ARTIST RECORDING AGREEMENT
AGREEMENT made this 26th day of September, 2000, between Bodyguard
Xxxxxxx.xxx, Inc., a Delaware corporation with an office at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (herein called "Company") and June individually known
as Xxxx Xxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxx and Xxxxxxx XxXxxxxxx (herein called
"Artist") for the tendering of personal services in connection with the
production of Commercial Sound Records. The Artist's obligations under this
Agreement are joint and several. All references to "Artist" includes all members
of the group inclusively and each member individually, unless specified.
1. The Agreement
The 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. Term and Scope
The Term of this Agreement shall be for the commercial release of an initial
album featuring 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 twelve (12) months from the date the proceeding record was commercially
released. The Scope of this Agreement is the Universe.
3. Release Information
The Company promises to manufacture and release the initial album on or before
December 31, 2001. The record may be released for sale to the public in one of
two ways; A) An "Internet only" release via digital downloads or B) A
"Traditional" Compact Discs release, along with Internet digital downloads. This
decision will be made solely by the Company. Either method of release would be
supported with promotion and marketing campaigns.
4. Recording & Exclusivity
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. Furthermore, Artist shall make no other
new sound recording available to the public in its entirety via the Internet
either as a free Download or via Streaming without Company's prior written
consent.
5. Rights Of The Company
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.
6. Artist Royalties / Traditional Compact Discs
The Company will pay the Artist for the rights granted herein and the services
to be rendered hereunder by Artist a royalty of one dollar & fifty cents U.S.
($1.50) for each Traditional, Compact Disc manufactured and Sold throughout the
world by the Company or its associates or subsidiaries, after recoupment, as
defined in this Agreement. As used herein the term "Sold" will be defined as
"payment has been received by Company and Company's account has been credited."
The following shall apply:
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; and
For each record that Artist sells directly to consumers at live
performances, Artist will receive Three Dollars U.S. ($3.00).
7. Artist Royalties / Derived From Consumer Paid Digital Downloads
The Company will pay the Artist for the rights granted herein and the services
to be rendered hereunder by Artist a royalty of One Dollar (U.S.) ($1.00) for
each whole, complete album Sold via Internet Digital Download, throughout the
world by the Company or its associates or subsidiaries, after recoupment, as
defined in this Agreement. "Sold" will be defined as "payment has been received
by Company and Company's account has been credited."
This royalty shall increase to One Dollar & Twenty-Five Cents U.S. ($1.25)
for each digital download sold over 100,000 units, beginning with unit
100,001; and
This royalty shall increase to One Dollar and Fifty Cents U.S. ($1.50) for
each digital download sold over 200,000 units, beginning with unit 200,001.
8. Free Downloads
The Company may at some point, elect to allow consumers an opportunity to
digitally download one song by the Artist for free, as part of a promotional
campaign. No compensation shall be paid to Artist for any free digital
downloads. DigitaPhono recordrd 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 in its entirety from a web site
directly over the Internet, to the home computer of a consumer.
9. Mechanical Royalties
The royalty paid to Artist after recoupment shall be inclusive of any mechanical
royalties and any other fees to which artist may be entitled. Royalties earned
by the Artist via traditional compact disc sales or via Digital Download will be
"all in" and will include any mechanical royalties. The royalty scale covered in
Clauses Six and Seven of this Agreement shall be deemed to have satisfied any
mechanical license fee obligations.
10. Recoupment
Recoupment will be defined in this Agreement as meaning that the Company is paid
back (reimbursed) for any expenses incurred on behalf of the Artist. Recoupable
items will be defined in Clause 16 of this Agreement.
11. Music Publishing
Company and Artist shall negotiate in good faith a separate Agreement regarding
Music Publishing.
12. Video Tape and DVD Releases
If Company should choose to film, manufacture and commercially release a VHS
video tape, DVD, or other audio/visual medium now known or not yet known, of
Artist, Artist will be paid a royalty of Three Dollars U.S. ($2.50) for each
unit manufactured and sold throughout the world by the Company or its associates
or subsidiaries.
13. Foreign Royalties
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.
14. Royalty Exemptions
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. Furthermore, Artist will not receive
royalties on any records that are returned from a distributor or that are
damaged in shipping, and no longer deemed fit for sale to the public.
15. Payment of Royalties
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 again 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.
16. Recoupable Expenses
Recoupable expenses are, without limitation, one-hundred percent (100%) of: (i)
recording studio time, (which will be billed at fifty ($50.00) dollars per hour
for recording, mixing and remixing time), mastering services, compact disc
manufacturing, engineering fees, graphic design, photography, advances, salary
or financial compensation of any kind; and (ii) 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.)
17. Objections To a Royalty Statement
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.
18. Artist's Obligations, Etc.
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. The
Artist also warrants that Artist is under no disability, restriction or
prohibition with respect to Artist's right to execute this Agreement.
