EXHIBIT 10.1
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Exclusive Recording Artist Agreement
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This Agreement is made as of the 5th day of December, 2002 by and
between G2 COMPANIES, INC. (hereinafter "G2") and Xxxxxx Xxxxxxxx, individually
p/k/a "Xxxxxxxx Xxxxxxxx" (hereinafter "Artist").
1. ARTIST'S WARRANTIES AND REPRESENTATIONS
1.01. Artist represents and warrants that: (a) it is authorized,
empowered and able to enter into and fully perform its obligations under this
Agreement; (b) neither this Agreement nor the fulfillment thereof by any party
infringes upon the rights of any other person or entity; (c) it has not and will
not do anything that impairs G2's rights under this Agreement, nor will it
permit any other person or entity to do so; and (d) Artist is resident in the
United States of America for income tax purposes.
1.02. Artist further represents and warrants that: (a) there now exist
no prior recorded performances by Artist other than those listed on the attached
Exhibit A and that no recordings from those Masters will be released during the
term hereof; (c) none of the Masters delivered to G2 by Artist, nor the
performances embodied thereon, nor any other Materials, nor any use thereof by
G2 or its grantees, licensees or assigns, will violate or infringe upon the
rights of any third party. "Materials," as used in this Paragraph, means all
Controlled Compositions, each name used by Artist, any logo used by Artist, and
all other musical, artistic, literary and other materials, ideas and other
intellectual properties furnished by Artist or any other producer engaged by
Artist and contained or used in connection with any Masters made hereunder, or
the packaging, sale, advertising or other exploitation thereof.
2. TERM AND RECORDING COMMITMENT
2.01. The Term of this Agreement shall be for an Initial Period
commencing on the date hereof and expiring nine months thereafter.
2.02. Artist hereby grants to G2 three (3) separate and irrevocable
options to extend the Term of this Agreement for further periods (the "Option
Periods") commencing immediately upon the expirations of the Initial Period and
expiring one year after delivery to G2 of the Minimum Recording Commitment for
said Option Period. Each option shall be exercised by written notice from G2 to
Artist postmarked or delivered before upon the expiration of the prior terms;
provided that, G2 shall have a thirty day right to cure any inadvertent failure
to exercise such option.
2.03. During the Term of this Agreement (as the same may be extended)
Artist agrees to produce and Artist shall deliver to G2 Masters comprising sound
alone sufficient to comprise the following (the "Minimum Recording Commitment"):
(a) during the Initial Period- - one (1) Album (the "First Album")
(b) during the First Option Period- - one (1) Album (the "Second Album")
(c) during the Second Option Period- - one (1) Album (the "Third Album")
(d) during the Third Option Period- - one (1) Album (the "Fourth Album")
2.04. Notwithstanding anything else herein to the contrary:
(a) Each Album shall be delivered to G2 within four (4) months after
the commencement of the applicable Initial Period of Option Period. The Album
currently being recorded by the Artist shall, when delivered, count as the
Minimum Recording Commitment for the Initial Period.
(b) Artist shall not commence the recording of any Album hereunder
earlier than three (3) months following the delivery to G2 of the prior album.
(c) G2 shall not be obliged to accept delivery of any Album hereunder
earlier than one year following the date of delivery to G2 of the prior album.
If any such premature delivery is tendered, the contractual date of deliver
hereunder of such Album shall be deemed to be the date one year following the
date of delivery of the prior album, provided that the prior album has been
recorded and delivered in all respects in accordance with the provisions of this
Agreement and comprises acceptable Masters as herein provided.
(d) In the event that, during the Initial Period of the Option Periods,
Artist produces more than the Minimum Recording Commitment, G2 shall as its sole
option be entitled to treat such additional material (or some of it) as counting
towards the Minimum Recording Commitment (or not) but said additional material
shall be and remain the sole and exclusive property of G2 subject to the
provisions of this Agreement.
