees that it will not be entitled to vote on resolutions to approve, and will not seek to obstruct such resolutions concerning, any Licensing Schemes or amendments to Licensing Schemes in respect of which the Member’s Mandated Rights are not relevant.

1.3.2 ERA shall not have the power unless the current members of ERA acting for themselves or through their nominated Director on the Board from time to time have unanimously approved or ratified the same to:

1.3.2.1    agree to any major amendment to or major variation of the terms of this Agreement (save that this   provision shall not apply to terms agreed applicable only to a specific Member under a Membership Registration  Form);

1.3.2.2   introduce a new member;

1.3.2.3   change categories of members from those set out in the Schedule hereto;

1.3.2.4    agree upon the division or change in the division of royalties between the member categories of ERA;

1.3.2.5    agree to any change in the published tariffs charged under blanket licence arrangements;

1.3.2.6    appoint sub-agents.

1.3.3. ERA shall not have the power to agree upon the division or change in the division of royalties within a membership category unless the members of ERA within that category have unanimously approved or ratified the same.

1.3.4. Approval or confirmation of any of the matters referred to in the preceding provisions of this Clause shall only be effective if endorsed in writing in a memorandum signed by or on behalf of all the members of ERA or in the case of a proposal under sub Clauses 1.3.1 or 1.3.3 all the members who have licensed relevant Mandated Rights or who fall within the relevant membership category (in either case “the relevant members”) or by resolution of a meeting of the relevant members summoned on at least 14 clear days notice (in the case of sub- Clauses 1.3.2.5 or 1.3.2.6 ) or 21 days clear notice (in all other cases) and held as if it were an extraordinary general meeting of ERA convened under the Articles of Association of the company save as provided in Clause 1.3.5.

1.3.5. A meeting of relevant members convened under Clause 1.3.4 shall require a quorum of a majority in number only of the relevant members but a poll shall be deemed to have been demanded in the case of all meetings with resolutions only being deemed to have been passed on the affirmation vote of all the relevant members present in person or by proxy at the meeting in respect of which notice has been properly given to all members.

1.3.6 Any prior Membership Agreement between the parties including (but not limited to) any appointment of ERA as agent concerning any of the Mandated Rights (“the Earlier Membership Agreement”) shall by mutual agreement of the parties cease to have effect with effect from the date on which it is executed by the second of ERA and the Member when the terms of this Agreement shall apply but without prejudice to the accrued rights of the parties under the Earlier Membership Agreement as at such date.

2.     DISTRIBUTION

2.1 At least twice during each calendar year during the agency the Board shall be required to review and approve a distribution to members of such royalties fees and other monies as have then been processed and agreed to be due to the members under Licensing Schemes (including those agreed payable to the Member under this Agreement) provided that the aggregate of such sums is not below the relevant minimum distribution value determined by the Board from time to time. The level of the minimum distribution value shall not be varied except on 6 months notice to the Member with any notified change only taking effect on the first day of a calendar month. Following Board approval for a distribution having been obtained ERA shall give to all relevant members appropriate notice of a proposed resolution to ratify the distribution and the date upon which the distribution shall be made. Following ratification of the distribution ERA shall remit to the Member such royalties fees and other monies as have then been processed and agreed due between the Member and ERA within the approved distribution subject to the terms of this Agreement.

2.2 Subject to Clause 1.3 and the Articles of Association of ERA payments to the Member against an agreed distribution shall be made in the percentage share attributable to the Member as set out in the Membership Registration Form PROVIDED THAT the Member may upon written notice to ERA with the consent of all other members of ERA in the same membership category alter the percentage share of each of the members of that category.

2.3 Prior to distribution of the sums referred to in Clause 2.1 ERA shall be entitled to deduct and retain:-

2.3.1 any sums due to be paid to ERA in accordance with the provisions in Clause 5.4;

2.3.2 an appropriate share of ERA’S legal and administrative and running costs and incidental expenses and reasonable allocations to reserves as approved by the Board from time to time;

2.3.3 any further fees or commissions charged by ERA or its sub-agents and agreed by the Member for any additional tasks specifically undertaken for the Member at its request.