19. Additional Warranties
The Artist also hereby warrants:
A. That no materials submitted by Artist 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 Master Sound Recording was not recorded within the
jurisdiction of any collective bargaining agreement, including without
limitation, the American Federation of Musicians and the American
Federation of Television and Radio Artists, and if recorded within
such jurisdiction, Artist shall be responsible for all Union Agreement
mandated fees resulting from the recording or uses permitted to the
Company under this Agreement;
C. That the use of Artist's name(s), likenesses and biographies shall not
infringe upon the rights of any person or entity, and that Artist has
conducted or caused to be conducted a professional trademark search to
ensure the availability of the name(s); and
D. Artist shall be solely responsible for all royalties payable to any
outside songwriters and/or outside music publishers whose material may
be recorded by Artist and released by Company. (If the Artist uses
material written by outside songwriters);
20. Rights and Ownership Regarding The Master Tapes
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, including the use of
the songs in audio or audiovisual commercial advertisements, motion
picture films, television, radio or to synchronize with visual images
in any form and by any method now or hereafter known.;
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. Artist also understands that the Company may Assign
this Agreement to another Party, without needing the consent of the
Artist. The Artist however cannot assign its rights and obligations
under this Agreement to another Party;
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 have the unlimited, exclusive rights, throughout the
universe 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; and
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. Artist shall at all times
retain the ownership of the Copyrights in the named original
compositions, as embodied in the above Master Sound Recording(s)
contemplated in this Agreement.
21. Artist Merchandise
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 the sale
of T-Shirts, tour books, hats, keychains, posters, jackets, 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, manufacturers and/or distributors.
22. Artist Availability To Company
From time to time at Company's request, and at a time that is mutually
acceptable by both Parties, 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;
X. Xxxxxx 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, in writing,
prior to the promotional appearance;
E. Artist shall perform live at London Underground Studio in New York,
and hereby grants to Company the permission to record said live
performance for use on the Company's web site, and in Artist's
promotional campaign as well. Artist will also film a one hour
Interview at that time for similar purposes. The time and date for
this live performance and interview will be mutually agreed upon by
both Parties, with neither Party acting unreasonably in the selection
of a time and date; and
F. Artist will also participate in one or two Internet "Chats" per year
with visitors to the Company's web site or via a designated chat
partner. Each "chat" session shall not be more than one (2) hours in
duration. The time and date for the chats will be mutually agreed upon
by both Parties, with neither Party acting unreasonably in the
selection of a time and date.
23. Artist Impairment
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.
24. Continuing Rights
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 the Company's and/or the
Artist's endeavors under this Agreement, or any rights or privileges of the
Company which continue after the term of this Agreement.
25. Refusal Or Failure Of The Artist
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.
26. Leaving Member
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.
27. Sampling
No Sampling. Artist agrees that the Master Sound Recording shall not be made by
or include any Sampling. ("Sampling" will be defined in this Agreement as the
use and reproduction of any pre-existing musical material.)
28. Synchronization Licenses
Artist hereby authorizes Company to acts as Artist's representation to negotiate
on Artist's behalf synchronization licenses of Artist's songs covered by this
Agreement for use in film and television. Company shall use good faith efforts
when negotiating each third party film or television license deal to ensure that
synchronization license fees obtained on Artist's behalf shall be, at minimum,
equal to those obtained for the master use license.
29. Injunctive Relief
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 seek other
equitable relief.
30. Indemnification
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.) 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
privately between the Parties.
31. Independent Contractor
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.
32. Material Breach & Assignment
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 or other entity whatsoever.
33. Agreement Becomes Binding
If adequate Investment Funds are not secured by Bodyguard Xxxxxxx.xxx to fully
implement its Business Plan and Marketing Campaigns by December 31, 2001, 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
December 31, 2001, (if adequate funding was not secured by then,) then any
Master tapes recorded while under contract with Company will remain the property
of Company. Artist would have the option of purchasing said Master tapes from
Company for Ten Thousand dollars U.S. ($10,000) with no further compensation to
the Company. Once the $10,000 is paid to the Company, the Master Tapes would be
transferred to the Artist).
34. Removal Of Contingency
Once the contingency set forth in Clause 33 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 letter and attach it hereto as Exhibit "A" - representing that
the contingency has been removed. Said document will then eliminate the
potential "Escape Clause" granted in Clause 33 of this Agreement.
35. Release From Roster
If Artist does not sell ten-thousand (10,000) compact discs and/or digital
downloads within six (6) months from the date said record 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.
36. New Jersey Law / Prevailing Party
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. The prevailing Party in any suit or action between the
Parties regarding the Terms of this Agreement, will be entitled to reimbursement
of all reasonable attorney's fees and court costs from the non-prevailing Party.
Reimbursement must be made within thirty (30) days of the dispute being
resolved, either between the Parties or through a court of competent
jurisdiction.
37. Limitation Of Liability
Except as set forth in Clause 30 regarding Indemnification, in no event shall
either Party be liable to other the other Party for any incidental,
consequential, special, or punitive damages arising out of this Agreement, or
its termination, whether a liability is asserted in contract or tort (including
negligence and strict product liability) and irrespective of whether such Party
has been advised of the possibility of any such loss or damage.
38. Disclaimer
Company provides all services on a "Best Efforts" basis. The Company makes no
warranties with respect to the performance of the services, express or implied,
and Company expressly disclaims all other warranties, including but not limited
to the implied warranties of non-infringement, merchantability and fitness for a
particular purpose. Artist understands that Company is a new independent record
company with limited financial resources. The Artist's expectations must remain
aware of those limitations.
39. Notices
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 by overnight courier. Notices shall be sent to the Parties at
the address set forth in the signature block below.
40. This Document is the Entire Agreement
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. Upon the expiration
or termination of this Agreement, the following Clauses of this Agreement shall
survive expiration or termination: 30, 31,32, 36, 37, 38, 39, 40, 41.
41. Acceptance of Terms
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:
/S/ Xxxxxx Xxxxx
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For The Company
/S/ Xxxx Xxxxxxx
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Artist
/S/ Xxxx Xxxxx
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Artist
/S/ Xxxx Xxxxxxx
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Artist
/S/ Xxxxxxx XxXxxxxxx
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Artist
