June 15, 2006
June
15,
2006
This
letter, when signed below shall constitute the agreement (the "Agreement")
between The Tribal Vision Group, LLC d/b/a Yoga Tribe and Culture Productions,
a
California Limited Liability Company with offices at 000 Xxxxx Xxxxxx, Xxxxx
Xxxxxx, XX 00000 ("YTC"), and UKARMA, a Nevada corporation with offices at
000
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 (UKARMA") (together the “Parties”)
regarding the production of four yoga and/or exercise videos anticipated to
be
primarily distributed via direct-response.
In
consideration of the mutual promises and covenants contained herein and for
other valuable consideration the receipt and sufficiency of which is hereby
acknowledged, YTC and UKARMA hereby agree as follows:
1.
Scope
of Work:
YTC
shall produce, edit and deliver to UKARMA the finished, edited and first-class
quality filmed content featuring yoga and/or exercise routines (the “Content”)
for adults (as may be designated by UKARMA). The Content shall be produced
as
specified in subparagraph (f) below, featuring and led by Xxxx Xxxxxx and such
other persons as may be designated by UKARMA. The Content shall be divided
into
programs also as specified in subparagraph (f) below (individually referred
to
as a “Program” and collectively, the “Programs”). Each Program shall be
delivered: (i) fully-synchronized with dialogue, music, lyrics, sound and
effects as requested by UKARMA, produced pursuant to the budget; (ii) of high
technical quality, with the negative, soundtrack and other material of each
Program delivered to UKARMA with sufficient quality and condition so that the
Program shall be suitable for mass-production of high-quality DVDs and
videotapes and widespread direct-response home video distribution by customary
means throughout North America; (iii) originally recorded primarily in the
English language; and (iv) filmed in color using a professional industry high
definition format and the highest quality high definition camera for such
filming.
(a)
Shoot(s):
The
Programs will be filmed by YTC on location in Los Angeles at a location
determined by UKARMA. The Programs shall include yoga/fitness classes led by
Xxxx Xxxxxx. It is anticipated that the filming will require a minimum of four
(4) days of filming on location in Los Angeles utilizing the number of cameras
for such shoot specified in Section 1(f) below, in numerous yoga classes or
sessions, as well of other shots of or interviews with Xxxx Xxxxxx or other
persons in the classes. YTC shall provide UKARMA a written treatment detailing
the vision for the Programs at least two (2) weeks prior to commencement of
filming. UKARMA shall have final approval over all creative elements of the
Programs subject to the approvals outlined in Section 4 (and UKARMA shall
determine all screen credits relating to the Programs, provided that the crew
& director shall receive customary credits, and YTC shall also receive a
customary screen credit). The filming shall commence no later than July 24,
2006, and shall be completed no later than 7 days later.
(b)
Post-production:
Following the completion of the shoot(s) listed in 1(a) above, subject to
ongoing consulting and coordinating with UKARMA, and UKARMA’s consent, YTC will
edit, coordinate and oversee post-production of the Programs in Los Angeles
as
set forth in Section 4 below.
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(c)
Program
Elements:
YTC
will furnish and/or arrange for all necessary Program elements (e.g., opens,
animations, mix and color corrections (“Program Elements”)), releases, rights
and permissions and for all personnel (which releases shall be in favor of
UKARMA), services and facilities required for acquisition or production and
recording of the Programs. In connection with the Programs, YTC shall (1)
maintain a complete file of all funding agreements, production subcontracts,
property acquisitions, rights arrangements, employment agreements, clearance
forms and other agreements or documents involved in the Programs production
or
acquisition (the “Production Documents”) for a period of two (2) years following
the Programs delivery to UKARMA and (2) deliver a full and complete copy of
all
Production Documents to UKARMA concurrent with delivery of the
Programs.
(d)
Promotional
Elements:
YTC
agrees that UKARMA may use and authorize any others to use informational and
promotional materials or other data concerning the Programs as may be available
in promotion of the Program. YTC will ensure that these materials will be
cleared for use in the promotion and marketing of the Programs in brochures,
ads, videocassette and disc covers, catalogs or other such uses.
