Draft submitted from NJR MUSIC for definitive approval - 11/02/2005
LICENSING AGREEMENT
BETWEEN:
SKREEM ENTERTAINMENT CORPORATION
Registered in the State of Nevada with the Fed. ID #00-0000000
Located at 00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000 XXX
Represented by its President/CEO Xx. Xxxxxxx Xxxxxxxx
Hereinafter referred to as `THE PRODUCER'
On the one hand,
AND:
NRJ MUSIC
SARL, with a capital of 7.622,45 (euro) RCS PARIS B 421 640 525 Located 00 xxx
Xxxxxxx - 00000 XXXXX
Represented by its General Manager Xx. Xxxx-Xxxxxxx XXXXXX
Hereinafter referred to as '`THE COMPANY'
On the other hand,
WHEREBY IT IS MUTUALLY AGREED AS FOLLOWS
ARTICLE 1 - DEFINITIONS
The parties agree to the following definitions pursuant to this agreement:
1. `Phonographic medium' means any physical medium enabling the fixation
and/or sound reproduction, by whatever recording process, known, or
presently unknown, whatever the nature of the medium, including but not
limited to compact discs and magnetic tapes, whether based on mechanical,
magnetic, acoustic, digital, optical, or other processes, and whatever its
use.
2. `Videographic medium' shall mean any physical medium enabling the fixation,
and or the reproduction of any synchronized sequence of images and sound,
by whatever mean of recording process, known or presently unknown, whatever
the nature of the medium, including but not limited to videodiscs,
videocassettes, optical or magnetic films, video compact discs, magnetic
tapes or wires etc.) and whatever its use.
3. `Multimedia medium' means any physical medium enabling the fixation and/or
reproduction of any sequences, synchronized or not, with sound, fixed or
moving images, texts, data of any kind connected with a computer program,
whatever the recording process known or presently unknown, whatever the
nature of the medium including but not limited to optical-digital type
media: CD ROM, Digital Versatile Disc, etc., .) and whatever its use.
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4. `Recording' means the first fixation on the master tape or matrix of any
phonogram, videogram, or multimedia program.
5. `Master tape', `matrix' or `master' means any original audio, audiovisual
or multimedia medium used for the first fixation of a phonogram, videogram,
or multimedia program, by whatever means of technical fixation used,
including but not limited to analogical or digital.
6. `Phonogram' or `track' means any exclusively audio fixation of sounds
resulting from the instrumental performance and/or vocal interpretation of
any musical work with or without lyrics, by whatever recording process and
for whatever purpose.
7. `Videogram' means any fixation of images, whether dubbed or not, by
whatever recording process and for whatever use.
`Multimedia program' means any fixation of any sequences, synchronized or
not, of sounds, fixed or moving images, texts, data, connected with a
computer program enabling its user to manipulate it in an interactive way.
8. `Unpublished phonogram' or `unpublished track' means any exclusively audio
fixation of the sounds resulting from the ARTIST's instrumental and/or
vocal performance of any `unpublished musical work with or without lyrics'.
`Unpublished musical work with or without lyrics' means any musical work
which has never been published in any phonographic form, prior to the
recording made in performance of this agreement.
`Unpublished album' (respectively `unpublished single') means an album
(respectively a single) consisting exclusively of unpublished tracks
performed by the ARTIST in Spanish and/or English and/or in any other
language after prior approval of the COMPANY.
9. `Videomusic' or `videoclip', means any videogram of whatever sort and/or of
whatever length dubbed by a phonogram, or an excerpt thereof.
10. `Program' means a succession of phonograms and/or videograms and/or multi
media programs.
11. `Long form' means a videogram which is devoted either in part or in whole
to the ARTIST's career, and which may include :
- excerpts of the ARTIST's videograms recorded during the ARTIST's public
performances,
- one or more of the ARTIST's videoclips, either in whole or excerpts
thereof,
- one or several interviews or excerpts from audiovisual programs on the
ARTIST,
- any other audiovisual sequence which is devoted to the ARTIST in whole or
in part.
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13. `Album (LP)' means a program consisting of at least 12 (twelve) phonograms,
with a total recording time no less than 45 (forty five) minutes of music.
14. `Mini-Album (EP)'means a program consisting of 6 (six) to 9 (nine)
phonograms, for a total recording time ranging from 20 (twenty) to 40
(forty) minutes of music.
15. `Maxi Single (MSP)' means a program consisting of 4 (four) to 5 (five)
phonograms (unpublished or remixed, or live versions, etc) whatever its
length.
16. `Single (SP)'means a program consisting of 1 (one) to 3 (three) phonograms
of a length no less than 3 (three) minutes of music per track (two or more
versions of one trackcount for one track).
17. `CD Extra' means a digital multimedia medium including principally a
section reproducing one or several phonogram(s), and secondarily a
multimedia program, which can be read by a phonogram player or by a
multimedia computer.
18. `Sales in normal distribution channels' means :
- the sales of phonographic media or videographic media or multimedia listed
in the COMPANY's and/or its affiliates', licensees' and distributors'
catalogues, made directly by the COMPANY and/or its affiliates, licensees
and distributors by its or (their) own sales force, to retail stores,
newsstands, stationery stores, and tobacconists, wholesalers, big stores
and supermarkets.
