10.5 Exclusive Artist Recording Agreement - Xxxxxx Xxxxxx
EXCLUSIVE ARTIST RECORDING AGREEMENT
AGREEMENT made this 1st day of March, 2004 by and between SKREEM
ENTERTAINMENT CORP., a Nevada Corporation (hereinafter referred to as "The
Record Company"), and Xxxxxx Xxxxxx, individually, (hereinafter referred to as
"The Artist").
W I T N E S S E T H:
In consideration of the mutual promises and covenants herein contained,
the parties hereby agree as follows:
1. ENGAGEMENT: During the term of this agreement, The Record Company
hereby engages the exclusive personal services of The Artist as a performing
artist for the purpose of making Master Sound Recordings for distribution in any
medium now known or hereafter devised, including but not limited to phonograph
records, LP's, singles, compact discs, and cassettes (hereinafter referred to as
"Phonograph Records").
2. TERRITORY: The territory for this agreement shall be worldwide.
3. TERM:
(a) The term of this agreement ("Initial Contract Period") will
commence on the date hereof and shall continue pursuant to the conditions herein
until the later of (i) the date nine (9) months after the date of the delivery
to The Record Company of all Master Sound Recordings required in fulfillment of
The Artist's Recording Commitment herein (as specified in Section 4(c) (i),
below), or (ii) six (6) months after The Record Company's initial U.S. retail
street date for the Phonograph Record delivered by The Artist in fulfillment of
its Recording Commitment herein.
(b) Additionally, The Artist grants to The Record Company three (3)
separate options to extend the term of this Agreement for additional Contract
Periods ("Option Periods") on the same terms and conditions applicable to the
Initial Contract Period except as otherwise provided herein. Further, in the
event The Record Company releases four (4) albums featuring performances of The
Artist in five (5) years from the date of execution of this Agreement, The
Record Company shall have the option to extend the term of this Agreement for a
fourth (4th ) Option Period on the same terms and conditions applicable to the
Initial Contract Period, except as otherwise provided herein. Each option shall
be exercised automatically unless written notice is sent by The Record Company
prior to the expiration date of the Contract Period which is then in effect (the
"Current Contract Period"). If The Record Company so advises The Artist in its
exercise notice, such period will begin on the date of such exercise notice.
Each of the Option Periods will end the later of (i) nine (9) months after the
date of the Delivery to The Record Company of all Master Sound Recordings
required in fulfillment of The Artist's Recording Commitment for each such
Option Period or (ii) six (6) months after The Record Company's initial U.S.
street date for the last Phonograph Record delivered by The Artist in
fulfillment of The Artist's Recording Commitment for such Period.
Notwithstanding the foregoing, in no event will any Option Period end earlier
than twelve (12) months after the date of the commencement of such Period.
1.
4. RECORDING PROCEDURES:
(a) During the term of this agreement, The Artist shall make Master
Sound Recordings at recording sessions in studios at times and places designated
by The Record Company, with such musicians and other performers as will be
designated by The Record Company, after consultation with The Artist. Further,
The Artist shall participate and be consulted in good faith by The Record
Company in regard to all creative and technical decisions in connection with the
production of phonograph records hereunder, including but not limited to the
selection of material and musical compositions, the number such compositions to
be recorded, specification of accompaniment, sequencing of musical compositions,
selection and licensing of pre-recorded "samples", arrangement and copying
services, the selection of a qualified studio producer, and selection of dates
of recording and studios where recording is to take place. However, it is
specifically agreed and understood that the final word in regard to all such
creative and technical decisions shall rest solely and exclusively with The
Record Company.
(b) Solely for the purposes of any applicable United States copyright
law, all studio producers, engineers, technicians and other persons rendering
services in connection with the recording of such Master Recordings shall be
deemed to be, and shall be contracted for as "employees for hire" by The Record
Company.
(c) During the Initial Contract Period of this agreement, and during
each option period, it is specifically agreed and understood that The Artist
shall perform for the recording of Masters for delivery to The Record Company
those Masters (the "Recording Commitment") necessary to satisfy the following
schedule:
(i) CONTRACT PERIOD RECORDING COMMITMENT
Initial Contract Period 1 Album
First Option Period 1 Album
Second Option Period 1 Album
Third Option Period 1 Album
Possible Fourth Option Period 1 Album
(ii) The Artist shall not deviate from the performance and delivery
schedule specified in Section 4 (c) (i), above, without The Record Company's
written consent; timely delivery as provided therein shall be deemed a material
obligation hereunder. The Artist further agrees not to commence the recording of
any Master hereunder without The Record Company's prior approval. The albums
will consist entirely of Masters made in the course of the then current single
or album recording project unless agreed to by The Record Company.
(iii) In its sole discretion, The Record Company may, during the
Initial Contract Period or any subsequent Option Period, release Master
Recordings made by The Artist hereunder in configurations other than "albums"
(as defined below), including but not limited to 12" singles, 45 rpm singles,
single cassettes, mini discs, or "EPs". The Record Company's release of The
Artist's Master Recordings in such configurations may, in The Record Company's
sole discretion, work toward satisfaction of the Artist's "Recording Commitment"
as described in Section 4 (c) (i), above.
