LICENSE AGREEMENT made this 21st day of February, 2001 by and between
Bodyguard Xxxxxxx.xxx, Inc., a Delaware corporation with an office at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, XX 00000. USA (hereinafter called "Bodyguard") and Atlantic
International Capital Holdings, a Bermuda corporation with an office at P. O.
Box HM1564, Hamilton, HMFX, Bermuda (hereinafter called "XXXX"). Bodyguard and
XXXX are sometimes hereinafter individually referred to as a "Party" and
collectively as the "Parties".
WHEREAS, XXXX owns or controls: (i) all rights in and to the
multitrack tape or two-track stereo master tape either mixed from or recorded
from the original multitrack tape comprising the master recordings of the music
comprising the Live at the Budakon, 1977 commercial sound recording (the "Master
Recording") by the Bay City Rollers (hereinafter called the "Artist"); (ii) all
right, title and interest in and to the artist recording agreement with Webnet
International, Inc., LLC, a Delaware limited liability company with an office at
00 Xxxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxx, Xxxxxxx XXX - 0XX providing the
services of the Bay City Rollers underlying and giving rise to the Master
Recording, including the single option for an additional Master Recording
(hereinafter called the "Artist Agreement"); and (iii) the rights and
responsibilities pertaining to the Master Recording under a certain Joint
Venture Agreement dated December 10, 1999 with Exploration, Inc., a
non-affiliated Utah corporation (the "Joint Venture"); and
WHEREAS, Bodyguard is desirous of obtaining the exclusive and
transferable right and license to manufacture, market, promote, distribute and
sell the compact discs, cassette tapes, records, and any other audio or
sound-carrying reproductions now known or which may hereinafter come into
existence embodying the Master Recordings (the "Records") under any and all
circumstances or through any means whatsoever together with any and all rights
owned or acquired by XXXX under and pursuant to the Artist Agreement, subject,
however to any responsibilities under the Joint Venture (hereinafter
collectively called the "License") throughout the universe (hereinafter called
"Licensed Territory" or "Territory"); and
WHEREAS, XXXX is willing to grant the License to Bodyguard on the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the warranties, representations
and covenants hereinafter made by the parties hereto, Bodyguard and XXXX hereby
agree as follows:
1. Representations and Warranties of XXXX.
X. XXXX hereby warrants, represents and covenants that it has full
rights, power and authority to execute, deliver and perform this agreement (the
"Agreement"), that XXXX has no existing commitments with respect to the Master
Recordings and/or the License other than that set forth in the Joint Venture
(hereinafter collectively called the "Rights") and that there exists no adverse
claim in and to the Rights, and hereby grants to Bodyguard the following for the
term of the Agreement;
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X. XXXX hereby warrants that XXXX and the Artist covered by this
Agreement have 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;
C. That no materials submitted by XXXX 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;
D. That the use of Artist's names, likenesses and biographies shall not
infringe upon the rights of any person or entity;
X. XXXX owns 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 XXXX and the Artist for
advertising and trade purposes in connection with the sale and exploitation of
the Master Recording and compact discs produced from the Master Recording; and
X. XXXX owns the right to release records manufactured from the Master
Recordings under the name of Bodyguard Xxxxxxx.xxx or any other such trade name
or xxxx as Bodyguard may elect;
2. Grant of Rights.
XXXX hereby grants the following to Bodyguard:
A. The Rights for a period of twelve (12) years;
B. The non-exclusive right to use, or license others to use, the names,
artwork negatives, likenesses or biographies of the Artist whose performance is
embodied in the Master Recording for the purpose of advertising, promotion or
sale of Records;
X. XXXX hereby grants to Bodyguard, its associates, subsidiaries and
nominees: (i) the right to manufacture, advertise, sell, lease, license or
otherwise use or dispose of in any or all fields of use, throughout the
Universe, records embodying the performances addressed hereunder; and (ii) 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 license others to use Master Recording
for commercials, television productions, music videos, television commercials,
motion pictures and any other audio-visual or multi-media reproductions now
known or which may hereafter come into existence without the prior written
consent of XXXX;
E. The non-exclusive right to use, or license others to use, AICH's
trademarks and logos (hereinafter called "Marks") only on Records or in
connection with the
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marketing thereof, if Bodyguard chooses to do so;
F. Bodyguard shall have the unlimited, exclusive rights, throughout the
Territory to publicly perform or to permit the public performance of the Master
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.