- Distance sales of phonographic or videographic media or multimedia listed
in the COMPANY's and /or its affiliates', licensees' and distributors'
catalogues, made directly by the COMPANY and/or affiliates, licensees and
distributors to the public.
Contrary to the above, sales that are not considered to be made in normal
distribution channels, include but are not limited to :
- Sales through mail order clubs, by direct mail,
- sales of `newstand products', that is, sales of all specific media not
listed in the COMPANY's catalogue and which are distributed through
newsstands, stationery stores and tobacconists.
- sales of all media produced specifically for a special customer not
listed in COMPANY's and /or its affiliates', licensees'
and distributors' catalogues,
19. `Reference' means any phonographic medium reproducing an album, which is
identified by a catalogue number (which may possibly be modified during the
course of the exploitation, notably by adding additional tracks to the
album), as well as phonographic media reproducing singles and maxisingles
which are excerpts from the said album.
20. `Date of commercial release' means the date that the phonographic media or
videographic media or multimedia reproducing the recordings referred to in
this agreement are put on sale to the public, as is formalized by the date
on the information sheet published by the COMPANY and issued by the
COMPANY's representatives to its customers.
21. `Making available to the public' means any method of distribution, by sale,
exchange, or rental, including any form of distribution by digital data
networks, of the phonograms, videograms, or multimedia programs
implementing the PRODUCER's prior authorization rights in his capacity as
Producer as defined in articles L 213-1 and L 215-1 of the Intellectual
Property Code (Code de la Propriete Intellectuelle).
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22. "Mid-priced Records" means Albums, Compact Disc or other Phonograph records
or other equivalents sold in a particular country of the Territory at a PPD
that is no less than 65% (sixty five percent) of the PPD of the majority of
the COMPANY or its exclusive licensee's then-current, newly released,
top-price records in such configuration but no more than 75% (seventy five
percent) of the PPD of the majority of the COMPANY or its exclusive
licensee's then-current, newly-created, top-price records in such
configuration.
23. "Budget Records" means Albums, Compact Disc or other Phonograph records or
other equivalents sold in a particular country of the Territory at a PPD
that is inferior or equal to 65% (sixty five percent) of the PPD of the
majority of the COMPANY or its exclusive licensee's then-current, newly
released, top-price records in such configuration.
ARTICLE 2 - THE PRODUCER'S WARRANTIES
The PRODUCER produces the recordings performed by (3rd WISH) pka 3rd WISH
(Hereinafter called "the ARTIST"), under his own liability and at his own
expense, with the person with whom he declares and warrants to have signed an
exclusive agreement for a duration, which is at least equal to that of the
present agreement for the territory defined below, and for which he has
generally obtained all of the rights granted to the COMPANY in accordance with
this agreement.
The PRODUCER shall deliver to the COMPANY on the date of signature of the
present agreement an inducement letter duly signed by the ARTIST.
It is stipulated that the delivery of the above-mentioned inducement letter
certifying the rights licensed to the COMPANY is a material requirement of this
agreement.
The PRODUCER warrants the COMPANY against any claim by a third party concerning
these recordings, and the exclusivity of the said recordings. In particular, he
warrants that he is authorized to freely dispose of the said recordings which he
owns, and without any other payments other than those which are specifically set
forth in this agreement, with a view to reproducing them on all media, and
notably on all phonographic media, videographic media, or multimedia, by
whatever means of recording process known, or presently unknown, for their
communication to the public and for making them available to the public by
whatever means.
The PRODUCER warrants and represents that no Master Recording delivered under
this agreement, no names used by the COMPANY, and no materials (including
without limitation Master Recordings, Artwork, COMPANY's name, ARTIST's name,
XXXX XXXX'x name) furnished under this agreement will violate any law or
infringe upon any other person's rights.
More generally, the PRODUCER warrants the COMPANY against any claim by a third
party concerning the exploitation of the rights granted to the COMPANY under
this agreement.
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The PRODUCER shall notably hand over copies of the duly signed agreements
assigning the musicians' and backing vocalists' rights to the recordings, which
are the purpose of this agreement to the COMPANY and which warrant the PRODUCER
the assignment of all rights (reproduction rights, exploitation rights, etc)
licensed to the COMPANY under this agreement.
It is stipulated that the delivery of these above-mentioned agreements
certifying the rights licensed to the COMPANY is a material requirement of this
agreement. Consequently, the commercial release of the recordings as well as the
payment of advances on the royalties which are stipulated in this agreement can
be automatically suspended upon failure to deliver them to the COMPANY within
the stipulated deadlines and until they have effectively been delivered to it.
In addition, the COMPANY can unilaterally terminate this agreement and the
PRODUCER shall be totally at fault, without prejudice to the damages which the
COMPANY may claim, if the PRODUCER cannot deliver the said agreements of
assignment to the COMPANY within 15 days following the COMPANY's request by
registered letter with return receipt.
ARTICLE 3 - PURPOSE
The PRODUCER licenses the exclusive right to the audio and/or audiovisual
recordings of the ARTIST, covered by the present agreement, for the purpose of
reproducing them on all media, and notably phonographic media, videographic
media, or multimedia by whatever means of recording process known, or presently
unknown, for communication to the public, and the making available to the public
by any means, for the territory and term set forth in articles 4 and 5 below, to
the COMPANY or any company belonging to NRJ GROUP, which the COMPANY forms part
of, or which it could substitute for in the execution of this agreement.
