PARTNER AGREEMENT
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EXHIBIT 10.1
June 3, 2020
RE: Eclectic Artists, LLC.
BRAND:
Fan Pass or (Fan Pass Live)
(the
“Brand”)
PRODUCT:
Live Stream or (Subscription service)
(the
“Product”)
This PARTNER AGREEMENT FOR TALENT ACQUISITION AND EVENT MARKETING
(“Agreement”), effective as of June ____2020
(“Effective
Date”), is by and between
Friendable, Inc., a Nevada corporation, with offices located at
0000 X Xxxxxx Xxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
(“Company”) and Eclectic Artists, LLC. a Georgia
limited liability corporation, with offices located at 0000
Xxxxxxxxxxx Xxx, Xxxxxxxx, Xxxxxxx 00000
(“Partner”).
Company and Partner shall be referred to herein individually as a
“Party” and collectively as the
“Parties.”
WHEREAS, the Company is the
owner and operator of the Fan Pass Live Mobile Application,
reactive website, technology and fan management platform. Fan Pass
provides an inclusive solution for pop-up LIVE EVENT STREAMING,
merchandise sales, data ownership by each artist and fan community
development and management. Includes archived events, fan content
and other content within the Fan Pass channels.
WHEREAS, the Partner is a
concert and management company for various music artists, celebrity
artists and/or talent; and
WHEREAS, the Company is
engaging Partner to promote the Fan Pass platform and to engage
artists/talent for exclusive access to dedicated “Channel
Ownership” by artists/talent, for pop-up LIVE STREAMING
EVENTS, PHYSICAL ON SITE or BACKSTAGE STREAMING (each an
“Event
Stream”), mutually
agreeable merchandise offerings, podcasts and CONTENT promoting Fan
Pass app downloads, subscriptions and fan engagement (the
“Services”); as well as mutually agreeable marketing
and promoting each of the scheduled live stream events as further
described herein.
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NOW THEREFORE, the Parties
agree as set forth herein:
1.
The Partner
a.
The Partner shall identify, negotiate and contract
mutually agreed upon artists/talent ” to participate in the
ownership of an exclusive “Fan Pass Live Channel”
dedicated to all live stream events of various lengths, pop-up
events, shout outs to fans, merchandise sales and content of
various types, supporting the Fan Pass platform, mobile application
and website to promote ahead of and following events delivered
to fans through the subscription area of Fan
Pass.
b.
The
Initial Term of this Agreement shall be eighteen (18) months. It is
the intent of both parties to continue with artist events as
outlined in “Exhibit A” or otherwise. Either Party may
terminate this Agreement six (6) months after the Effective date
upon 30 days’ written notice, should there be a desire to do
so. Notwithstanding termination of this Agreement, Company shall
continue to pay to Partner its percentage share of Net Revenue (as
defined below) on a monthly basis in accordance with Section
3(a).
2.
The Services
a.
Partner shall negotiate, on behalf of the Company,
to secure the services of Artists. Each Artist shall agree to
perform certain deliverables (the “Deliverables”) by executing an agreement with Company in
substantially the same form as Exhibit A hereto. Notwithstanding the foregoing, the
specific deliverables for each Artist will be negotiated on a
case-by-case basis by Company, Partner, and Artist as appropriate
for each engagement.
b.
Company shall be responsible for the planning,
preparation and marketing of each Event Stream, during the
promotional period, on the date of event and following each event.
For example, once the Partner has secured the services of an
Artist, Company’s “Relationship Agents” will
engage each Artist/and gather content in the days prior to the
event (the “Promotional
Period”), gather content
for the event (“Date of
Event”), and gather
content for the period after the event (promote more subscriptions
for the month). If a planned event does not occur for reason of
cancellation, the Parties will attempt to offer a new event in a
time frame agreeable to the Company.
3.
Compensation
In
consideration for the services described above, the Company hereby
agrees to compensate Partner as follows:
a.
The
Company will pay Partner five percent (5%) of Net
Revenue.
i.
As
used herein, the following terms have the following
meanings:
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A.
“Costs” means broadcast fees, such as streaming
fees, processing or chargeback fees, refunds, printing and
fulfillment fees on merchandise and any taxes collected but only to
the extent such Costs are (i) actually incurred and paid by
Company, and (ii) attributable to an Event Stream or other music
artist event on the Fan Pass platform. Costs shall not include
Company’s general overhead expenses and fixed costs such as
rent, salaries, independent contractor fees, and other expenses
unrelated to the music artist events contemplated under this
Agreement.
