WRITER AGREEMENT
Exhibit 10.1
This agreement made and entered into as of the 27th day of June, 2005.
BETWEEN:
FITMEDIA INC., a company duly incorporated under the laws of the state of Delaware, and extra-provincially registered in B.C., with an office at 000X-000 X 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0 (“Producer”).
OF THE FIRST PART
AND:
XXXXXX XXXXX, a person residing at 0000 Xxxx 0xx Xxxxxx, 00 Xxxx 00xx Xxxxxx, Xxxxxxxxx, X.X., Xxxxxx, X0X 0X0 (“Writer”).
OF THE SECOND PART
WHEREAS:
| A. | Producer intends to engage the services
if the Writer to prepare the outline (the “Screenplay”) (collectively
the “Property”) tentatively entitled “Fitmedia’s Pre-Natal
Yoga”. |
| B. | Producer wishes to obtain the exclusive
right s in and to the Screenplay upon the terms and conditions herein
contained. |
ACCORDINGLY, IT IS AGREED AS FOLLOWS:
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| 1. | ENGAGEMENT | |||
| 1.1 | Producer engages Writer
to provide services as a writer of the Screenplay as specified below.
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| 1.2 | Writer’s services shall
include the preparation and delivery of : |
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a. |
treatment (the “Treatment”)
of the Screenplay which shall include the following: |
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a. |
an outline for 45 minutes of yoga poses suitable for pregnant women, which shall include pelvic floor exercises; | |||
b. |
a list of subheadings for the 45 minutes of yoga; | |||
c. |
short separate segment (up to 5 minutes each) regarding the following: | |||
| i. | guided mediation (how to stay centered in the midst of a storm); | |||
| ii. | anatomy of breath; and | |||
| iii. | hand mudras; | |||
b. |
A Draft (the “First
Draft”) of the Screenplay to be based on the Treatment; and |
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c. |
One set of changes and revisions
to that resulting in a revised draft (the “Revisited Draft”)
of the Screenplay |
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as may be required by Producer.
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| 1.3 | Writer acknowledges that
the First Draft and the Revisited Draft shall be based on the treatment
and the materials such other suggestions and comments as may be provided
by Producer and shall be suitable for the production of a film based in
the Screenplay (the “Video”) having a running time of between
approximately 60 minutes. |
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| 1.4 | Producer shall, in its sole discretion, be entitled
to modify the overall length of the Screenplay, the Video or both. In
the event that modifications affect the services as reasonably required
by Producer. |
| 2. | DELIVERY |
| 2.1 | Writer agrees to prepare and deliver the Treatment
on or before 2 days of entering into this Agreement; |
| 2.2 | Writer agrees to prepare and deliver the First Draft
on or before 3 days of entering into this Agreement. |
| 2.3 | Producer shall have a period of 2 days following
its receipt of the First Draft to review it and to require Writer, by
notice in writing (a “Revision Notice”) given to Writer within
such period, to prepare the Revised Draft. During the 2 day period, Writer
shall make himself available to Producer at mutually convenient times
for the purposes of reviewing and discussion changes and revisions to
the First Draft. In the event that the Producer requires that Writer prepare
the Revised Draft, Writer shall prepare and deliver it within 3 days after
the Revision Notice was given. |
| 3. | COMPENSATION |
| 3.1 | In consideration for Writer’s services rendered
or agreed to be rendered and for all the rights granted or agreed to be
granted by Writer, together with Writer’s other agreements, Producer
agrees to pay writer and Writer agrees to accept a fee of $80 U.S. Dollars
per hour, but Writer shall not spend more than 8 hours in total for writing
services without first notifying Producer in writing. Writer shall invoice
Producer on a weekly basis for services, and invoices shall be paid within
10 days of receipt. |
| 3.2 | In addition to hourly fees, Producer shall pay to
the Writer a royalty payment amount equal to 5% of all net receipts received
by Producer for exploitation of the Property. Net Receipts is defined
as all revenues received by Producer from the sale of the Property, less
all production expenses, duplication expenses, marketing expenses, credit
card fees and chargebacks, transaction processing fees, other electronic
commerce processing, patent royalties or other fees, sales tax, mechanical
royalties, public performance fees, shipping, union, guild or other third
party fees, Internet advertising and promotion costs, such as banner ads
on other web sites, Internet referral fees, such as fees payable to any
third party who, through their web site, email or other means, refers
to us a purchaser, and a $3.00 server/e-commerce charge from each single
download where the property is sold in digital format. Royalty payments
shall be due annually. |
| 3.3 | Payment to Writer shall be deemed to be equitable
and inclusive remuneration, including all sales and goods and services
tax, for all services rendered by Writer in connection with the Screenplay
and have been paid by way of a complete buy-out of all proceeds of Writer’s
services hereunder in any and all media throughout the universe pursuant
to any collective bargaining agreement, if any, other wise, by way of
residuals, repeat fees, pension contributions, or any other monies whatsoever.