ARTICLE 4 - TERRITORY
The exclusive right to the recordings indicated above is granted for the
following territory :
France (Dom Xxx included), Andorra and Monaco.
ARTICLE 5 - TERM OF THE EXPLOITATION
This agreement goes into effect from the date of signature, and shall end 5
(five) years after the date of the commercial release of the last recording
which the PRODUCER supplies to the COMPANY, in accordance with the provisions of
article 6 or of article 13, below, depending on the case.
However, it is expressly agreed that, if the COMPANY exercises its option in
accordance with the provisions of article 6, the term of the exploitation shall
end 5 (five) years after the date of the commercial release of the last
recording which the COMPANY supplies to the COMPANY, in accordance with the
provisions of article 6 or of article 13 below, depending on the case.
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ARTICLE 6 - SUPPLYING THE RECORDINGS
1. The phonograms and the videograms which are supplied by the PRODUCER to
the COMPANY pursuant to this agreement shall be delivered mixed and
mastered on Exabyte and DAT media or CD for the phonograms, and on Beta
Digital and Beta Sp for the videograms. Similarly, in the event of
vinyl edition, the PRODUCER shall pay all engraving costs.
2. The PRODUCER shall supply the COMPANY with the photoengraving films,
and the cromalins which are required for printing the sleeves or the
booklets for the phonographic media and/or videographic media
reproducing the recordings which are purpose of this agreement
(singles, albums, or other formats) as well as their reproduction on CD
ROM.
However, it is expressly agreed that the PRODUCER and the COMPANY shall
select the photos and/or the illustrations required for producing said
films by mutual agreement.
The PRODUCER shall supply the COMPANY with the Masters of the 1st
single entitled "Obsession" (hereafter "SP n(degree)1) and the items
mentioned in the first paragraph of the present Article 6.2, on the
date of signature of the present agreement.
In the event, the COMPANY takes responsibility for creating the dummy
of the visuals and/or producing the photoengraving films on behalf of
the PRODUCER, the corresponding sums shall be rebilled to the PRODUCER
who undertakes to pay them on receipt of the invoice.
3. The PRODUCER, warrants the COMPANY that all of the material supplied
pursuant to this agreement shall be free of rights. Furthermore, the
PRODUCER shall supply the COMPANY with copies of the agreements
assigning the rights relating to the material delivered to the COMPANY
in conformity with this agreement, and notably :
The agreements certifying the assignment of the photographers' or the
graphic designers' rights concerning the photographs or illustrations
supplied by the PRODUCER under this agreement, for any exploitation
referred to in this agreement, duly signed.
4. In the event the PRODUCER wishes to remix one of the phonograms
appearing on the singles or albums supplied to the COMPANY under this
agreement, the PRODUCER shall be exclusively responsible for paying the
costs arising from this new mix (called `Remix').
However, if the COMPANY undertakes a `Remix' of a phonogram, the
COMPANY agrees to pay the related costs, and the corresponding sums
shall be deducted from the PRODUCER's royalties account, being
specified that the corresponding remix budget shall be determined by
mutual agreement. Said sums shall be recoupable by directly offsetting
them against any sums which are or shall be owed to him, under this
agreement. The PRODUCER shall have final approval over the content and
quality of any "Remix" produced by the COMPANY.
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5. In the event the remixes undertaken by the COMPANY or its exclusive
licensee are exploited outside the Territory by the PRODUCER or its
third party licensees, the COMPANY shall get a remix contribution in an
amount to be determined by mutual agreement.
ARTICLE 7 - COPYRIGHT
The COMPANY shall be exclusively responsible for paying the mechanical
reproduction fees for the musical works on all phonographic media, videographic
media or multimedia. It is stipulated, however, that this payment by the
COMPANY, with respect to singles and/or maxi singles and/or minialbums and/or
albums supplied by the PRODUCER in conformity with articles 6 and 13 of this
agreement, shall be restricted to the base collection rate which is applicable
within the strict framework of the provisions set forth in article 6,
sub-paragraph 5.5 bis, 5 ter and 5 quarter of the 1975 standard agreement for
the Phonographic Industry, between the IFPI and the BIEM.
Therefore, the PRODUCER warrants the COMPANY that none of the singles and/or
albums delivered under this agreement shall include a number of works and/or
fragments exceeding the number set forth for the general case in the here above
mentioned standard agreement for the Phonographic Industry.
To this end, the PRODUCER shall furnish the COMPANY with the data for protecting
the copyrights (authors, composers, publishers, etc) and also the date of the
first publication of the works reproduced on phonographic media, videographic
media or multimedia, and generally all of the references which must appear on
the label and the sleeve of the said media.
The PRODUCER warrants the COMPANY against the inaccuracy of the copyright data
and generally all of the above-mentioned provisions.
ARTICLE 8 - AUDIO ROYALTIES
1. In consideration of his collaboration and of the exclusive rights
granted hereunder by the PRODUCER to the COMPANY, the COMPANY shall pay
the PRODUCER :
A royalty for sales (returns deducted) in normal `Top Price' categories
of the phonographic media in France, through normal distribution
channels, calculated on the PPD of each phonographic medium sold, which
reproduces the phonograms which are the subject of this agreement, and
fixed at :
- 19% (nineteen per cent), hereafter called the `base rate' for the
fraction of sales from 1 to 100.000 copies or equivalent of each
reference,
- 20% (twenty per cent) for the fraction of sales from 100.001 to 200.000
copies or equivalent of each reference.