2.
(d) For the purposes of this agreement, an "album" shall be defined as
a Phonograph Record consisting of not less than eight (8) musical compositions
and forty-five (45) minutes of playing time, to be released in any medium
selected in the sole judgment of The Record Company, whether vinyl "LP",
cassette, compact disc, DAT, or any other medium hereafter devised.
(e) All albums delivered by The Artist hereunder shall be of
satisfactory technical and commercial quality, in the sole judgment of The
Record Company, for the manufacture and sale of Phonograph Records. The Record
Company shall have the right to reject any Album (or individual Master
Recordings) which is technically or commercially unacceptable or which The
Record Company reasonably deems to be offensive to reasonable standards or
public taste or morals or which infringes on the rights of others. If the Record
Company properly rejects any such Album, The Artist shall record for the Record
Company a substitute Album which does not embody such defect or material, as the
case may be.
(f) Albums recorded by The Artist hereunder shall embody performances
by The Artist which have not been recorded at a "live" or "in concert"
performance and which have not been previously recorded by The Artist and
released as Phonograph Recordings, whether hereunder or otherwise.
(g) If in the Initial Contract Period or any Option Period The Artist
records more than the minimum number of Albums specified or requested in this
agreement for that period, The Record Company may elect to apply all or part of
the excess Albums in fulfillment of the minimum number specified for any
subsequent period or periods.
(h) Any Albums which are not recorded in all respects in accordance
with the terms and provisions hereof, shall not apply in reduction of The
Artist's recording commitment, unless The Record Company otherwise consents in
writing.
(i) Each Album hereunder shall be delivered in the form of a two-track
stereo tape master, monaural master, DAT or other medium as The Record Company
may require, all of which shall be fully, edited, mixed, equalized and leadered
and from which technically and commercially satisfactory Phonograph Records can
be manufactured (in any medium now known or hereafter devised, including but not
limited to Compact Disc or DAT), to The Record Company's Director of
Manufacturing at The Record Company's address, hereinabove written.
(j) The Artist shall appear at all recording sessions required by The
Record Company at times and places designated by The Record Company. At each
recording session, The Artist will render its services hereunder to the best of
The Artist's ability, will make proper preparations for such sessions, will
rehearse, record and rerecord the selected musical compositions until
technically and commercially satisfactory albums are obtained.
(k) During the term hereof, and all extensions and renewals thereof,
The Artist shall not record any composition recorded hereunder for any entity or
person other than The Record Company for a period of five (5) years after said
phonograph recording is made.
(l) The Artist acknowledges that its services are unique and
extraordinary, and that in the event that The Artist breaches this agreement,
The Record Company shall be entitled to an injunction to enforce this agreement,
in addition to any other remedies available to The Record
3.
Company. Additionally, in the event of any default or breach by The Artist and
the performance of any of its obligations or warranties hereunder, The Record
Company, by written notice to The Artist, in addition to any other rights or
remedies which it may have at law or otherwise, at its election may terminate
the term of this agreement or may suspend its obligations hereunder for the
duration of such default or breach and/or may extend the expiration date of the
then current contract period for a period equal to all or any part of the period
of such default or breach.
5. REPRESENTATIONS AND WARRANTIES: The Artist represents and warrants
the following:
(a) As of the date hereof, there are no restrictions, and during the
term of this agreement, there shall be no restrictions with respect to musical
compositions The Artist is legally able to perform for The Record Company
hereunder.
(b) The Artist is not now and during the term of this agreement shall
not be a party to or bound by any contract or agreement which will interfere in
any manner with complete performance of this agreement. The Artist is under no
disability, restriction or prohibition with respect to The Artist's right to
sign and perform under this agreement.
(c) The Artist has the right to its legal name and any professional
name used by The Artist, and The Artist grants to The Record Company and its
distributors and licensees during the term hereof throughout the world the
exclusive right to use and to allow others to use its name as well as its face,
likenesses, biographical materials and voice for phonograph recording purposes
and for related promotional and publicity purposes; and The Artist grants to The
Record Company the exclusive right to such use thereafter in connection with
recordings subject hereto. The Artist warrants that The Record Company's use of
such names in accordance with the terms hereof will not infringe upon the rights
of any third party.
(d) The Phonograph Records and the performances embodied thereon, and
any use thereof by The Record Company or its grantees, licensees or assigns,
will not violate or infringe upon the rights of any third party.
(e) The Artist agrees and does hereby indemnify, save and hold The
Record Company and its assigns harmless of and from any and all loss and damage
(including reasonable attorney's fees) arising out of or connected with any
claim by any one or more third parties or any act by The Artist which is
inconsistent with any of the warranties, representations and/or agreements made
by The Artist herein, and agrees to reimburse The Record Company on demand for
any payment made by it at any time with respect to any liability or claim to
which the foregoing indemnity applies.