(e) Each Album delivered shall consist of not less than ten (10)
Masters and not less than forty-five (45) nor more than seventy-four (74)
minutes of Artist's performances. Each Master shall consist of not less than two
minutes and thirty seconds of Artist's performances. No Album consisting of
Artist's "live" performances shall be deemed to be in fulfillment of any of
Artist's obligations hereunder except that upon mutual consent, in writing, a
live recording may be accepted in fulfillment of Artist's Minimum Recording
Commitment. If any such performances are recorded during the Term hereof, G2
shall be the owner thereof and shall have the right to exploit same under the
same terms as contained herein for the First Album, except that no advance will
be paid to Artist. No Multiple Albums shall be delivered hereunder without G2's
prior written consent; any such Multiple Album delivered to and accepted by G2
shall be deemed a single Album for all purposes hereof. No Mini-Album shall form
part of the Minimum Recording Commitment unless expressly agreed in writing by
G2 at its absolute discretion.
(f) Artist shall deliver to G2 each Master hereunder in the form of a
digital two-track stereo tape master, as well as reference discs which are
representative of such tape masters. Artist shall also deliver at the same time
any multi-track master tapes recorded in connection with the same project. The
two-track stereo master tape shall be fully edited, mixed, equalized and
leadered for the production of parts from which satisfactory Phonograph Records
can be manufactured.
(g) As used in this Agreement, "delivery" shall mean the receipt of all
tape masters as provided herein, as well as Artist's submission to G2 in written
form of all necessary information, consents, licenses and permissions that G2
requires to manufacture, distribute and release the Masters as Phonograph
Records, including, but not limited to, mechanical licenses, credits, musician
and producer releases, and any information required to be delivered to unions or
other third parties. Payment of funds due at delivery by G2 shall not be deemed
a waiver of information or documents required hereunder.
(h) Artist shall be available to G2 and shall perform for the purposes
of making such music videos at such time and places as G2 shall reasonably agree
with Artist. The cost of making such music videos shall be deemed advances
hereunder and shall be fifty percent (50%) recoupable from all sources,
excluding Mechanical Royalties, payable to Artist hereunder.
3. GRANT OF RIGHTS
3.01. During the Term of this Agreement, Artist shall furnish to G2 its
exclusive recording services throughout the Universe. Any contract entered into
by Artist or on Artist's behalf during the Term hereof or any extensions thereof
for Artist's performances in television or radio broadcasts or motion pictures
or stage productions shall specifically exclude the right to use any recording
of such performance for the manufacture and sale of Phonograph Records or music
videos unless previously authorized in writing by G2. Artist shall promptly
deliver to G2 copies of the pertinent provisions of each such contract and
Artist will cooperate fully with G2 in any controversy dispute or litigation
which may arise in relation to the rights of G2 under this Paragraph.
3.02. Artist hereby grants and assigns to G2 all rights of every kind
and the complete, unconditional, exclusive, perpetual, unencumbered title
throughout the Universe in and all results and products of Artist's services and
performances hereunder, any and all Masters, records, tapes, sound recordings,
music videos, long form videos, and other material of every kind made or
authorized by G2 hereunder or otherwise produced during the Option Terms and
which include the voice, instrumental or other sound and/or visual effects,
services, or performances of Artist, including without limitation the right to
record, reproduce, broadcast, transmit, publish, sell, exhibit, distribute,
advertise, exploit, perform, and use the same separately or in combination with
any other material for any purpose in any manner, under any label, trademark, or
other identification and by any means or method, whether known or not now known,
invented, used or contemplated, and to refrain from all or any part thereof.
3.03. Without in any way limiting the generality of the foregoing,
Artist hereby grants to G2 the following rights throughout the Universe which G2
may use or refrain from using as it elects in G2's sole discretion:
(a) the exclusive right during the Term hereof to manufacture,
distribute, and sell anywhere in the Universe Phonograph Records and music
videos reproducing Artist's performances;
(b) the exclusive right for the full periods of copyright to
manufacture, distribute, and sell throughout the Universe Phonograph Records and
music videos produced from Masters made during the Option Terms hereunder;
(c) the exclusive right for the full periods of copyright to
manufacture, distribute, and sell throughout the Universe Phonograph Records and
music videos produced from masters made during the Option Terms hereunder;
(d) the exclusive right to authorize public performances in the
Universe of Phonograph Records and music videos produced during the Option Terms
hereunder;
(e) the right to permit and authorize others to exercise, directly or
through persons designated by them, any and all G2's rights hereunder.