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- 22% (twenty two per cent) for the fraction over 200.001 copies or
equivalent of each reference.
It is stipulated that sales of a new reference of the same album, which
is consecutive on a change of catalogue number (in particular when
additional phonograms are included) shall be added to sales of the
original reference for the calculation of the above-mentioned royalty
thresholds.
It is also stipulated that the above royalty rates shall apply only to
the fraction of sales for which they are fixed, and shall therefore not
have any retroactive nature, and that the thresholds for the copies
sold, to which they apply, must be applied reference by reference.
It is also stipulated that if the phonograms which are the subject of
this Agreement are made available on Maxi Single (MSP) or Single (SP),
the above royalty rates shall be reduced in the same proportion that
COMPANY will have to agree with its exclusive licensees or
distributors. The amount of the reduction applied to the royalty rate
in such case shall be specified per addendum to the present agreement.
`PPD' means the wholesale catalogue price, net of all taxes, as
published by the COMPANY or its exclusive licensee in the different
countries of sale less the deductions specified in paragraph 13 below.
2. If the phonograms which are the subject of this agreement are made
available to the public as Mid-priced or budget-priced Records, the
PRODUCER's royalty rate shall be set at 50% (fifty per cent) of the
base rate.
It is expressly agreed that in the event of the sale of a double album,
or a triple album, etc.... or several albums under the same reference
number, the price category shall be determined by referring to the
catalogue price net of all taxes of the single album, in the most
common price category. In this case, the price of the double album,
triple album etc .... shall be divided by the number of albums (two,
three, etc).
The same calculation shall be made in the event of the sale of an
analog or digital medium or of any `double time' or `triple time'
program etc ... in comparison to the catalogue price net of all taxes
for a single album with a normal duration.
3. If the phonograms which are the subject of this agreement are
distributed by mail order clubs, the PRODUCER's royalty rate shall be
set at one half of the base rate calculated on PPD.
4. In the event of `newstand products' sales, the royalty rate shall be
set at one-half the base rate and shall be calculated on the basis of
the `equivalent wholesale price net of all taxes' for the phonographic
media in question.
`Equivalent wholesale price net of all taxes' means a basis equal to
70% (seventy percent) of the retail price net of all taxes of the
phonographic medium in question.
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Within the scope of a sale which is connected with a fascicle, the
reference retail price net of all taxes shall be the price of the said
phonographic medium, appearing in the fascicle to which it is attached,
net of all taxes.
5. If phonographic media are sold outside of the normal distribution
channels, and except for the cases mentioned in paragraphs 3 and 4
above, the royalty rate shall be set at one-half of the base rate and
shall be calculated on the basis of the `equivalent wholesale price net
of all taxes' of the phonographic medium in question.
`Equivalent wholesale price net of all taxes' base means a basis equal
to 70% (seventy percent) of the retail price net of all taxes for the
phonographic medium in question.
6. Within the scope of marketing operations for which a company and/or
a third party organization has requested, directly or indirectly,
the COMPANY to create a specific program (`special products' or
`premiums'), the COMPANY shall pay the PRODUCER 50% (fifty percent)
of the COMPANY's nets receipts from each sale, net of all taxes.
7. 1) If the COMPANY exercises its authorization right in order to
grant a right to all or part of a phonogram which is the subject of
this agreement, in the following cases:
a) synchronization and/or dubbing right to a cinematographic film
(short or full-length feature film) documentary or commercial, or a
multimedia program,
b) the right to incorporate excerpts from the phonograms within the
scope of a production of new phonograms or videograms performed by
other artists (`sampling'),
the PRODUCER shall receive 60% (sixty per cent) of the net sums,
excluding all taxes, collected by the COMPANY for this utilization.
2) In addition, if the COMPANY exercises its authorization right for
the purposes of granting a right to all or part of a phonogram which is
the subject of this document in all other cases than those in paragraph
7.1), above, such as the exercise of the communication right to the
public for telephony service and/or any on-line service which is
accessible by data transmission network, to the exclusion of all other
exploitations referred to in paragraph 8 below, the PRODUCER shall
receive 50% (fifty per cent) of COMPANY's net receipts for the said
utilization.
COMPANY shall be allowed to deduct from "off the top" any direct bona
fide third party cost charged to COMPANY.
However, it is expressly agreed that in the event that the utilization
rights referred to in paragraph 7 are covered by a legal provision, the
PRODUCER's remuneration shall be fixed as in article 9 of this
Agreement.
8. If the phonograms which are the subject of this agreement are made
available through digital data transport networks (excluding any sale
of media), at the public's request and for its private use, the
PRODUCER's remuneration shall be 60% (sixty per cent) of COMPANY's net
receips from each sale. COMPANY shall be allowed to deduct from "off
the top" any direct bona fide third party cost charged to COMPANY.
