Download Ancillary Agreement (360 degree)
ANCILLARY RIGHTS AGREEMENT
(360 degree agreement)
Attachment to Recording agreement dated __________________ (attached)
Reference is made to the Agreement between ___________________(Artist“) and ______________________ (“Label“),
Artist and Label agree to enter into an agreement (Agreement) with respect to Label acquiring income participation in Artist’s entertainment and music industry related activities, excluding music publishing activities. The Artist’s activities as a songwriter or music publisher of Artist’s musical compositions or those of others remain separate from this agreement.
Label Agrees to provide the following services:
In consideration of the mutual covenants herein contained, and for other consideration, Artist and Label hereby agree to:
Marketing Fund.
Promptly following the complete execution of this Agreement, Label will allocate a fund of $________ to be utilized in connection with the following activities in connection with the production of Artists Album titled: _________________________.
Tour support
Independent publicity
Marketing
___________________
___________________
___________________
___________________
the use, licensing, reproduction, publication, and/or exhibition of Artist’s name(s), portraits, pictures and likenesses (including 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 (collectively, “Endorsements“).
Artist’s services or endeavors as a musician, vocalist or performer in connection with live performances or engagements. This includes public or private stage, television, cable or other broadcast, webcasts, motion pictures, one-night shows, tours as a solo or group act.
services where Artist is engaged as an actor or as himself or herself to appear or to serve in a creative capacity, such as director, writer or producer, in any dramatic or non-dramatic television series (or one or more episodes thereof), motion pictures, or similar productions (excluding only audio-visual recordings made for Label pursuant to the Recording Agreement) or stage productions, for public audiences and/or for exhibition in any media now known or hereafter devised.
Entertainment Activities Revenues.
Artist hereby grants and assigns to Label, an amount equal to ____% of Artist’s Net Entertainment Activities Receipts, and Artist will pay that amount to Label as provided in paragraphs 4 and 5 below.
As used in this Agreement, the term “Artist’s Net Entertainment Activities Receipts” means all gross monies, however characterized and whether received during or after the Term (including residual accountings), paid or payable to Artist, or any entity which furnishes Artist’s services or is otherwise partly or wholly controlled by Artist, less costs of collection and commissions paid by Artist to any unrelated third parties and all bona fide, out-of-pocket third party costs or expenses attributable to the applicable
Entertainment Activity includes but is not limited to the following:
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 Artist’s other obligations under the Recording Agreement;
all literary endeavors by Artist including without limitation, books, magazines and screenplays;
personal appearances outside of Artist’s Touring Services, including, without limitation, one-off concert or night club appearances, and speaking engagements;
the use of, in any medium, 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 individually 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 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, merchandising, fan club merchandise, etc. whether or not in connection with Master Recordings;
Any and all uses of the Artist’s name, photograph(s), voice, sound effects, likeness, caricature, talent or materials in any entertainment industry activities which are not specifically noted herein, including, but not limited to, video games, cartoons and other animations
In order to calculate Artist’s Net Entertainment Activities Receipts in connection with Artist’s Touring Services, receipts will include
all gross monies, including all ticket sales,
revenue and performance fees, paid or payable to Artist less cost of collection and commissions paid by Artist to any third parties and all legitimate, out-of-pocket costs and expenses,
Concert Recordings. Without limitation of any rights that Label may have under the Recording Agreement, Artist agrees and acknowledges that Label has the right to record, film and/or tape, in whole or in part and otherwise as Label elects, any Concerts by means of public stage performances of all kinds, web-casts, sponsorships, television broadcast or cable casts (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.
Payments. Artist will irrevocably direct in writing that all third parties are to pay to Label its share of Artist’s Net Entertainment Activities Receipts at the same times that such third parties account to or pay Artist (or any entity which furnishes Artist’s services or is otherwise partly or wholly controlled by Artist). Artist is responsible to communicate to Label a list of each third party reseller within _________ days.
Artists is responsible to send Label a copy of each of these letters (Letter of Direction) These letters of direction will be attached as Schedule A and will be hereby approved.
Artist will provide within ___________days to Label a copy of each third party agreement under which Artist’s Net Entertainment Activities Receipts will be payable.
If any third party fails or refuses to directly pay to Label its shares of Artist’s Net Entertainment Activities Receipts, then Artist is responsible to report and pay this share within 30 days after Artist (or any entity which furnishes Artist’s services or is otherwise partly or wholly controlled by Artist) is accounted to or paid by the applicable third party.
Label has the right, at its expense, to appoint a certified public accountant or auditor to audit Artist’s books and records (or any entity furnishing Artist’s services or otherwise partly or wholly controlled by Artist) once per calendar year for up to 3 years after the date of expiration or termination of Term of this Agreement concerning Artist’s Net Entertainment Activities Receipts and Artist’s accountings or payments to Label. The time will be during normal business hours upon reasonable written notice to artist.