3.04. (a) Each Master (including all sound recordings embodied thereon)
produced hereunder or embodying Artist's performances and recorded during the
Initial Term shall belong to Artist. Artist grants G2 a security interest in and
to its copyright in the First Album to secure recoupment of all sums expended by
G2 in the recording and promotion of all Albums recorded under this Agreement.
Artist further agrees to execute any document reasonably necessary to perfect
such security interest. In the event Artist fails to execute any such documents
or instruments Artist hereby irrevocably grants G2 power of attorney, coupled
with any interest, to execute all such security agreements.
(b) Each Master (including all sound recordings embodied thereon)
produced hereunder or embodying Artist's performances and recorded during the
Option Terms shall, from the inception of its creation, be considered a "work
made for hire" for G2 within the meaning of the U.S. Copyright Law. If it is
determined that a Master does not so qualify then such Master, together with all
rights in it (including the sound recording copyright), shall be deemed, and
hereby transferred and assigned to G2 by this Agreement. Artist agrees to
execute and deliver to G2 any and all documents or instruments which G2 may
request in order to confirm G2's acquisition and/or title to the Masters
(including the copyright) as described herein. In the event Artist fails to
execute any such documents or instruments Artist hereby irrevocably grants to G2
power of attorney, coupled with an interest, to execute all such documents of
conveyance. All Masters recorded by Artist from the inception of the recording
thereof and all reproductions derived therefrom, together with the performances
embodied thereon, shall be entirely the property of G2 in perpetuity, throughout
the Universe, free of any claim whatsoever by Artist or any persons deriving any
rights or interests therefrom.
3.05. Artist shall not authorize or permit Artist's performances to be
recorded for any purpose without obtaining an express written approval of G2,
and Artist shall take reasonable measures to prevent the manufacture,
distribution and sale of Phonograph Records or music videos containing its
performances (and the use of Artist's name and likeness in connection therewith)
by any person or entity other than G2, its successors, licensees and assigns.
3.06. Artist grants G2 the right to include any Master produced and
delivered hereunder in a soundtrack or compilation album, at any time, and
without any further advance, except that royalties shall be payable as provided
herein.
3.07. As used in this Agreement, "Phonograph Records" shall include any
and all mechanical reproductions of the Masters produced and delivered
hereunder, in any format, whether now known or unknown, including but not
limited to compact discs, cassette tapes, vinyl records, DAT tapes or any future
format.
4. RECORDING COSTS AND PROCEDURES
4.01. Advances payable to Artist pursuant to this Agreement are and
shall be inclusive of all costs incurred in the course of producing and
recording Masters hereunder (including without limitation, the costs of studio
time, musician fees, union payments, instrument hire, producer's fees, and the
cost of tape editing, mixing, remixing and masters, advances, and other similar
costs customarily regarded in the industry as being recording costs.) All such
costs are sometimes herein referred to as "recording costs" and shall constitute
advances recoupable from royalties payable hereunder. G2 shall, in accordance
with the provisions of this Agreement, deduct and retain out of said advances
such sums as may be necessary to pay the said recording coasts. In the event
that, as a result of an event within the control of the Artist but unapproved by
G2, any recording costs shall exceed the amount of the recording fund
specifically referred to in Paragraph 5.01. below, then the excess costs shall
(if paid by G2) constitute a loan to Artist payable on demand and without
prejudice to G2's other rights and the same shall, at G2's election, be
recoverable by G2 out of any monies payable by G2 to Artist or on Artist's
behalf hereunder. Any recording cost that exceeds the amount of the recording
fund specifically referred to in Paragraph 5.01 below, but which has been
approved by G2, shall be treated as an increase in said recording fund.