B.
“Gross
Revenue” means any and
all revenue of the Company and each of its affiliates (including
Fan Pass Inc.) which is attributable to the Fan Pass platform in
any form whatsoever, including revenue based on Fan Pass
subscribers and merchandise sales, revenue earned pursuant to any
agreement between Company and artists, including agreements in the
form of Exhibit A hereto or any other future agreement(s) between
Company and artists, and any and all other revenue earned by
Company in whatever form that is attributable to the Fan Pass
platform. Notwithstanding the foregoing, Gross Revenue shall not
include revenue related to: Spagatini's Jazz Lounge - Los Angeles,
T K A (Xxxx Xxxxxx and their affiliates), Xxxxx Xxxxxx - One Union,
Legacy Retail, LLC., Human Brands, LLC., and their related
affiliates, Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxx Xxxxx, Xxxx Xxxx (Xxx
& Xxxx), Xxxxx Xxxxx, and Y&T.
C.
“Gross
Revenue” means Gross
minus Costs.
ii.
Partner’s share of Net Revenue shall be paid
on the 15th
of the month following the month in
which Gross Revenue was generated and if not paid by such date,
such amount shall accrue interest at the rate of five percent (5%)
per annum from the due date until the date paid. On the
15th
of each month, Company shall certify
to Partner in writing the calculation of Net Revenue (if any) and
Costs for the previous month (the “Monthly
Statement”).
iii.
Company shall
maintain Books and Records which Partner may examine, at
Partner’s expense. Partner may make those examinations only
for the purpose of verifying the accuracy of statements rendered to
Partner under paragraph a.ii. Partner may make such an examination
only once during each twelve-month period, only once for a
particular accounting period, and only within one year after the
end of an accounting period with respect to accountings during the
period concerned. Partner may make those examinations only during
Company's usual business hours, on reasonable written notice for a
reasonably convenient time, and at the place where Company keeps
the Books and Records to be examined. Partner may appoint a
qualified auditor to make such an examination for Partner. The
rights hereinabove granted to Partner shall constitute
Partner’s sole and exclusive rights to examine Company's
Books and Records.
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iv.
If, in the course
of any examination, made in accordance with paragraph a.iii., of
Net Revenues payable to Partner under Section 3, Partner and
Company agree in writing that there has been an under crediting of
Net Revenues to Partner exceeding 10 percent of the total Net
Revenue credited by Company to Partner in the aggregate for the
periods covered by such examination, Company will pay interest to
Partner on any portion of such agreed-upon under crediting of Net
Revenues that is paid to Partner at the time of such agreement or
determination, at the prime rate in effect on the date on which
Company is deemed to have sent Partner the Net Revenue statement
for the last accounting period covered by the examination, as such
rate is quoted in the "Money Rate" section of The Wall Street
Journal (or, if The Wall Street Journal is discontinued or is no
longer quoting such rate, any other similarly reputable published
source), calculated from the date such Net Revenues were
payable.
v.
If Partner and Company fail to reach an agreement
with respect to any disputed amounts after an examination pursuant
to paragraph a.iii, then any amounts remaining in dispute
("Disputed
Amounts" and any amounts not so
disputed, the "Undisputed
Amounts") shall be submitted
for resolution to the office of a nationally recognized firm of
independent certified public accountants other than Partner's
accountants or Company's accountants mutually agreeable to Partner
and the Company (the "Independent
Accountants") who, acting as
experts and not arbitrators, shall resolve the Disputed Amounts
only and make any adjustments to the Monthly Statement. The parties
hereto agree that all adjustments shall be made without regard to
materiality. The Independent Accountants shall only decide the
specific items under dispute by the parties and their decision for
each Disputed Amount must be within the range of values assigned to
each such item in the Monthly Statement and the Statement of
Objections, respectively. The Independent Accountants’
adjustments to the Monthly Statement shall be conclusive and
binding upon the parties hereto. Any payment required of the
Company as a result of the Independent Accountants’
adjustments to the Monthly Statement shall be made within 5
business days of the Independent Accountant’s determination.
Should any adjustment by the Independent Accountants be less than
10% of the total amount due for the period under dispute then the
disputing party shall pay the fees of the Independent Accountant.
Should the adjustment by the Independent Accountants be 10% more of
the amount due for the period under dispute then the non-disputing
party shall pay the fees of the Independent
Accountants.
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b.
