EXHIBIT 6.32
PRODUCER AGREEMENT
"CHICK FLICK" / XXXXXXXX XXXXX
The following are the terms and conditions of the agreement ("Agreement")
dated as of September 29, 1997 between TOTAL MEDIA CORPORATION ("Producer")
and XXXXXXXX XXXXX ("Artist") (Social Security Number 000 00 0000) in
connection with a proposed motion picture project tentatively entitled "CHICK
FLICK" ("Picture").
1. CONDITIONS PRECEDENTS: Producer's obligations under this Agreement are
conditioned upon the following "Conditions Precedents": a/ Producer's
receipt of copies of this Agreement fully executed by Artist; and b/
Artist providing Producer with all documents which may be required by
any governmental agency or otherwise for Artist to render services
hereunder.
2. EMPLOYMENT: Artist agrees to render services as a producer in
connection with the possible production of the Picture.
3. ABANDONMENT: Producer shall have the right to abandon the Picture at
any time without any further obligation to Artist.
4. SERVICES / EXCLUSIVITY: If Producer elects to proceed with the
production of the Picture and subject to Paragraph 10 below, then
Artist shall personally render all services customarily rendered by
individual producers in the motion picture industry in connection with
the pre-production, production and post-production of the Picture and
as otherwise required by Producer. The term of Artist's services shall
commence on the date hereof and shall continue until the full and
satisfactory completion of all services to be rendered by Artist
hereunder or the earlier termination hereof, if any, by Producer (as
herein provided). Artist shall render services hereunder on an
non-exclusive basis - but first priority, in person basis - during
development until 8 weeks prior to the Start Date and on an exclusive
basis during the "Pre-Production Period" (i.e., the period commencing 8
weeks prior to the schedule date for commencement of principal
photography of the Picture ("Start Date") and continuing until four (4)
weeks after the conclusion of principal photography of the Picture;
thereafter Artist's services shall be non-exclusive, but rendered on a
first priority, regular in-person basis until Delivery (as defined in
Paragraph 8 below) of the completed Picture (including required
television and airline coverage) which shall be delivered by Artist in
connection with the post-production schedule approved by Producer. Time
is of the essence in connection with all producing services and
Delivery of the Picture hereunder.
5. APPROVALS AND CONTROLS:
a. Producer shall retain all approvals and controls, including
without limitation, the right to designate the production
manager, estimator and location auditor, and the right to
initiate at any time and in any respect in connection with the
Picture.
b. Artist shall render services at such places Producer will
designate and at the times required by Producer, including
Saturdays, Sundays, nights and holidays. Artist shall render
Artist's services hereunder and devote Artist's best talents,
efforts and abilities in accordance with the instructions,
control and directions of Producer including those of
creative, artistic or dramatic taste and judgment). Artist
shall meet or collaborate with persons designated by Producer
at such time and place as Producer may designate.
6. COMPENSATION: Provided that the Picture is produced and released as a
feature length theatrical motion picture, and provided Artist is not in
breach or default of any representation warranty or obligation
hereunder, Mist shall be entitled to the following:
Net Receipts: An amount equal to 100% of the Net Receipts, if any, of the
Picture until Artist receives a sum of $25,000. "Net Receipts" shall be
defined, computed, paid and accounted for in accordance with Producer's
standard definition of Net Receipts, provided such definition defines Net
Receipts as the gross receipts received by or credited to the account of
Producer from all sources of exploitation of the Picture in excess of the
aggregate of: (i) the final production cost of the Picture (including,
without limitation, the spent portion of the contingency, third party legal
fees and any deferments paid by Producer in connection with the Picture);
(ii) actual interest and finance costs paid by Producer with respect to the
cost of the production; and (iii) 10% overhead. Producer makes no
representation that the Picture will generate, any, or any particular amount
of, Net Receipts.
Said compensation is an all-inclusive flat fee and no additional compensation
shall be payable by reason of overtime, weekend work, holidays, etc. No
additional payments shall be required for services rendered at night or on
Saturdays, Sundays or holidays or for meal delays, hazardous work, violation
of rest periods, or otherwise.