2.4 All payments to the Member shall be subject to:-

2.4.1 the deduction or withholding of any taxes required to be deducted or withheld under the laws applicable within the United Kingdom or within any country in which the relevant royalties fees or other sums became payable to ERA. Upon request by the Member ERA will (subject to appropriate arrangements being in place for the recoupment by ERA of any costs incurred by ERA in so doing) use all reasonable endeavours to assist the Member in reclaiming any taxes by providing the Member with such information as is available to ERA in relation to the sums deducted or withheld. Where ERA has deducted any such sums ERA shall at the request of the Member provide a certificate as to the sums so deducted;

2.4.2 any governmental or other permission required to pay all or any part of such payment to any party outside the United Kingdom or the country in which the relevant royalties fees or other sums arose.

2.5 For each accounting period for which ERA Members shall have approved a distribution ERA shall send a statement setting out in detail the royalties fees and other sums to be distributed to the Member. Each such statement
will specify the total amount of royalties fees or other sums which have been approved for distribution to members for the accounting period together with the amount computed as being due to the individual Member.

3.     VAT

3.1 Without prejudice to the specific obligations referred to in this Clause the Member shall comply with any and all obligations imposed on it by the VAT legislation in force from time to time and hereby indemnifies ERA against all claims demands costs and expenses made against or incurred by ERA whether by reason of the Member’s failure to comply with such obligations or by reason of any notice or direction by the Commissioners of Customs and Excise (or any successors within the Department of HM Revenue and Customs) (hereinafter “the Commissioners”) substituting ERA as the person accountable for VAT concerning any supply by or to or from ERA and/or compliance with such obligations as aforesaid.

3.2 The Member undertakes to account to the Commissioners for any VAT due on royalties:-

3.2.1 collected by ERA as agent for the Member where Section 47(3) of the Value Added Tax Act 1994 or any relevant law amending or re-enacting the same for the time being in force does not apply; and

3.2.2 distributed by ERA to the Member.

3.3 The Member hereby agrees should ERA so elect from time to time to allow ERA to operate any self-billing arrangements approved by the Commissioners and for such purpose undertakes with ERA:-

3.3.1 not to issue any VAT invoice or document purporting to be a VAT invoice in respect of royalties received from ERA;

3.3.2 if registered for VAT either at the Date of Commencement or at any time during the operation of this Membership Agreement to provide ERA with the name and number under which the Member is registered and any other information requested by ERA in connection with such self-billing arrangements;

3.3.3 if the Member at any time ceases to be registered for VAT to inform ERA of the effective date thereof forthwith upon receipt of notice of cancellation of the Member’s registration.

3.4 Subject to ERA giving to all Members notice of its intention the Member hereby grants to ERA should ERA so elect full discretion on the Member’s behalf to make any application or to support any application made by ERA to the Commissioners concerning the treatment for VAT purposes of any supply of services (as that term is defined by the Value Added Tax Act 1994 as amended from time to time) made under the terms hereof by the Member through ERA or by ERA as agent for the Member.

3.5 The Member agrees that ERA may exercise the Mandated Rights in its own name as agent for the Member for the purposes of Section 47(3) of the Value Added Tax Act 1994.

4.     ERA UNDERTAKINGS

4.1 Subject to Clause 4.2 ERA undertakes for the duration of the agency in respect of any Mandated Rights to use reasonable endeavours to protect those Mandated Rights from infringement and to collect the royalties fees and other sums arising under licences granted by ERA. The obligations imposed on ERA by this undertaking shall be carried out at ERA’S own expense subject only to Clause 2.3 but shall at all times be construed in accordance with the general commercial policies including any financial constraints adopted by the Board from time to time.

4.2 ERA shall have no obligation to commence or continue proceedings as part of its obligations under Clause 4.1:

4.2.1 where in its reasonable opinion after consultation with the Member the amount of costs and expenses relating to such proceedings not likely to be recovered may be more or not materially less than the amount of damages likely to be recovered;

4.2.2 where ERA has been advised by its lawyers that proceedings should not be commenced or continued on any other reasonable commercial or legal grounds;

and ERA shall notify the Member either directly or through its nominated Director on the Board accordingly when any of the above apply.

4.3 Where any Licensing Scheme or Standard Licensing Agreement which relates to any Mandated Right of the Member is referred to the Copyright Tribunal ERA undertakes to use all reasonable endeavours at its own
expense but subject to Clause 2.3 to justify the terms and conditions thereof in proceedings before the Copyright Tribunal to the extent they are consistent with the provisions of the Act and any other applicable legislation.

