ARTIST RECORDING AGREEMENT
AGREEMENT made this 6th day of January, 2000, between Bodyguard
Xxxxxxx.xxx, Inc. (herein called "Company") and Xxx & Xxxx Xxxxxx, p/k/a "Naked
Underneath" (herein called "Artist") for the tendering of personal services in
connection with the production of Commercial Sound Records.
1. Company hereby engages Artist's exclusive personal services as a
recording artist in connection with the production of commercial sound
recordings. Artist hereby accepts such engagement and agrees to render such
services exclusively for Company during the term hereof and all extensions and
renewals. "Commercial sound recordings" "record(s)" or "album(s)" will be
defined in this Agreement as compact discs, cassettes, or any other pre-recorded
music technology now known, or not yet known.
2. The term of this Agreement shall be for the commercial release of an
initial record featuring a minimum of ten (10) songs. Artist grants Company two
(2) additional options to release a second & third record if Company so desires.
Each option may be exercised, if at all, by Company's giving Artist written
notice of such exercise within the first twelve (12) months from the date the
proceeding record was released. The scope of this Agreement is the World. The
Company promises to manufacture and release the initial compact disc on or
before September 1, 2000. If said initial compact disc is not manufactured and
released by September 1, 2000, Artist would be immediately released from this
Agreement, and at that time Artist may buy the Master tape free and clear from
Company for Ten-Thousand dollars U.S. ($10,000).
3-A. During the term of this Agreement, Artist will, at mutually
convenient times, come to and perform at the Company's recording studios for the
purpose of recording songs. During the term of this Agreement, Artist will not
perform, for the purpose of making records, for anyone other than Company.
Artist will not authorize or permit the use of Artist's name, likeness, or other
identification for the purpose of distributing, selling, advertising, or
exploiting records for anyone other than Bodyguard Xxxxxxx.xxx.
3-B. In consideration of this Agreement and without further payment
than as herein provided for yourself, you grant to the Company, 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 world, or to refrain therefrom, throughout the world or any part thereof,
records embodying the performances to be recorded hereunder, upon such terms and
conditions as the Company may approve; (2) the right to use your name and
photograph if desired, in connection with the exploitation of said records; and
(3) all rights in and to the master tapes and records, and the use and control
thereof, upon which are reproduced the performances to be recorded hereunder.
4-A. The Company will pay Artist for the rights granted herein and the
services to be rendered hereunder by you a royalty of One Dollar & Fifty Cents
U.S. ($1.50) for each record manufactured and sold throughout the world by the
Company or its associates or subsidiaries., after recoupment as defined in this
Agreement.
This royalty shall increase to Two Dollars U.S. ($2.00) for each record
sold over 100,000 units, beginning with unit 100,001;
This royalty shall increase to Two Dollars & Twenty-Five Cents U.S.
($2.25) for each record sold over 200,000 units, beginning with unit 200,001;
This royalty shall increase to Two Dollars & Fifty Cents U.S. ($2.50)
for each record sold over 300,000 units, beginning with unit 300,001;
For each record that Artist sells directly to consumers at live
performances, Artist will receive Three Dollars U.S. ($3.00)
4-B. This royalty shall be inclusive of any mechanical royalties and
any other fees to which artist may be entitled. Sold will be defined as "payment
has been received by Company and Company's account has been credited." Company
and Artist shall negotiate in good faith a separate Agreement regarding
publishing.
5. If Company should choose to film, manufacture and commercially
release a VHS video tape, or other audio/visual medium known or not known, of
Artist, Artist will be paid a royalty of Three Dollars U.S. ($3.00) for each VHS
video or other medium manufactured and sold throughout the world by the Company
or its associates or subsidiaries.
6. All royalties earned from foreign markets outside of the U.S. will
be computed in the national currency of the country to which the retail selling
price so elected applies, and will be paid to Artist in U.S. currency at the
same rate of exchange as Company is paid.
7. No royalties will be paid to Artist on records given away for
promotional purposes to fan club contest winners, disc jockeys, magazines,
newspapers, radio stations and television outlets, etc.
8. Payment of accrued royalties shall be made semi-annually within
sixty (60) days after the first day of June and December. The Company, however,
shall have the right to deduct from the amount of any statements, or accounts of
royalties due, the amount of royalties previously paid to Artist for records
subsequently returned, (either as defective or on an exchange proposition.)
Furthermore, royalties will not be paid to Artist until the Company has been
fully recouped. In this Agreement, "recoup" will be defined as "paid back" for
all expenditures that were incurred on behalf of Artist. Company will provide
Artist with a detailed schedule of all recoupable costs.