7. CREDIT: If the Picture is produced and if Artist fully performs all
services and materials obligations as producer of the Picture, then
subject to Producer's standard exclusions and exceptions (including
artwork title exceptions), Producer shall accord Artist the following
credit:
a. On screen: On a card to be shared only with other producer(s),
in the main titles (i.e., where the individual credits for the
principal cast and individual Producer(s) appear, whether
located at the beginning or the end of the Picture) on all
positive prints of the Picture in a size of type not less than
that used for credit to any other individual in connection
with the Picture.
b. In paid advertising: In the billing block portion of any paid
advertising relating primarily to the Picture issued by, or
under the control of, Producer ("Paid Ads")
in a size of type not less prominent than that used for credit
to any other individual in connection with the Picture.
c. Exclusions and exceptions: Producer's Paid Ad credit
obligations shall not apply to the following ("Excluded Ads"):
group, list, institutional or so-called teaser advertising;
announcement advertising; advertising relating primarily to
the source material upon which the Picture is based, or to the
author, any member of the cast, the Producer(s), Artist(s) or
any other personnel involved with the production of the
Picture; so-called "award" or "congratulatory" advertisements,
including advertisements or announcements relating to
consideration or nomination for an award; trailers (including
promotional films) or other advertising; screen, radio or
television advertising; advertising in narrative form;
advertising for film festivals, film markets and the like;
advertising1/2page (or the equivalent in SAU's) in size or
less; outdoor advertising (including, but no limited to,
24-sheets); theater display advertising; advertising in which
no credit is accorded other than credit to one or two stars of
the Picture and/or to Producer and/or to any other company
financing or distributing the Picture. The following items
shall not be considered Paid Ads or Excluded Ads for any
purposes hereunder: videocassettes, videodiscs and other home
video devices and the covers, packages, containers or jackets
therefor; publicity or promotional items and materials;
advertising relating to subsidiary or ancillary rights in the
Picture (including, but not limited to, novelizations,
screenplays or other publications, products, merchandising,
music publishing or soundtrack recordings); voice-overs;
advertising, publicity and exploitation relating to
by-products or commercial tie-ins; and other advertising not
relating primarily to the Picture; or other customary excluded
advertising of any distributor(s) of the Picture.
d. General terms: All other matters with respect to Artist's
credit shall be determined by Producer in its sole discretion.
Any reference to the "title" of the Picture shall be deemed to
mean the "regular" title unless such reference is specifically
made to the "artwork" title. Producer shall inform its
licensees of the above credit information. The casual or
inadvertent failure by Producer or any failure by a third
party to comply with the credit provisions of this Agreement
shall not be deemed to be a breach by Producer. Producer
agrees upon receipt of written notice from Artist of a failure
to comply with the credit provisions of this Agreement to take
such steps as are reasonable and practicable to cure such
failure on a prospective basis as to future prints and
advertisements, as applicable, which are distributed or issued
by Producer or under the control of Producer.
8. DELIVERY/LENGTH/RATING/COVER SHOTS: Artist shall deliver the completed
Picture to Producer within a post-production schedule and delivery date
approved by Producer, and in this regard time is of the essence.
"Delivery" shall be deemed to have occurred only upon Artist's delivery
to Producer of an answer print which conforms with all of Producer's
delivery requirements, including, without limitation, the following
requirements; provided, however, that in the event that the
requirements for the delivery,
length, rating and cover shots set forth in the agreement for the
director of the Picture are less restrictive than Artist's
requirements, then such less restrictive delivery, length, rating and
cover shots requirements shall apply:
a. The Picture shall have a running time, including main and end
titles, of not less than 80 minutes and no more than 110
minutes, shall be photographed on 35mm film, in the English
language and in color.
b. The Picture shall adhere to the existing producer-approved
shooting script as of the commencement of principal
photography of the Picture, and Artist shall not make any
changes therein without the prior written approval of
Producer, excepting only minor changes required by the
exigencies of production.
c. The Picture shall qualify for an MPAA rating no more
restrictive than "R".
d. Artists shall photograph and furnish to Producer "cover shots"
and alternative scenes and dialogue which can be incorporated
into the Picture to render it suitable for exhibition on
United States network primetime television and Artist shall
deliver to Producer a television version which shall be in
accordance with applicable network "Standard and Practices"
regulations. Such cover shots and alternate scenes and
dialogue shall be such that same can be integrated into such
primetime network version of the Picture without materially
changing or impairing the continuity of the storyline of the
Picture. Producer shall have the absolute right to use such
cover shots and/or cut the Picture (or such television
version) in order to meet broadcast requirements.
e. Artist will comply with Producer's budget and business
practices.