4.4 In prescribing Licensing Schemes and in negotiating the terms and conditions of Standard Licensing Agreements ERA undertakes to act in what the Board reasonably considers to be the best collective interest of all the members of ERA (including for the avoidance of doubt the Member).

4.5 In operating any Licensing Schemes ERA undertakes not to grant licences except in accordance with the standard terms applicable in relation thereto or (subject to Clause 1.3.1) as may be approved by the Board from time to time acting as provided by the Memorandum and Articles of Association of ERA.

4.6 ERA undertakes that it will not without the consent of the Member (such consent not to be unreasonably withheld or delayed) unless obliged to do so by law or directed by any court or governmental authority disclose to any other party except to its professional advisors any confidential document supplied to it by the Member in accordance with this Agreement or any of the royalties fees and other sums payable to or paid to the Member or any information relating the same in each case which are confidential.

4.7 The Member recognises that ERA does not itself carry on business outside the United Kingdom. Notwithstanding any other term of this Agreement the obligations of ERA in relation to any country outside the United Kingdom are limited to such as the Board considers in its absolute discretion to be reasonably practical in the circumstances.

4.8 ERA undertakes not to discriminate between members of ERA by giving preferential   treatment to one member of ERA against another member of ERA except as provided for in this Agreement or the Memorandum and Articles of Association of ERA.

5.    MEMBERS’ WARRANTIES AND UNDERTAKINGS

5.1 The warranties undertakings and indemnities contained in this Clause are required for the protection of the membership of ERA as a whole by ensuring that ERA does not suffer any damage or loss which might affect its ability to keep its administration expenses as low as is practicable or to make rebates. ERA will only seek to enforce a claim for breach of any such warranty or undertaking or for an indemnity where the Board in its absolute discretion determines that the circumstances are such that the claim should be enforced after giving the Member an opportunity to make representations to the Board in relation to the claim.

5.2 The Member hereby agrees, represents and warrants to ERA that:

(a)    it has full power and authority to enter into this Agreement and to grant the rights and powers referred to and to give ERA all permissions and authorisations contained in this Agreement and necessary for ERA to carry out its agency and obligations pursuant to this Agreement; and

(b)    the exploitation of the Mandated Rights of the Member by ERA in accordance with the terms of this Agreement or by any licensee of those Mandated Rights pursuant to any Licensing Scheme will not infringe the intellectual property or other rights of any third party anywhere throughout the world.

5.3 The Member hereby agrees, warrants, represents and undertakes to ERA:-

5.3.1 to complete accurately the Membership Registration Form supplied by ERA to the Member;

5.3.2 to keep ERA fully and promptly informed of any changes becoming known to the Member in the facts and matters referred to in the Membership Registration Form or otherwise notified to ERA as required by this Agreement and to give ERA notification or ensure that ERA is given notification of the date on which the Member ceases to control or administer the Mandated Rights or any of them in any part of the Territory;

5.3.3 upon the request of ERA promptly to supply ERA with copies of any document relating to the ownership control or administration of the Mandated Rights or the licensing of such Mandated Rights in the possession power custody or control of the Member and to use all reasonable efforts to obtain any other such document reasonably requested by ERA;

5.3.4 not itself to grant licences in relation to any Mandated Rights or carry out any function which ERA has the sole and exclusive power to do under this Agreement save as previously disclosed in writing in the Membership Registration Form and at all times to act consistently with the terms and conditions of any applicable Licensing Schemes and Standard Licensing Agreements;

5.3.5 promptly to do all acts and things (including the execution and delivery of any deeds or documents) which shall be necessary expedient or desirable to give effect to the terms of this Agreement;

5.3.6 promptly to render such assistance and give such information to ERA as ERA may reasonably require for the purposes of this Agreement;

5.3.7 to refrain from doing anything likely to limit or prejudice the success of ERA in protecting and furthering the common interest of all members of ERA in ensuring that their Rights are not infringed and that proper remuneration in paid by copyright users; and

5.3.8 not to do anything which would or might undermine the reputation or good standing of ERA or any of the rights which it administers as agent (whether for the Members or for other members of ERA).

