Licensing Agreement
AGREEMENT made this 18th day of June, 2002 by and between
Bodyguard Xxxxxxx.xxx, Inc. X.X. Xxx 000, Xxxxxx, Xxx Xxxxxx, XXX
(hereinafter called "Bodyguard") of the one part and Acrobat Music & Media
Limited XX Xxx 000, Xxxxxx, Xxxxxxxxx, XX0-0XX Xxxxxx Xxxxxxx
(hereinafter called "Acrobat") of the other part.
WHEREAS, Bodyguard controls all rights in and to certain master recordings known
as: "Live From The Budokan, 1977" (hereinafter collectively called "Masters") by
the music group "Bay City Rollers" (hereinafter called "Artist")
WHEREAS, Acrobat is desirous of acquiring from Bodyguard all such rights in and
to Masters for distribution in Europe, including England, Ireland and
Scandinavia, Australia, New Zealand, South Africa and the Far East, except for
Japan. (hereinafter called "Licensed Territory" or "Territory").
NOW, THEREFORE, in consideration of the warranties, representations and
covenants hereinafter made by the parties hereto, Bodyguard and Acrobat hereby
agree as follows:
1. Bodyguard hereby warrants, represents and covenants that it has full
rights, power and authority to make this agreement, that Bodyguard has no
existing commitments with respect to the Masters in the territories covered
by this Agreement and that there exists no adverse claim in and to the
Masters, and grants to Acrobat the following rights in and to the Masters
for the "Licensed Territory" according to the terms of this Agreement:
A) The exclusive right to manufacture, or license others to manufacture,
from Master phonograms, including compact discs and cassette tapes,
and any other audio or sound-carrying reproductions now known or which
may hereafter come into existence (hereinafter called "Records"), and
to distribute, sell, lend, and broadcast by means of Records covered
by this Agreement; for a period of three (3) years and six (6) months.
B) The exclusive right to use, or license others to use, the names,
artwork negatives, likenesses or biographies of the artist whose
performances are embodied in the Master for the purpose of
advertising, promotion or sale of Records;
C) Bodyguard grants to Acrobat, its associates, subsidiaries and nominees
(1) the right to manufacture, advertise, sell, lease, license or
otherwise use or dispose of in any or all fields of use, throughout
the Territory, records embodying the performances addressed hereunder
and (2) the right to use artist's name and photograph if desired, in
connection with the exploitation of said records;
D) The non-exclusive right to use, or license others to use, Bodyguard's
trademarks and logos (hereinafter called "Marks") only on Records or
in connection with the marketing thereof, if Acrobat chooses to do so.
2. Acrobat will pay Bodyguard a royalty of fifteen percent (15%) of Acrobat's
Gross Income for each record manufactured and "Sold" featuring the
recording artist covered by this Agreement for record sales throughout the
Territory by Acrobat or its associates or subsidiaries. Regarding
Sub-Licensing, Acrobat will pay Bodyguard a royalty of ten percent (10%.)
3. Free Downloads Acrobat may at some point, elect to allow consumers an
opportunity to digitally download one Bodyguard approved song, in part or
in whole by the Artist for free, as part of a promotional campaign. No
compensation shall be paid to Bodyguard or to the Artist for any free
digital downloads. Digital Phonorecord Delivery shall be defined in this
Agreement as the transmission from a web site of a sound recording saved as
a computer file, using compression techniques, downloaded from a web site,
directly over the Internet, to the computer of a consumer.
4. Acrobat shall render to Bodyguard an account statement, reflecting the
amounts and other necessary items for which Acrobat shall be accountable to
Bodyguard hereunder, quarterly within Thirty (30) days after March 31, June
30, September 30 and December 31 of each year covering each immediately
preceding quarterly period, and shall pay to Bodyguard all such amounts
shown to be due upon the rendition of each quarterly accounting statement
to such bank account as Bodyguard may designate. It is understood and
agreed that all such amounts shown to be due on each accounting statement
represent only such amounts as shall have been received and processed by
Acrobat from their retail Distributor(s) by the deadline for processing
each such account.
5. Acrobat shall provide Bodyguard, free of charge, with Twelve (12) sample
copies of Records released in the Licensed Territory as soon as such copies
are available.
6. Within twelve (12) days of the execution of this Agreement, Bodyguard shall
deliver to Acrobat a copy of the audio master in compact disc form, so
manufacturing may promptly begin.
7-A. Bodyguard may inspect, or appoint its representatives to inspect, upon
reasonable notice to Acrobat, at the place of business and during usual
business hours of Acrobat, all books, records and other documents relating
to this agreement, to the extent necessary to verify the accuracy of the
accounting statements and payments hereunder. Such inspection shall be
conducted at Bodyguard's own expense.
8-B. Acrobat will present the books and records which are necessary to verify
the accuracy of the information in the royalty statement that Bodyguard is
questioning. Acrobat shall have no obligation to produce said books and
records more than once with respect to each statement rendered to
Bodyguard, nor more than once in any calendar year.