4.02. G2 and Artist shall, prior to the commencement of any recording:
(a) mutually designate the producer(s) of all Masters hereunder; and (b) agree
on a budget for recording costs. G2 shall not unreasonably withhold its consent
to any budget for recording costs that is less than ninety percent (90%) of the
recording fund for that album as specified in Paragraph 5.01. G2 has previously
approved the budgets for the First and Second Albums.
4.03. Artist shall be properly rehearsed and shall appear at the times
and places designated by G2 after consultation with and reasonable notice to
Artist from time to time for all recording sessions required hereunder and at
each session Artist shall tender their professional services to the best of
their ability. G2 and Artist shall mutually designate the material to be
recorded and each Master shall be subject to G2's approval as technically and
commercially satisfactory. Upon G2's request, Artist shall re-record any
material until a Master, which in G2's sole judgment is satisfactory, shall be
obtained.
4.04. The Masters delivered to G2 by Artist under this Agreement and
the performances embodied therein shall be produced in accordance with the rules
and the regulations of the American Federation of Musicians, the American
Federation of Television and Radio Artists and all other unions having
jurisdiction. Artist is or will become and remain, to the extent necessary to
fulfill this Agreement, a member in good standing of all labor unions or guilds
in which membership may be required for the performance of Artist's services
hereunder.
4.05. Artist shall not perform for or in connection with (and shall not
permit any other person or entity to use Artist's name or likeness in connection
with) the recording or exploitation of any Phonograph Record embodying any
Composition recorded by Artist under this Agreement prior to a date five (5)
years subsequent to the expiration or termination of the term of this Agreement,
or any extensions thereof.
4.06. Without limiting the foregoing, G2 shall not be required to make
any payments of any kind for, or in connection with, the acquisition, exercise
or exploitation of rights by G2 except as specifically provided in this
Agreement. Artist shall be solely responsible for all sums due to labor unions
or guilds, individual musicians, producers and all other persons or entities
entitled to received royalties or other payments in connection with the sale of
Phonograph Records derived from Masters hereunder, although G2 will undertake to
make all such payments to the extent of the recording fund specified in
Paragraph 5.01, and Artist's liability to producers for royalties shall be
limited to two percent of retail. None of the persons whose performances are
embodied in the Masters or whose services are used in recording the Masters
shall be bound by any otherwise bound or restricted, Artist shall obtain all
necessary clearances in writing.
5. ADVANCES AND RECORDING FUND
5.01. As advances against and recoupable from royalties payable
hereunder, G2 agrees to pay with respect to each Album constituting the Minimum
Recording Commitment hereunder a sum equal to the amount by which the applicable
sum set forth below ("Album Recording Fun") exceeds the sum of the documented
receipts for the recording costs concerned and any other advances made to Artist
prior to delivery of the applicable Album:
Album Recording Fund: First Album $10,000
Second Album $20,000
Third Album $35,000
Fourth Album $75,000
5.02. If net sales through normal retail channels in the United States
for which royalties are payable pursuant to Paragraph 6.01(a) below, net of
applicable reserves of any album shall exceed seventy-five thousand (75,000)
units as of the date nine (9) months after the initial release of that album in
the United States, then the Album Recording Fund on the next subsequent album
shall be increases by Ten Thousand Dollars ($10,000).
5.03. The advances due under Paragraph 5.01 shall be payable promptly
following the deliver to G2 of (a) the Minimum Recording Commitment; (b) the
documents required under Paragraph 2.4(g); and (c) all invoices pertaining to
the recording of the Minimum Recording Commitment. With respect to payments to
be made following delivery, G2 shall have the right to withhold ten percent
(10%) for ninety (90) days to provide for anticipated costs which have not yet
been paid.
5.04. All advances paid to Artist or on Artist's behalf shall be
recoupable against the royalties payable under this Agreement, from whatever the
source, except that advances shall not be recoupable against Mechanical
Royalties except as provided for in Paragraph 8.01.
6. ROYALTIES
6.01. Subject to Artist's compliance with all obligations required of
Artist hereunder and subject as otherwise granted herein, G2 will pay to Artist
for the rights granted herein and for the services performed hereunder the
royalties set out below, being percentages of one hundred percent (100%) of G2's
published wholesale price, exclusive of taxes and duties actually paid by G2,
and the container cost deductions specified below for all records and music
videos manufactured, sold and not returned, and for which G2 is paid reproducing
exclusively Masters recorded hereunder, namely:
(a) With respect to the sales for distribution in the United States of
Albums reproducing exclusively Masters hereunder: Twenty Percent (20%).
