Terms & Conditions
1.1. Marketing Melodies is in the business of producing music compilations in selected formats for public broadcast in retail stores and other commercial premises (“Music Programmes”).
1.2. Marketing Melodies at the request of the Client has agreed to provide Music Programmes for the Client on the terms and conditions set out in this Agreement.
1.3. By creating a Client Account the Client inter-alia REPRESENTS THE FOLLOWING:
(a) The Client has read and understands the Terms and Conditions contained herein;
(b) The Client has provided Marketing Melodies with true, accurate and current information;
(c) The Client carries on business as a retail store or other commercial premises; and
(d) The Client holds, and will continue to hold, PPCA and APRA licences for the public performance of musical works and sound recordings. For the avoidance of doubt, where the Client elects to only use ‘PPCA Free’ Music Programmes a PPCA license will not be required, however an APRA license will still be required.
(e) The Client acknowledges and understands that storePlay is not for personal or domestic use.
2. Definitions & Interpretation
2.1. In this Agreement, unless the contrary intention appears:-
“14 Day Trial” means the 14 day trial period whereby a Client can download storePlay for free and gain limited access to Music Programmes selected by Marketing Melodies for the purpose of trialling storePlay.
"Agreement" means this Agreement;
"APRA" means the Australasian Performing Right Association;
“Client” means the business represented on the Client User Account.
“Client User Account” means the account created by the Client on the Marketing Melodies website that enables the Client to subscribe to Music Programmes;
"Commencement Date" means the date the Client Account is created;
"Initial Term" – Clause 4.1;
"Licence Fee" means the GST exclusive fee specified in the Client User Account, payable by the Client to Marketing Melodies for the right to the use of Music Programmes as provided for in these Terms and Conditions;
“Masters” means the sound recordings controlled by Marketing Melodies and supplied as part of the Music Programmes pursuant to this Agreement;
“Music Programmes” – Clause 1.1;
“Playback Device” means ipods (or the like) mobile storage and smartphone devices.
"PPCA" means Phonographic Performance Co. of Australia Ltd.;
"Record Companies" means Beggars Group, Cartell Music, Eleven: A Music Company, EMI Music Australia, Future Classic, IRMA Records, Inertia Australia, Liberation Music, Ministry Of Sound Australia, Remote Control Records, Shock Entertainment, Sony Music Australia, Sweat It Out, Tru Thoughts, Universal Music Australia & Warner Music Australia (plus other record companies as Marketing Melodies signs further Direct Agreements);
“Renewal Period” – Clause 4.2;
“storePlay” – means the mobile application that enables Clients to subscribe to Music Programmes online and download same on Playback Devices for broadcast in retail stores and other commercial premises.
“storePlay Website” means the website www.storePlay.com.au which hosts the Music Programmes.
“Subscription” – means the Client’s subscription to storePlay.
2.2. In these Terms and Conditions, unless expressed to the contrary:
(a) words importing the singular include the plural and vice versa and any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases of corresponding definitions;
(c) a reference to:
(i) a person includes a firm, unincorporated association, corporation and a government or statutory body or authority;
(ii) a person includes its legal personal representatives, successors and assigns
(d) Headings do not affect the interpretation of this document.
3. Download Procedure
3.1. storePlay is a free download from the App Store.
3.2. To use storePlay the Client is required create and to activate a Client User Account via the storePlay Website.
3.3. The Client will have the option to ‘preview’ up to 30 seconds of Masters from selected Music Programmes.
3.4. The Client will select the Music Programmes via the storePlay Website.
3.5. Marketing Melodies will deliver the Music Programmes to the Client via storePlay and as indicated in the in the Client User Account and otherwise in accordance with the Terms and Conditions herein.
3.6. The Client shall be required to verify the Client User Account every ninety (90) days by connecting to the Playback Device to the internet and completing the verification process.
3.7. In the event that the Client does not complete the verification process every ninety (90) days the Client User Account will be disabled and the Client will no longer have access to the Music Programmes.
3.8. In the event that the Playback Device no longer has capacity to fit new Music Programmes, Marketing Melodies has the right to firstly delete any “dis-liked” tracks and then the oldest Music Programmes in order to fit the new Music Programmes.
4.1. The Term shall commence on the Commencement Date and continue for the period selected by the Client and described in the Client User Account (“Initial Term”).
4.2. Upon expiration of the Initial Term, this Agreement shall automatically “roll-over” for a further period of equal duration to the Initial Term and shall continue to “roll-over” for such successive periods (“Renewal Period[s]”) unless the Client cancels their Client User Account on the storePlay Website. The Initial Period and (any) Renewal Period shall together be known as the “Term”.