5.4 The Member hereby agrees to indemnify and to hold harmless ERA as soon as reasonably practicable after written request against any and all losses cost actions proceedings claims and demands against ERA and all costs (including legal costs and expenses and applicable VAT actually incurred) damages and expenses which ERA may incur:

5.4.1 as a result of any breach of any warranties or undertakings contained in this Agreement; or

5.4.2 (without limiting the foregoing) because the Member is not entitled to appoint ERA as agent in accordance with Clause 1 or any Mandated Right or Work or the use or exploitation thereof infringes the copyright or other right in any other work of any nature or is not subject to copyright or is defamatory or criminally obscene in each case anywhere in the world;

and in each case howsoever caused and whether or not in the contemplation of the parties and whether or not reasonably or otherwise forseeable or avoidable and where such indemnity involves the payment or reimbursement of costs such payment or reimbursement shall be made forthwith upon written demand.

5.5 The Member shall be obliged to provide ERA with such information within such period as ERA shall reasonably require to confirm and verify ownership of any Mandated Rights relevant to any Licensing Scheme or any Standard Licence Agreement approved or varied as provided in Clause 1 from time to time.

6.    PROCEEDINGS

6.1   In acting under this Agreement ERA shall have the right at its own expense :-

6.1.1 to bring defend take over or intervene in any proceedings of whatsoever nature which relate in any way to the Mandated Rights and to conduct maintain and continue any such proceedings before any Court of Justice or Tribunal or other body having appropriate jurisdiction and to submit any such matter to arbitration;

6.1.2 to compromise or abandon any such proceedings or arbitration as are referred to in Clause 6.1.1 above and disputes or claims relating in any way to the exercise of the Rights.

6.2 Subject always and without prejudice to the provisions of Clause 5 ERA shall have the right to use the name of the Member as applicant, plaintiff defendant or intervener in any proceedings to which this Clause applies but only after the Member has consented in writing thereto and ERA shall indemnify the Member against all damages costs and expenses awarded against or incurred by the Member in connection with such proceedings.

Consent is not required where the proceedings are representative proceedings and the name of the Member is not specifically referred to as applicant, plaintiff, defendant or intervener. Where the Member’s name is specifically referred to as applicant, plaintiff defendant or intervener whether or not in representative proceedings ERA undertakes to keep the Member informed of progress in such proceedings on a reasonable basis and to consult with the Member prior to compromising or abandoning such proceedings.

7.         DISPUTES

7.1  In the case of any dispute between the Member and any other member of ERA relating to any matter dealt with under this Agreement ERA will endeavour to maintain impartiality giving such assistance as it may deem necessary for the satisfactory settlement thereof.

7.2 The Board may from time to time and without prejudice to the Members’ rights of approval or ratification concerning the matters specified in Clause 1.3 lay down rules and regulations relating to the administration of disputes over the ownership control or administration of Works the retention and distribution of royalties fees or other monies arising in relation thereto whether between members or between one or more members and one or more third parties (in each case subject to the relevant constraints of applicable law) which rules and regulations may modify the provisions of this Agreement in relation to such Works and sums (in consideration of which ERA and the Member discharge its obligations under this Agreement each to the other from the date of notification of the relevant rules and regulations) and the Member shall comply with all such rules and regulations from the date on which it is notified of them by ERA.

8.         DURATION

8.1 This Agreement shall commence on the date upon which it is executed by the second of ERA and the Member.

8.2 Where no Earlier Membership Agreement under Clause 1.3.6 applies and the Member is not a member of ERA on the date specified in Clause 8.1 the Member shall become a provisional member of ERA between the date specified in Clause 8.1 and the Date of Commencement with full membership being confirmed on the Date of Commencement and subject as provided in the Membership Registration Form concerning notified changes of any relevant Mandated Rights such membership shall continue thereafter unless determined by either party upon such party giving to the other at least 12 months written notice not to take effect except on the first day of a calendar month (“the notified withdrawal date”) or as otherwise provided by the Articles of Association of ERA PROVIDED THAT:

