MMAPGX SHORT FORM 360 RIGHTS AGREEMENT

evanwrekn (48)in #contract • 6 years ago

MMAPGX SHORT FORM 360 RIGHTS AGREEMENT
by and between COMPANY and ARTIST

Reference is made to that certain exclusive recording agreement between_____________________________________, at times doing business as

__________________________________(“Company” or “us”) and _______________________________professionally

known as (referred to herein as “you” or “Artist”), dated as of ____________________________________,

20__________________________, as may have been previously amended (the “Recording Agreement”). All terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Recording Agreement.

The following, when signed by you and by us, shall constitute the agreement (“Agreement”) dated as of

__________________________________________, 20____ between you and us regarding Company’s income participation in your entertainment industry-related activities not delineated in the Recording Agreement.

WHEREAS, Artist and Company are parties to a limited liability company agreement (the “LLC Agreement”) evidencing Artist’s and Company’s mutual asset to be bound to a so-called “360 deal” between them in respect of Artist’s musical performing and recording services, and other entertainment industry-related services;

WHEREAS, Artist and Company are parties to the Recording Agreement; and

WHEREAS, Artist and Company desire to enter into and execute this Agreement to effectuate Company’s entitlement to receive fifty percent (50%) of the net profits and other revenues earned by or on behalf of Artist in any and all of Artist’s entertainment industry-related activities other than those specified in the Recording Agreement (“Ancillary Rights”).

Now THEREFORE, in consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and Company hereby agree as follows:

Music Production Fund Commitment. Prior to, or promptly following, the complete execution of this Agreement, Company has or will allocate funds and services equal to a minimum of Two Hundred and Fifty Thousand Dollars ($250,000) to be utilized in connection with music production and deal shopping activities, including (by way of example only and without limitation) facility and production acquisition, songwriting, vocal production, music production, engineering, mixing and mastering. In addition, Company will have the exclusive rights to shop Artist for deals with music publishing, record and management companies.
Entertainment Activities Revenues.

(a) You hereby irrevocably grant and assign to Company and Company is entitled to receive, collect and keep for Company’s own account throughout the Term (as defined below) an amount equal to 50 percent (50%) of Artist’s Net Entertainment Activities Receipts, and you will pay or cause to be paid that amount to Company as provided in paragraphs 4 and 5 below. “Artist’s Net Entertainment Activities Receipts” in the preceding sentence shall mean all gross monies (“Gross Entertainment Activities Receipts”), however characterized whether or not such monies are received during or after the Term (including residual accountings), payable to Artist (or any entity furnishing Artist’s services or otherwise partly or wholly controlled by you or Artist) less costs of collection and commissions paid by Artist to any unrelated third parties and all actual, bona fide, verifiable out-of-pocket third party costs or expenses attributable to the applicable Entertainment Activity (as defined below).

(b) For the avoidance of doubt, in calculating Artist’s Net Entertainment Activities Receipts in connection with Artist’s Touring Services, Artist’s Net Entertainment Activities Receipts shall include all gross monies, however characterized (including but not limited to, ticket sales, revenue and performance fees) payable to Artist (or any entity furnishing Artist’s touring Services), less costs of collection and commissions paid by Artist to any unrelated third parties and all actual, bona fide, out-of-pocket third party costs and expenses attributable to the production, staging, promotion and marketing of the applicable Concert, such as sound and lights expenses and crew payments, but specifically excluding salaries, per diems or other payments made to or on behalf of Artist). For avoidance of doubt, for purposes of computing Artist’s Net Entertainment Activities Receipts in connection with Artist’s Acting Services, all sums received or credited to Artist (or his affiliate) and the economic value of any other non-cash consideration received shall be included, whether received before or after the Term (including residual accountings), so long as the agreement relating to the Artist’s Acting Services was entered into during the Term or was in negotiation prior to the
expiration or termination of the Term.