9. Recoupable costs are, without limitation, one-hundred percent (100%)
of: recording studio time, (which will be billed at fifty ($50.00) dollars per
hour for recording and mixing time), compact disc manufacturing, graphic design,
photography, advances, salary or financial compensation of any kind; as well as
food, fuel and accommodation expenses during promotional appearances and
touring, and 50% of the cost of a promotional video & cable television
commercial, (If Company elects to film a promotional video and/or cable
television commercial.) Company will choose, hire and pay the producer, the
recording studio and session musicians (if applicable.)
10. If Artist objects to a particular royalty statement, Artist may, at
any time within one (1) year after the royalty statement is submitted to Artist,
notify Company in writing, via U.S. Mail of Artist's intentions to examine the
books and records of Company. Artist must inform Company specifically what is
being questioned. Artist may hire at his or her own expense a Certified Public
Accountant to assist in the auditing process. The examination will take place at
the Company's office, during regular business hours, within thirty (30) days of
receiving the request from Artist. Company will present the books and records
which are necessary to verify the accuracy of the information in the royalty
statement that Artist is questioning. Company shall have no obligation to
produce said books and records more than once with respect to each statement
rendered to Artist, nor more than once in any calendar year.
11. Artist agrees that during the term of this Agreement Artist will
not perform for any other person, firm or corporation, for the purpose of
producing commercial sound records.
12. The Artist hereby warrants that Artist 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. Artist acknowledges that Company is the sole and exclusive owner of
all Masters Tapes. Said ownership entitles Company among other things to:
A) The exclusive and ownership of all duplicates of the masters and
records manufactured therefrom and the right to use and control the same and the
performances embodied therein
B) The exclusive right throughout the world to manufacture, advertise,
sell, lease, license, synchronize with any medium, or otherwise use or dispose
of masters and compact discs manufactured from or embodying all or any part of
the contents of the masters, or to refrain therefrom, in any and all fields of
use throughout the world upon such terms and conditions as Company may
determine.
C) The perpetual 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 Artist and all of the
performers who recorded the masters, for advertising and trade purposes in
connection with the sale and exploitation of the masters and compact discs
produced from the masters, or to refrain therefrom.
D) The right to release records manufactured from the masters under the
name of Bodyguard Xxxxxxx.xxx or any other such trade name or xxxx as Company
may elect.
E) The right to sell and exploit records manufactured from the masters
on which performances by other artists are coupled and to sell compact discs
manufactured from the masters in albums, which albums may contain pictures,
prose and verse and records embodying performances of other artists.
F) Company's ownership and rights with respect to the masters shall
extend to all tapes and other physical devices embodying performances made at
recording sessions held pursuant to the terms of this Agreement.
G) Company shall have the exclusive right to use and license others to
use any artwork created by Company in connection with compact discs, singles and
twelve inch (12") singles manufactured from masters delivered hereunder in
connection with merchandise of any sort.
H) Company shall also have the exclusive right to use and license
others to use any other materials created by or furnished by Company and any
materials paid for, in whole or in part, by Company, in connection with Artist
Merchandise of any sort. Company shall pay to Artist fifty (50%) percent of all
net receipts received by Company in respect of any such merchandise uses. (Such
as T-Shirt sales, tour books, hats, keychains, posters, etc.) As used herein,
net receipts shall mean gross receipts less all expenses incurred by Company in
connection therewith and any third party payments, such as payments to copyright
proprietors, vendors or distributors.
I) Company hereby declares ownership of the Sound Recording copyrights.
(This is to be distinguished from the copyrights in the underlying musical
compositions recorded by the Artist.)
14. From time to time at Company's request, and at a time that is
mutually acceptable by both Parties, and involving things considered wholesome
and reasonable, Company shall cause Artist to:
A) Appear for photography, artwork and similar reasons.
B) Appear for interviews with representatives from newspapers,
magazines, radio stations, etc.
C) Confer and consult with Company regarding Artist's performances
hereunder and other matters which may concern the parties hereto. Artist will
also be available for personal appearances on radio and television and
elsewhere, and to record interviews, spot announcements and trailers, all for
the purpose of advertising, promoting, publicizing and exploiting compact discs
hereunder and for other general public relations and promotional purposes
related to the record business of Company, or its subsidiary and related
companies.
D) Artist shall not be entitled to any compensation from Company for
such services, other than reasonable and fair travel and accommodation
reimbursement. These expenses must be approved by Company prior to the
promotional appearance.
15. If Artist's ability to perform as vocalists or musicians should be
materially impaired, or if Company or Artist should fail, refuse or neglect to
comply with any of their respective obligations hereunder, then, and in addition
to any other rights or remedies which Company may have, Company may elect to
terminate this Agreement by notice in writing and shall thereby be relieved of
any liability.