(e)
Contacts:
YTC
points of contact for these Programs under the Agreement will be Xxxx
Xxxxxx.
(f)
Content
of Programs (and cameras used in filming):
YTC
agrees that the Programs shall include the following elements: (1) a 60-minute
“yoga rocks” class with 50 people and a live band, which will be shot using 4
cameras and a crane with a telescope; (2) a 45-minute “yoga rocks” class with 15
people and a live band, which will be shot using 4 cameras and a crane without
a
telescope; (3) a 45-minute “wall” class with an on-camera introduction, which
will be shot using 3 cameras; (4) a 30-minute “master flow” class with an
on-camera introduction, which will be shot using 3 cameras; (5) a 20-minute
class with an on camera introduction, which will be shot using 3 cameras; and
(6) a 15-minute “abs” class with an on-camera introduction, which will be shot
using 3 cameras. There will be 6 on-camera introductions. YTC agrees that
additional content will be shot with time permitting.
2.
Key
Person:
YTC
acknowledges that the services provided by Xxxxx Xxxxxxx as Producer/Director
of
the Programs is of the essence of YTC’s obligations with respect to this
Agreement and a material inducement to UKARMA entering this Agreement. Any
change by YTC of a person to perform services other than Xxxxxxx shall be
subject the approval of UKARMA which may be granted or withheld in UKARMA’s sole
and absolute discretion. If Xxxxxxx services are not available and UKARMA does
not in its sole and absolute discretion approve the replacement selected by
YTC,
then UKARMA shall have the right to immediately terminate this Agreement with
no
further payments due to YTC (and YTC shall refund within five (5) business
days
following any such termination all payments received by UKARMA since entering
into this Agreement).
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3.
Production
budget:
In
accordance with the production budget attached as Exhibit
A,
UKARMA
shall pay to YTC a total of TWO HUNDRED SIXTY-FOUR THOUSAND TWO HUNDRED
FORTY-FOUR DOLLARS ($264,244.00) to be used for the creation of the Programs
(subject to change as described below in this paragraph, the “Budget”). The
Budget may increase only with the prior written consent of UKARMA. The Budget
will decrease if: (1) the actual cost of the Los Angeles location utilized
for
filming (the “Location Cost”) is less than the budgeted location cost; (2) the
actual talent cost (i.e., cost of the cast for filming the Programs, the “Talent
Cost”) is less than the budgeted talent cost; or (3) the location utilized for
the filming does not require installation of wood floors (i.e., the budget
contains a $2,000 expense item for installation of wood floors in the location).
A cost increase (i.e., in excess of the amount for such item provided for in
the
Budget) shall only be considered to be part of the Budget and paid for by
UKARMA, if such increase is approved in writing by UKARMA. YTC shall submit
all
of its expense receipts for expenses contemplated in the Budget relating to
the
production of the Programs to UKARMA within two (2) business days of such
expense having been incurred. In the event that the Location Cost and/or the
Talent Cost is lower than the budgeted amount for such expense set forth in
the
Budget, or the location does not require installation of wood floors for the
filming (each, a “Savings”),
UKARMA shall be entitled to such Savings.
All
payments to YTC hereunder shall be paid by wire transfer in five (5)
installments. The first installment of thirty percent (30%) of the Budget shall
be paid upon execution of this Agreement. The second installment of thirty
percent (30%) of the Budget shall be on commencement of production (which shall
be deemed to be 1 week before prior to actual commencement of shooting) by
YTC.
The third installment of fifteen percent (15%) of the Budget shall be paid
on
delivery to UKARMA of the rough cut of the Programs. The fourth installment
of
fifteen percent (15%) of the Budget shall be paid upon UKARMA’s “sign-off” on
all changes to the rough cut of the Programs. The fifth and final installment
of
ten percent (10%) of the Budget shall be paid upon UKARMA’s approval of all
final edits and changes to the Programs. YTC agrees that within ten (10) days
following UKARMA’s fifth such payment, YTC shall deliver to UKARMA high quality
Masters of all the Programs along with a full and complete set of all of the
Production Documents. In the event that the Budget decreases due to a Savings,
all payments to YTC after the date of such decrease shall be appropriately
adjusted and reduced to reflect the decrease and take into account the excess
payment included in the previous payment(s) to YTC prior to such decrease.