(c) As used herein, the term “Entertainment Activities” (each, an “Entertainment Activity”) shall be understood to refer to the Artist’s activities in the entertainment industry including (but not limited to) the following:

(a) Endorsements - the use, licensing, exploitation, reproduction, publication, and/or exhibition of the Artist’s name(s), portraits, pictures and likenesses (including, without limitation, all past, present or future legal, professional, group, and other assumed or fictitious names or trademarks used by the Artist) and the related personality rights together or separately for purposes of any commercial endorsements, strategic partnerships, sponsorships, or product, services, or brand tie-ins (“Endorsements”);

(b) Touring Services - Artist’s services or otherwise partly or wholly controlled by you or Artist) concerning Artist’s services or endeavors as musician(s), vocalist(s), or performer(s) in connection with one or more live performances or engagements, including, but not limited to, by public or private stage, television, cable or other broadcast, webcasts, motion pictures, one-nighters, tours, and/or other means, any of the foregoing whether undertaken by Artist in support of a commitment album under the Recording Agreement or otherwise (collectively “Concert(s)”) either alone or with one or more other individuals and in connection with a single Concert or a series of Concerts (“Touring Services”);

(c) Acting Services - services where Artist is engaged as an actor or as themselves to appear (or to serve in a creative capacity such as director, writer, producer) in any dramatic or nondramatic television series (or one or more episodes thereof), motion pictures, or similar productions (excluding only audio-visual recordings made for Company pursuant to the Recording Agreement) or stage productions, for public audiences and/or for exhibition in any and all media now known or hereafter devised (but excluding commercials or endorsements of products which would be deemed an Endorsement hereunder) (“Acting Services”); notwithstanding the foregoing, Artist shall neither render such services nor accept any engagement that would require Artist to render such services in a manner that would or might interfere with Artist’s fulfillment of its other obligations under the Recording Agreement;

(d) Literary Services - all literary works and other original creative works of authorship prepared by Artist, or by Artist in collaboration with others, including, without limitation, books, short stories, magazine features, articles, or columns, poetry, prose, screenplays, and teleplays (“Literary Services”);

(e) Personal Appearances - personal appearances other than those defined as Touring Services hereinabove, including (without limitation) one-off concert or night club appearances, and speaking engagements (“Personal Appearances”);

(f) Merchandise - the exploitation in any and all media of the name(s), likeness(es), visual
representations, biographical material and/or logo(s) of or relating to Artist (all of the intellectual properties relating to Artist referred to above are sometimes referred to herein collectively and individual as “Artist Properties”), any Artwork, and/or Album Artwork, either alone or in conjunction with other elements, including without limitation such exploitation on merchandise of any kind, including (without limitation) merchandise for sale at the site(s) of any and all live concert engagements performed by Artist, premiums such as products which bear a third party’s trademarks or logos together with Artist Properties, tie-ins, “bounceback” merchandising, or fan club merchandise, whether or not in connection with Master Recordings (individually and collectively referred to as “Merchandise”);

(g) Music Publishing Rights – shall mean and include all ownership interests in Controlled Compositions, all rights to exploit or administer such Controlled Compositions, and all interests in such rights, under copyright and otherwise. A “Composition” is a single musical composition, irrespective of length, including all spoken words and bridging passages and including a melody. A “Controlled Composition” is a Composition wholly or partly written, owned, or controlled by Artist, or any person or entity in which Artist has a direct or indirect interest.

(h) Other/Miscellaneous Entertainment Activities - any other use or exploitation using your name, photograph, voice, sound effects, musical performances, likeness(es), caricature, talent or materials in entertainment industry activities not specifically noted herein, including but not limited to video games, artistic dramatizations such as cartoons and other animations.

