Contract
This
Agreement is entered into as of the 25th day of April, 2008, by and between
uKarma
Corp. (“uKarma”),
located at 000 Xxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000, and Xxxx
Xxxxxx (“Writer”),
located at 000 Xxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000, with reference to the
following facts:
A.
uKarma
is the creator and owner of the “Xflowsion” exercise and lifestyle DVD series
featuring Xxxx Xxxxxx (“Paskel”), and products related to said series. uKarma is
in the process of creating a book, in collaboration with Xxxx Xxxxxxx
(“Xxxxxxx”), related to the series and branded with the “Xflowsion” trademark,
relating to diet and nutrition, for marketing to the general public (the
“Book”). Notwithstanding this description, it is not intended by the parties
that branding with the “Xflowsion” trademark, be a condition or requirement of
this Agreement.
B.
Writer
has substantial expertise in the field of psychology, fitness, and healthy
living, and uKarma desires to have Writer create content for the Book.
The
parties agree as follows:
1.
Services:
a.
Writer
will collaborate with Xxxxxxx and Xxxxxx to write content about exercise and
fitness, along with content related to the emotional and psychological aspects
that effect diet. It is anticipated that Writer will provide content for the
aforementioned topics to complete a minimum of 2 complete chapters in the
Book.
2.
Compensation:
a.
uKarma
will pay to Writer a royalty (“Writer’s Royalty”) based on sales of the Book
(including sales in both physical and digital media, such as downloads, and
so-called “audio books,” it being understood that sales in all media will be
included in sales levels described below, and further understood that
dissemination of the Book, in whole or in excerpts, for no charge, for
promotional purposes, will neither count as sales that generate royalties
hereunder nor be included in such sales levels), in accordance with this
paragraph 2a.
i.
For
purposes hereof, the “Publisher’s Price” will be the price paid to the Book’s
publisher (the “Publisher”), whether sales are made directly to retailers or to
wholesalers or other intermediate parties (that is, the Publisher’s Price may be
the equivalent of a wholesale or a retail price), after subtracting therefrom
taxes, returns, collection costs, chargebacks or other similar fees or returns
(and the Publisher may take a reasonable reserve against such fees or returns
[not to exceed twenty-five percent (25%) of sales], which will be liquidated
within three accounting periods).
ii.
The
Writer’s Royalty will be Five Percent (5%) of the Publisher’s Price where uKarma
acts as the Publisher. If uKarma engages a third party publisher, the Writer’s
Royalty will be negotiated in good faith based on the royalty uKarma receives
in
order to maintain a fair distribution of the royalty to all involved parties
but
be no more than Two and One Half Percent (2.5%).
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iii.
Wherever uKarma is paid for Book sales on a basis other than a per-unit royalty
(such as a flat license fee), uKarma will pay to Writer an amount equal to
Five
Percent (5%) of uKarma’s net receipts (i.e., gross receipts minus taxes and
collection costs).
iv.
As
used in this Agreement, “collection costs” are any costs incurred in connection
with the collection of monies from buyers, including but not limited to audit
costs, fees paid to any collection agency or other third party to collect such
sums, and the costs of legal action where necessary.
v.
ADVANCE ON ROYALTIES: uKarma will pay and advance against future royalties
to
Writer equaling $10,000 (ten thousand dollars). This advance is non-refundable
and will be applied toward the first $10,000 of royalties earned based on the
above royalty percentages of book sales.
b.
uKarma
will account to Writer for the Writer’s Royalty on a quarterly basis, within
sixty (60) days after the end of each calendar quarter. No accounting need
be
rendered for any period for which no sales have been made. Any statement to
which Writer has not objected (with specific written basis for such objection)
within two (2) years after it has been rendered will be deemed binding upon
Writer.
3.
Credit:
Writer
understands and agrees that uKarma will have the right, but not the obligation,
to accord Writer credit as author or co-author of the Book. In this regard,
Writer may be credited, in uKarma’s sole discretion, as sole author, or as
co-author. Writer hereby waives, irrevocably and forever, the right to claim
authorship of the Book (except to the extent uKarma elects to credit him as
such), and will not make any statements to any persons, including but not
limited to any press or media, claiming to have authored the Book to any greater
degree than the credit uKarma elects to accord Writer.
In
this
regard, if uKarma elects to accord credit to Writer together with one or more
other persons, uKarma may use such descriptive or connecting words as uKarma,
in
its sole discretion, decides. All aspects of such credit, including the
descriptive or connective words used, the order of names listed, and the size
of
each credit, will be entirely within uKarma’s discretion, and uKarma may elect
not to accord credit to Writer at all.
Writer
understands that any public statements made by Writer that are inconsistent
in
any way with uKarma’s decision about whom to credit and whom not to credit with
authorship, may be detrimental to the Book’s public perception and therefore to
its commercial success. Writer will refrain from any such statements, or any
statements derogatory toward the Book in any way. Non-derogatory, incidental
mention of Writer’s engagement hereunder is permitted, AFTER uKarma has
determined authorship credit, and only if Writer is accorded credit; Writer
will
obtain uKarma’s prior written consent before making any such mention, which
consent will not be unreasonably withheld.