(a)    if ERA, upon receiving any such notice from the Member, shall have taken reasonable steps to seek a resulting variation of any relevant certified Licensing Scheme in relation to any of the Member’s Mandated Rights then the notified withdrawal date shall be deemed amended and the agency appointment in respect of such Mandated Rights and the status of the Member as a member of ERA in respect of the same shall expire on the date preceding the date on which the Licensing Scheme has been re-certified as varied by the Secretary of State pursuant to Section 143(4) of the Act and the relevant Statutory Instrument has come into force; and

(b)    to the extent that any Licences or Standard Licence Agreements are issued for a term not exceeding 12 months at any time prior to the notified withdrawal date calculated in accordance with Clause 8.2(a) (“Pre-termination Licences”) the Member acknowledges and agrees that the terms of this Agreement shall apply to such licences as if the notified withdrawal date had not been reached; and

(c)    the agency of ERA under this Agreement shall expire automatically on the date which is 40 years after the Date of Commencement.

8.3 Upon the expiry of any period of notice referred to under Clause 8.2 or 8.4 or when the Member shall have ceased to be a member in accordance with the Articles of Association of ERA or if the agency under this Agreement expires or properly terminates in accordance with this Agreement for any reason ERA shall retain the right to collect all royalties fees and other monies relevant to the Mandated Rights or to the participation in ERA by the Member which in the ordinary course of business should have been paid prior to the expiry of such notice or which relate to payments pursuant to Pre-termination Licences or periods prior to such expiry and all the rights and powers of ERA under the agency shall continue for those purposes until terminated by ERA or by operation of law. Upon the termination of the agency under this Agreement in respect of any Mandated Rights for any reason the Member shall be entitled (subject to the distribution policy of ERA in force and the relevant time) to the distributions already accrued to it at the date of such expiry or termination in relation to the Mandated Rights pursuant to this Agreement and which may additionally become due to it in accordance with this Clause, but not further or otherwise.

8.4 A party (“The Initiating Party”) may terminate the agency of ERA under this Agreement in relation to all or any Mandated Rights with immediate effect at any time by giving written notice to the other party (“Breaching Party”) on or at any time after the occurrence of an event specified in Clause 8.5.

8.5 The events are the Breaching Party committing:

(a)  an irremediable breach of this Agreement;

(b)  a remediable breach of a material obligation under this Agreement which breach, if capable of remedy, has not been remedied within a reasonable period after the initiating party has served written notice on Breaching Party specifying the breach and the steps required to remedy it and stating that a failure to remedy the breach may give rise to termination under Clause 8.4;

(c)  the Breaching Party passing a resolution for its winding up, a court of competent jurisdiction making an order for the Breaching Party’s winding up or the presentation of a petition for the Breaching Party’s winding up which is not dismissed within 7 days;

(d)  the Breaching Party having an order made for the appointment of an administrator to manage its affairs or business and property or documents are filed with a court of competent jurisdiction for the appointment of an administrator or notice of intention to appoint an administrator is given by a qualifying floating charge holder (as defined in paragraph 12 Schedule 1B to the Insolvency Act 1986);

(e)  the Breaching Party has a receiver appointed over its assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party or if any other person takes possession of or sells the Breaching Party’s assets;

(f)   the Breaching Party makes any voluntary arrangement or composition with its creditors generally or applies to a court of competent jurisdiction for protection from its creditors in any way;

(g)   the Breaching Party ceases, or threatens to cease, to carry on business;

(h)   the Breaching Party is unable to pay its debts as they fall due, within the meaning of S123 of the Insolvency Act 1986;

or if any analogous situation to any of the above occurs in relation to the Breaching Party under the law of any jurisdiction.

8.6 For the avoidance of doubt an Initiating Party may terminate the agency under this Agreement in respect of some, or any or all Mandated Rights which are subject to ERA’s agency at the relevant time.

9.       DEFINITIONS

In this Agreement :-

9.1              “the Act” means the Copyright Designs and Patents Act 1988 or any statutory modification or e-enactment thereof for the time being in force.

9.2              “Additional Rights” means:

(a)  the right to make and to authorise the making of recordings of a broadcast and (only as a direct result of the broadcast) the Works contained in such broadcast or the making of a copy of such recordings by or on behalf of an Educational Establishment for the purposes only of enabling such recording to be communicated to the public as provided in (b) below;

(b)  the right on its own behalf or to authorise any person who is licensed to make Educational Recordings to permit for non commercial purposes only the communication to the public of Educational Recordings or recordings made under (a) above to students of an Educational Establishment when the students are outside the premises of an Educational Establishment.