16. No termination of this Agreement (whether by Artist or Company)
shall in any way limit or curtail any of Company's rights, title, interest or
privileges to or in connection with any of the results and proceeds of Company's
and - or Artist's endeavors under this Agreement or any rights or privileges of
Company which continue after the term of this Agreement.
17. If any member of Artist refuses, neglects or fails to perform with
the other member(s) of Artist hereunder, Company may, by notice in writing to
Artist, terminate the term of this Agreement or the engagement of the member(s)
of Artist who so refuses, neglects or fails to perform. The member(s) of Artist
whose engagement is terminated shall not use the Artist's professional name in
any commercial, musical or artistic endeavor. Artist's professional name shall
be and remain the property of the member(s) of Artist whose engagement is not
terminated. Any person(s)engaged to replace the member(s) of Artist whose
engagement is terminated must be mutually agreed upon by Company and Artist. If
such agreement cannot be reached, Company may thereafter terminate the term of
this Agreement by notice in writing via U.S. Mail.
18. If any member ceases to be a member of Artist ("Leaving Member")
then in addition to all of its other rights and remedies, Company may, by notice
in writing to "Leaving Member" elect to require the "Leaving Member" to record
for Company individually upon the same terms and conditions set forth in this
Agreement, including without limitation the remaining minimum number of compact
discs to be recorded. (# 18, if Applicable.)
19. In this Agreement, Artist acknowledges and agrees that Artist's
services in the music industry 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 in damages in an action at
law and that a breach of Artist's obligations under this Agreement will cause
irreparable injury and damage to Company, entitling Company to injunctive and
other equitable relief.
20. Artist agrees to indemnify Company against, and hold Company
harmless from, any and all claims, liabilities, causes of action, damages,
expenses, costs of defenses (including reasonable attorney's fees and court
costs, that occur beyond the scope of their work relating to Company. Artist
agrees that Company may withhold money otherwise due Artist hereunder in amounts
reasonably related to such claim(s) until such time as such claim(s) are reduced
to a final judgment by a court of competent jurisdiction or are settled.
21. The relationship between Company and Artist 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. This Agreement is made for the sole benefit and protection of the parties
hereto and not for the benefit of any third party. No person not a party to this
Agreement shall have any right of action hereunder.
22. The terms set forth in this Agreement constitute the entire
Agreement between Company and Artist. All prior negotiations and understandings
being merged herein. Company represents that no person acting or purporting to
act on behalf of Company has made any promises or representations upon which
Artist has relied, except those expressly found herein. This Agreement may only
be altered by a written instrument executed by both Company and Artist.
23. No failure by Company to perform any of its material obligations
under this Agreement shall be deemed a material breach of this Agreement until
Artist has given Company written notice of such breach and such breach has not
been corrected within sixty (60) days after the giving of such notice. Company
may assign this Agreement or any part hereof, or any rights hereunder to any
person or company. Artist may not assign this Agreement or any rights hereunder
to any person without the prior written consent of Company.
24. This Agreement will become binding upon both parties only if
Bodyguard Xxxxxxx.xxx secures the Investment funds necessary to fully implement
its Business Plan and Marketing Campaigns by September 1, 2000. If Investment
funds are not secured by Bodyguard Xxxxxxx.xxx by said date, Artist will no
longer be bound under this Agreement. At Artist's discretion, a three (3) month
extension of this contingency clause may be agreed to in writing and must be
signed by both parties. If Artist elects to terminate this Agreement on June 1,
2000, (if the funding was not secured by then,) then any Master tapes recorded
while under contract with Company will remain the property of Bodyguard
Xxxxxxx.xxx. Artist will have the option of purchasing said Master tapes from
Company for Ten-Thousand dollars U.S. ($10,000).
25. Once the contingency set forth in paragraph 24 is removed (i.e.,
Investment funds necessary to fully implement its Business Plan and Marketing
Campaigns are secured) Artist will be notified in writing. The parties will sign
an acknowledgment attached hereto as Exhibit "A" representing that the
contingency has been removed. Said document will then eliminate the potential
Escape Clause granted in paragraph 24 of this Agreement.
26. If Artist does not sell ten-thousand (10,000) compact discs within
six (6) months from the date said compact disc is commercially released, Company
has the option to release Artist from this Agreement, and "drop" Artist from the
Company roster. Company also has the option to continue marketing and promoting
the Artist for a longer period if Company so desires.
27. 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. Should either Party
institute legal suit or action for enforcement of any obligation contained in
the Agreement, it is agreed that the Venue of such suit or action shall be in
the County of Monmouth, State of New Jersey.
28. Company and Artist 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.
WHEREFORE the parties have executed this Agreement as of the day and
year first above written.
ACCEPTED AND AGREED TO:
Please sign and date below:
__________________________
For The Company
___________________________
Artist
___________________________
Artist
___________________________
Artist
___________________________
Artist