G. Recoupable expenses, as covered by the Artist Agreement, will
include any and all of the following expenses, if provided by Bodyguard to XXXX:
(i) one- hundred percent (100%) of any andf all recording studio time, (which
will be billed at One Hundred and Fifty ($150.00) Dollars per hour for
recording, mixing and remixing time); (ii) mastering services; (iii) compact
disc manufacturing; (iv) DVD manufacturing; (v) engineering fees; (vi) graphic
design; (vii) photography; (viii) publicist fees; (ix) print advertising; (x)
session musicians; (xi) advances; (xii) salary or financial compensation of any
kind; (xiii) food, fuel and accommodation expenses during promotional
appearances and touring; and (xiv) fifty (50%) percent of the cost of a any
promotional video and cable television commercial, that Bodyguard elects to
film.
3. Artist Royalties, Traditional Compact Discs and Retail Sales.
A. Bodyguard will be responsible for paying the Artist's royalty
according to the Artist Agreement for the Rights granted herein and the services
to be rendered hereunder by the Artist; and
B. Bodyguard will pay XXXX a royalty of ten percent (10%) of
Bodyguard's gross income for each Record manufactured and "Sold" featuring the
Artist covered by this Agreement for sales of Record via Retail outlets or sold
via digital distribution throughout the Territory by Bodyguard or its associates
or subsidiaries, after recoupment, as defined in this Agreement. "Sold" will be
defined as "payment has been received by Bodyguard and Bodyguard's account has
been credited."
4. Free Downloads
Bodyguard may at some point, elect to allow consumers an opportunity to
digitally download one XXXX approved song, in part or in whole by the Artist for
free, as part of a promotional campaign. No compensation shall be paid to XXXX
or 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.
5. Video Tape and DVD Releases
If Bodyguard should choose to film, manufacture and commercially release a VHS
tape, DVD, or other audio/visual medium now known or not yet known, featuring
the Artist, XXXX will be paid a royalty of ten percent (10%) of AICH's Gross
Income for each VHS or DVD
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unit sold, after recoupment. Bodyguard will pay the Artist a royalty for said
VHS and/or DVD release based upon the terms of the Artist Agreement.
6. Inclusive Royalties.
The royalties paid to XXXX and the Artist after recoupment shall be inclusive of
any mechanical royalties and any other fees to which the Artist may be entitled.
Royalties earned by XXXX and the Artist via traditional compact disc sales, via
Digital Downloads and/or from the sale of VHS or DVDs will be "All In."
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7. No Promotions, Etc.
No royalties will be paid to XXXX on records given away for promotional purposes
to fan club contest winners, disc jockeys, magazines, newspapers, radio stations
and television outlets, etc. Furthermore, XXXX will not receive royalties on any
records that are returned from a distributor or that are damaged in shipping and
are no longer deemed fit for sale to the public.
8. Statements of Account.
A. Bodyguard shall render to XXXX an account statement, reflecting the
items for which Bodyguard shall be accountable to XXXX hereunder, quarterly
within sixty (60) days after March 31, June 30, September 30 and December 31 of
each year covering each immediately preceding quarterly period, and shall pay to
XXXX all such amounts shown to be due upon the rendition of each quarterly
accounting statement in such currency and to such bank account as XXXX may
designate.
B. 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 Bodyguard from its distributor(s) by the deadline for
processing each such account.
9. Sample Copies. Bodyguard shall provide XXXX, free of charge, with
Ten (10) sample copies of Records released in Licensed Territory as soon as such
copies are available.
10. Duplicates.
Upon Bodyguard's request, XXXX shall deliver to Bodyguard a copy of the
requested Master Recording in duplicate tape, digital tape or compact disc form,
as may be selected and ordered by Bodyguard.
11. Inspections.
X. XXXX and/or the Artist may inspect, or appoint its representatives
to inspect, upon reasonable notice to Bodyguard, at the place of business and
during usual
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business hours of Bodyguard, 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.
