Case No. IP-2020-000140

4.1 We shall procure the release in the United Kingdom of each Commitment Album that we shall call for hereunder within one hundred and twenty (120) days following the Delivery of the same 4.2 We shall use our reasonable endeavours to procure the release in the Major Markets of a Commitment Album within one hundred and eighty (180) days following the release of the same in the United Kingdom 4.3 In the event that we shall not have released the relevant Commitment Album in accordance with the provisions of sub-clause 4.1 above you shall be entitled to give us written notice requiring us so to do and in the event that we shall not released the said Commitment Album within one hundred and sixty (60) [sic] days following our receipt of such written notice you shall be entitled to: 4.3.1 purchase from us the rights in the said Commitment Album upon reimbursement to us of any and all advances which we have paid in respect of such Commitment Album within sixty (60) days following the expiry of the sixty (60) period as aforesaid PROVIDED THAT you shall not have commenced making any subsequent Commitment Album and PROVIDED FURTHER THAT you shall secure a release for us of any of our obligations to make payment of monies to producers and/or any other third parties; and 4.3.2 terminate the Term of this Agreement forthwith by notice in writing PROVIDED THAT you shall not have commenced making any subsequent Commitment Album 4.4 In the event that we shall not have released the relevant Commitment Album in accordance with the provisions of sub-clause 4.2 above you shall be entitled to give us written notice requiring us so to do and in the event that we shall not have released the said Commitment Album within a period of ninety (90) days following our receipt of such written notice you shall be entitled to require us at any time thereafter to license such Commitment Album to any third party of your choice provided that the terms are reasonably satisfactory to us and provide for a royalty of not less than four per cent (4%) of the dealer price of any record embodying the Masters comprising such Commitment Album to us after payment of royalties to all other parties including you 4.5 Your entitlements under sub-clauses 4.3 and 4.4 above shall be your sole remedy in respect of any failure by us to procure a release under sub-clauses 4.1 and/or 4.2 as aforesaid”19.Clause 16 contains further potentially relevant provisions, requiring Domino to obtain Mr Hebden’s approval before undertaking various acts in respect of the Masters. The acts in question include resequencing or otherwise altering the Masters. Clause 16 also provides that Domino will consult with Mr Hebden before entering into a licence agreement covering the United States of America. As will become apparent below, an issue between the parties is as to the construction of “Term” and its implications. For convenience, I summarise their positions on this issue here.20.The parties are agreed that the exclusive recording provisions of the 2001 Agreement terminated in around 2005.21.Mr Hebden’s position is that the Term related primarily or only to those exclusive recording provisions and that at least Domino’s royalty and release obligations continued after that date. The proposed amendments plead that Domino’s recent conduct was a breach of those remaining elements of the contract.22.Domino’s position is that, while some aspects of the 2001 Agreement (such as those relating to accounting and payment of royalties) survived the “Term”, no obligation to release or promote survives the Term and that any other reading is inconsistent with the wording of clause 4, which is also said to set out the sole remedies available for breach, in combination with clause 14.8, which provides for certain notice requirements:“No default of any provision hereunder shall be considered a breach of a material obligation giving a right of termination unless and until the party complaining of such default shall serve notice on the other giving full details thereof and requesting the same (if capable of remedy) to be remedied and the other party or parties (as the case may be) shall have failed to remedy such default or taken substantive steps to remedy such default within a period expiring thirty (30) days from the date of such notice.”