(b) The royalty rate with respect to 12-inch singles shall be fifteen
percent (15%).
(c) The royalty rate with respect of 7-inch singles and other records
shall be twelve percent (12%).
(d) The royalty rate with respect to the following is thirteen percent
(13%): records sold to any government body, PX sales, sales to educational
institutions, record clubs, soundtrack records, compilation records, budget
records (defined as a record which is sold as wholesale price of at least fifty
percent but less than eighty percent of G2's published wholesale price), and EP
records (defined as records containing between three and nine Masters): except
that the royalty rate for compilations releases exclusively on the G2 label
shall be twenty percent (20%). Royalties for soundtracks and compilations on
which Artist appears with other performers shall be pro-rated in the same
proportion that Artist's Master bear to the entire album.
(e) Foreign royalty rate: The rate for the records manufactured by G2
or G2's affiliates and sold outside the United States will be sixty-six and
two-thirds percent (66 2/3%) of the applicable royalty except that the royalty
rate for masters licensed by G2 outside the United States shall be fifty percent
(50%) of the net income therefrom. Net income shall mean all income received
less third party out of pocket expenses to establish the license, third party
out of pocket collection costs, foreign currency exchange, wire transfer fees
and applicable taxes.
(f) Royalty rate for music videos sold and not returned shall be ten
percent (10%) of G2's published wholesale price.
7. ROYALTY PAYMENTS
7.01. Royalties earned hereunder will be accrued semi-annually and
paid, less all advances, taxes, and any other charges, within sixty (60) days
following each June 30th and December 31st for the preceding six (6) month
period, in accordance with G2's regular accounting practices. G2 shall, however,
have the right to establish reasonable reserves for returns and exchanges, said
reserves not to exceed thirty percent (30%). Each reserve established hereunder
shall be liquidated at the end of the following semi-annual period. If G2 makes
any overpayment of royalties (e.g., by reason of an accounting error or paying
royalties on Records returned later), G2 shall have the right to offset such
overpayment against any subsequent payment due to Artist from G2.
7.02. Each royalty payment hereunder shall be accompanied by a
statement in accordance with G2's regular accounting practices. Said statements
shall be provided to Artist within sixty (60) days of the end of each calendar
quarter, even though royalty payments are semi-annual. Each statement shall
become binding upon Artist and Artist shall neither have nor make any claim
against G2 with respect to such statement, unless Artist shall advise G2, in
writing, of the specific basis of such claim within one (1) year after the date
G2 mails such statement. G2's accounting books and records will be kept and
maintained in accordance with generally accepted accounting principles,
consistently applied.
7.03. Artist shall not be entitled to recover damages or to terminate
this Agreement for any reason because of a claimed breach by G2 of its material
obligations hereunder, unless G2 has failed to remedy such breach within sixty
(60) days following receipt of written notice thereof. Artist will not have the
right to xxx G2 in connection with any royalty accounting, or xxx G2 for
royalties accrued by Artist during the period a royalty accounting covers,
unless Artist commences the suit within two (2) years after the date when the
statement in question is rendered to Artist. If Artist commences suit on any
controversy or claim concerning royalty accountings rendered to Artist under
this Agreement, the scope of the proceeding will be limited to determination of
the amount of royalties due for the accounting periods covered and reasonable
attorney fees, and the court will have no authority to consider any other issues
or award any relief except recovery of any royalties found owing. Artist's
recovery of any such royalties and attorney's fees will be the sole remedy
available to Artist by reason of G2's royalty accountings. Without limiting the
generality of the preceding sentence, Artist will not have any right to seek
termination of this Agreement or avoid the performance of their obligations
under it by reason of any such claim. Artist's remedy for G2's willful refusal
to permit it to record its Minimum Recording Commitment shall be limited to
termination of this Agreement.