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4.
Personal
Appearances:
Whenever
uKarma and Writer mutually agree that it is convenient and desirable for Writer
to make a public appearance to promote the Book (and only in the event of such
mutual agreement), Writer will use his best efforts to participate in such
public appearances, provided that each request for such appearance will be
reasonable, the number of such requests will be reasonable and customary for
promotion of a book of the nature of the Book, and Writer’s obligation will
always be subject to Writer’s availability to appear.
5.
Rights/Ownership:
The
results and proceeds of Writer’s services hereunder, including but not limited
to the Book and all drafts, ideas, pictures, drawings, graphics, titles and
outlines (collectively the “Work”), will be a work made for hire for uKarma
under the copyright laws of the United States and any other jurisdiction where
the concept of a work made for hire is recognized. As such, uKarma is and will
be the sole owner of all rights in and to the Work (including copyrights
therein), from inception, perpetually, throughout the universe. To the extent
that, in any jurisdiction or territory throughout the world, the Work or any
portion of it is not recognized as a work made for hire for uKarma, Writer
will
and hereby does assign all rights (including all copyrights) in and to the
Work
to uKarma, forever, irrevocably, throughout the universe. Writer hereby waives,
irrevocably and forever, any so-called “moral rights,” “neighboring rights” and
any other rights to which Writer might otherwise be entitled, which would limit
or impair uKarma’s full ownership and enjoyment of its rights in and to the
Work. Without limiting the foregoing, uKarma will have the right to register
the
Book and all elements thereof for copyright in its sole name, and the right
to
edit, alter, sell, license, distribute and otherwise exploit the Book and/or
any
portions thereof in all media or formats now known or hereafter devised, in
perpetuity, throughout the universe.
6.
Related
Rights:
uKarma
will also have the right, but not the obligation, to use Writer’s name, approved
photo or likeness, and approved biographical information, in connection with
the
packaging, advertising, promotion or publicity of the Book. Writer will, upon
request, submit to uKarma photos and/or biographical information for such use.
Any use of Writer’s name or likeness in connection with another commercially
exploited product related to the Book (e.g., DVD’s and merchandise) will require
negotiation by the parties in good faith of appropriate compensation for such
use (taking into account the nature of the product, the circumstances, and
industry custom and practice).
7.
Exclusivity:
Writer
will refrain from writing, co-writing, or otherwise participating in the
creation of, any book with a similar theme (i.e., a non-fiction food and
lifestyle book), for a period of three (3) years from the initial publication
of
the Book. Notwithstanding the foregoing, during such three-year period, Writer
may participate in the creation of another book with a similar theme, if Writer
submits the idea for such book to uKarma, and uKarma determines (and confirms
to
Writer in writing) that such book will not be competitive with the Book in
the
marketplace. uKarma’s determination as to whether such book will be competitive
will be made in good faith, but that determination will be binding.
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8.
Miscellaneous:
a.
Writer
will, upon request, sign and deliver to uKarma any further documents that are
reasonably required to confirm uKarma’s rights hereunder (such as a short-form
copyright assignment for filing with the U.S. Copyright Office).
b.
In the
event of any breach or alleged breach by uKarma of any of its obligations
hereunder, Writer’s remedies will be limited to an action at law for damages,
and in no event will Writer have the right to seek to enjoin the publication,
promotion, advertising or exploitation of the Book.
c.
Writer’s services are of a unique and extraordinary nature, and uKarma will have
the right to seek equitable remedies, including injunctive relief, to prevent
Writer’s breach of any provision of this Agreement.
d.
Nothing herein will constitute the parties as partners, nor will anything in
this Agreement convey to Writer any rights whatsoever in the Book or any
trademarks or other elements contained therein or associated therewith. Without
limiting the foregoing, the trademark “Xflowsion” remains the sole property of
uKarma.
e.
This
Agreement contains the entire agreement between the parties, and supersedes
any
prior discussions or agreements, whether written or oral. This Agreement may
not
be amended except by a written document signed by the party charged with such
amendment. This Agreement may be signed in counterparts, and a signature by
facsimile will be binding upon the signing party.
f.
This
Agreement will be subject to the laws of the State of California, without regard
to conflict-of-laws rules in said State. In the event of any dispute arising
hereunder or relating to the subject matter of this Agreement, the parties
agree
to submit such dispute to binding arbitration in Los Angeles, under the rules
and jurisdiction of JAMS.
g.
Each party to this Agreement has either consulted with an attorney of its or
her
choosing, or had the opportunity but declined to do so. In the event that Writer
declines to consult with a lawyer, Writer understands and agrees that neither
Writer’s lack of legal representation, nor the fact that this Agreement was
prepared by counsel for uKarma, will be grounds for challenging the
interpretation or the validity of this Agreement or any part of
it.
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