(f) The Artist has secured proper clearances and licenses for the use
of any pre-recorded "samples" which the Artist intends to incorporate into
Master Recordings produced hereunder.
6. OWNERSHIP OF RECORDINGS: All Master Recordings made by The Artist
during the term of this agreement shall be recorded by The Artist on The Record
Company's behalf, and all Phonograph Records made there from (including, but not
limited to the underlying multi-track tapes and master tapes), together with the
performances embodied thereon, shall, from
4.
the inception of their creation be considered "works for hire" pursuant to
copyright law and shall be entirely the property of The Record Company in
perpetuity, throughout the world, free of any claim whatsoever by the Artist, or
by any persons deriving any rights or interests from the Artist; and The Record
Company shall have the right to secure the sound recording copyright in and to
the Phonograph Recordings in The Record Company's name as the owner and author
thereof and to secure any and all renewals of such copyright. The Record Company
and its licensees shall have the sole and exclusive right to use the Phonograph
Recordings throughout the world or any part thereof in any manner it sees fit,
including, without limitation, the sole and exclusive right in perpetuity and
throughout the world:
(a) To manufacture, advertise, sell, distribute, lease, license or
otherwise use or dispose of the Phonograph Records embodying The Artist's Master
Recordings produced hereunder, in any or all fields of use, by any method now or
hereafter known, upon such terms and conditions as The Record Company may elect,
or, in its sole discretion, to refrain therefrom;
(b) To perform the Phonograph Records publicly and to permit the public
performance thereof by means of radio broadcast, television broadcast, or any
method now or hereafter known;
(c) To use and publish the name (including all professional, group, and
assumed or fictitious names), photographs and biographical material of The
Artist (s), in connection with the promotion, exploitation and sale of
derivatives of the Phonograph Records; and
(d) To release derivatives of any one or more of the Phonograph Records
on any medium or device now or hereafter known, under any name, trademark or
label which The Record Company and its licensees may from time to time elect.
7. RECORDING COSTS:
(a) The Record Company (or any third party Distributor selected by The
Record Company), at its election and in its sole business judgment, may pay all
specifically approved Recording Costs in connection with Master Recordings made
hereunder, including but not limited to vocalists, musicians, arrangers,
sketchers, conductors, orchestrators, producers, contractors, copyists,
recording studios and other personnel selected by The Record Company in
connection with the performances to be rendered by The Artist at all rehearsals
and recording sessions hereunder. Additionally, The Record Company will pay all
union scale payments required to be paid to The Artist in connection with Master
Recordings hereunder. Further, The Record Company (or any third party
Distributor selected by The Record Company), at its election and in its sole
business judgment, may advance manufacturing, mastering, duplication,
reproduction, packaging, promotional, marketing and advertising expenses in
connection with such Master Recordings and resulting Phonograph Records. Such
payments, together with payroll taxes thereon, payments based on payroll to any
labor organization or designee thereof, the cost of carriage and rental of
instruments for such recording sessions, studio costs and all other costs
incurred in producing or acquiring completed masters hereunder, shall be deemed
additional, fully recoupable advances to The Artist and shall be deducted from
any and all royalties payable to The Artist by The Record Company under this or
any other agreement between The Artist and The Record Company, its parent,
divisions, affiliates, distributors and/or subsidiaries. In the event that The
Artist should delay the commencement or completion of, or be unavailable for,
any recording session hereunder, The Record Company shall have the right to
charge The Artist
5.
for all expenses actually incurred by The Record Company by reason thereof.
Also, should Artist breach this Agreement, upon such breach, The Record Company
shall have the right to collect immediate reimbursement from Artist for all
expenses and costs incurred by Record Company on behalf of Artist.
(b) Nothing contained in this Agreement shall obligate The Record
Company to permit the continuation of any recording session to be held in
connection with Master Recordings hereunder, if The Record Company anticipates
that the Master Recordings being recorded will not be technically or
commercially satisfactory.
8. RECOUPABILITY OF ADVANCES: Any and All monies paid to or on behalf
of The Artist, or advanced to The Artist during the term of this Agreement,
other than royalties paid pursuant to paragraphs 12 and 13 below, shall
constitute fully recoupable, non-returnable Advances unless otherwise expressly
agreed in writing between The Record Company and The Artist.
9. REASONABLE EFFORTS TO RELEASE RECORDINGS: The Record Company shall
use reasonable efforts to commercially release Master Recordings produced by The
Artist hereunder during the Initial Contract Period and subsequent Option
Periods. However, nothing contained herein shall be construed as absolutely
committing The Record Company to commercially release any Master Recordings made
by The Artist as Phonograph Records during the term of this agreement.