Company’s Rights to Record. Without limitation of any rights that Company may have under the Recording Agreement, and subject to the terms and conditions of any third-party rights that may exist under separate agreements entered into by Company regarding the subject matter of this paragraph, Company has the right to record, film and/or tape, in whole or in part and otherwise as Company elects, any Concerts by means of public stage performances of all kinds, web-casts, sponsorships, television broadcast or cablecasts (including pay-per-view telecasts), motion pictures, one-nighters, concert tours, and the like alone or in conjunction with others (including, without limitation, backstage and rehearsal footage). All such recordings, filmed footage and /or tapings will be deemed Covered Videos under the Recording Agreement.
Accounting. You will irrevocably direct in writing all third parties to pay to Company its hare of Artist’s Net Entertainment Activities Receipts at the same times that such third parties account to or pay Artist (or any entity furnishing Artist’s services or otherwise partly or wholly controlled by you or Artist) and on terms no less favorable in accordance with a letter or direction approved by Company. The letter of direction attached as Exhibit A is hereby approved. You will promptly provide to Company a copy of each third party agreement under which Artist’s Net Entertainment Activities Receipts will be payable. If any such third party fails or refuses for any reason to directly pay to Company its shares of Artist’s Net Entertainment Activities Receipts, then you (or any entity furnishing your or Artist’s services or otherwise partly or wholly controlled by you or Artist) will account to and pay Company therefore within thirty (30) days after you (or any entity furnishing Artist’s services or otherwise partly or wholly controlled by you or Artist) are accounted to or paid by the applicable third party. Company has the right at its expense to appoint a certified public accountant or auditor to audit your books and records (or any furnishing Artist’s services or otherwise partly or wholly controlled by you or Artist) once per calendar year up to three (3) years after the term of this Agreement concerning Artist’s Net Entertainment Activities Receipts and your accountings or payments to Company hereunder during normal business hours upon reasonable written notice to you, and you will maintain complete and accurate books and records in connection therewith that you will make available to Company in such event; if any such audit reveals an underpayment to Company exceeding ten percent (10%), then you will reimburse Company for its costs of such audit (in addition to the underpaid amount).
Term. As used in this Agreement, the “Term” means the period commencing as of the date hereof and continuing until the expiration or termination of the term of the last Participation Period hereunder. Notwithstanding the foregoing:

(a) Company shall have the right to receive its share of Artist’s Net Entertainment Activities receipts derived from any Entertainment Activity opportunity which arises within twelve (12) months after the end of the Term; and

(b) Company shall have the right to receive its share of receipts from Touring Services for the
duration of each tour in support of a Commitment Album until its completion, notwithstanding the earlier termination or expiration of the term of the Agreement or the Participation Period. Furthermore, Merchandising Uses in connection with Album Artwork shall be perpetual.

(c) The Term shall be divided into participation periods (“Participation Period”), the first of which
shall commence upon the date hereof and shall continue until either: (x) provided that Company has exercised its option under the Recording Agreement to engage the Artist’s services for the next Commitment Album, the date which is twelve (12) months following Company’s United States retail street date for the second Commitment Album Delivered (as used herein, the term “Deliver” or “Delivered” shall mean the actual receipt by Company in each instance (or its designee) of fully mixed, edited, and equalized or unequalized Master Recordings satisfactory to Company for the manufacture and sale of records, and all original and duplicate recordings thereof, together with any and all licenses, approvals, permissions, consents, and other materials necessary for the packaging and marketing of such records) by you in connection with your then current Recording Commitment, or (y) in the event that Company does not exercise its option to call for additional Contract Periods as provided for in the Recording Agreement, subject to paragraphs 6(a) and (b), the expiration or termination of the term of the Recording Agreement (“First Participation Period”), and shall for subsequent Participation Periods commence as of the date on which the prior Participation Ends and continuing until either: (x) provided that Company has exercised its option under the Recording Agreement to engage the Artist’s services for the next
Commitment Album, the date which is twelve (12) months following Company’s initial United States retail street date for the last Master Recording Delivered by you in connection with the then current Commitment Album (e.g. the first such Option shall continue for twelve (12) months following the initial United States release of the third Commitment Album) on the same terms and conditions set forth hereunder or (y) in the event that Company does not exercise its option to call for additional Contract Periods as provided for in the Recording Agreement, subject to subparagraphs 5(a) and (b) above, the expiration or termination of the term of the Recording Agreement. You hereby grant Company five (5) separate, consecutive and irrevocable options for additional Participation Periods. Each of those options shall be exercised by Company, if at all, by notice to you not later than the expiration date of the Participation Period which is then in effect (the “current Participation Period”). Each Participation Period for which Company exercises its option will begin immediately after the end of the current Participation Period (or, if Company so advises you in its exercise notice, such Participation Period will begin on the date of such exercise notice).