B. Such inspection shall be conducted at AICH's own expense.
Bodyguard will present the books and records which are necessary to verify the
accuracy of the information in the royalty statement that XXXX is questioning.
Bodyguard shall have no obligation to produce said books and records more than
once with respect to each statement rendered to XXXX, nor more than once in any
calendar year.
12. Rights to Master Recordings.
It is understood and agreed that all tapes, acetates, stampers, or duplicates
thereof, of the Master Recording, and all rights in and to the Master Recording
remain the sole and exclusive property of XXXX, subject to the rights herein
granted by XXXX to Bodyguard.
13. Destruction.
Upon the expiration or termination of this Agreement, all parts, or duplicates
thereof, of the Master Recording shall be, at the option of XXXX, either
returned to XXXX or destroyed under the supervision of such agent as may be
designated by XXXX. XXXX shall be responsible for all costs of packing and
shipping or destruction thereof.
14. Legal Actions.
Bodyguard 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 the
Master Recording. Any recovery which may be obtained by Bodyguard by way of
settlement, judgment or otherwise shall be divided equally between XXXX and
Bodyguard, less all of Bodyguard's expenses thereof, including reasonable
attorney fees.
15. Required Notice.
No failure by Bodyguard to perform any of its material obligations under this
Agreement shall be deemed a material breach of this Agreement until XXXX has
given Bodyguard written notice of such breach and such breach has not been
corrected within sixty (60) days after the giving of such notice.
16. Amendment.
This Agreement may be amended by the Parties hereto by action taken by their
respective Boards of Directors at any time. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the Parties
hereto.
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17. Binding Effect and Assignments.
All of the terms and provisions of this Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by and against the successors
and assigns of the Parties hereto. This Agreement may not be assigned by any
Party without the written consent of the other Party.
18. Entire Agreement.
Each of the Parties hereby covenants that this Agreement is intended to and does
contain and embody herein all of the understandings and agreements, both written
and oral, of the Parties hereby with respect to the subject matter of this
Agreement, and that there exists no oral agreement or understanding, express or
implied, whereby the absolute, final and unconditional character and nature of
this Agreement shall be in any way invalidated, empowered or affected. There are
no representations, warranties or covenants other than those set forth herein.
19. Laws of the State of New Jersey.
This Agreement shall be deemed to be made, executed and delivered in, governed
by and interpreted under and construed in all respects in accordance with the
laws of the State of New Jersey, irrespective of the place of domicile or
residence of any Party. In the event of controversy arising out of the
interpretation, construction, performance or breach of this Agreement, the
Parties hereby agree and consent to the jurisdiction and venue of the United
States District Court for the Northern District of New Jersey and further agree
and consent that personal service or process in any such action or proceeding
outside of the State of New Jersey and in the City of Newark shall be tantamount
to service in person or within the State of New Jersey and in the City of Newark
and shall confer personal jurisdiction and venue on the said Court.
20. Originals.
This Agreement may be executed in counterparts, each of which so executed shall
be deemed an original and constitute one of the same Agreement.
21. Address of Parties.
Each Party shall at all times keep the other informed of its principal place of
business if different from that stated herein, and shall promptly notify the
other of any change, giving the address of the new principal place of business.
22. Notices.
All notices that are required to be or may be sent pursuant to the provisions of
this Agreement shall be sent by certified mail, return receipt requested, or by
overnight package delivery service to each of the Parties at the address
appearing herein, and shall count from the date of mailing or the day after the
date of the airbill.
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23. Modification and Waiver.
A modification or waiver of any of the provisions of this Agreement shall be
effective only if made in writing and executed with the same formality of this
Agreement. The failure of any Party to insist upon strict performance of any of
the provisions of this Agreement shall not be construed as a waiver of any
subsequent default of the same or similar nature or of any other nature or kind.
24. Amendment.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the Parties hereto.
IN WITNESS THEREOF, the Parties hereto have executed this agreement the day and
year first above written.
Bodyguard Xxxxxxx.xxx, Inc.
By:_______________________
Xxxx Xxxxx, President
Atlantic International Capital Holdings
By: ____________________________
Xxxxxxx X. Xxxxxxx, President
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