10. ARTWORK AND PUBLICITY: The Record Company shall provide artwork and
design services as well as advertising and promotion, to the best of its ability
and to the level that The Record Company's business judgment dictates, with
respect to each album or single released hereunder. As between The Artist and
The Record Company, all such artwork, designs, marketing concepts, logos,
promotional schemes, advertising elements and graphics created hereunder shall
be the exclusive property of The Record Company, in perpetuity. The Record
Company may employ, at its sole discretion, independent publicity or promotion
personnel to publicize and promote each album or single. The cost of such
independent publicity or promotion, as well as the cost of artwork, design, and
other advertising and promotion shall constitute additional, fully recoupable
advances to The Artist hereunder.
11. VIDEOGRAMS: The Record Company has the right, but not the
obligation to have The Artist participate in the creation of audiovisual
devises, sometimes commonly refined to as "music videos" in the recording
industry, primarily for broadcast and/or home use (hereinafter referred to as
"videograms"). One hundred percent (100%) of any and all monies expended by or
advanced by The Record Company for the production of videograms shall constitute
additional fully recoupable advances hereunder. The Record Company shall own any
and all rights in and to said videograms in perpetuity.
12. DISTRIBUTION OF PHONOGRAPH RECORDS AND PAYMENT OF ROYALTIES:
(a) In its sole discretion, The Record Company may choose, at any time
during the term of this agreement, to license the Master Recordings made by The
Artist hereunder to third parties on a flat fee or royalty basis, or to enter
into a Distribution Agreement with a third party
6.
Distributor for the distribution of Phonograph Records embodying Master
Recordings recorded by The Artist hereunder through normal retail channels in
the United States and worldwide. In the event The Record Company enters into
such a Distribution Agreement:
(i) The Record Company shall have the right, at the Record Company's
election, to extend any Contract Period(s) to be co-extensive with the
then-current period of the Distribution Agreement.
(ii) From time to time, The Record Company shall have the unrestricted
right (but not the obligation), at The Record Company's election, to conform any
provision of this Agreement to the provision of the Distribution Agreement which
comprehends the same subject matter.
(iii) The Artist shall duly execute any letters of inducement that may
be required pursuant to the Distribution Agreement. In the event that The Artist
shall fail or refuse to execute any such letter of inducement promptly following
The Record Company's request therefore, The Artist hereby appoints The Record
Company as its true and lawful attorney-in-fact to execute any such letter of
inducement in The Artist's name and on The Artist's behalf. Such power of
attorney is irrevocable and is coupled with an interest.
(iv) Immediately after entering into such a Distribution Agreement, The
Record Company shall immediately notify The Artist of same and shall provide The
Artist with a copy of such Agreement.
(v) With respect to Master Recordings of The Artist licensed to third
parties on a flat-fee basis, conditioned upon The Artist's full and faithful
performance of all of the terms and conditions hereunder, The Record Company
shall pay to The Artist fifty percent (50%) of the net amount received by The
Record Company under each such license. With respect to Master Recordings of The
Artist licensed to third parties on a royalty basis, and with respect to
Phonograph recordings (including Albums, 12" singles, 45 rpm singles,
mini-discs, cassette singles and any other configurations embodying Master
Recordings of The Artist) released through a Distributor selected by The Record
Company, conditioned upon The Artist's full and faithful performance of all of
the terms and conditions hereunder, The Record Company shall pay to The Artist
the lesser of (A) fifty percent (50%) of The Record Company's net earned royalty
receipts under each such license or Distribution Agreement, or (B) one-half
(1/2) of the "Basic Album Rate" or "Basic Singles Rate" (as detailed in
paragraphs 12(b)(i) and (ii), below), as the case may be. For the purposes of
this paragraph, the term "net amount" or "net earned royalty receipts" shall
mean the gross royalties and advances received by The Record Company from the
third part licensee or Distributor less all recording costs, any and all
advances, royalties payable to the producer of the Master Recordings, video
production costs, promotion and publicity expenses, payments to third parties in
connection with a the exploitation of rights, copyright fees, union fund
payments (including so-called "re-use" payments), and any other costs or
expenses incurred by The Record Company which are directly related to the
production, promotion, or exploitation of the Master Recordings hereunder.
(b) Further, in its sole discretion, The Record Company may choose to
commercially release Phonograph Records of The Artist (whether as Albums,
12"singles, 45 rpm singles, mini-discs, cassette singles and any other
configurations embodying Master Recordings of The Artist)
7.
through The Record Company's own distribution network. In such event, as full
payment for The Artist's services hereunder, and in full consideration for the
copyright ownership in Section 6, hereinabove, the right to use The Artist's
name and likeness as provided therein, and the other agreements representations
and warranties contained herein, The Record Company agrees (except as
hereinafter provided) to pay to The Artist, in connection with Phonograph
Records produced hereunder which are sold and not returned, a royalty at the
applicable rates specified in the royalty schedule below, against which any and
all advances paid to or on behalf of The Artist shall be chargeable:
(i) For long-playing albums, compact discs and cassettes recorded by
The Artist during the term of this agreement, manufactured and sold by The
Record Company for distribution in the United States and not returned (nor
subject to return), a royalty ("Basic Album Rate") or eight percent (8%) of the
net retail selling price.