(c)  The right for ERA to publish and operate the Licensing Scheme known as the ERA+ Licence in the form set out in the ERA + Annex to this Agreement or as amended from time to time in accordance with this Agreement.

9.3    “this Agreement” means the agreement from time to time in force between ERA and the relevant Member under which the Member executes a Membership Registration Form and licenses to ERA Mandated Rights.

9.4    “Board” means the Board of directors of ERA as constituted from time to time.

9.5     “the Certified Rights” means:

(a)  the right to make and to cause or authorise the making of recordings of a broadcast and (only as a direct result of the broadcast) the Works contained in such broadcast or the making of a copy of such recordings by or on behalf of an Educational Establishment for the educational purposes of that establishment (recordings made under such authorisation being called “Educational Recordings”); and/or

(b)  the right to communicate to the public Educational Recordings and to authorise Educational Recordings to be communicated to the public by a person situated within an Educational Establishment but only to the extent that the communication to the public cannot be received by any person outside the premises of that establishment.

9.6  “Date of Commencement” means the date of commencement of the agency of ERA under this Agreement in relation to Mandated Rights which shall    be either the date on which this Agreement (including for the avoidance of
doubt a Membership Registration Form) is executed by the second of ERA and the Member or such later date previously approved by the Board and specified in the Membership Registration Form.

9.7  “Licensing Scheme” means a scheme or tariff or anything in the nature of a scheme or tariff which sets out the classes of case in which ERA or one or more of its members including the Member is or may be willing to grant a licence in respect of certain Mandated Rights to exercise any Rights and the terms on which licences would or might be granted in those classes of case.

9.8  “Mandated Rights” means the Rights in the Works specified in the Membership Registration Form as the Rights for which ERA is appointed as agent of the Member as provided by this Agreement.

9.9  “Member” means a person firm or company whose application to become a member has been accepted by ERA and who has executed this Agreement.

9.10  “Membership Registration Form” means the document supplied by ERA on which the Member is required to register the matters referred to in this Agreement.

9.11  “the Rights” means the Certified Rights and the Additional Rights it being understood that the extent to which any Certified Rights or Additional Rights shall apply for any individual Member shall be defined in the Membership Registration Form executed by the Member from time to time.

9.12  “Works” means the categories of works and performances referred to in relation to the Member in the Membership Registration Form.

9.13  “Educational Establishments” has the meaning attributed to it in the Act.

9.14  “Standard Licensing Agreement” means any agreement regulating the rates terms and conditions on which licences to exercise the Rights may be available from time to time whether from the Member or ERA.

9.15  “Territory” means :-

9.15.1     the United Kingdom which shall for the avoidance of doubt include the Isle of Man and the Channel Islands together with the territorial waters of the United Kingdom and the United Kingdom sector of the continental shelf referred to in S.161 of the Act;

9.15.2     British ships, aircraft and hovercraft as defined by S. 162(2) of the Act; and

9.15.3      each other country of the World to which Section 157 of the Act shall apply for the purposes of Section 35 of the Act.

9.16 Reference to the singular includes a reference to the plural and vice versa.

9.17  Reference to any gender includes a reference to all other genders.

9.18  Words importing persons shall include firms corporations and unincorporated associations.

9.19   Without prejudice to any express provisions included in this Agreement reference to a statutory provision will be interpreted as a reference to that provision as amended or re-enacted from time to time including any statutory instrument order or Government regulation from time to time made or issued pursuant to that provision.

10.   MISCELLANEOUS

10.1  Whilst acting under this Agreement ERA must have regard to what the Board considers to be the general interest of its members and in the event of conflict the general interest of the members of ERA shall be paramount over the specific interest of the Member. The Member shall use its reasonable endeavours to procure that its Board representative shall at all times act in the best interests of ERA.

10.2  This Agreement shall be construed according to the Laws of England and Wales and the parties hereto agree to submit to the exclusive jurisdiction of the High Court of Justice in England and Wales.

11.       REMEDIES AND WAIVERS

11.1  A failure to exercise or delay in exercising any right, remedy or power provided under this Agreement or by law does not constitute a waiver of the right, remedy or power or a waiver of any other right, remedy or power. No    single or partial exercise of any right, remedy or power prevents any further exercise of it or the exercise of any other

right, remedy or power.