(d) Not withstanding anything to the contrary contained herein, in the event that Company does not, prior to the expiration date of the current Participation Period, exercise its option for the next
applicable Participation Period, the term of the current Participation Period shall, subject to the following provisions thereof, continue, unless Company notifies you to the contrary. However, you shall at any time after the expiration date of the current Participation Period, have the right to send Company written notice (hereinafter “Termination Request”) of your desire that the current Participation Period and the term of this Agreement shall terminate unless company shall, within ten (10) days after its receipt of such Termination Request (hereinafter “10-day Period”), exercise its option for the next applicable Participation Period. If Company does not, prior to the end of such 10-day Period, exercise its option for the next applicable Participation Period, the current Participation Period and the term of this Agreement shall expire as of the eleventh (11th) day after Company’s receipt of your Termination Request. If Company shall, prior to the expiration of the current Participation Period (or such 10-day Period, as applicable) exercise its option for the next applicable Participation Period, then the next Participation Period shall commence and the current Participation Period shall expire, both upon the later of: (i) the expiration date of the current Participation Period; or (ii) the date of Company’s such notice to you exercising its option for the next applicable Participation Period. For the avoidance of doubt, in the event that Company has not exercised option for an additional Contract Period under the Recording Agreement, Company will not be able to exercise any option for an additional Participation Period hereunder.

Advances. In connection with the rights granted to Company hereunder, following the commencement of each Participation Period, if any, other than the First Participation Period, Company, and/or Company record company partner, will pay you an Advance, which shall by fully recoupable from any monies payable to you hereunder, in the amount equal to two-thirds (2/3) of the lesser of Company’s actual receipts (monies actually retrieved by Company) hereunder in the prior Participation Period as accounted for up to the semi-annual accounting statement issued prior to the applicable Participation Period, or the average of Company’s actual receipts (monies actually received by Company) hereunder in the prior two (2) Participation Periods as accounted for up to the semi-annual accounting statement issued prior to the second applicable Participation Period; provided that no such Advance payment will be more than the applicable maximum or less than the applicable minimum amount prescribed below:

Minimum Maximum

Second Participation Period: $50,000 $150,000

Third Participation Period: $75,000 $200,000

Fourth Participation Period: $100,000 $250,000

Fifth Participation Period: $150,000 $300,000

Sixth Participation Period: $200,000 $350,000

Representations and Warranties.

Artist hereby represents, warrants, and agrees as follows: (i) Artist has, and shall have throughout the Term, the full legal right and power to enter into and fully perform this Agreement, and to make the commitments made and grant the rights granted herein; (ii) the terms of this Agreement do not conflict with any other agreement to which you are bound or obligated; and (iii) you have in no way conveyed or hypothecated to any other party any of the rights granted to Company hereunder.

Company hereby represents, warrants, and agrees that it has the right and power to enter into and fully perform this Agreement and to make the commitments it makes herein.

Indemnity.

(a) You will at all times indemnify and hold harmless Company and any of its licenses
(collectively the “Indemnitee”) from and against any and all third party claims, damages, liabilities, costs and expenses, including legal expenses and reasonable counsel fees, arising out of any breach or alleged breach of any warranty or representation made by you in this Agreement or any other act or omission by you or the Artist, provided the claim concerned has been settled (subject to the provisions of subparagraph 9(b) below) or has resulted in a final judgment against any Indemnitee. Company will notify you of any action commenced on such a claim. You may participate in the defense of any such claim through counsel of your selection at your own expense, but
Company will have the right at all times, in its sole discretion, to retain or resume control of the conduct of defense. If any claim involving such subject matter has not been resolved, or has been resolved by a judgment or other disposition which is not adverse to any Indemnitee, you will reimburse Company for fifty percent (50%) of the expenses actually incurred by the Indemnitee in connection with the claim. Pending the resolution of any such claim, Company will have the right to withhold monies which would otherwise be payable to you under this Agreement or the Recording Agreement, in an amount not exceeding your potential liability to Company under this paragraph; provided, however, Company will not withhold monies which otherwise would be payable to you
under the Recording Agreement if you make satisfactory bonding arrangements in accordance with subparagraph 9(b) below.