9. NAME AND LIKENESS: Artist also hereby grants to Producer the perpetual
right to use and display Artist's name and/or likeness and/or
biographical material for advertising, publicizing, promoting and
exploiting, in whole or in part, the Picture, and all subsidiary and
ancillary rights of any nature relating to the Picture, or Artist's
services hereunder, in any and all media now known or hereafter
devised, including, but not limited to, featurettes, promotional films
and/or commercial tie-ins. The foregoing shall not be construed as
granting Producer the right to use Artist's name or likeness in
connection with any merchandising items, except that Producer may use
Artist's name as contained in the billing block of the Picture in
connection with such uses. Artist shall have the right to furnish
Producer with a written biography of Artist. Provided Artist delivers
such material to Producer within 5 business days after Producer's
request therefor, Producer shall use good faith efforts to utilize
information contained therein in connection with the advertisement,
publicity, promotion and/or exploitation of the Picture.
10. UTILIZATION OF SERVICES / "PAY OR PLAY":
a. Producer's rights: Producer is not obligated to produce,
distribute and/or exploit the Picture, or, if commenced, to
continue the production, distribution or exploitation of the
Picture in any territory; provided that in no event shall the
foregoing limit Producer's obligation to pay sums accrued and
unpaid to Artist hereunder, including pursuant to any
"pay-or-play" obligation hereunder. Regardless of whether or
not Producer elects to produce, distribute and/or exploit the
Picture (or to commence same) Producer is not obligated to use
the services in whole or in part of Artist hereunder.
b. "Pay or Play": Artist shall be deemed to be "pay or play" for
purposes of the preceding section upon notice in writing to
Artist of Producer's election to make Artist "Pay or Play" or
when all of the following have occurred:
(i) Producer has approved, in its sole discretion, the
final shooting script, budget and production and
post-production schedules for the Picture; and
(ii) All principal cast members of the Picture have been
made unconditionally "pay or play" for their fixed
compensation; and
(iii) Producer's receipt of a signed agreement (in form and
substance satisfactory to Producer) with the
financier by which such financier unconditionally
agrees to finance the Picture; and
(iv) Producer's receipt of a signed agreement (in form and
substance satisfactory to Producer) with the
insurance company by which such company agrees to
insure the Picture (including errors and omissions
insurance).
11. RESULTS AND PROCEEDS / DROIT MORAL:
a. Producer shall be the sole and exclusive owner, in perpetuity
and throughout the universe, of (i) the results and proceeds
of Artist's services hereunder which shall be a "work made for
hire" for Producer under the U.S. Copyright Law, specially
ordered or commissioned for use as a part of a motion picture
or other audio- visual work and/or prepared within the scope
of Artist's employment; (ii) all right, title and interest in
and to the Picture and the material upon which it is based,
including but not limited to, the copyright in and to the
Picture and any renewals and extensions of such copyright;
(iii) all distribution, exhibition and exploitation rights in
the Picture and the results and proceeds of Artist's services
hereunder in any and all media, whether now known or hereafter
devised; (iv) any and all allied, ancillary and subsidiary
rights in and to the Picture; and (v) all other tangible and
intangible rights, properties, and proceeds of every kind and
nature in and to the Picture and in each of the foregoing, in
every stage of development, production and completion. Artist
hereby specifically acknowledges that the compensation payable
hereunder by Producer includes and is full and adequate
compensation in
respect to any right to which Artist may now be or shall
hereafter become entitled to (including Artist's rental and
lending rights to the Picture and other derived products). If
under the applicable law of any territory or jurisdiction, any
additional or different form of compensation is required with
respect to rental and lending rights, Producer and Artist
agree that the grant of said rights shall nevertheless be
fully effective; provided, however, that Producer shall pay
Artist the minimum compensation required, if any, under such
applicable law or, if required by such law, the parties shall
in good faith negotiate the amount hereof in accordance with
the applicable law, and further provided that any sums paid to
Artist pursuant to this Agreement, including, without
limitation, the Cash Compensation, any payments in excess of
the minimum required under any applicable collective
bargaining agreement and any payments in connection with the
exploitation of the Picture in supplemental and ancillary
markets and media shall be credited toward the amount required
to be paid to Artist under such law to the maximum extent
allowed. Without limiting the generality of the foregoing, in
the event the results and proceeds of Artist's services
hereunder are not deemed to be a "work-made-for-hire" for
Producer, Artist hereby irrevocably and exclusively grants and
assigns all right, title and interest in and to such results
and proceeds to Producer, including all rights of every kind
and nature therein and thereto, throughout the universe, in
perpetuity, in any and all media whether now known or
hereafter devised, and all copyrights, renewals rights and
extensions thereof. Artist hereby waives any so-called "moral
rights of author" or "droit moral" rights Artist may have in
connection with the Picture.