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| 3.4 | If Writer arranges for any of her students to appear
in the Video, each student shall sign a photo release as approved by both
Writer and Producer, and each student shall be compensated for her services
at a rate of $22 U.S. Dollars per hour. |
| 3.5 | If Writer’s studio is used as a location for
photography of the Video, Writer shall receive additional compensation
of $26 U.S. Dollars per hour for each hour that the studio is used for
pre-production and actual filming of the Video. |
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| 4. | CREDIT |
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| 4.1 | Provided that Writer is not in breach if
any provision of this Agreement, Producer shall accord Writer a credit
in a single card clear view as “Written by Xxxxxx Xxxxx”. The
credit shall be a single screen front credit which shall be no less in
size than any other credit appearing in the Video. Producer will request
comments from Writer regarding the form, shape, size and placement of
the credit, and Producer will make its best efforts to comply with any
request made by Writer regarding her credit. |
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| 4.2 | There shall no obligation to accord Writer
credit in paid advertising or publicity, although Producer may from time
to time elect, in its sole discretion, to accord Writer such credit. |
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Producer shall exert its reasonable and
best efforts to require any distributor of the Picture to comply with
the foregoing credit obligations. Any casual or inadvertent failure of
the Producer or its assignees or licensees to comply with the foregoing
credit provisions shall not constitute a material breach of this Agreement
and Producer shall exert its reasonable best efforts to cure any such
failure upon receipt of written notice from Performer. |
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| 4.3 | Producer shall include, at the end of the
main video sequence on the Video, information directing viewers to Writer’s
website and how to obtain further information on Writer’s yoga classes.
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| 5. | GRANT OF RIGHTS |
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| 5.1 | For the purposes of this Agreement, the
term “Screenplay” shall include the Treatment, the First Draft,
and the Revisited Draft and all the revisions of the Screenplay. |
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| 5.2 | Writer shall transfer and Producer shall
own in perpetuity (or the maxim term allowed by law) the sole and exclusive
ownership of all proprietary rights, options and interests of any kind
whatsoever in the Screenplay, all elements, portions and components thereof,
copyright ownership of; all worldwide copyrights, trade marks and similar
intellectual property rights (all of which are included in the definition
of the Screenplay) including without limitation, the following exclusive
worldwide, perpetual and irrevocable rights: |
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A. |
re-make, sequel, prequel, serial, spin-off, “behind
the scenes”, “making of” and similar rights in the Screenplay;
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B. |
the right to exhibit, perform, transmit, sell, rent
lease, and generally exploit, by any and all means and technical process
now known or hereafter devised commercially throughout the world the Screenplay
and all motion pictures, films and television programs based upon or derived
from the Screenplay in all media and by all manner and means of communication
including, without limitation, theatrical and non-theatrical exhibition,
television broadcast, live television, cable and satellite transmission,
video cassettes, computer software, computer video games, interactive
devices, laser discs and similar items, DVD discs, CSI, CD-ROM, digital
download, digital or other stream through the Internet, PDA or mobile
phone, soundtrack recordings, radio play rights, books and similar items,
format rights, stage rights and any other recording device whether known
or unknown; |
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C. |
the right to undertake and authorize the use and
reproduction off all titles, characters, places, names and other elements
of the Screenplay on and in conjunction with the commercial exploitation
of all manner of goods, products and services, including all types of
merchandising and theme park rights; |
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| D. | commercial endorsement, promotional and advertising
and tie-up rights associated with the Screenplay and all motion pictures,
films and television programs based thereon; |
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| E. | the non-exclusive right and license to use and reproduce
the name, sobriquet, likeness, photograph and biographical information
of the Writer for purpose of advertising and publicity in connection with
the exercise by the Producer of any of the foregoing rights; and |
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| F. | the rights to publish the Screenplay. |
| 5.3 | If and to the extend that the Writer may
now or in the future be entitled to any so-called moral, authors’
or similar rights in the Screenplay pursuant to the Copyright Act or otherwise,
the Writer hereby irrevocably waives and relinquishes all such rights
in favour of the Producer and its assignees and licensees to the fullest
extent permitted by law. |
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| 5.4 | The Writer covenants and agrees that all
rights, licenses, interests and Screenplay granted it the Producer herein
shall be irrevocable vested in the Producer in perpetuity and shall not
be subjected to revocation or rescission by the Writer, or any party claiming
through or instead of the Writer, for any reason whatsoever. If any time
the Producer or its assignees or licensees are alleged to be in breach
or default of any provision of this agreement, the rights of the Writer
with respect to such alleged or default of any provision of this agreement,
the rights of the Writer with respect to such alleged breaches or default
shall be limited to a claim for damages in an action at law and the Writer
specifically covenants and agrees that he will not be entitled to seek,
