Institutional Licence Terms and Conditions

1.1 In these licence terms and conditions (these Standard Terms), the following words or expressions have the following meanings: 

App: the nkoda-branded software application (which is available on mobile, tablet and other computer devices), operated by or on behalf of nkoda, on which the Content is made available to Users.

Content: the library of sheet music and other cultural/educational materials made available by nkoda on the App from time to time.

EULA: the end user licence agreement, the terms of which each User must accept as a pre-condition of being able to access the Content via the App, which is available at Legal - End User Licence Agreement | nkoda (as updated from time to time).

ILA: the institutional licence agreement between (1) nkoda and (2) the Institution, of which these Standard Terms form part.

Institution: means the school, university, conservatoire, library, orchestra, performing or other body, institution, entity or person that is subject to these Standard Terms by virtue of entering into the ILA.   

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist, now or in the future, in any part of the world.

Licence: the non-exclusive licence, granted by nkoda to the Institution, for Users to use the Service in the Licence Period (as set out in clause 4).

nkoda: nkoda Limited (Company Registration Number: 09889486) whose registered office is: TC Group, 6th Floor, Kings House, 9-10 Haymarket, London SW1Y 4BP, United Kingdom.

Service: the provision of access to the Content via the App, including providing the ability for Users to (a) access all scores, parts, pieces, and other works/materials which form part of the Content (b) add annotations to the Content and (c) share those annotations with other Users.

Simultaneous Users: the number of Users accessing the Content at any one time (for the purposes of these Standard Terms, a User is deemed to be accessing Content if they are inside the ‘Score Viewer’ on the App).

User: means a member of the Institution’s personnel or a current student attending the Institution.

1.2 In these Standard Terms, unless the context otherwise requires, any reference to (a) “including”, “include”, “in particular”, “for example” or any similar expression, also means “without limitation” (b) a “person” or “entity” includes any natural person, corporate or unincorporated body (whether or not having a separate legal personality) and that person's or entity’s personal representatives, successors-in-title and permitted assigns (c) “personnel”, in relation to a party, means that person’s officers, employees, agents, consultants, advisers, representatives and contractors (d) words in the singular include the plural (and vice versa) (e) a “clause” means the relevant numbered clause in these Standard Terms and (f) the “parties” means each of nkoda and the Institution respectively (and any reference to a “party” will be construed accordingly). 

2.1 nkoda will provide the Service to the Institution and the Users in accordance with these Standard Terms and the EULA.

2.2 The Institution acknowledges and accepts that (a) each User will be required to agree to the EULA before accessing any Content on the App; and (b) the number of Simultaneous Users will be strictly limited to the User Limit set out in Section 7 of the ILA (which can be increased at the Institution’s request, subject to written terms being agreed with nkoda).

2.3 nkoda will use its reasonable endeavours, during the Licence Period, to provide (a) the Service in a professional and efficient manner, with reasonable skill, care and diligence (b) support with any specific projects for which Users would like to use the Content (for example, a performance or regular rehearsals) or any help the Institution needs to familiarise its Users with the Service (at such cost, if any, as the parties agree in writing and in advance) and (c) up-to-date details of an account manager, who will deal with any day-to-day queries relating to the Service and provide support for any projects of the type referred to in clause 2.3(b). 

3.1 nkoda warrants and undertakes that (a) it has the right to enter into the ILA, and to license the rights to the Institution and the Users to access and make use of the Content, as contemplated by the ILA and these Standard Terms and (b) it will use reasonable endeavours to protect against the inclusion of viruses or malicious software in the Content and on the App.

3.2 nkoda does not warrant that the Institution’s and/or any User’s use of, or access to, the Service will be uninterrupted or error-free.

3.3 The Institution accepts responsibility for the selection of the Service to achieve its intended results and acknowledges that the Service has not been developed to meet the individual requirements of the Institution or any of the Users. 

3.4 The Institution acknowledges that the Service is provided “as is” and is expressly subject to the disclaimer in clause 3.5 below.

3.5 Except as expressly stated in these Standard Terms, all other conditions, warranties or other terms which might have effect between the parties, or which might be implied or incorporated into these Standard Terms, the ILA, the EULA or any related licence or contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permissible under applicable laws, including any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care in connection with the provision of the Service by nkoda to the Institution.

4.1 nkoda hereby grants to the Institution a non-exclusive licence for the Licence Period (a) to receive, make use of and promote the Service to the Institution's personnel and students and (b) subject to clause 4.2, to grant to the Institution’s authorised Users sub-licences to use the Service. 