b. No termination of this Agreement shall affect the rights
granted hereunder by Artist, and the representations and
warranties of Artist shall survive such termination.
12. PUBLICITY LIMITATIONS: Artist shall not by means of press, publicity or
advertising agencies employed or paid by Artist, or otherwise,
authorize, circulate, publish or otherwise disseminate any news stories
or articles or other publicity of any kind, containing Artist's name
and relating directly or indirectly to Artist's engagement, the subject
matter of this Agreement, the Picture, or the services to be rendered
by Artist or others in connection with the Picture, unless the same are
first approved in writing by Producer. Artist may, however, disseminate
publicity which contains Artist's name and incidentally identifies the
Picture and the services Artist rendered thereon so long as such
publicity is not an advertisement for the Picture and does not contain
any material which is derogatory in nature to Producer, the Picture or
any element thereof or individual(s) or entity(ies) rendering services
in connection therewith.
13. INJUNCTIVE RELIEF: Artist acknowledges that the services to be rendered
by Artist hereunder are of a special, unique, unusual, extraordinary
and intellectual character, making them difficult to replace and giving
them a peculiar value, the loss of which cannot be reasonably
compensated in damages in an action of law; that if Artist breach any
provision of this Agreement, Producer will be caused irreparable
damage; and that,
therefore, Producer shall be entitled, as a matter of right, at its
election, to enforce this Agreement in all of the provisions hereof by
injunction or other equitable relief.
14. CONTINGENCIES:
a. Suspension: In the event of Force Majeure (e.g., interruption
of or material interference with the preparation,
commencement, production, completion, or distribution of the
Picture or of a substantial number of motion pictures produced
and/or proposed to be produced by Producer by any cause or
occurrence beyond the control of Producer, including fire,
flood, epidemic, earthquake, explosion, accident, riot, war -
declared or undeclared -, blockade, embargo, act of public
enemy, civil disturbance, labor dispute, strike, lockout,
inability to secure sufficient labor, death or disability of
key personnel rendering services on the Picture other than
Artist, power, essential commodities, any applicable law or
any act of God), or any capacity of Artist which prevents
Artist from performing or complying with any of the material
terms or conditions of this Agreement ("Artist's incapacity"),
or any failure or refusal by Artist to perform or comply with
any of the material terms or conditions hereof at the times
and in the manner specified (other than by reason of Force
Majeure or Artist's Incapacity) ("breach by Mist"), Producer
shall have the right, by notice to Mist, to postpone the
commencement of or suspend the rendition of services by Mist
and/or the running of time hereunder, which suspension shall
commence as of the occurrence of the event. Such suspension
shall end within 2 weeks (or, if such event is a breach by
Mist, 4 weeks) after the cessation of such event.
b. Termination:
(i) Producer termination right: If an Artist's incapacity
continues for a consecutive period in excess of 10
days or an aggregate period in excess of 14 days
during the performance of Artist's services
hereunder, or if a Force Majeure continues in excess
of 6 consecutive weeks, or if there is a breach by
Artist, Producer shall have the right to terminate
this Agreement by written notice to Artist, which
termination shall be effective as of the effective
date set forth in such notice. Prior to a termination
of this Agreement by Producer based upon the first
breach by Artist, Producer shall notify specifying
the nature of the breach and Artist shall have a
period of 2 business days (1 business day during
principal photography) after receipt of Producer's
notice within which to cure such first breach. Even
if such breach is cured within said period, Artist
shall remain liable for damages and expenses occurred
by Producer as a result of such breach. If such
breach is not cured to the reasonable satisfaction of
Producer within said period, Producer may terminate
this Agreement as set forth above. If Artist dies,
this Agreement shall immediately and automatically
terminate.