obtain or enforce an injunctive or other equitable relief which would
in any way interfere with, prevent, delay or impede the complete unfettered
exercise by the Producer of all rights, interests, licenses and Screenplay
granted herein. |
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| 5.5 | The Writer hereby covenants and warrants
to the Producer that: |
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A. |
the Screenplay will be based upon or derived from
ideas and characters created by the Writer; |
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B. |
the Screenplay will not, to the best of Writer’s
knowledge, information and belief, infringe upon or violate any right
or Screenplay, whether common law or statutory, of any person, firm or
corporation and does not contain any matter which is libelous, obscene
or otherwise unlawful; and |
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C. |
the Screenplay will be free and clear of all liens,
claims and encumbrances of every kind and Writer will not grant any right,
license or interest in the Screenplay other than to Producer or at Producer’s
direction, nor is there any pending or threatened any legal proceeding
or arbitration of any kind in respect of the Screenplay; |
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and the Writer acknowledges and agrees that all of
the foregoing covenants and warranties constitute material inducements
upon which the Producer has relied in entering this Agreement. |
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| 5.6 | The Writer covenants to indemnify and save
harmless the Producer from all liabilities, causes of action, damages,
costs and expenses, including actual and reasonable legal and Court costs,
which may be incurred or suffered by the Producer as a result of any breach
by the Writer of any representation or provision of this Agreement. |
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| 6. | NO INJUNCTION |
Writer acknowledges and agrees that if at any time
Producer or its assignees or licensees are alleged to be in breach of
default of any provision of this Agreement, the sole remedy of Writer
with respect to such a breach or default shall be limited to a claim for
money damages in an action at law and neither Writer nor any party claiming
in the place of or through Writer shall be entitled to rescind or terminate
this Agreement or to apply for, obtain or enforce any injunctive, equitable
or other relief of any nature whatsoever which would in any manner prohibit,
prevent, restrict, impede, delay, or otherwise interfere with the complete
and unfettered exercise by Producer and its assignees and licensees of
all rights and licenses granted herein including the Production, distribution,
advertising, and general exploitation of the Picture and all elements
and rights therein. |
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| 7. | ASSIGNMENT |
Producer shall have the right to assign this agreement
and any of the rights granted herein, in whole or in part, to any person,
form, corporation or entity, and nothing contained therein shall imply
anything to the contrary. Upon the assign’s assumption of the obligations
of Producer with respect to the rights so assigned, Producer shall be
relieved of all such obligations. Producer shall also have the rights
to lend the services of the Writer to any person, firm or corporation
which is a subsidiary, parent or affiliate of Producer or the successor
to Producer by a merger or by a transfer of substantially all of Producer’s
assets. |
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| 8. | FURTHER DOCUMENTS |
| 8.1 | On delivery of the First Draft and the Revised Draft,
Writer agrees to execute and sign and have witnessed and notarized by
a Notary Public, and to provide to Producer three originals of a Writer’s
Certificate, and a Transfer of Rights document. |
| 8.2 | Writer undertakes and agrees to execute, deliver
and acknowledge such further documents, instruments and assurances as
may be reasonably required in order to carry out and implement fully the
terms of this Agreement. |
| 9. | NO OBLIGATION |
Writer agrees that Producer shall have no obligation
to make, produce, or otherwise exploit or make use of any of the rights
granted to Producer, and hereby releases and holds Producer free and harmless
from any liability and loss or damage that Writer may suffer by reason
or Producer’s failure to make, produce, or otherwise exploit any
motion picture based on Screenplay in whole or in part. |
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| 10. | NO WAIVER |
A waiver by Producer of any breach or default hereunder
by Writer shall not be deemed to constitute a waiver of any preceding
or subsequent breach or default, whether or not of the same or similar
nature. |
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| 11. | BINDING ON ESTATE |
This Agreement shall enure to the befit of and be
binding upon the parties hereto and their respective heirs, executors,
successors, administrators and permitted assigns. |
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| 12. | NO LIMIT ON RIGHTS |
Termination of this Agreement or of Writer’s
services rendered, for any reason whatsoever, shall not extinguish or
limit any of Producer’s rights, interests or property in, or title
to, the results and proceeds of Writer’s services. |
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| 13. | WITHHOLDING TAX |
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Producer may deduct and withhold from any monies
otherwise payable under this Agreement such amounts as Producer may reasonably
believe it is legally required to deduct and withhold. |
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| 14. | ENTIRE AGREEMENT |
This Agreement constitutes the entire understanding
and agreement of Writer and Producer regarding Writer’s services
to be rendered in connection with the Picture, and supersedes and replaces
all previous written and verbal communications, representations, negotiations,
expectations and understandings. |
| AGREED TO AND ACCEPTED: | |
| /s/ Xxxxxx Xxxxx | |
| (signature) | |
| Xxxxxx Xxxxx | |
| AGREED TO AND ACCEPTED: | |
| Fitmedia Inc. | |
| By: /s/ Xxxxxxx Xxxxxxx | |
| (signature) | |
| Per: Authorized Signatory: Xxxxxxx Xxxxxxx, President |
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