Simultaneously with the execution of this
Agreement, Partner will enter into a stock subscription agreement
containing traditional representations warranties. Within three (3)
business of the Effective Date, the Company will issue to Partner
that number of shares of the Company’s Series A Preferred
Stock, so that when converted would be equal to 5% of the issued
and outstanding shares of the Company’s common stock. The
share issuance is agreed between the parties to be granted as
additional compensation. The shares of Series A Preferred Stock and
the shares of common stock issuable upon conversion thereof, may
not be sold or transferred by Partner unless: (i) such shares are
sold pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Act”); (ii) the Company or its transfer agent
shall have been furnished with an opinion of counsel (which opinion
shall be in form, substance and scope customary for opinions of
counsel in comparable transactions and shall be furnished by
Company’s counsel, at Company’s sole expense) to the
effect that the shares to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration (such
as Rule 144 or a successor rule) (“Rule 144”); or (iii) such shares are transferred to
an “affiliate” (as defined in Rule 144) or
“related person” of Partner (as defined in the
Instruction to Item 404(a) of Regulation S-K) who agrees to sell or
otherwise transfer the shares only in accordance with this
section.
4.
Grant of Rights
a.
Company
hereby authorizes Partner, during the Term, to act as its agent
with respect to the Services described herein and to negotiate and,
where required, enter into agreements on the Company’s
behalf, with respect to the subject matter hereof and in accordance
with the sample agreement attached as Exhibit A.
5.
Non-disclosure
Any
information obtained by Company or Partner about the other party's
business including, without limitation, marketing programs,
customer lists and other customer data, financial information,
pricing information, information concerning business plans or
business strategy, technical and non-technical information, trade
secrets, all information related to the party’s current,
future, and proposed products and services and the existence and
subject matter of this Agreement shall be retained in confidence
during the Term of this Agreement and for a period of two (2) years
following its termination, except that such information may be
disclosed (i) to legal and accounting professionals who are or may
be retained by a party to this Agreement, and who will also be
instructed by such Party or their counsel to adhere to the same
non-disclosure agreement, (ii) to the extent such disclosure is
expressly agreed to in writing by the non-disclosing party, or
(iii) as required by court order or otherwise by law.
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6.
Liability; Indemnification
Partner will work with each Artist to facilitate
the Artist’s performance of the Deliverables set forth in the
separate contract between Artist and Company. However, Partner is
under no obligation to perform such Deliverables itself and makes
no representations or warranties with regard to Artist’s
performance of the Deliverables. In the event an Artist fails to
perform the Deliverables, or if a scheduled Event is canceled and
is not substituted as stated in Section 2.b above, neither Party to
this Agreement shall be liable to the other for incidental,
punitive, exemplary, indirect or consequential damages, or lost
profits arising under or related to this Agreement. The Company
agrees to indemnify, defend and hold harmless Partner and its
officers, directors, employees, agents, affiliates, successors and
permitted assigns (collectively, the “Indemnified
Parties”) against any and
all losses incurred by such Indemnified Parties arising out of or
related to any action or omission of the
Company.
7.
Entire Agreement
This
Agreement constitutes the entire agreement and understanding
between the Parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, relating to such subject
matter.
8.
Governing Law
This
Agreement shall be governed by and interpreted and construed in
accordance with the laws of the State of California, applicable to
agreements made and to be performed in that state, without regard
to any of its principles of conflicts of laws or other laws that
would result in the application of the laws of another
jurisdiction.
9.
Severability
Any
section, subsection or other subdivision of this Agreement or any
other provision of this Agreement which is, or becomes, illegal,
invalid or unenforceable shall be severed here from and shall be
ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the remaining
provisions hereof, which provisions shall (a) be severed from
any illegal, invalid or unenforceable section, subsection or other
subdivision of this Agreement or any other provision of this
Agreement; and (b) otherwise remain in full force and
effect.
10.
Waiver
No
waiver, whether by conduct or otherwise, of any of the provisions
of this Agreement shall be deemed to constitute a waiver of any
other provisions (whether or not similar) nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided
in an instrument duly executed by the Parties to be bound
thereby.
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11.
Counterparts
This
Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which shall only constitute
one instrument. To facilitate the execution and delivery of this
Agreement, the Parties may execute and exchange counterparts of the
signature pages by facsimile or e-mail, and the signature page of
any Party to any counterpart may be appended to any other
counterpart.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
on the date first set forth above:
ECLECTIC ARTISTS, LLC.
By:______________________
_________________________
Title:_____________________
By: _______________________
Xxxxxx X. Xxxxxxxx Xx.
Chief Executive Officer / Director
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Exhibit A – Artist Agreement