(ii) Artist termination right: If Producer suspends
payment of compensation due to a Force Majeure for 6
weeks or more, Artist shall have the right to
terminate this Agreement and Producer shall
subsequently have the right to re-establish the
operation of this Agreement within 1 week after
receipt of Artist's termination notice and resumption
of payment of compensation, if any, due Artist
hereunder, and the operation hereof, if so
re-established, shall not thereafter be suspended
because of the same event of Force Majeure.
c. Right of examination: If any claim disputing the existence of
Artist's incapacity is made by either party, Producer shall
have the right to have Artist examined by such physicians as
Producer may designate. Artist's own physician may be present
at such examinations at Artist's sole cost and expense,
provided Artist's physician shall not interfere with any such
examination.
d. Effect of suspension: During the period of any suspension, no
compensation or other benefits hereunder shall accrue, become
payable or be provided to Artist. Artist shall not render
services for any third party during the exclusive period.
Nevertheless, Artist shall have the right to cause Artist to
render services to third parties during any Force Majeure
suspension, subject to Producer's right to require Artist to
resume services hereunder upon 48 hours' prior notice.
Producer shall have the right (exercisable at any time) to
extend the period of services of Artist and the running of
time hereunder for a period equal to the period of such
suspension.
e. Effect of termination: Except with respect to the "pay or
play" provisions, termination of this Agreement for any reason
shall release and discharge Producer from all further
obligations whatsoever to Artist and shall terminate any
rights of Mist hereunder. Nevertheless, if the termination is
not for a breach by Artist, Producer shall pay any Cash
Compensation due and unpaid prior to the termination.
15. NOTICES AND PAYMENTS: Any notice pertaining hereto shall be in writing.
Any such notice and any payment due hereunder shall be served by
delivering said notice or payment personally or by sending it by mail
(postage prepaid) addressed as follows:
To Artist: Xxxxxxxx Xxxxx
000 Xxxxx Xx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
To Producer: Total Media Corporation
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Telecopier: (000) 000 0000
The date of personal delivery, mailing of such notice or payment shall be deemed
the date of service of such notice or payment.
16. REPRESENTATIONS AND WARRANTIES: Artist represents and warrants that:
(a) all material created, added, interpolated and/or submitted by
Artist for the Picture (other than material specifically furnished by
Producer for use by Artist) shall be wholly original with Artist and,
to the best of Artist's knowledge (including that which Artist should
have known, in the exercise of reasonable prudence), is not the subject
of any actual or threatened litigation or claim, and shall not infringe
upon or violate the rights of privacy of, or constitute defamation of
any party, or violate any common law, statutory rights or any other
rights of any party; (b) Artist is not under any obligation or
disability, which will in any manner prevent or restrict Artist from
entering into and freely performing this Agreement as herein provided;
and (c) Artist has not accepted nor paid, nor will Artist accept or pay
or agree to accept or pay any money, service or other valuable
consideration as defined in Section 507 of the Federal communication
Act of 1934, as amended, for the inclusion of any matter in the
Picture, other than payment by Producer to Artist hereunder. The terms
of this Paragraph shall survive the expiration or termination of this
Agreement.
17. INDEMNITY:
a. Artist will indemnify Producer, its associates, affiliated and
related entities, successors, assigns, licensees, officers,
directors, employees and agents, and hold them harmless from
and against any and all claims, liabilities, damages, costs
and expenses, including reasonable outside attorneys' fees,
arising out of, resulting from, based upon or incurred because
of a breach by Artist of any agreement, representation or
warranty made by Artist hereunder. Except with respect to (i)
matters constituting a breach by Artist of any of the
representations, warranties and/or agreements contained in
this Agreement; and/or (ii) gross negligence or willful
misconduct by Mist, Producer shall indemnify Artist and hold
him harmless from and against any and all liability, damages,
costs and expenses, including reasonable attorneys' fees,
(other than with respect to any settlement entered into
without Producer's prior written consent) arising out of any
third party claim against Artist resulting from (i) any
material supplied by Producer for use in connection with the
Picture; and (ii) Producer's development, production,
distribution and/or exploitation of the Picture.
b. Producer and Artist shall, upon presentation of any claim or
institution of any action covered by the foregoing indemnity
provisions, promptly notify the other of the presentation of
such claim or the institution of such action, giving full
details thereof.