Alternatively, in the event of any Budget increases approved in writing by
UKARMA, all payments to YTC after the date of such increase shall be
appropriately adjusted and increased to reflect the increase and take into
account the shortfall amount in the previous payment(s) to YTC prior to such
increase.
Any
potential changes to the Budget must be submitted in writing by YTC to UKARMA
in
advance of the additional expenditure. UKARMA shall then either accept in
writing or deny the proposed change in writing within three (3) business days.
If UKARMA does not give its written approval for any such additional
expenditure, YTC shall not incur such additional expenditure and shall complete
the Programs as contemplated herein and in the Budget. Any unapproved overages
or expenses incurred in the production of the Programs shall be borne solely
by
YTC.
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4.
Editorial
Control, Delivery and Acceptance:
YTC
will work with Xxxx Xxxxxx in delivering to UKARMA on or before June 20, 2006,
a
final detailed descriptive content treatment for each Program in order to ensure
that the Programs meet UKARMA’s understanding and vision. Xxxx Xxxxxx is
responsible for delivering his outline and overview of the classes’ formats, the
introductions, interviews and commentary, two (2) weeks before the commencement
of location filming. (Xxxx will be paid by UKARMA for his performing, materials
and series.) The YTC treatment may include but not be limited to specific
details on talent and cast, set design, wardrobe, suggested credits, and in-kind
donors. YTC will consult with and obtain UKARMA’s prior written approval
regarding the editorial content or any changes to the Programs. The Programs’
production and artistic control will be under YTC’s direct supervision, in
collaboration with UKARMA.
A
DVD
rough-cut of the Programs will be delivered to UKARMA within approximately
six
(6) weeks (and in no event later than eight (8) weeks) after completion of
the
yoga/fitness class filming in Los Angeles). UKARMA shall then have fourteen
(14)
days to respond with feedback to YTC (“Feedback”). YTC shall then edit the
rough-cut of the Programs and incorporate the Feedback into its creation of
the
final assembly of the Programs, and deliver a revised, re-edited cut of the
Programs to UKARMA for its consideration and approval within two (2) weeks
of
receipt of the UKARMA feedback. If UKARMA has additional feedback, it shall
communicate it to YTC within seven (7) days following receipt of such re-edited
cut (“Additional Feedback”); and, YTC shall then further edit the cut of the
Programs and incorporate the Additional Feedback into its creation of the final
assembly of the Programs, and deliver a further revised, re-edited cut of the
Programs to UKARMA for its consideration and approval within two (2) weeks
of
receipt of the UKARMA additional feedback. The final cut of the Programs is
to
be delivered no later than seven (7) days after UKARMA indicates that it has
no
more suggested changes to the Programs. All of such prospective editing is
included in the Budget and there will be no charge by YTC therefor other than
the payments described in Section 3 above.
YTC
shall
deliver to UKARMA three DigiBeta masters of each finished DVD and three DVD
dubs
with burned in time-code of the final cut of the Programs. The above schedule
can only be modified by mutual written agreement of YTC and UKARMA (and time
is
of the essence with respect to the schedule and dates provided for herein).
5.
Work
Made-for-Hire:
YTC
acknowledges that the result and proceeds from the services it performs under
this Agreement shall constitute work made-for-hire. Accordingly, UKARMA shall
own all right, title, and interest, including, but not limited to, all
copyrights, trademarks, patent rights, trade secrets, and any other intellectual
property rights, in the Programs (including, without limitation, all extensions,
renewals, or continuations of any and all such rights), and that UKARMA shall
have the exclusive right to use the Programs in all media in perpetuity
throughout the universe. UKARMA shall be the sole owner of the Programs as
a
work made-for-hire and any and all of YTC’s contribution to Programs shall be
deemed to be a contribution to a collective work under United States Copyright
Act of 1976, as amended (17 U.S.C. § 101 et seq.). In case that the Programs (or
any part of them) is found not to satisfy the criteria of works made-for-hire,
YTC agrees upon request by UKARMA that YTC will immediately execute any
necessary documentation and will hereby transfer and assign to UKARMA all right,
title, and interest, including, but not limited to, all copyrights, trademarks,
patent rights, trade secrets, and any other intellectual property rights, in
the
Programs (including, without limitation, all extensions, renewals, or
continuations of any and all such rights) now or hereafter known or acquired.