7.04. G2 agrees that Artist may, not more than once during any calendar
year, but only once with respect to any statement rendered hereunder, audit its
books and records for the purpose of determining the accuracy of G2's statements
to Artist. If Artist wishes to perform any such audit, Artist will be required
to notify G2 at least thirty (30) days before the date when Artist plans to
begin the audit. If Artist's audit has not been completed within one (1) month
from the time Artist begins it, G2 may require Artist to terminate it on seven
(7) days notice to Artist and G2 will not be required to permit Artist to
continue the examination after the end of that seven (7) day period. Artist
shall not be entitled to examine any manufacturing records or any other records
which do not specifically report sales of Records or calculation of net receipts
on which royalties are accruable hereunder. All audits shall be made during
regular business hours, and shall be conducted on Artist's behalf by an
independent Certified Public Accountant. Each examination shall be made at
Artist's sole expense at G2's regular place of business in the United States,
where the books and records are maintained.
8. MECHANICAL LICENSES AND ROYALTIES
8.01. All Controlled Compositions (defined as musical compositions
composed in whole or in part by any individual member of Artist) are hereby
licensed to G2 and its licenses for reproduction on Phonograph Records anywhere
in the Universe. Royalties for the mechanical license herein granted shall be at
a rate equal to seventy-five percent (75%) of the current minimum U.S. statutory
rate (including the "long work" rate, if applicable) for royalty-bearing records
sold and not returned and for which G2 is paid, excluding any instance where G2
and Artist are sharing income under Paragraph 6.01(e) above. In no event shall
the mechanical royalties payable hereunder for any Album exceed ten (10) times
the rate set forth above. The foregoing also applies to music videos, as well as
to any instance where such a license must be executed in favor of G2, G2 shall
not recoup from mechanical royalties due to Artist any advances payable to
Artist except: (a) excess recording costs under Paragraph 4.01; (b) overpayments
under Paragraph 701; and (c) any advances or cash or consigned materials (or the
like) to Artist.
8.02. If any record contains one or more compositions which are not
Controlled Compositions, then G2 will have the right to reduce the amount of
Mechanical Royalties payable on the Controlled Compositions by an amount equal
to the amount of mechanical royalties payable on non-Controlled Compositions.
9. TRADEMARKS
9.01. Artist shall perform under the professional name, "Xxxxxxxx
Xxxxxxxx". Artist warrants and represents that it is the sole owner of such name
in connections with Phonograph Records during the term hereof. Artist shall not
use a different name in connection with Phonograph Records unless Artist and G2
mutually agree in writing. Artist agrees that G2 may cause a search to be
instituted for the purpose of determining whether any professional name used by
Artist has been or is being used by another person in connection with Phonograph
Records. G2 may cause one or more federal applications for trademark protection
to be made in favor of Artist for Phonograph Records and/or entertainment
purposes. Any amounts up to One Thousand Seven Hundred Dollars ($1,700.00)
expended by G2 pursuant to this Paragraph shall be deemed Advances hereunder. If
the trademark search indicates that such name should not be used, G2 and Artist
shall mutually agree on a substitute name for Artist. Nothing contained herein
shall release Artist from its indemnification of G2 with respect to Artist's use
of such name.
10. FREE GOODS
10.01. No royalties shall be payable with respect to records given away
or furnished on a "no charge" basis to one-stops, rack jobbers, distributors,
dealers, radio stations, television stations or film companies, theatrical
hooking agencies, print media, music publishers or the like, provided that such
records do not exceed one hundred (100) non-royalty bearing Singles out of every
one thousand (1,000) Singles distributed and one hundred (100) non-royalty
bearing Albums out of every one thousand (1,000) Albums. Any record sold for
less than fifty percent (50%) of G2's published wholesale price will be a
non-royalty bearing record.
10.02. During each applicable contract period, G2 shall provide Artist
with fifteen (15) non-royalty bearing copies of Artist's then current Album at
no charge to the Artist.