4.3. For the avoidance of doubt, the 14 Day Trial shall not form part of the Term. Notwithstanding the foregoing, the Client shall be bound by the Terms and Conditions herein during the 14 Day Trial.
5. No Copyright Transfers
5.1. The Client acknowledges that Music Programmes supplied hereunder (and the Masters therein) are supplied by way of non-exclusive non-assignable licence to the Client and that there is no transfer of title or ownership in the Music Programmes to the Client. The Client’s permitted use of the Music Programmes is limited to those uses as further provided for in accordance with these Terms and Conditions.
6. Permitted Use of Masters
6.1. The Client is permitted to broadcast the Music Programmes in those premises in such locations during the Term as described in the Client User Account (“Premises”).
6.2. The Client must not copy, alter, modify or reproduce the Music Programmes or any portion thereof by any means or in any form without the prior written consent of Marketing Melodies.
6.3. Unless otherwise agreed with Marketing Melodies, the Client must not transfer or download the Music Programmes (or any part thereof) to more than one approved Playback Device.
6.4. The Client shall not under any circumstances be permitted to loan, hire or sell the Music Programmes or any part thereof to any third party whatsoever.
6.5. The Client must not make any change to or adaptation of the Music Programmes or any part thereof.
7. Licence Fee
7.1. The Client must pay the Licence Fee at the rate and in the manner specified in the Client User Account.
7.2. The Client will enter into a ‘direct debit’ arrangement with Marketing Melodies whereby the License Fee will be automatically debited from the Client’s nominated bank account or credit card at the beginning of the Initial Term and any Renewal Terms (as the case may be) during the Term.
7.3. The Client acknowledges that in the event that Marketing Melodies does not receive payment of the Licence Fee in full and on time, the Subscription will lapse, storePlay will lock and the Client shall not have access to the Music Programmes until such time that the Licence Fee is paid in full.
8. Warranties and Undertakings
8.1. Marketing Melodies warrants that it has acquired from the Record Companies the right to compile Music Programmes for the uses granted to the Client hereunder.
8.2. The Client warrants it is a legitimate business and will only use storePlay for public broadcast in retail stores and other commercial premises.
8.3. The Client warrants that notwithstanding the license granted to it hereunder, that it will not use the Music Programmes supplied by Marketing Melodies in any way unless and until it has acquired the relevant public performance licenses from:
(a) APRA in connection with the musical works contained in the Music Programmes; and
(b) PPCA in connection with the sound recordings contained in the Music Programmes.
8.4. The Client warrants that it will not copy, reproduce, “rip”, record, make available to the public or otherwise use any part of storePlay and or the Music Programmes in any manner not expressly permitted in these Terms and Conditions.
8.5. The Client warrants that it shall not provide its password to any other person or third party.
8.6. The Client warrants that it will not make any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Music Programmes. Marketing Melodies shall be entitled to seek any available equitable remedy against the Client (including injunctive relief) in the event that the Client does make any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Music Programmes.
8.7. The Client agrees to take all steps necessary to prevent unauthorised use of the Music Programmes (or any part therein) and the Client acknowledges that Marketing Melodies may disable the Client User Account at its absolute discretion.
8.8. The Client agrees to notify Marketing Melodies immediately in the event that the Playback Device is lost, damaged or stolen.
9. No Warranty
9.1. The use of storePlay service and the storePlay Website is at the Client’s own risk. storePlay and the storePlay Website are provided on an ‘as is” and “as available” basis. To the fullest extent possible under applicable law, Marketing Melodies gives no warranty, express or implied as to the quality, content and availability or fitness for purpose of storePlay and/or the storePlay Website.
9.2. storePlay or the storePlay Website may include technical inaccuracies or typographical or other types of errors. The Marketing Melodies has the right to make changes, modifications and updates to anything contained on storePlay or the storePlay Website without prior notice.
9.3. There may be times when storePlay or the storePlay Website is temporarily unavailable to the Client due to maintenance or any to other reason outside the control of Marketing Melodies. In the event that storePlay or the storePlay Website are unavailable Marketing Melodies is in no way responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure.
9.4. Marketing Melodies is in no way responsible for any problems or technical malfunction of any telephone network or lines, servers or providers, computer, software, failure of email or players on account of technical problems or traffic congestion on the Internet including injury or damage to the Client’s or to any other person’s computer in connection to or resulting from the use of storePlay or the storePlay Website in any way.