18. RIGHT TO WITHHOLD: Producer shall have the right to deduct and withhold
from any sums payable to Artist hereunder any amounts required to be
deducted and withheld by Producer pursuant to any present or future
law, ordinance or regulation of the united States or of any state
thereof or any subdivision of any state thereof, or any other country,
including without limitation, any country wherein Artist performs any
of his services hereunder, or pursuant to any present or future rule or
regulation of any union or guild (if any) having jurisdiction over the
services to be performed by Artist hereunder.
19. INSURANCE: Producer shall have the right to apply for and take out, at
Producer's expense, life, health, accident, cast or other insurance
covering Artist, in any amount Producer deems necessary to protect
Producer's interest hereunder. Artist shall not have any right, title
or interest in or to such insurance. Artist shall assist Producer in
obtaining such insurance by submitting to usual and customary medical
and other examinations, and by signing such applications, statements
and other instruments as may be reasonably required by any insurance
company. In the event Artists fails or is unable to qualify for such
insurance at customary rates and subject only to customary exclusions
and deductible amounts (if any), Producer shall have the right to
terminate this Agreement. During the term of this Agreement, Artist
shall not travel on any chartered or unscheduled airline or plane,
unless requested to do so by Producer, or engage in any conduct
prohibited by any policy of insurance obtained by Producer in
accordance with this Agreement.
20. E&O / GENERAL LIABILITY INSURANCE: Artist shall be covered by the
errors and omissions and general liability insurance policies for the
Picture to the extent that Producer obtains and maintains same and
subject to the terms, conditions and restrictions of such policies and
endorsements thereto.
21. MISCELLANEOUS:
a. Governing law / legal proceedings / non-waiver / effect of
termination / entire agreement / separability: This Agreement
shall be governed and construed in accordance with the laws of
the State of California applicable to contracts entered into
and fully performed therein. Only the California courts (state
and federal) shall have jurisdiction over controversies
regarding this Agreement; any proceeding involving such
controversies shall be brought in those courts, in Los Angeles
county, and not elsewhere. Any process in such proceedings may
be served upon Artist by, among other methods, delivering it
or mailing it, by registered or certified mail, directed to
such address Artist designated in this Agreement. Any such
delivery or mail service shall have the same effect as
personal services within the State of California. No waiver by
Artist or Producer of any failure by the other to keep or
perform any covenant or condition of this Agreement shall
constitute a waiver of any preceding or succeeding breach of
the same or any other covenant or condition. Neither the
expiration nor termination of this Agreement shall affect
Producer's ownership of the results and proceeds of Artist's
services hereunder or alter Producer's rights therein, or any
warranty or undertaking made by Artist hereunder. This
Agreement constitutes the entire agreement between Producer
and Artist with respect to the subject matter and may only be
amended by a written instrument executed by Producer and
Artist.
b. Visas and labor permits: Artist shall cooperate with Producer
and assist Producer in securing such visas and labor permits
which may be required by any governmental agency in connection
with Artist's rendition of services hereunder. If, in spite of
such cooperation and assistance, Producer is unable to secure
such visas and labor permits within a reasonable period of
time prior to the Start Date, Producer shall have the right to
suspend Artist's services hereunder until a final
determination concerning such visa or labor permit is made by
the applicable authority, and Producer shall have the right to
terminate this Agreement and Artist's engagement hereunder if
such visas and labor permits cannot be secured.