UKARMA shall have the right to obtain and hold in its name all copyright
registrations and other evidence of rights that may be available for the
Programs (or any part).
6.
No
Obligation to Use:
Nothing
contained herein shall in any way obligate UKARMA actually to use YTC’s services
or any of the results or proceeds of YTC’s services, or to produce, exhibit,
distribute, advertise or otherwise exploit any material written or produced
by
YTC hereunder.
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7.
Confidentiality:
Except
as may be required in connection with filings with courts or government agencies
or required under applicable law, YTC and UKARMA agree to keep strictly
confidential the terms and provisions of this Agreement and shall not disclose
such terms and provisions to any person or entity other than to their respective
lawyers and/or accountants on a must-know basis. YTC and YTC's representatives
shall not, without UKARMA's prior written consent, issue or authorize any
publicity or grant any interview or make any statements relating to this
Agreement.
8.
Representations
and Warranties:
YTC
hereby represents and warrants that:
(a)
all
material written, produced or contributed by YTC pursuant to this Agreement
shall either be created by and wholly original by YTC, or fully cleared by
YTC
for use by UKARMA (and its successors in title, assigns and licensees) to the
fullest extent contemplated by this Agreement in the exercise of UKARMA's rights
pursuant to this Agreement, and neither the existence nor exploitation of such
material does or will in any way infringe upon or violate any copyright, or
rights of privacy or publicity, common law rights, or any other rights, or
constitute a libel or slander against, any person, firm, corporation or other
entity whomsoever, and that duplication, distribution, and sale of the Programs,
will not require any payment or compensation to any third party or YTC;
(b)
YTC
is fully ready, willing and able to perform services hereunder, and YTC has
the
full right, power and legal capacity to make and perform this Agreement and
furnish YTC's services hereunder without the consent of any third party;
(c)
there
is no litigation pending or threatened which would in any manner interfere
with
the full and complete enjoyment by UKARMA of the rights and privileges herein
granted;
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(d)
it
will comply with all applicable laws, rule and regulations in its production
of
the Programs; and
(e)
it
will obtain a general liability insurance policy to cover the production of
the
Programs in an amount not less than $1 million per occurrence and $2 million
in
the aggregate, which insurance coverage shall (1) be in effect within ten (10)
days after the date hereof and prior to commencement of location filming of
the
Programs, (2) name UKARMA (and its officers, directors and shareholders) as
an
additional insured and (3) provide that such coverage cannot be canceled or
modified without 30 days prior written notice to each additional insured (and
YTC agrees that it shall provide evidence of such insurance reasonably
satisfactory to UKARMA prior to commencement of production of the Programs).
Such insurance shall not, however, cover any third party claims against UKARMA
or YTC which assert or allege that the yoga poses taught or exhibited by Xxxx
Xxxxxx in the Programs violates the copyright or other intellectual property
rights of such third party.
All
such
representations and warranties shall survive execution and delivery of this
Agreement the consummation of the transactions contemplated herein. UKARMA
has
executed this Agreement in reliance upon the foregoing representations and
warranties.
9.
Indemnification:
YTC and
UKARMA each agree to defend, indemnify and hold harmless the other from all
claims, actions, costs, damages, losses, liabilities, and expenses (including,
without limitation, reasonable attorneys’ fees), as incurred, directly arising
or resulting from the acts or omissions of the indemnifying party or the breach
by the indemnifying party of any of the warranties, representations, terms,
or
conditions of this Agreement. Neither party shall be liable to the other for
any
consequential or other indirect damages.
10.