9. It is understood and agreed that all tapes, acetates, stampers, mothers,
artwork, photographs or duplicates thereof, of Masters and all rights in
and to Masters remain the sole and exclusive property of Bodyguard, subject
to the rights herein granted by Bodyguard to Acrobat.
10. Upon the expiration or termination of this agreement, all parts, mothers or
duplicates thereof, of Masters or artwork negatives shall be, at the option
of Bodyguard, either returned to Bodyguard or destroyed under the
supervision of such agent as may be designated by Bodyguard.
11. Acrobat may institute or defend any action, suit, claim or otherwise at its
sole discretion and expense to protect any right or interest in and to
Masters. Any recovery which may be obtained by Acrobat by way of
settlement, judgment or otherwise shall be divided equally between Acrobat
and Bodyguard, less all of Acrobat's expenses thereof, including reasonable
attorney fees.
12. Bodyguard hereby warrants that Bodyguard has no oral or written obligations
contracts, or agreements of whatever nature entered into prior to the
signing of this Agreement which are now in force and binding and which
would in any way interfere with carrying out this Agreement to its full
intent and purpose.
13. Additional Warranties: Bodyguard also hereby warrants and agrees:
A) That no materials submitted by Bodyguard will violate any law, or
violate or infringe upon the rights of any person, including, without
limitation, contractual rights, intellectual property rights,
publicity and privacy rights and the rights against libel, defamation
and slander;
B) That the use of artists' name(s), likenesses and biographies shall not
infringe upon the rights of any person or entity;
C) The right to use and publish and to permit others to use and publish
the names (including any professional names heretofore adopted),
likenesses of and biographical material concerning Bodyguard and the
Artist for advertising and trade purposes in connection with the sale
and exploitation of the masters and compact discs produced from the
masters;
D) The right to release records manufactured from the masters under the
name of Acrobat Music & Media Limited, or any other such trade name or
xxxx as Acrobat may elect;
E) Acrobat shall have the unlimited, exclusive rights, throughout the
Territory to publicly perform or to permit the public performance of
the Master Sound Recording by means of radio broadcast, cable
transmission, satellite transmission, television broadcast or any
other method now or hereafter known, including, without limitation,
digital downloading or streaming media delivery.
14. No failure by Acrobat to perform any of its material obligations under this
Agreement shall be deemed a material breach of this Agreement until
Bodyguard has given Track written notice of such breach and such breach has
not been corrected within sixty (60) days after the giving of such notice.
15. Both Bodyguard and Acrobat may Assign this Agreement or any part hereof, or
any rights hereunder to any person or entity, upon formally notifying the
other party in writing.
16. All Notices and requests shall be in writing and shall be sent by a
recognized overnight courier such as the U.S. Postal Service, Federal
Express or United Parcel Service. Notices shall be deemed received by
signing for receipt of delivery when sent through said overnight courier.
17. The terms set forth in this Agreement constitute the entire Agreement
between Bodyguard and Acrobat. All prior negotiations and understandings
being merged herein. Both parties represent that no person acting or
purporting to act on behalf of either party has made any promises or
representations upon which the other party has relied, except those
expressly found herein. This Agreement may only be altered by a written
instrument executed by both Bodyguard and Acrobat.
18. The relationship between Bodyguard and Acrobat hereunder shall at all times
be that of independent contractor; and nothing contained herein shall
render or constitute the parties joint venturers, partners or agents of
each other. Neither party shall have the right to execute any contract, or
incur any obligation for which the other may be liable, or otherwise bind
the other; and neither party shall be liable for any representation, act or
omission of the other.
19. This Agreement shall be deemed to have been made in the State of New Jersey
and its validity, construction, breach, performance and operation shall be
governed by the laws of the State of New Jersey applicable to contracts
made and to be performed in the State of New Jersey.
20. Any controversy or dispute arising out of, or in connection with, the
validity, performance or interpretation of this agreement which the parties
hereto are unable to resolve within a reasonable period of time after
written notice has been given by either party to the other of the existence
of such controversy or dispute may be submitted to arbitration by either
party and, if so submitted by either party, shall be finally settled by
arbitration conducted in accordance with the rules of The American
Arbitration Association. The decision by the arbitrators shall be binding
and conclusive upon both parties hereto, their successors and assigns. The
parties agree that the venue for arbitration will be Bergen County, New
Jersey, USA.
21. Bodyguard and Acrobat hereby accept and agree to the terms of this
Agreement, and acknowledge receipt of this Agreement. Both parties
understand and agree that facsimile (fax) signatures shall constitute
original signatures for all purposes relating to this Agreement, if used.
IN WITNESS THEREOF, the parties hereto have executed this agreement the day and
year first above written.
Bodyguard Xxxxxxx.xxx, Inc. Acrobat Music & Media Limited
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Signature Signature
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Print Name & Title Print Name & Title