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9. If the phonograms which are the subject of this agreement are
reproduced on new phonographic media such as (MD) and / or audio
Digital Versatile Disc (DVD), and /or more generally any new presently
unknown reproduction media, or which the COMPANY did not market prior
to the date of signature of this agreement, the rate of the PRODUCER's
royalty applying to the said media shall be set at 75% (seventy-five
percent) of the base rate.
In all cases, if the SNEP-SDRM agreements provide for specific
deductions or rebates applicable to these sales, these shall apply
instead of the deduction referred to in this paragraph, from the date
that they take effect for calculating the copyright royalties.
10. If sales are promoted by an intensive advertising campaign, the royalty
for the phonograms which are the subject of the advertising campaign,
shall be set at 50% (fifty per cent) of the basic rate for a campaign
the value at a gross tariff price of which is more than 45.500 (euro)
(fourty five thousand five hundred euros), net of all taxes.
`intensive advertising campaign' means the broadcast of commercials on
TV and/or the radio and/or advertising in the press and/or on
billboards and/or any other type of advertising space. It is specified
that the same campaign can be carried out in successive waves.
However, it is stipulated that the reduction of the rate applied by the
COMPANY for each advertising campaign shall apply to the sales made
over a period of 6 (six) months as of, according to the COMPANY's
choice :
. either the first day of the month preceding the launch of the said
campaign if the launch occurs between the first and the fifteenth day
of the month in question
. or the first day of the month of the launch of the said campaign if
the launch occurs between the sixteenth and the last day of the month
in question.
11. If the phonograms which are the subject of this agreement appear
concurrently with other phonograms on the same program, the PRODUCER's
royalty shall be set at 60% (sixty per cent) of COMPANY's net receips
from each sale of the compilation records, net of all taxes, and
calculated prorata to the number of phonograms which are the subject of
this agreement in comparison to the total number of phonograms
appearing on the said phonogram (prorata numeris).
12. All of the above-mentioned royalties, except for those set forth in
paragraphs 4, 5, 6, 7, 8 and 12 above, shall be calculated at the
applicable wholesale catalogue price, net of all taxes, as published by
the COMPANY or its exclusive licensee in the different countries of
sale, less the same deductions and rebates as those in force for the
payment of copyright royalties in France (SNEP/SDRM base) and applying
at the time of the payment of the royalties, or, failing this, the
deductions and rebates appearing in the last agreements in force
between the SNEP and the SDRM before these agreements expired or were
terminated.
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13. The half-yearly accounts and payment of the royalties owed to the
PRODUCER shall be made within the 120 days following June 30 and
December 31 of each year, during which the phonographic media and other
reproductions were sold in France.
The royalties, which are owed to the PRODUCER for exploiting the
videograms or multimedia programs, as referred to in article 16.1
below, shall be paid according to the same terms and conditions.
14. The detailed accounts of the royalties shall be calculated on 100%
(one hundred percent) of the phonograms sold.
The COMPANY can make a provision for returns, every six months in order
to take into account possible returns, which is limited to 20% (twenty
percent) of phonographic media sold in France, during these six months.
The accounts shall be adjusted during the following six months.
15. If the packaging of the phonographic media reproducing the phonograms
subject of this Agreement, includes, after prior approval of the
PRODUCER, either a `poster' or a `special booklet', the base of the
PRODUCER's royalty shall be reduced by 8.5 % (eight point five percent)
which contractually represents the cost of these item.
`Poster' means a poster or a graphic reproduction no less than 60 cm x
40 cm.
`Special booklet' means a fascicle of more than 8 (eight) printed
pages, for compact disc media, and more than 8 (eight) printed sections
for musicassettes media.
The above-mentioned packaging reduction shall be increased to 15%
(fifteen percent) if the said packaging has been produced in `special
packaging' form, and notably digipack, in addition to the inclusion of
a poster or a special booklet.
`Special packaging' means packaging the cost price of which exceeds the
cost price of standard packaging for each reproduction media in
question, by more than 10% (ten percent). The said standard packaging
is defined as follows:
a) Compact Disc (CD) medium :
- standard `crystal' pack
8-page maximum booklet , four-color, recto and verso, black and white
inside pages.
b) Musicassette medium (MC) :
- standard `crystal' pack
8-section maximum booklet, four-color, recto and verso, black and white
inside pages
16. Finally, it is specified that the following are exempt from royalties:
a) Phonographic media which are withdrawn from the COMPANY's catalogue
and sold off at a price which is less than 35% (thirty five percent)
of the wholesale catalogue price net of all taxes of an equivalent
standard new product, in the most common price category (`Top Price
category'). It is stipulated that the terms and conditions of
calculation referred to in paragraph 2 above shall apply if the
packaging includes several phonographic media.
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b) Phonograms and phonogram media, which are made available free of
charge to the media to promote the recordings which are the subject of
this Agreement, and /or to customers as a `free service', `bonus' or
`free goods' (discounts on goods).The COMPANY is authorized to convert
the discounts made in percentage into free copies to be deducted from
the sales, in the same limit than the limit defined for free goods.
c) Phonographic exploitation, either free of charge or not, within the
scope of humanitarian, cultural or promotional operations, for which
the COMPANY receives no royalties.
17. The detailed accounts of royalties shall be considered to be definitely
approved and accepted by the PRODUCER unless he disputes them in
writing within a period of 12 (twelve) months from their receipt.