Relationship
of the Parties:
Nothing
in this agreement shall be construed to create (and neither party nor any
affiliate or agent thereof shall represent to the contrary) a partnership,
joint
venture, or any relationship other than that of independent contractors. It
is
agreed that YTC’s relationship to UKARMA is that of an independent contractor
and that YTC is not an employee or agent of UKARMA for any purpose, including
but not limited to federal, state or local unemployment insurance laws, old
age
benefits, Social Security laws, worker’s compensation laws, tax laws or any
other industrial law and are not eligible for any of the benefits to which
employees of UKARMA are eligible. Accordingly, YTC is responsible for payment
of
all taxes for YTC’s services hereunder, including but not limited to, social
security taxes, and federal, state and city income tax. YTC warrants that YTC
will make all necessary payments due to appropriate governmental agencies to
comply with the foregoing and indemnify UKARMA against any claims, liabilities,
costs or expenses that may arise out of the foregoing warranty. YTC shall be
responsible for providing YTC’s own office and work premises (including without
limitation office equipment and any secretarial support) unless space is made
available by UKARMA, in its sole discretion, and, accordingly, YTC shall be
responsible for all costs, expenses and supplies associated with maintaining
YTCs own office, work premises, equipment and secretarial support. YTC has
no
authority, expressed or implied, to assume or create any obligation on behalf
of
UKARMA.
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11.
Assignment:
Neither
YTC or Xxxxxxx may assign or license its rights and obligations under this
Agreement without the prior written consent of UKARMA, with such consent shall
be granted or withheld in UKARMA’s sole discretion; and any attempted assignment
in violation of this Agreement shall be void and of no force or effect. YTC
agrees that UKARMA may assign this Agreement at any time to any person or
entity. Subject to the foregoing, this Agreement shall be binding upon and
inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, administrators, executors, successors and permitted assigns,
and any past, present, or future parent, subsidiary or affiliated company.
12.
Effect
and Amendment:
This
Agreement cannot be assigned, altered, amended, changed or modified in any
respect or particular unless each such assignment, alteration, amendment, change
or modification shall have been agreed to in writing, signed and delivered
by
each such party hereto. This Agreement shall be deemed to become effective
upon
signature by UKARMA and YTC hereto.
13.
Miscellaneous:
This
Agreement, including any and all exhibits or attachments referred herein, sets
forth the entire agreement of the parties relating to the subject matter hereof
and supersedes all prior agreements, previous documents, correspondence,
conversations and understandings, written or oral, between YTC and UKARMA.
This
Agreement may not be altered, waived, or modified except by a writing signed
by
all parties or their respective heirs, successors, assigns, or legal
representatives. No waiver by either party of any of the terms and conditions
of
this Agreement in any one instance shall be deemed to be a waiver of any
preceding or succeeding breach of the same. All remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative
and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation or agreement of either party. This agreement shall be governed by
and
construed in accordance with the laws of the State of California without
reference to its rules relating to conflict of laws. The parties hereto hereby
irrevocably agree (i) that the courts of California and any federal court
located therein shall have exclusive jurisdiction in connection with any suit,
action or other proceeding arising out of or relating to this agreement, or
the
transactions contemplated herein, and (ii) to waive any objection to venue
in
California in connection therewith. In any action between the parties relating
to this Agreement, the enforcement of any of its terms or to any other contract
relating to the subject matter of this Agreement, the prevailing party shall,
in
addition to any award of damage or other remedy, be entitled to reasonable
outside attorneys’ fees, costs and expenses directly incurred thereby. Paragraph
headings and other captions contained in this Agreement are for reference
purposes only, and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of any of the provisions herein.
14.
Music:
This
agreement does not include music or music rights for the Programs. Music will
be
supplied by UKARMA for editing and the completion of these
Programs.
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15.
Joint
Drafting of Agreement:
This
agreement shall be deemed to have been jointly drafted by the Parties and
therefore shall not be interpreted against either Party.
THE TRIBAL VISION GROUP,
LLC
d/b/a
YOGA TRIBE AND CULTURE
PRODUCTIONS
|
UKARMA CORPORATION | |||
By: | By: | |||
Xxxxx
Xxxxxxx, Manager
|
Xxxx
Xxxxxx,
CEO
|
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