(ii) For twelve inch (12") singles, seven inch (7") singles, 45 rpm
records, mini discs, EP's, cassette singles and mini cassettes recorded by The
Artist during the term of this agreement, manufactured and sold by The Record
Company for distribution in the United States and not returned (nor subject to
return), a royalty ("Basis Singles Rate") of six percent (6%) percent of the net
retail selling price.
13. MISCELLANEOUS ROYALTY PROVISIONS:
(a) For Phonograph Recordings (whether in the form of full-length
Albums, singles or other configurations) that are exported or sold by The Record
Company outside of the United States of America (and which are paid for and not
returned), and for Phonograph Recordings sold through record clubs or similar
sales plans, The Artist shall be paid a royalty of fifty percent (50%) of the
amounts provided for in Section 12, above.
(b) No royalties shall be payable with respect to promotional records,
including records which are given gratis to radio stations, reviewers and to the
press. Further, no royalties shall be payable with respect to records
distributed to members of record clubs as "bonus" or "free" records, as a result
of joining the club and/or recommending that another join the club and/or
purchasing a required number of records.
(c) The terms "net receipts", "net sums", or "net amount received" and
similar terms in this paragraph 12 shall mean amounts received by The Record
Company in connection with subject matter thereof which are solely attributable
to the Masters hereunder less any costs or expenses which The Record Company is
required to pay or credit to third parties.
(d) As to Phonograph Records released by The Record Company or its
assigns not consisting entirely of Master Recordings made by The Artist
hereunder, The Record Company's royalties payable hereunder shall be pro-rated
on the basis of the total number such Master Recordings which are on such
records and which embody The Artist's performances as compared to the total
number of recordings which are on such records and embody the performances of
other artists.
(e) In the event The Record Company chooses to license the Master
Recordings made by The Artist hereunder to third parties on a flat fee or
royalty basis, or to enter into a
8.
Distribution Agreement with a third party Distributor for the distribution of
Phonograph Records embodying Master Recordings recorded by The Artist hereunder
through normal retail channels in the United States and worldwide, compensation
to The Artist as described in Section 12 above shall be subject to the third
party licensee or distributor's container charges (but in no event shall said
container charges be less than those in connection with The Record Company's
release of Phonograph Recordings through its own distribution network, as
hereinafter described). In the event The Record Company chooses to commercially
release Phonograph Records of The Artist (whether as Albums, 12" singles, 45 rpm
singles, mini-discs, cassette singles and any other configurations embodying
Master Recordings of The Artist) through The Record Company's own distribution
network, compensation to The Artist as described in Section 12 above on such
Phonograph Records shall be subject to The Record Company's container charges
of: Fifteen (15%) percent of the suggested retail list price for a single fold
album jacket and the jacket of a 12-inch single and an EP; and twenty (20%)
percent of the suggested retail list price for pre-recorded tapes, and
twenty-five (25%) percent of the suggested retail list price for a compact disc,
DAT, DCC, mini-disc, laser devices, CDVs, and video devices in all other
configurations, and twenty (20%) percent of the suggested retail list price for
a gate fold album or an album with a printed inner sleeve or with an insert or
with any special elements.
(f) The royalties payable to The Artist hereunder are "all-in"; i.e. The Artist
shall
pay from its share of royalties provided for in this agreement all other royalty
obligations in connection with Phonograph Recordings produced hereunder,
including the royalty payable to the studio producer of the recordings and all
labor union fees.
(g) If The Record Company licenses videograms (as described in Section
11, above)
or makes commercial use of such videograms embodying The Artist's performances,
the royalty payable by The Record Company to The Artist shall be fifty percent
(50%) of The Record Company's net receipts derived there from after deducting
any and all direct costs and/or third party payments in connection with the
creation, manufacture, exploitation or use of said videograms; any royalty paid
to the producer(s) of the Masters recorded hereunder which are embodied in said
videograms; and any distribution fees that The Record Company may be required to
pay. It is specifically agreed that The Record Company shall have the right to
license videograms to third parties (i.e. club services) without any payment to
The Artist as long as The Record Company does not receive any payment. To the
extent that The Record Company receives any payment for such promotional uses,
The Record Company will credit The Artist's account with one-half (1/2) of the
net receipts paid to The Record Company as provided herein.
14. LICENSES FOR MUSICAL COMPOSITIONS (MECHANICAL
ROYALTIES): All musical compositions recorded in recording sessions hereunder
which are written or composed by The Artist, in whole or in part, alone or in
collaboration with others, which are owned or controlled, in whole or in part,
directly or indirectly, by The Artist, or any person, firm or corporation in
which The Artist has a direct interest, are "Controlled Compositions" which are
hereby licensed to The Record Company for the United States in Canada at the
applicable royalty rates set forth below for selection on the basis of 100% of
albums sold, less returns, credits, and unrecouped advances:
(a) For albums manufactured for distribution in the United States, the rate
equal to seventy-five percent (75%) of the minimum compulsory license rate
applicable to the
9.
use of musical compositions on phonograph recordings under the United States
Copyright Law on the date of commencement of recording of the album project (or
other recording project) concerned.