(b) If Company pays more than $10,000 in settlement of any such claim, you will not be obligated
to reimburse Company for the excess unless you have consented to the settlement, except as provided in the next sentence. If you do not consent to any settlement proposed by Company for an amount exceeding $10,000 you will nevertheless by required to reimburse Company for the full amount paid unless you make bonding arrangements, satisfactory to Company in its reasonable discretion, to assure Company of reimbursement for all damages, liabilities, costs and expenses (including legal expenses and reasonable counsel fees) which Indemnitee may incur as a result of that claim. If no action or other proceeding for recovery on such a claim has been commenced within one (1) year after its assertion, Company will not continue to withhold monies in connection with it under this paragraph.

General Provisions.

(a) For the avoidance of doubt, nothing contained in this Agreement, including but not
limited to the expiration or earlier termination of the Term, shall amend the terms of the Recording Agreement or affect the obligations or rights of the parties thereto.

(b) The parties hereto agree that this Agreement is a separate and independent agreement from the Recording Agreement. Artist hereby acknowledges and agrees that Artist’s execution of this Agreement shall serve as a material part of the consideration for Company’s execution of the Recording Agreement.

(c) You and Company acknowledge that Company’s rights under this Agreement shall not
include the right or obligation to procure employment for Artist. Artist shall have the status of an independent contractor hereunder, and nothing expressed or implied herein shall contemplate or constitute Artist as being Company’s employee.

(d) This Agreement has been entered into in the State of California, and the validity,
interpretation and legal effect of this Agreement shall be governed by the laws of the State of California applicable to contracts entered into and performed entirely within the State of California, with respect to the determination of any claim, dispute or disagreement, which may arise out of the interpretation, performance, or breach of this Agreement. Notwithstanding the foregoing, and for purposes of clarification, neither Company nor any individual agent, officer, employee, nor member thereof, will not render shall not perform services or be deemed to have acted as an agent for you as such term is defined pursuant to California Labor Code sections 1700 – 1705 (or any successor provisions and/or amendments thereto), and otherwise under applicable state and federal laws.

(e) This Agreement shall become effective when signed by all proposed parties thereto. If any part of this Agreement, or the application thereof to any party, shall be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect the remainder of this Agreement, which shall continue in full force and effect, or the application of this Agreement to the remaining parties.

(f) The parties to this Agreement acknowledge and agree that the Artist is not a minor.

(g) Company shall have the right, throughout the Term hereof, to obtain or increase insurance on the life of Artist in such amounts as Company determines, in Company’s name and for Company’s sole benefit or otherwise, in Company’s discretion. Artist shall cooperate as reasonably necessary to effectuate the foregoing.

(h) This Agreement shall be considered a “short form” agreement and understanding of the parties hereto of the rights, remedies, and obligations contained herein. At Company’s reasonable request, Artist shall enter into such other and further documentation as may be necessary to more fully and formally evidence Company’s rights hereunder (including, without limitation, any “long form” agreement evidencing the terms and conditions of this Agreement and any assent and guarantee agreements, letters of inducement, or letters of direction, as may be required to effectuate the terms, conditions, and purposes of this Agreement.

(i) No party hereto shall be entitled to recover damages or terminate the Term of this Agreement by reason of any breach by the other party of its material obligations, unless the latter party has failed to remedy the breach within a reasonable time following receipt of notice thereof by the other party.

ACCEPTED AND AGREED TO:

__________________________________,

professionally known as _____________________

Company

#mmapgx #evanwreknmarsh #music #tour