9.5. Under no circumstances will Marketing Melodies be responsible for any loss or damage, including, but not limited to, personal injury or death, resulting from the Client’s use of storePlay or the storePlay Website.
10.1. The Client indemnifies Marketing Melodies, its officers, directors, employees and licensors harmless from any claim or demand (including but not limited to reasonable legal fees) made by a third party due to or arising from or related to your violation of these Terms and Conditions, or your violation of any laws, regulations or third party rights.
11.1. The Client acknowledges that this Agreement is personal to it and may not be assigned, transferred, sold or otherwise disposed of without the prior consent in writing of Marketing Melodies. Marketing Melodies reserves the right to assign the provisions of this Agreement subject to advising the Client of the particulars of any such assignment.
12.1. Without limiting the generality of any other Clause in this Agreement, Marketing Melodies may terminate this Agreement immediately by notice in writing if:-
(a) The Client fails to pay the License Fee in full and on time;
(b) the Client is in breach of any term of this Agreement and such breach is not remedied within 30 days of it notifying the Client;
(c) the Client becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration;
(d) the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(e) the Client, being a natural person, dies; or
(f) the Client ceases or threatens to cease conducting its business in the normal manner.
12.2. If notice is given to the Client pursuant to Clause 12.1, Marketing Melodies may, in addition to terminating the Agreement:-
(a) Disable the Client User Account and lock storePlay in order to prevent the Client accessing Music Programmes;
(b) delete all of the Music Programmes (if any) in the possession, custody or control of the Client;
(c) retain any monies paid to Marketing Melodies by the Client;
(d) be regarded as discharged from any further obligations under this Agreement; and
(e) pursue any additional or alternative remedies provided by law.
12.3. The parties acknowledge that the rights granted to the Client by Marketing Melodies are granted pursuant to a series of agreements between Marketing Melodies and the Record Companies. Notwithstanding anything to the contrary contained in this Agreement, in the event that the authority granted to Marketing Melodies by the Record Companies to produce, distribute and licence use of the Masters is revoked, withdrawn or otherwise terminated, Marketing Melodies has the option to either terminate this Agreement immediately or replace the relevant Masters with other Music Programmes. In such circumstance, the Client agrees to full cooperate and comply with the reasonable direction of Marketing Melodies.
12.4. The Client may terminate this Agreement at any time by cancelling the Client User Account on the storePlay Website. In the event that the Client terminates this Agreement the License Fee shall not be refunded.
13.1. Marketing Melodies is committed to protecting its Client’s privacy, and will not use any information which it collects in connection with the Site or its Clients otherwise than as disclosed herein.
13.2. Marketing Melodies shall have the right to share Client information with APRA and PPCA for the purposes of ascertaining whether the Client holds a current license with APRA and PPCA in accordance with clauses 1.3 (d) and 8.3.
13.3. Marketing Melodies may share Client information with marketers or advertisers in the aggregate without making reference to or identifying individual Clients or their contact information.
13.4. Marketing Melodies will use its best efforts to ensure that any personal information of the Client will not be disclosed to other institutions and authorities unless it is required to do so by law or other regulation.
13.5. Marketing Melodies uses its best endeavours to store the storePlay Website securely at all times, however Marketing Melodies cannot guarantee complete security. Marketing Melodies disclaims liability for unintentional security breaches.
13.6. The Client acknowledges that Marketing Melodies may send one or more cookies (small file containing a string of characters) to the Client’s computer or other device that uniquely identifies Client’s browser. Cookies are used to improve the quality of its service, including - storing user preferences, improving search results, displaying advertising, and tracking user trends and links followed.
14.1. All amounts payable under this Agreement are deemed to be exclusive of any applicable goods and services tax which shall be payable in addition to any other amount specified as payable under this Agreement subject to receipt of a valid tax invoice.
15. Entire Agreement
15.1. This Agreement contains the entire understanding between the parties hereto and replaces all other previous agreements written or oral and may not be varied except in writing signed by the parties hereto.
16. Client Information
16.1. The Client is responsible for providing accurate information to Marketing Melodies and shall promptly notify Marketing Melodies of any change of details.
17.1. Notices hereunder may be sent by email to the Client’s nominated email address.
18. Governing Law and Jurisdiction
18.1. This Agreement is governed by the laws of Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.
storePlay is owned and managed by Marketing Melodies, ABN 49 058 174 628. Marketing Melodies registered address is 48 Edward St, Elsternwick, Vic, 3185.