c. Remedies cumulative: All remedies accorded herein or otherwise
available to either Producer or Artist shall be cumulative and
no one such remedy shall be exclusive of any other. Without
waiving any rights or remedies under this Agreement or
otherwise, Producer may from time to time recover, by action
at law, any damages arising out of any breach of this
Agreement by Artist and may institute and maintain subsequent
actions for additional damages which may arise from the same
or other breaches. The commencing or maintaining of any such
action or actions by Producer shall not constitute an election
on Producer's part to terminate this Agreement nor constitute
or result in the termination of Artist's services hereunder
unless Producer shall expressly so elect by written notice to
Artist.
d. Artist's remedies: No action or omission by Producer shall
constitute a breach of this Agreement unless Artist first
notifies in writing setting forth the alleged breach or
default and Producer does not cure the same. If Producer
breached its obligations hereunder, the damage, if any, caused
Artist shall not be irreparable or sufficient to entitle
Artist to injunctive or other equitable relief. Consequently,
Artist's rights and remedies shall be limited to the right, if
any, to obtain damages at law and Artist shall not have any
right in such event to terminate or rescind this Agreement or
any of the rights granted to Producer hereunder or to enjoin
or restrain the development, production, advertising,
promotion, distribution, exhibition or exploitation of the
Picture and/or any of Producer's rights hereunder. Producer's
payment of any compensation or performance of any obligation
hereunder shall not constitute a waiver by Producer of any
breach by Artist or of any rights or remedies which Producer
may have as a result of such breach.
e. Captions: The captions used in connection with the paragraphs
and subparagraphs of this Agreement are inserted only for the
purposes of reference. Such captions shall not be deemed to
govern, limit, modify, or in any other manner affect the
scope, meaning, or intent of the provisions of this Agreement
or any part thereof, nor shall such captions otherwise be
given any legal effect.
f. Illegality: Nothing contained herein shall require the
commission of any act or the payment of any compensation which
is contrary to law, and if there shall exist any conflict
between any provision contained herein and any law, regulation
or
provision of any applicable collective bargaining agreement,
the latter shall prevail, and the provision or provisions
herein affected shall be curtailed, limited or eliminated to
the extent (but only to the extent necessary to remove such
conflict), and as so modified, this Agreement shall continue
in full force and effect.
g. Assignment: This Agreement is non-assignable by Artist;
however, Artist may assign to Fluid Films, Inc. the right to
his Fixed Compensation as defined in Paragraph ---. hereof
provided a notice of irrevocable assignment in Producer's
usual form shall be signed by Owner and the assignee and
delivered to Producer. This Agreement may be assigned freely
by Producer, in whole or in part, to any party (including any
successor entity or other party acquiring all or substantially
all of the business or assets of Producer or into which
Producer is merged or consolidated), without restriction, and
such assignment shall be binding upon Artist and inure to the
benefit of Producer's successors, assignees, licensees,
grantees and associates, affiliated and subsidiary entities
and shall be deemed a novation forever releasing and
discharging Producer from any further liability or obligation
to Artist.
h. Further instruments: Artist shall duly execute, acknowledge
and deliver to Producer or cause to be executed, acknowledged
and delivered to Producer, any and all assignments or
instruments which Producer may deem necessary to carry out and
effectuate the purposes and intent of this Agreement,
including, without limitation separate assignments of any
rights granted by Artist in this Agreement. Artist hereby
irrevocably grant Producer the power coupled with an interest,
with rights of substitution and delegation, to sign such
separate documents in Artist's name and as Artist's
attorney-in-fact if Artist have not complied with Producer's
request within 5 business days thereafter (or such shorter
period of time as Producer shall reasonably require. If
Producer signs any document as Artist's attorney-in-fact,
Producer will provide Artist with copies of any such documents
(but failure to do so shall not constitute a breach).
This Agreement constitutes the entire understanding of the parties hereto and
replaces any and all formal agreements, understandings and representations,
either oral or written, relating in any way to the subject matter hereto. No
modifications, alterations or amendments of this Agreement shall be valid or
binding unless it is in writing and signed by the party to be charged with such
modification, alteration or amendment.
By signing in the spaces provided below, Producer and Artist accept and agree to
all of the terms and conditions hereof.
The parties hereto have executed and delivered this Agreement as of the date
first written above.
TOTAL MEDIA CORPORATION
By: /s/ Xxxxxx Xxxxx
Its: CEO
AGREED TO AND ACCEPTED:
/s/ Xxxxxxxx Xxxxx