11.2  Except where this Agreement provides otherwise, the rights, remedies and powers provided by this Agreement are cumulative and not exclusive of any rights, remedies or powers provided by law.

11.3  Any waiver of a breach of any of the terms of this Agreement or of any default under this Agreement shall not be deemed a waiver of any other breach or default and shall not affect the other terms of this Agreement.

12.       INVALIDITY

12.1     If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction:

(a)      the legality, validity and enforceability in that jurisdiction of the remaining provisions shall be unaffected; and

(b)      the legality, validity and enforceability in any other jurisdiction of that or any other provision shall be unaffected.

12.2 Subject and without prejudice to Clause 12.1 the parties shall replace such illegal, invalid or unenforceable provision with legal, valid and enforceable provisions that will achieve, to the greatest extent possible, the economic,
business and other purposes of the illegal, invalid or unenforceable provision provided that the commercial balance of this Agreement shall not be materially altered.

13.   SET-OFF

13.1 ERA may at any time set off any liability of the Member to ERA against any liability of ERA to the Member, in either case however arising and whether such liability is present or future, liquidated or unliquidated.

13.2 If the liabilities of the parties are in different currencies, ERA may convert any liability at a market rate of exchange for the purpose of set-off.

13.3 Any exercise by ERA of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this Agreement or otherwise.

14.   NOTICES

14.1 Any notice given under this Agreement shall be in writing in the English language and   shall be delivered personally or sent by pre-paid recorded delivery/registered post (or registered airmail if overseas) or by fax with a confirmation copy sent by post, or by email with a confirmation copy sent by post to the party due to receive the notice, at its address set out at the beginning of this Agreement (or another address and/or email address notified to the other in writing).

14.2  A notice shall be deemed given: –

(a)         if delivered personally, upon delivery at the address provided by this Clause;

(b)         if sent by first class post (other than airmail), two Business Days after the date of posting;

(c)          if sent by airmail, five Business Days after the date of posting;

(d)          if sent by fax, on receipt by the sender of evidence that the fax has been transmitted in full to the addressee;

(e)         if sent by email to the electronic address supplied when the sender obtains confirmation that the recipient has received such notice or communication;

provided that where delivery or transmission occurs after 6:00 pm. on a Business Day or on a day which is not a Business Day, receipt shall be deemed to occur at 9:00 am on the next following Business Day.

14.3 In proving the giving of notice, it shall be sufficient to prove that the envelope containing the notice was properly addressed to the relevant party and delivered either to that address or posted as pre-paid recorded
delivery/registered post (or registered airmail if overseas) or faxed to the correct fax number of the relevant party or transmitted to the correct electronic mail address.

14.4 For the purposes of this Clause “Business Day” shall mean a day on which high street clearing banks are open for a full range of business in London.

15.      THIRD PARTY RIGHTS

The parties agree that the provisions of this Agreement are personal to them and are not intended to confer any rights of enforcement on or any third party. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement or to any of its provisions.

THE SCHEDULE MEMBERSHIP CATEGORIES

Category 1                                          (Net revenue percentage           %)

BBC Worldwide Limited
Channel 5 Broadcasting Limited
Channel Four Television Company Limited
The ITV Network Limited
Sianel Pedwar Cymru
Compact Collections Limited

Category 2                                          (Net revenue percentage           %)

Authors’ Licensing and Collecting Society Limited
Design Artists’ Copyright Society Limited
Mechanical Copyright Protection Society Limited
The Performing Right Society Limited
Directors UK Limited

Category 3                                          (Net revenue percentage           %)

Equity
Musicians’ Union
Incorporated Society of Musicians

Category 4                                          (Net revenue percentage          %)

BPI (British Recorded Music Industry) Limited
Phonographic Performance Limited
Radio Independents Group

Category 5                                          (Net revenue percentage           %)

AGICOA
FOCAL International Limited
Open University Worldwide Limited

Total

100%

AS WITNESS whereof the parties have caused these presents to be executed

For and on behalf of                            )

THE EDUCATIONAL RECORDING        )

AGENCY LIMITED                            )

Andrew Yeates

Authorised   Signatory Date of Commencement:

For and