4.2 In relation to permitted access to the Content and the scope of use of the Content (a) each User will be required to agree to the terms and conditions of the EULA before accessing any Content, (b) the Institution agrees that the Service is only provided (i) for educational, non-commercial research and practice purposes and/or (ii) for performances if the work in question does not require a performance/hire licence (or if the necessary rights have been obtained, in the case of a hire/rental work), and (c) the Institution will have no right (and no right to sub-licence any User or other party) to copy, adapt, reverse-engineer, decompile, disassemble or modify the App, or any of the Content, in whole or in part.

4.3 The Institution will pay the Licence Fee(s) set out in Section 6 of the ILA (and any further sums due under the ILA), to nkoda within thirty (30) days of receiving nkoda’s invoice, by bank transfer to the bank account specified on nkoda’s invoice (or otherwise notified to the Institution). 

5.1 Each party agrees to keep confidential, during the Licence Period and for 5 years thereafter, and not to use for its own purposes (other than the implementation of the ILA, the EULA and/or these Standard Terms), nor without the prior written consent of the other party to disclose to any third party (except its professional advisers or to the extent required by any law or any court or regulatory body of competent authority), the terms and conditions of the ILA or any other information of a confidential nature (including trade secrets and information of commercial value) which may be disclosed to such party by the other party and which relates to the other party, unless such information (a) is public knowledge or already in the lawful possession of such party at the time of disclosure (b) subsequently becomes public knowledge other than by breach of the ILA and/or these Standard Terms or any third party agreement or law (c) subsequently comes lawfully into the possession of such party from a third party without any restriction on its disclosure or (d) is independently developed by the receiving party, and such independent development can be shown by satisfactory written evidence. 

5.2 Each party will also use all reasonable endeavours to prevent the unauthorised disclosure of such confidential information by its personnel.

5.3 Each party may refer to the other party in its advertising materials, and each party consents to the other party using its name and logo for such purposes (but each party will take reasonable steps to promptly stop any such use if the other party objects in writing to such use). 

5.4 On the signing of the ILA, each party will provide the other party with high quality digital versions of its relevant logo(s).

5.5 If there is a public performance by the Institution using the Service, it will acknowledge the use of the Service in the programme notes.

6.1 As between the parties, all Intellectual Property Rights in the Service, the App and the Content belong, and will at all times belong, to nkoda (and/or to its licensors). The Institution acknowledges and agrees that it will not, by virtue of the ILA or these Standard Terms, or its receipt and use of the Service, obtain or claim any right, title or interest in the Service, the App or any of the Content. All rights not expressly granted in these Standard Terms are hereby reserved on behalf of nkoda (and its licensors).

6.2 All use of the Service by the Institution (and all goodwill derived from that use) will at all times operate for the benefit of nkoda. If any goodwill accrues through the Institution’s use of the Service, the Institution hereby assigns to nkoda all right, title and interest in and to such goodwill.

6.3 Subject to clause 6.4, nkoda undertakes at its own expense to defend the Institution or, at its option, to settle any claim or action brought against the Institution alleging that its receipt or use of the Service (or any part thereof), in accordance with the ILA and these Standard Terms, infringes the Intellectual Property Rights of any third party (a Claim), and nkoda will be responsible for any reasonable losses, damages, costs (including legal fees) and expenses properly incurred by, or awarded against, the Institution as a result of or in connection with any such Claim.

6.4 Clause 6.3 will not apply where the Claim in question is attributable to any (a) receipt or use of the Service (or any part thereof) by the Institution other than in accordance with the ILA and these Standard Terms (b) use of the Service in combination with any hardware or software either not recommended, or advised against by, nkoda, if the infringement would have been avoided by the use of the Service not so combined or (c) use of a non-current release of the App or (d) any use of the Service, or any part thereof, by any User that is not in accordance with the EULA.

6.5 These Standard Terms, the ILA and the EULA only govern the receipt and use of the Service (i) for practice, non-commercial research and education purposes and/or (ii) for performances if the work in question does not require a performance/hire licence (or if the necessary rights have been obtained, in the case of a hire/rental work). As such, the Institution, and any relevant User(s), will need to enter into separate arrangements for parts rental and the licensing of performance rights, synchronization rights, mechanical rights, broadcast rights and/or any other Intellectual Property Rights that are not expressly covered by the Licence.

7.1 Nothing in the ILA or these Standard Terms will limit or exclude a party's liability for (a) death or personal injury caused by its negligence or that of its personnel (b) fraud or fraudulent misrepresentation or (c) any other act, omission, or liability which can't be limited or excluded by law.

7.2 Subject to clause 7.1, neither party will have any liability to the other party, in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss, arising under or in connection with the ILA or these Standard Terms.