(b) On Records manufactured for distribution in Canada; two cents
($.02) per composition.
(c) The mechanical royalty on any record sold through a club operation
will be three-fourths (3/4) of the amount fixed above. If the composition is an
arranged version of a public domain work, the mechanical royalty on it will be
half of the amount fixed in sub-clauses (a) or (b) above.
(d) The total mechanical royalty for all compositions on any album,
including controlled compositions, will be limited to ten (10) times the amount
which would be payable on it under sub-clauses (a) and (b) above if it contained
only one (1) controlled composition. The total mechanical royalty on any record
which is not an album or single will be limited to three (3) times that amount.
(e) Any assignment make of the ownership or copyrights in or the rights
to license to administer the use of any controlled compositions shall be subject
to the terms and provisions hereof.
(f) Notwithstanding the foregoing paragraphs 13(a)-(e), The Artist hereby agrees
to
comply with the applicable provisions of any third party Distribution Agreement
in connection with the mechanical licensing of Compositions.
15. STATEMENTS:
(a) All statements and payments from The Record Company to The Artist
for Phonograph Records produced hereunder shall be made on a semi-annual basis,
on June 30 and on December 31 of each year during the term of this agreement.
The Record Company shall have the right to deduct from the amount of any
statements, or accounts of royalties due, the amount of royalties previously
paid to The Artist on records subsequently returned, either as defective or on
exchange proposition.
(b) At any time within one (1) year after any royalty statement is rendered
to The Artist hereunder, The Artist shall have the right to give The Record
Company written notice of its intention to examine The Record Company's books
and records with respect to such statement. Such examination shall be commenced
within three (3) months after the date of such notice at The Artist's sole cost
and expense, by any certified public accountant not currently auditing The
Record Company. Such audit shall take place no more than one (1) time per
calendar year and during The Record Company's usual business hours at the place
where The Record Company maintains the books and records which relate to The
Artist an which are necessary to verify the accuracy of the statement or
statements specified in The Artist's notice to The Record Company and The
Artist's examination shall be limited to the foregoing. It is agreed that The
Artist may examine The Record Company's books and records as they pertain to
sales of The Artist's Phonograph Recordings in The Record Company's offices in
Orlando, Florida. The Artist's right to inspect The Record Company's books and
records shall be only as set forth in
10.
this paragraph, and The Record Company shall have no obligation to produce such
books and records more than once with respect to each statement rendered to The
Artist. Promptly after the completion of any audit, The Artist agrees to deliver
to The Record Company s copy of its audit report.
(c) The Artist shall be foreclosed from maintaining any action, claim,
or proceeding against The Record Company in any forum or tribunal with respect
to any statement or accounting rendered hereunder unless such action, claim or
proceeding is commenced against The Record Company in a court of competent
jurisdiction within two (2) years after receipt of such statement or accounting.
Unless notice shall have been given to The Record Company as provided in
paragraph 12 (b), above, each royalty statement rendered to The Artist shall be
final, conclusive and binding on The Artist and shall constitute an account
stated. If The Artist commences suit on any controversy or claim concerning
royalty accounting rendered by The Record Company under this agreement, the
scope of the proceeding will be limited to determination of the amount of the
royalties due for the accounting periods concerned, and The Artist agrees that
the Court will have no authority to consider any other issues or award any
relief except recovery of any royalties found owing. The Artist's recovery of
any such royalties will be the sole remedy available to The Artist by reason of
any claim related to The Record Company's royalty accountings. Without limiting
the generality of the preceding sentence, The Artist will not have any right to
seek termination of the term of this agreement or avoid the performance of its
obligation under it by reason of any such claim.
16. AMERICAN FEDERATION OF MUSICIANS: If any instrumental musicians
whose services are members of the American Federation of Musicians, the
following provisions shall be deemed to be part of this agreement:
"As the musicians engaged under the stipulations of this contract are
members of the American Federation of Musicians, nothing in this contract shall
ever be construed as to interfere with any obligation which they owe to the
American Federation of Musicians as members there from.
17. OBLIGATION OF ARTIST TO ASSIST WITH PROMOTIONAL ACTIVITIES: The
Artist shall, from time to time, at The Record Company's reasonable request, and
whenever same will not unreasonably interfere with prior professional
engagements of The Artist, appear for photography, artwork and other similar
purposes under the direction of The Record Company or its duly authorized agent,
appear for interview and other promotional purposes, and confer and consult with
The Record Company or its duly authorized agent, appear for interviews and other
promotional purposes, and confer and consult with The Record Company regarding
The Artist's services hereunder. The Artist shall also cooperate with The Record
Company in promotion, publicizing and exploiting the Phonograph Recordings
embodying performances by the Artist and for any other purpose related to the
business of The Record Company. The Artist shall not be entitled to any
compensation (other than applicable union scale if appropriate) for rendering
such services, but shall be entitled to reasonable transportation, and living
expenses if such expenses must be incurred in order to render such services.