18. Any royalty or advance paid to the PRODUCER in full without his having
delivered the corresponding invoice and the appropriate RF Tax Form
properly completed and stamped by Tax Authorities shall be submitted to
the applicable witholding tax. A separate Tax Form must be provided for
each year.
ARTICLE 9 - FAIR REMUNERATION - PRIVATE COPY
1. The COMPANY shall exercise the rights recognized by the laws,
international conventions or interprofessional collective agreements
for any utilization of phonograms other than private use, whether this
involves communication to the public (broadcasting, televising,
cable-distribution, etc) or reproduction (dubbing, private copy, etc).
2. To this end, the PRODUCER expressly authorizes the COMPANY to make any
declaration regarding the recordings which are the subject of this
agreement, and to collect any monies, on his behalf, generated
throughout the period of the exclusive exploitation granted to the
COMPANY (except for the `sell-off period') from the companies which are
responsible for exercising the said rights.
The PRODUCER notably authorizes the COMPANY to declare the
identification numbers (`ISRC numbers') - which shall be furnished by
the PRODUCER together with the Master Recordings and artwork - to the
said companies for each recording (track by track) which is the subject
of this agreement.
3. In order to ensure that this authorization is properly executed, the
PRODUCER shall submit all information required to protect the
recordings (PRODUCER's nationality, date of the first publication, date
and place of recording, etc...) to the COMPANY when the Master Tapes of
each phonogram are delivered to the COMPANY.
4. The COMPANY shall pay the PRODUCER 50% (fifty per cent) of the sums
received under this article (including the sums generated during the
term of this Agreement, but the subject of a deferred apportionment).
It is agreed that this share represents the PRODUCER's net share; the
Performing Artists shall receive their own share directly from the
Collecting Society to which they are affiliated.
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ARTICLE 10 - GRANTING OF RIGHTS
In conformity with the above, the PRODUCER shall grant the COMPANY, for the term
of this agreement, the exclusive exploitation rights of the recordings covered
by this agreement, with no restriction or reserves and with all related present
and future rights.
Notably, the COMPANY may reproduce, or have reproduced, in whatever form, and in
whatever quantity which it considers adequate, the recordings thus produced,
which it shall have the exclusive right to manufacture or have manufactured,
publish or have published, sell or have sold, under whatever category, title,
label, or trade mark of its choice, in the territory defined in article 4 above,
by all means and for any use, communication to the public (including radio and
television broadcasting) and availability to the public. The COMPANY, in
conformity with the above, shall also have the exclusive right to exploit
through digital data networks any fixed or unfixed ARTIST's performances.
The COMPANY may cease sales and/or production and may resume them again,
according to the commercial standards currently practiced by the phonographic,
videographic, or multimedia industries.
ARTICLE 11 - CATALOGUE
The PRODUCER agrees that in the event the recordings covered by this agreement
are re-recorded by the ARTIST, whether in a studio, or in public, or in any
other place, on behalf of the PRODUCER or of a third party, these new recordings
shall not be the subject of any exploitation by the PRODUCER or by a third
party, during the period of the exclusive exploitation granted by the PRODUCER
to the COMPANY under this agreement.
ARTICLE 12 - ADVANCES
1. Firm recordings :
As an advance which is recoupable against all of sums due to the
PRODUCER, the COMPANY shall pay the PRODUCER for the SP n(degree)1 the
sum of 8.000 (euro) (eight thousand euros) net of all taxes for the
recordings supplied by the PRODUCER under article 6.4 of this
agreement.
The above-mentioned advance shall be paid by the COMPANY as follows :
- 2/3 of the here above mentioned amount on signature of the present
agreement by both parties and after delivery of the tapes ready for
recording and the items (photoengraving, agreements) mentioned in
paragraph 6 of this agreement.
- the balance on commercial release.
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2. Optional recordings :
If the tapes for an optional unpublished single are handed over, the
COMPANY shall pay the PRODUCER an advance on royalties of 8.000 (euro)
(eight thousand euros).
The COMPANY shall have first right of refusal to pay the PRODUCER an
advance on royalty for each of 3 additional albums which would then be
regulated by the terms of this agreement. The amount of the advance
payment is to be negotiated in good faith at the time of their
completion.
It is agreed that if any of the tracks appearing on a single and/or maxi-single
are reproduced onto a subsequent album, the advance paid for the said single
shall be deducted from the advance paid for the corresponding album.
All advances paid under this agreement shall be cross-collaterised.
The COMPANY reserves the right to excerpt any single of its choice from each of
the albums for which it has exercised its option. No advance shall be owed to
the PRODUCER for such a single.
`LIVE' recordings made in public and `GREATEST HITS', Original SoundTracks of
films (`OST'), and the remixes supplied by the PRODUCER shall not give rise to
any payment of an advance.
Any advance on royalties paid to the PRODUCER in performance of this agreement
shall be recoupable by directly offsetting it against any sums which the COMPANY
may owe him under the present agreement.
These advances shall be payable on presentation of the invoice to the order of
NRJ MUSIC together with the appropriate double taxation exemption form properly
completed and stamped by Tax Authorities, on the following due dates, subject to
the provisions stated in article 2 of this agreement :
- 50% (fifty percent) on the delivery date of the tapes ready for
recording and the items (photoengraving, agreements) mentioned in
article 6 of this agreement.
- 50% (fifty percent) on the date of the commercial release of the
corresponding recordings.