11. CONTAINER COSTS
11.01. G2's container deduction shall be a sum equal to: one dollar
($1.00) for singles, one dollar and fifty cents ($1.50) for LPs and cassettes,
two dollars ($2.00) for double LP sets and compact discs, three dollars ($3.00)
for double cassettes, and four dollars ($4.00) for other formats, including
double compact disks, and all video formats.
12. INDEMNIFICATIONS
12.01. Artist agrees to and does hereby indemnify, save and hold G2 and
its licensees harmless of and from any and all liability, loss, damage, cost, or
expense (including all legal expenses and reasonable attorney fees) arising out
of or connected with any breach of this Agreement or any claim which is
inconsistent with any of the warranties or representations made by Artist in
this Agreement, and Artist agrees to reimburse G2 on demand for any payment made
or incurred by G2 with respect to the foregoing if the claim concerned is
settled or has resulted in a final judgment against G2 or its licensees. Pending
the determination of any claim with respect to which G2 is entitled to
indemnity, G2 may withhold monies which would be otherwise payable to Artist up
to the amount of its potential liability.
13. DEFAULT AND TERMINATION
13.01. In the event of any default or breach by Artist in the
performance of any of Artist's obligations hereunder, G2 may, without prejudice
to its other rights, claims or remedies, suspend its obligations hereunder for
the duration of such default or breach and until the same has been cured and
may, at its option, extend the Term for a period equal to all or any part of the
period of such default or breach, and in such event the dates for the exercise
by G2 of the Option Periods hereunder and the dates of commencement of each
subsequent Option Period shall be extended accordingly.
14. FORCE MAJEAUR
14.01. If G2's material performance hereunder is delayed or becomes
impossible or impractical because of any act of God, fire, earthquake, strike,
act of government or any order, regulation, ruling, or action of any labor union
or association of artist affecting G2 or Artist or the phonograph record
industry, G2, upon notice to Artist may suspend its obligations under this
Agreement for a period not to exceed one (1) year, and in such event the number
of days equal to the number of days of such suspension shall be added to the
then-current period of the Term thereof. In the event that G2's material
performance hereunder is delayed or becomes impossible or impractical because of
any civil strife, G2, upon notice to Artist, may suspend its obligations under
this Agreement for the duration of such delay, impossibility or impracticability
and in such event the number of days equal to the number of days of such
suspension shall be added to the then-current period of the Term thereof.
15. MERCHANDISING
15.01. Artist hereby grants G2 the exclusive right to manufacture,
sell, license, distribute and exploit, through the Universe and by mail-order
and through retail sources of, without limitation, all merchandise or every kind
featuring the Artist (name/logo/likeness), during the term of this Agreement.
15.02. It is expressly agreed and understood that any contract for the
purpose of merchandising Artist entered into by G2 during the Term shall
continue in full force and effect in accordance with the provisions thereof for
a period not to exceed one (1) year following the expiration of the term of this
Agreement.
15.03. In the case of such products or property manufactured and sole
by G2 or by any associated company, Artist shall be entitled to a royalty of
twenty percent (20%) of the adjusted gross receipts therefrom. As used in this
paragraph, the term "adjusted gross" shall mean gross revenues from the sale of
applicable merchandise, less venue commissions and state sales tax where
collected and actually paid. In the event that G2 licenses to other any of its
rights under this clause then Artist shall received fifty percent (50%) of the
net receipts therefrom. As used in this paragraph, the term "net receipts" shall
be calculated as gross revenues from the sale of the applicable merchandise,
less the cost actually incurred and paid by G2 or its licensing company for
manufacturing; sales personnel salaries and/or commissions, venue commissions
and state sales tax where collected and actually paid.
15.04. Artist has the right of approval of all merchandising artwork,
so long as said approval is that unreasonably withheld. During the Term of this
Agreement, Artist shall cause the inclusion of G2's logo and proper name at a
reasonable size and position on all merchandise.
15.05. No royalties shall be payable with respect to merchandise given
away or furnished on a no-charge basis. Upon Artist's request, G2 shall provide
Artist with twenty (20) non-royalty-bearing samples of each item of merchandise
at no charge.