18. RIGHT OF ARTIST TO SEEK INDEPENDENT LEGAL COUNSEL: The Artist has
been advised of its right to seek independent legal counsel prior to the signing
of this agreement, and The Artist warrants that by affixing its signature hereto
that it has either sought independent counsel or have waived its right to such
independent counsel.
11.
19. CONFIDENTIALITY: The Artist acknowledges that the terms of this
agreement and The Record Company's books and records contain confidential trade
information. Neither The Artist or its representatives shall communicate the
terms of this or any other agreement with The Record Company or its assigns to
any other person or party, nor shall The Artist or its representatives
communicate to others (or use on behalf of any other person) any facts or
information obtained as a result of examination of The Record Company's books
and records.
20. GROUP CLAUSE: Due to the fact that The Artist is a musical "group",
The Artist's obligations under the terms of this agreement shall be joint and
several among the members of such group, and all references to The Artist shall
include all members of the group jointly and each member of the group
individually, unless otherwise specifically provided herein. In the event any
member currently comprising the group shall cease to perform as a member of the
group, the following shall apply:
(a) The Artist shall promptly notify The Record Company thereof and
such leaving member shall be replaced by a new member, and such new member shall
be subject to The Record Company's approval. Such approved new member shall
thereafter be deemed substituted as a party to this agreement in the place of
such leaving member and shall automatically be bound by all of the terms and
conditions of this agreement and, upon The Record Company's request, and as an
express condition of this agreement, The Artist will cause any such new member
to execute and deliver to The Record Company such documents as The Record
Company, in its reasonable judgment, may deem necessary or advisable to
effectuate the foregoing sentence. Thereafter, the leaving member shall no
longer be required to render recording services hereunder as a member of the
group, but all remaining members of the group, new members of the group (and any
leaving members, individually) shall continue to be bound by the other
provisions of this agreement.
(b) Notwithstanding anything to the contrary contained herein, The
Record Company shall have the right to terminate the term of this agreement with
respect to some or all of the remaining members of the group by written notice
given to The Artist at any time prior to the expiration of ninety (90) days
after The Record Company's receipt of The Artist's notice to The Record Company
concerning a leaving member.
(c) Each leaving member hereby relinquishes all of his rights in the
group name to the remaining and replacement members of the group.
(d) The Record Company shall have, and The Artist hereby grants to The
Record Company, an option to engage the exclusive services of each leaving
member of The Artist's group as either a solo or group recording artist
("Leaving Member Option"). Such Leaving Member Option may be exercised by The
Record Company by notice to such leaving member at any time prior to the
expiration of ninety (90) days after the date of (i) The Record Company's
receipt of The Artist's notice provided for in subparagraph "a", above, or (ii)
The Record Company's termination notices pursuant to subparagraph "b", above, as
the case may be. If The Record Company exercises such Leaving Member Option, the
leaving member concerned shall be deemed to have executed The Record Company's
then-current standard form of exclusive recording artist agreement on all of the
same basic terms and conditions as are now contained in this agreement, except
that the term of the new exclusive recording artist agreement shall commence on
the date The Record Company exercises its Leaving Member Option.
12.
21. SUSPENSION AND TERMINATION
(a) If, at any time, The Artist fails (except solely for The Record
Company's refusal without cause to allow The Artist to perform) to timely
fulfill its recording commitment herein for an album that is to be delivered to
The Record Company by The Artist, or if The Artist fails to fully cooperate with
The Record Company in connection with a dispute or litigation (whether or not
arising out of this agreement) between The Record Company and a third party,
then without limiting The Record Company's rights, the term of the current
contract period shall be automatically extended and The Record Company shall
have the right to suspend The Record Company's obligations to The Artist
hereunder (including, without limitation, The Record Company's obligation to
make payments to The Artist hereunder) for the period of the default and The
Record Company shall have such additional time as is necessary so that The
Record Company shall have no less than one hundred and twenty (120 days after
both completion of The Artist's recording commitment and release of an album by
The Record Company within which to exercise its option, if any, for the next
following contract period.
(b) If, in respect of any contract period of the term, The Record
Company fails, without cause, to allow The Artist to fulfill its recording
commitment and if, within thirty (30) days after the expiration date of such
contract period The Artist shall notify The Record Company of its desire to
require The Record Company to permit The Artist to fulfill said recording
commitment, then The Record Company may permit The Artist to fulfill said
recording commitment by notice to The Artist to such effect within thirty (30)
days of The Record Company's receipt of The Artist's notice. Should The Record
Company fail to give such notice, The Artist shall have the option within thirty
(30) days after the expiration of said thirty (30) day period to give The Record
Company notice that The Artist is terminating the term. Upon receipt by The
Record Company of such notice, the term shall be and hereby is canceled and
terminated and The Artist shall be free to enter into an exclusive recording
agreement with a third party. The Record Company's sole obligation to The Artist
shall be to account for and pay royalties for albums recorded prior to
termination and such obligation shall survive the termination of the term. This
subparagraph provides The Artist's sole remedy for The Record Company's failure
to record an album embodying The Artist's performances.