ARTICLE 13- OPTION
1. The PRODUCER hereby grants a firm and irrevocable option to the COMPANY
to exploit and distribute, under the terms of this agreement, 1 (one)
additional studio recorded unpublished single (hereafter "SP
n(degree)2).
2. It is agreed that the PRODUCER shall supply the recording to the
COMPANY, unless otherwise provided for, no sooner than 3 (three) months
and no later than 6 (six) months from the date of the commercial
release of the previous unpublished recording.
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It is expressly agreed that, should the total length of an album
requires for marketing purposes, the production of several phonographic
media grouped into one package for (commonly called `double album',
`triple album', etc), it shall count as a single album for evaluating
the number of albums which the PRODUCER undertakes to supply to the
COMPANY under this agreement.
The COMPANY shall have a period of 2 (two) months from the date of the
proved presentation by the PRODUCER, of each new recording to exercise
the said option. The COMPANY must notify the exercise of its option by
registered letter with return receipt sent to the PRODUCER within the
above-mentioned time limit. It is agreed that if the COMPANY fails to
notify the exercise of its option within this time limit, it shall be
deemed to have definitively waived its option.
If the proposed recording is accepted, all of the clauses and
conditions of this agreement shall apply to the said recording.
In the event of a refusal by the COMPANY, the PRODUCER shall be free to
offer the said recording, as well as the ARTIST's future recordings to
any distributor of his choice, on the condition that the COMPANY has
expressly authorized the PRODUCER to do so in writing.
ARTICLE 14 - PROMOTION
1. The COMPANY, through its services, shall be responsible for all
promotion (radio, television, press, Internet, etc...), of the
recordings covered by this agreement, and may therefore unrestrictively
use, either directly or indirectly, the ARTIST's name, the ARTIST's
stage name, the biographies, the photographs and other images
representing the ARTIST, for trade and advertising purposes relating to
the phonograms, for as long as the COMPANY continues to exploit the
ARTIST's recordings.
The COMPANY may unrestrictively use, either directly or indirectly,
XXXX XXXX'x name, stage name, the biographies and the photographs and
other images representing XXXX XXXX, for trade and advertising purposes
relating to the phonograms, for as long as the COMPANY continues to
exploit the ARTIST's recordings.
The PRODUCER warrants the COMPANY against any claim by a third party
concerning the afore-mentioned elements mentioned in paragraph 1 above.
2. When the PRODUCER provides the COMPANY with photographs and other
images, the PRODUCER declares that he owns all related copyrights, and
warrants the COMPANY against all claims by third parties in this
respect. The PRODUCER shall make the same declaration and warranties
concerning the items needed to produce the sleeves.
3. The ARTIST shall be reasonably available for promotion in the Territory
when requested by Album or single releases, subject to his professional
commitments, provided that the Artist will devote no less time to
promotional activities in the Territory than to such activities outside
the Territory.
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ARTICLE 15 - AUDIOVISUAL RECORDINGS
1. It is reiterated that in accordance with the provisions of this
agreement, the PRODUCER grants the COMPANY, which accepts, the
exclusive right to reproduce the recordings of the ARTIST, and to
exploit them on any medium. It is agreed that if the PRODUCER produces
a live video, a Long Form, or a videomusic, or has them produced,
reproducing the services or the recordings of the musical works of the
ARTIST, the COMPANY is solely entitled to reproduce, or have reproduced
the said videograms, as well as to broadcast them, or have them
broadcast, for commercial or promotional purposes.
The PRODUCER warrants the COMPANY against any claim by a third party
concerning any live video, Long Form or videomusic delivered to the
COMPANY under this agreement.
2. The COMPANY shall make a cash contribution to the production budget of
each videomusic delivered by the PRODUCER under the present agreement,
for an amount of (euro) 5.000,- (five thousand euros). It is stipulated
that any video contribution paid by the COMPANY shall be fully
recoupable by directly offsetting it against any sums which the COMPANY
may owe the PRODUCER under the present agreement.
3. These provisions do not prevent the PRODUCER and the COMPANY from
concluding a specific agreement in order to coproduce any Long Form or
videomusic, in which case the PRODUCER's and COMPANY's shares shall be
stipulated in the said coproduction agreement.
ARTICLE 16 - VIDEO AND MULTIMEDIA ROYALTIES
1) Making available to the public
a) In consideration of the exploitation rights granted hereunder to the COMPANY,
and in the event of a commercial exploitation of the videogram and multimedia
programs covered by this agreement by the communication or the making available
to the public, the COMPANY shall pay the PRODUCER 50% (fifty per cent) of the
COMPANY's nets receipts from each sale. The COMPANY shall be allowed to deduct
from "off the top" any direct bona fide third part cost charged to the COMPANY.
b) In the event that videograms or multimedia programs covered by this Agreement
appear concurrently with other videograms or multimedia programs of a more or
less equal length on the same program, the PRODUCER's remuneration shall be
calculated prorata to the number of videograms or multimedia programs covered by
this Agreement compared to the total number of videograms or multimedia programs
appearing on the said program (prorate numeris).
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In the event that videograms or multimedia programs covered by this Agreement
appear concurrently with other videograms or multimedia programs of a noticeably
different length on the same program, the PRODUCER's remuneration shall be
calculated prorata to the length of videograms or multimedia programs covered by
this Agreement compared to the total length of the said program (prorata
temporis).