16. ARTWORK
16.01. Artist agrees that G2 is the owner of any and all artwork, LP
jacket art, and promotional artistic renderings undertaken or completed within
the Option Terms of this Agreement. Artist shall have the right to use artwork
which has been mutually approved by G2 and Artist for the purpose of
Merchandising.
17. NOTICES
17.01. All notices, demands or the like which are required to be given
hereunder shall be in writing and may be served upon the other party personally
by Registered Mail, Return Receipt Requested or by telecopy (facsimile). Notice
to Artist will be received by:
________________________________________________________________________________
________________________________________________________________________________
and notice to G2 will be received by: Xxxx Xxxxxx, G2 Companies, Inc., 00000 X.
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000.
18. PROMOTIONS AND ADVERTISING CAMPAIGNS
18.01. Any promotional monies spent by G2 on behalf of Artist are fifty
percent (50%) recoupable from monies otherwise due to Artist from G2, excluding
Mechanical Royalties, notwithstanding the source. Any promotional monies spent
on behalf of Artist in combination with other G2 Artist shall be recoupable from
Artist on a pro-rata basis.
18.02. G2 is not obligated to produce a promotional video for Artist,
but if G2 undertakes to produce said video, the cost is fifty percent (50%)
recoupable from royalties, excluding Mechanical Royalties, notwithstanding the
source. The cost of producing nonpromotional videos intended for resale are
fully recoupable.
19. CONTROLLING LAW
19.01. This Agreement is entered into and performable in Dallas County,
Texas and the validity, interpretation and legal effect of this agreement shall
be governed by Texas law. Venue for any legal action shall be in Dallas County,
Texas.
20. REMEDIES
20.01. Artist acknowledges, recognizes and agrees that his services
hereunder are of a special, unique, unusual, extraordinary and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated for by damages in an action of law.
Inasmuch as a breach of such services will cause G2 irreparable damages, G2
shall be entitled to injunctive and other equitable relief, in addition to
whatever legal remedies are available, to prevent or cure any such breach or
threatened breach.
21. HEADINGS
21.02. The headings of the clauses herein are intended for convenience
only, and shall not be of any effect in construing the contents of this
Agreement.
22. RELATIONSHIP
22.01. Artist has the status of an independent contractor and nothing
herein contained shall contemplate or constitute Artist of its members as G2's
agents or employees. This Agreement does not and shall not be construed to
create a partnership or joint venture between the parties to this Agreement.
23. VALIDITY AND MODIFICATIONS
23.01. The invalidity or unenforceability of any provision shall not affect the
validity or enforceability of any other provision. This Agreement contains the
entire understanding of the parties relating to its subject matter. No change of
this Agreement will be binding unless signed by all parties hereto or their duly
authorized representatives. A waiver by either party of any provision of this
Agreement in any instance shall not be deemed to waive it for the future. All
remedies, rights, undertakings and obligations contained in this Agreement shall
be cumulative and none of them shall limit any other remedy, right, undertaking
or obligation.
24. ASSIGNMENT
24.01. G2 may assign its rights under this Agreement in whole or in
part.
25. LEGAL REPRESENTATION
25.01. Artist, by their signature hereto, confirms that G2 has advised
Artist to take independent legal counsel, from a lawyer specializing generally
in the music business and specifically in the negotiation of recording
agreements, on the terms and conditions of this Agreement and on the obligations
being undertaken by Artist in executing the Agreement.
26. COOPERATION
26.01. Artist shall execute such other documentation and shall give
further assurances as may reasonably be necessary or desirable for the purpose
of vesting, confirming, protecting or further assuring any of the rights granted
herein.
27. DISCLAIMER
27.01. G2 has not made and does not hereby make any representation or
warranty with respect to the extent of the sales of records or the exploitation
of the music videos hereunder.
SIGNED THIS 5th DAY OF DECEMBER, 2002.
G2 COMPANIES, INC.
By:____________________________
Xxxx Xxxxxx, President
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
ARTIST:
P/k/a:_________________________
By:____________________________
Printed Name: Xxxxxx Xxxxxxxx
SSN: 505-2305831
Artist Address:_____________________
____________________________________
____________________________________
