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EXHIBIT 10.64
Date
EXCLUSIVE PUBLICATION AGREEMENT
This will confirm the agreement made between DOVE ENTERTAINMENT, INC.,
0000 Xxxxxxx Xxxx., Xxx Xxxxxxx, XX 00000 ("Dove"), and "', concerning a work
entitled "" ("Work") in which Author is the owner of all audio rights.
1. GRANT OF RIGHTS
(a) Author hereby grants and licenses to Dove the sole and
exclusive audio rights in and to the Work for the full term of copyright,
including any renewals or extensions thereof, throughout the universe, in all
languages, to publish abridged and unabridged readings of the Work, and to
record, electronically or by any other manner now known or hereafter developed,
the Work for the purpose of duplication on audio cassettes, compact discs or any
other electronic forms now known or hereafter developed ("Cassettes").
(b) Author grants Dove the right to produce, publish, sell,
license, and distribute the Cassettes under the Dove label or its assigns and to
authorize others to produce, publish and distribute the Cassettes. This right
shall include the right to authorize others to use portions of the Cassette for
broadcast.
(c) Author grants Dove permission to use Author's name and likeness
in connection with all advertisement, publicity or promotion of the Cassettes
provided that the Author's name and likeness will not be used in any endorsement
or testimonial without Author's prior written consent, which consent shall not
be unreasonably withheld. Author shall not receive any additional compensation
for such endorsement or testimonial.
(d) All other rights including, but not limited to print, motion
picture and television, remain with the Author.
(e) Promptly after execution of this Agreement, Author shall
provide Dove free-of-charge with three (3) copies of the Work.
2. ROYALTIES
As consideration for any and all rights granted by Author hereunder,
Dove shall pay
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Author a royalty as follows:
(a) As an advance against future royalties, "" to be paid one-half upon
signing of this agreement and one-half upon release of the Cassette by Dove.
(b) On sales of the Cassettes:
(i) Ten percent (10%) of net sales received from sales of the
Cassettes.
(ii) Five percent (5%) of the net sales received from premiums,
special sales, catalog, book, library, record, tape, shopping or other clubs,
and foreign sales of the Cassette.
(iii) Fifty percent (50%) of net sales received under any
licensing agreements.
(iv) Net sales shall be defined as gross sales, less all returns.
(c) On use of the Cassettes for review, advertising, publicity, or the
like to promote the sale and distribution of the Cassettes, no royalties shall
be paid. No royalty shall be paid on Cassettes sold at or below the cost of
manufacture.
(d) If any Cassette produced or licensed hereunder contains a work or
works other than the Work that is the subject of this agreement, Author shall
receive a proportion of the foregoing amounts stated in this paragraph based on
the actual playing time of Author's Work on the Cassette against the total
playing time of the Cassette.
3. ACCOUNTING
Dove shall render a semi-annual accounting to Author of estimated net
sales as of the first day of January or the first day of July. Dove shall send
such statements, with checks in payment of amounts due, on or about the last day
of March and September, to the extent that Dove has received payment for the
sales upon which the royalties are calculated. The first such statement and
payment shall become due three (3) months after the conclusion of the first
complete accounting period (January 1-June 30, or July 1-December 31) to follow
publication of the Cassette, and shall cover the time period from publication
through the end of such accounting period. Dove shall maintain a reasonable
reserve against returns of the Cassettes and the amount thereof shall be
deducted from the payments to Author. Author shall have the right to inspect
Dove's books of accounting, upon reasonable written request and sufficient
notice, to determine the accuracy of statements rendered to Author, provided
that there may not be more than one such examination in any twelve month period,
and that each such statement shall be deemed incontestable two years after the
date upon which such statement is issued unless an examination has taken place
and a claim with respect thereto has been asserted in such two year period.
After two years from the date of publication, no royalty statements will be
issued on amounts less than Twenty USD ($20.00).
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4. WARRANTY
(a) Author warrants and represents that the Work is original; that
Author is the sole author and proprietor of the Work; that Author has the full
power and authority to enter into this agreement and to grant the rights granted
hereunder to Dove, that there are no claims, liens, or encumbrances against the
Work, that Author has not previously assigned, transferred or otherwise
encumbered the Work in any manner which will conflict, interfere with, or impair
the rights granted to Dove herein. Author further warrants and represents that
the Work, when published by Dove, will not infringe upon any statutory or common
law copyright, invade the right of privacy or publicity of any third person, or
contain any matter that is defamatory, libelous or slanderous or otherwise in
contravention of the rights of any third persons or party anywhere in the world,
that nothing contained in the Work is injurious, harmful or damaging to the
health of a user, and that all statements in the Work asserted as facts are true
or are based upon reasonable research for accuracy.
(b) Author agrees to defend and indemnify and hold harmless Dove, and
its officers, directors, shareholders, employees, agents, representatives,
successors, licensees, assigns, distributors and any seller of the Cassettes
against any loss, liability, damage, cost, expense, claim, demand, action or
proceeding that may be brought, including reasonable attorney fees and costs,
arising from a breach or alleged breach of warranties set forth in this
paragraph or otherwise arising from the Work or the rights therein.
(c) Author warrants and represents that Author shall provide Dove with
a complete copyright report of the Work, to be delivered to Dove either prior to
or contemporaneous with the signing of this agreement. Author shall be solely
responsible for all costs incurred in connection with the preparation of said
copyright report.
5. RIGHT OF FIRST NEGOTIATION/ RIGHT OF LAST REFUSAL
Author hereby grants Dove the right of first negotiation and the right
of last refusal for the audio rights to Author's next book, and grants Dove the
right of first negotiation and the right of last refusal for the audio rights to
Author's subsequent book thereafter.