7.3 Subject to clause 7.1, and except for (a) the Institution’s obligation to pay the relevant Licence Fee(s) to nkoda and (b) any breach by either party of clause 5 and/or clause 6, a party's total aggregate liability to the other party in any 12-month rolling period, whether in contract, tort, breach of statutory duty or otherwise, and whether arising in connection with the ILA and/or these Standard Terms, will be limited to GBP£10,000.

8.1 Without affecting any other right or remedy available to it, either party may terminate the ILA with immediate effect, by giving written notice to the other party, if (a) the other party fails to pay any amount due under the ILA on the due date for payment and remains in default for at least 14 days after being notified in writing to make such payment (b) the other party commits any other material breach of the ILA (including these Standard Terms) which is not remediable or (if such breach is remediable) the other party fails to remedy it within 30 days of being notified in writing to do so or (c) the other party is, or appears likely to be, unable to pay its debts as they fall due or is otherwise insolvent.

8.2 Without limiting the scope or generality of sub-clause 8.1(b), nkoda may terminate the ILA with immediate effect, by giving written notice to the Institution, if (a) a User does not adhere to the provisions of the EULA and (b) the Institution fails to remedy that non-adherence, or to terminate the relevant User's access to the Service, within thirty (30) days after being notified to do so in writing by nkoda.

8.3 The Licence Period and the Licence will terminate automatically on the termination or expiry of the ILA. To confirm, Users will be unable to access any of the Content through the Service after such termination or expiry.

9.1 Data protection: each party will respect the regulations in force in its country or jurisdiction (and also, where applicable, any local regulations) which apply to the collection, processing, storage and protection of personal data in connection with any aspect of the ILA (including these Standard Terms), the EULA and/or the provision of the Service.

9.2 Force majeure: neither party will be in breach of the ILA (including any of these Standard Terms), nor liable for any delay in performing, or any failure to perform, any of its obligations under the ILA (including under any of these Standard Terms) if any such delay or failure results from any circumstances which are beyond that party’s reasonable control. In such circumstances, the affected party will be entitled to a reasonable extension of the time for performing such obligations, provided that, if the period of delay or non-performance continues for longer than 30 days, the unaffected party may terminate the ILA with immediate effect by giving written notice to the party affected by the force majeure event.

9.3 Assignment: the Institution will not (a) sub-license, assign or novate the benefit or burden of the ILA (including these Standard Terms) in whole or in part or (b) deal in any other manner with any or all of its rights and obligations under the ILA (including these Standard Terms), without the prior written consent of nkoda. nkoda may at any time assign, novate, charge or dispose in any other manner of any or all of its rights and obligations under the ILA (including these Standard Terms), on condition that it gives written notice thereof to the Institution.

9.4 Variation: no variation of the ILA or these Standard Terms will be effective unless it is in writing and signed by, or on behalf of, each party.

9.5 Waiver: no failure or delay by either party to exercise any right or remedy under the ILA (including any of these Standard Terms) or by law will constitute a waiver of that (or any other) right or remedy, nor prevent or restrict the further exercise of that (or any other) right or remedy, and no single or partial exercise of any such right or remedy will prevent or restrict the further exercise of that (or any other) right or remedy.

9.6 Third party rights: only the parties have the right to enforce the provisions of the ILA (including any of these Standard Terms). The rights of either party to terminate, rescind, vary or waive the ILA (including any of these Standard Terms) are not subject to any third party consent.

9.7 Entire agreement: the ILA (including these Standard Terms) contains the entire agreement between the parties in respect of the provision of the Service, and supersedes all prior agreements and arrangements between the parties in relation thereto. Each party (a) acknowledges that, in entering into the ILA, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) of the other party or any other person (a Representation) other than as expressly set out in the ILA, including in these Standard Terms and (b) agrees that the only remedy available to it, arising out of or in connection with any Representation, will be for breach of contract.

9.8 No partnership: nothing in the ILA (including these Standard Terms) is intended, or will be deemed, to (a) form a partnership or joint venture between the parties (b) constitute either party as the agent of the other party or (c) authorise either party to enter into any commitment on behalf of the other party. Each party confirms that, in entering into the ILA, it is acting on its own behalf and not for the benefit of another person.

9.9 Counterparts: the ILA can be signed in counterpart (including by scanned or digitally-signed copies exchanged by email), each of which when signed will constitute a duplicate original, but all of the counterparts will together constitute one and the same agreement.

9.10   Governing law: the ILA (including these Standard Terms), and any dispute or claim in connection with the ILA or these Standard Terms, will be governed by, and construed in accordance with, English law. The courts of England will have exclusive jurisdiction to settle any dispute or claim in connection with the ILA (including any of these Standard Terms).