(c) If, because of an act of God, inevitable accident, fire, war,
lockout, strike or other labor dispute, riot or civil commotion, act of public
enemy, oil embargo or shortage, enactment, rule, order or act of any government
or governmental instrumentality (whether federal, state, local or foreign),
failure of technical facilities, illness or incapacity of any performer or
producer, or other cause of a similar or different nature not reasonably within
The Record's Company's control, and if The Record Company is materially hampered
in either the recording, manufacture, distribution or sale of records, or The
Record Company's normal business operation become commercially impractical,
then, without limiting The Record Company's rights, The Record Company shall
have the option by giving The Artist notice to suspend the term for the duration
of any such contingency plus such additional time as is necessary so that The
Record Company shall have no less than sixty (60) days after the cessation of
such contingency in which to exercise its option, if any, for the next following
contract period.
22. MERCHANDISING: The Artist hereby grants to The Record Company the
exclusive right to represent The Artist during the term of this agreement in
connection with all merchandising rights of any kind and nature, including but
not limited to retail merchandising rights, mail order merchandising rights,
endorsements, premiums and tour merchandising rights
13.
As full consideration for the granting of such merchandising rights, The Record
Company shall pay to The Artist ten percent (10%) of the net profits earned and
actually received by The Record Company from the exercise of such rights, after
the deduction of all expenses, of any nature, incurred by The Record Company
during the exercise of such rights. Further, no net profits from merchandising
activities shall be payable to The Artist until The Record Company has recouped
all other expenses and advances incurred on behalf of The Artist pursuant to
this agreement.
23. ASSIGNMENT: The Record Company may assign this agreement to any
third party distributor or to any subsidiary, affiliated or controlling
corporation of The Record Company, or to any person owning or acquiring a
substantial portion of the assets of The Record Company. The Record Company may
also assign its rights hereunder to any of its licensees to the extent necessary
or advisable in The Record Company's sole discretion to implement the license
granted. The Artist may not assign this agreement or any of your rights
hereunder and any such purported assignment shall be void.
24. SIDEMAN PROVISION: Provided that The Artist is in compliance with
its material obligations hereunder, The Record Company may, in its sole
discretion (not to be unreasonably withheld) grant to The Artist the right to
perform as a so-called "back-up" musician or "back-up" vocalist ("sideman") with
featured artists for the purpose of making Phonograph Records for third parties,
provided that:
(a) Such activities do not in any way interfere with the timely
performance of The Artist's obligations hereunder;
(b) The musical compositions so recorded shall not have been recorded
by The Artist hereunder and The Artist shall not be restricted from thereafter
recording the same compositions for The Record Company;
(c) No such performances nor Phonograph Records derived there from
shall in any way be identified with any such third party other than as a
sideman; and
(d) The Record Company shall receive a courtesy credit in connection
with The Artist's performance as a sideman.
25. LIVE PERFORMANCES BY ARTIST AT RECORD COMPANY'S AFFILIATED VENUES:
The Record Company shall use reasonable efforts to arrange for live performances
by The Artist at The Record Company's affiliated venues.
26. MISCELLANEOUS: This agreement and any alteration, amendment or
modification thereof shall be governed by and interpreted in accordance with the
laws of the State of Florida applicable to the contracts executed in and fully
to be performed within this state. The invalidity of any clause or clauses, part
or parts of this agreement shall be restricted in effect to said clauses, part
or parts only, and shall not be deemed to effect the validity of the entire
agreement. Paragraph headings are included for convenience only and shall not be
deemed to be a part of this agreement. At all times relevant to this Agreement,
The Record Company shall own the band name, "3rd Wish".
14.
27. INDEPENDENT CONTRACTOR STATUS OF ARTIST: It is understood and
agreed that in entering into this agreement, and in rendering services pursuant
thereto, The Artist has, and shall have, the status of an independent
contractor, and nothing contained herein shall contemplate or constitute The
Artist as The Record Company's employee or agent.
28. ATTORNEY'S FEES: In the event that legal action becomes necessary
to enforce any provision of this agreement, the prevailing party in any such
action shall be entitled to recover all legal costs and expenses, including
reasonable attorney's fees.
29. ENTIRE AGREEMENT: This agreement constitutes the entire agreement
between The Record Company and The Artist and cannot be changed orally. No
alteration, amendment or modification thereof shall be binding unless signed in
writing by The Record Company and The Artist.
IN WITNESS WHEREOF, the parties have signed this agreement as of the
day and year above set forth.
Very Truly Yours,
SKREEM ENTERTAINMENT CORP. Witnesses (As to The Record Company):
--------------------------------- ----------------------------
By:______________________________
As Its:____________________________ ____________________________
AGREED TO AND ACCEPTED: Witnesses (As to The Artist)
--------------------------------- ----------------------------
Xxxxxx Xxxxxx
SS # ###-##-#### ____________________________
15.