If videograms or multimedia programs which are the subject of this agreement are
made available through digital data transport networks (to the exclusion of any
other sales of media), at the request of and for the public's private use, the
PRODUCER's remuneration shall be identical to the one applicable in the case of
videographic media or multimedia sales, as specified in article 16.1a) above.
c) In the event of videographic media or multimedia media rentals for the
public's private use, or of licenses granted to juke boxes operators in public
places, the COMPANY shall pay the PRODUCER the same remuneration than defined in
article 16.1.a) above.
2. Communication to the public
In the event of a commercial exploitation of ARTIST's videograms in a
communication to the public, both in the commercial and institutional sectors,
(for instance their televised broadcast or via on-line services accessed by
digital data transmission networks and/or their direct broadcast to schools,
hospitals, film libraries, universities, etc, or during professional events
(fairs, festivals; etc) the COMPANY shall pay the PRODUCER a the same
remuneration than defined in article 16.1.
3.Secondary uses
If the COMPANY grants, subject to the PRODUCER's prior information and to the
ARTIST's personal and inalienable right ("droit moral"), a right over all or
part of a videogram and/or multimedia program which is the subject of this
agreement in the following cases:
a) synchronization and / or dubbing right to a cinematographic film
(short film or full length feature film), documentary or
advertising, or multimedia program,
b) the right to incorporate the excerpts of videograms and/or
multimedia programs under this agreement within the scope of the
production or new videograms performed by other artists,
The PRODUCER shall receive 50% (fifty per cent) of the sums, net of all
taxes, collected by the COMPANY for the said utilization.
4. The detailed accounts of royalties shall be deemed to have been
approved and definitively accepted unless the PRODUCER contests them in
writing within a period of 12 (twelve) months from their receipt.
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ARTICLE 17 - PRODUCER'S OBLIGATIONS
1. During a period of 22 (twenty two) months after the commercial release of
the last Recording exploited under the terms of this agreement, the
PRODUCER warrants the COMPANY that the ARTIST will not publish or
authorize any third party to publish any new Recording of the ARTIST.
2. During a period of 24 (twenty four) months after the commercial release
of the last Recording exploited under the terms of the present
agreement, the PRODUCER is prohibited from:
- Reproducing or having reproduced or exploiting or having exploited, on
videograms, the phonograms of the ARTIST marketed by the COMPANY.
- Authorizing anyone whosoever (except the COMPANY) to market in
phonographic form, the ARTIST's performances reproduced in these
videograms.
3. Moreover, as regards the films in any kind in which the ARTIST may
participate, the PRODUCER warrants that the ARTIST shall undertake to
prohibit the use of all or part of these items with a view to producing
phonograms.
4. More generally, the PRODUCER undertakes to prohibit the utilization of
all or part of the ARTIST's services, which may constitute a breach of
the exclusivity granted to the COMPANY and not to assign the benefit of
all or part of the exclusive rights owned by him to a third party.
ARTICLE 18 - SELL-OFF PERIOD
Upon the expiration of this agreement, the COMPANY shall have a period of 6
(six) months, the `sell-off' period, to sell, on a non-exclusive basis, the
phonographic media, videographic media, or multimedia reproducing the recordings
which are the object of this Agreement, present in stock. At the end of this
period, the COMPANY shall return all of the original material belonging to the
PRODUCER, which it may have in its possession.
ARTICLE 19 - EQUIVALENCE
In application of this agreement, the parties agree to the following
equivalence:
One copy = 1 Album = 2 mini Albums = 4 maxi singles = 4 singles,
whatever the phonographic medium (compact disc, analog or digital cassette etc).
ARTICLE 20 - PRODUCER'S APPROVALS
In the event the PRODUCER's approval is required under the terms of this
agreement, the PRODUCER shall supply the COMPANY with a written reply in a
period of 5 (five) days from the date of request.
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ARTICLE 21 - MODIFICATIONS OF THE COMPANY'S LEGAL PERSONALITY
This agreement shall be fully effective, notwithstanding any changes which may
occur during its execution, in the COMPANY's legal form, and/or its legal
personality. Therefore, and notably in the case of sale, takeover or merger, the
legal person which is subrogated to the COMPANY's rights, shall replace it with
respect to all of the profits or expenses under this agreement, and shall,
consequently, guarantee its execution, for the period remaining to run.
ARTICLE 22 - ELECTION OF DOMICILE
To execute this agreement and notably the payment of royalties and/or any
notification provided herein, the parties elect domicile at:
For the PRODUCER: at its Head Office.
For the COMPANY: at its Head Office.
Each party undertakes to immediately inform the other party of any change in
domicile which may occur during the execution of this agreement.
ARTICLE 23 - DISPUTES
With regard to the drawing up and the application of this agreement, the Parties
acknowledge that they are subject to French law.
In case of a dispute and/or problem resulting from the interpretation and /or
the execution of this agreement, the Parties, in default of an amicable
agreement, attribute jurisdiction to the competent Paris courts.
Signed in Paris / Orlando, on the 2004
In two original copies
THE PRODUCER THE COMPANY
Xxxxxxx Xxxxxxxx Xxxx-Xxxxxxx XXXXXX