(a) The term "Right of First Negotiation" is defined as when Author
completes his or her next book, Author shall notify Dove in writing concerning
said completion and immediately commence good faith negotiations with Dove
regarding such audio rights. If, after the expiration of a thirty (30) day
negotiation period ("Initial Negotiation Period") following the receipt of
notice, no agreement has been reached between Author and Dove, Author may then
negotiate with third parties regarding such audio rights.
(b) The term "Right of Last Refusal" is defined as when Dove and Author
fail to reach an agreement during the Initial Negotiation period, and Author
makes or receives any firm bona fide third party offer to purchase the audio
rights or any interest therein ("Third Party Offer").
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Author shall notify Dove by registered mail or telegram, if Author proposes to
accept such Third Party Offer, including the name of the offeror, the proposed
purchase price, and all other material terms of such Third Party Offer.
Beginning upon Dove's receipt of Author's written notice of said Third Party
Offer Dove shall have an exclusive thirty (30) day period to purchase the audio
rights for the same purchase price and upon the same terms and conditions as set
forth in such written Third Party Offer. If Dove elects to purchase such audio
rights, Dove shall notify Author in writing of its intent to purchase the audio
rights within such thirty (30) day period ("Second Negotiation Period"). If Dove
elects not to purchase said audio rights from Author, Author may accept such
Third Party Offer; except in the event that there is a change in the identity of
the third party, the purchase price or in the terms and conditions of such Third
Party Offer then Author shall offer to Dove the right to purchase the audio
rights on the same terms as then set forth in the said Third Party Offer, or if
any such proposed sale is not consummated with the third party within thirty
(30) days following the Second Negotiation Period Dove's right of last refusal
shall be revive and shall apply to each and every further offer or offers
whenever received by Author relating to the audio rights or any interest
therein; provided, further, that Dove's option shall continue in full force and
effect, upon all the terms and conditions of this paragraph, while Author
retains any rights, title or interest in or to the audio rights. Dove's interest
in or to the audio rights and Dove's Right of Last Refusal shall inure to the
benefit of Dove, its successors, licensees and assigns, and shall bind Author
and Author's heirs, successors and assigns.
6. COVER ART
To the extent of Author's rights in the design and illustration of the
cover art used for the print version of the Work, Author grants to Dove the
right to use such material for the Cassettes to the full extent of Author's
rights in said cover art and, to the extent third parties control such rights,
Author shall use best efforts to arrange for Dove to obtain the right to use
such material for the Cassettes provided, however, that Author shall not be
obligated to pay for such rights.
7. RIGHT TO EDIT
Dove shall have the right, without further obligation to Author, to
edit the Work in any manner it deems appropriate, for the purpose of, without
limitation, connective material, advertising and promoting the Work.
8. AUTHOR'S COPIES
Dove shall provide Author with five (5) copies of the Cassette, free of
charge. Should the Author request additional copies, Dove will provide such
additional copies at a price equal to 50% of the retail price of each Cassette,
with no royalties paid to Author on all such sales.
9. ASSIGNMENT
The provisions of this Agreement shall apply to, and inure to the
benefit of and bind the
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heirs, successors, executors, administrators, and assigns of the Author, and the
successors, licensees and assigns of Dove.
10. COPYRIGHT
Dove shall have the sole and exclusive right to secure copyright
registration of the sound recording of the Work as contained in the Cassettes
(as distinguished from the copyright of the Work) in the United States and such
other Territories as set forth herein, if any, under any now existing or
subsequent created laws, regulations or rules, in the name of Dove or any
person, firm or corporation designated by Dove, and Dove shall own the copyright
thereto. Author hereby assigns for the term of this Agreement, and any renewal
thereof, and Dove shall own all right, title and interest in and to the Work as
contained in the Cassettes and all additions to, alterations of or revisions of
the Work as contained in the Cassettes, and all drafts, notes, scripts, voice
recordings and musical recordings related thereto. If requested by Dove, Author
agrees to execute, acknowledge and deliver, or, cause to be executed,
acknowledged and delivered to Dove any instruments that may be required by Dove
or that may be necessary, proper or expedient in the opinion of Dove to
establish and vest in Dove such rights of copyright.
Author shall notify Dove immediately in writing of any copyright notice
Author wishes to be set forth on the package containing the Cassettes relating
to the copyright in the underlying Work.
11. REMEDIES
Author agrees that no default by Dove shall cause Author irreparable
damages entitling Author to an injunction or other equitable relief; it being
agreed that Author shall be entitled to seek only monetary damages, if any, for
a default by Dove hereunder.
12. SEVERABILITY
If any provision of this Agreement, as applied to any party or to any
circumstance, shall be found to be void, invalid or unenforceable, the same
shall in no way affect any other provision of this Agreement, the application of
any such provision in any other circumstance, or the validity or enforceability
of this Agreement.
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13. CALIFORNIA LAW APPLIES
This Agreement shall be interpreted according to the laws of the State
of California, applicable to agreements made and to be performed wholly therein.
At Dove's sole election and discretion, any disputes between the parties
regarding the provisions of this Agreement shall be settled by arbitration
before the American Arbitration Association in Los Angeles, California.
14. INTEGRATION
This Agreement shall contain the entire understanding of the parties
hereto, and may not be modified, nor shall any waiver be effective, unless in
writing and signed by all the parties hereto.
THE PARTIES HERETO HEREBY AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH
ABOVE BY SIGNING BELOW.
AGREED TO AND ACCEPTED BY:
DOVE ENTERTAINMENT, INC.
By: By:
Xxx Xxxxxxxxxx
Its: President
SS#
Date: Date:
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