If any such audit reveals an underpayment to Label exceeding 10%, then Artist will reimburse Label for its costs and expenses of such audit (in addition to paying the underpaid amount).
TERM
The Initial Term of this agreement will begin on the above written date and will continue unless extended for a minimum of _______ days. This Initial Period is designed for the sole purpose of developing and selecting compositions to be recorded in the First Option Period. LABEL hereby guaranties the release of the recording to be completed in the First Option Period of this Agreement when said compositions have been developed, selected and approved by LABEL.
At the end of the Initial Term, you will grant LABEL the first of its Three(3) Option Periods to extend the Term for additional Contract or Option Periods.
LABEL does hereby exercise its First Option Period. This and all other Option Periods will commence upon the end of the current Contract Period (or, if LABEL so advises in writing, such period will begin on the date of such written notice) and end _____ months after delivery of the last Master Recordings comprising the Recording Obligation for such Contract Period.
Notwithstanding anything in the foregoing Paragraphs, it is understood and agreed upon by all Parties that LABEL is hereby granted the right of first refusal for a Fourth Option Period. All Parties agree to negotiate in good faith
Advances. In connection with the rights granted to Label hereunder, following the commencement of each Participation Period, if any, other than the First Participation Period, Label will pay Artist an Advance which shall be fully recoupable from any monies payable to Artist under the Recording Agreement, in the amount equal to two-thirds of the lesser of
the monies actually received by Label hereunder in the prior Participation Period, or the average of the monies actually received by Label hereunder in the prior two (2) Participation Periods; provided that no such Advance payment will be more than the applicable maximum or less than the applicable minimum amount prescribed below:
First Participation Period: $(min) – $(max).
Second Participation Period: $(min) – $(max)
Third Participation Period: $(min) – $(max)
Artist have, 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;
the terms of this agreement do not conflict with any other agreement to which Artist are bound or obligated; and (iii) Artist have in no way conveyed or hypothecated to any other party any of the rights granted to Label hereunder.
Representations and Warranties.
Artist represent and warrant that:
Label represents and warrants that it has the right and power to enter into and fully perform this agreement and to make the commitments it makes herein.
Indemnity.
Artist will at all times indemnify and hold harmless Label and its licensees (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, representation or agreement made by Artist in this Agreement or any other act or omission by Artist, provided the claim concerned has been settled (subject to the provisions of subparagraph 8(b) below) or has resulted in a final judgment against any Indemnitee. Label will notify Artist of any action commenced on such a claim. Artist may participate in the defense of any such claim through counsel of Artist’s selection at Artist’s own expense, but Label will have the right at all times, in its sole discretion, to retain or resume control of the conduct of the 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, Artist will reimburse Label for 50% of the expenses actually incurred by Indemnitee in connection with that claim. Pending the resolution of any such claim, Label will have the right to withhold monies which would otherwise be payable to Artist under this Agreement or the Recording Agreement, in an amount not exceeding Artist’s potential liability to Label under this paragraph; provided, however, Label will not withhold monies which otherwise would be payable to Artist under the Recording Agreement if Artist make satisfactory bonding arrangements in accordance with subparagraph 8(b) below.
If Label pays more than $10,000 in settlement of any claim described in subparagraph 8(a) above, Artist will not be obligated to reimburse Label for the excess unless Artist has consented to the settlement, except as provided in the next sentence. If Artist does not consent to any settlement proposed by Label for an amount exceeding $10,000, Artist will nevertheless be required to reimburse Label for the full amount paid unless Artist make bonding arrangements, satisfactory to Label in its reasonable discretion, to assure Label of reimbursement for all damages, liabilities, costs and expenses (including legal expenses and reasonable counsel fees) which the 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 year after its assertion, Label will not continue to withhold monies in connection with it under this paragraph 8.
General
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.
The parties hereto agree that this Agreement is a separate and independent agreement from the Recording Agreement. Notwithstanding the foregoing, capitalized terms used and not otherwise defined herein have the meanings given to them in the Recording Agreement.
Artist and Label each acknowledge that Label’s rights under this Agreement do not include the right or obligation to procure employment for Artist. Nothing contained in this Agreement shall constitute the management of Artist by Label and Label shall have no obligation to advise Artist or guide Artist as to the advisability of exploiting any Entertainment Activities or to locate any opportunity to exploit Entertainment Activities. Label will not render services typically rendered by a so-called “personal manager” and shall not perform services or be deemed to have acted as an agent for Artist. Artist acknowledges that Label has advised Artist to retain the services of an independent personal manager to advise Artist generally in relation to Artist’s career and Artist’s activities in the music and entertainment industries.
This Agreement may be executed in counterparts, each of which shall be deemed an original agreement for all purposes, including the judicial proof of any of the terms hereof, provided, however that all such counterparts shall constitute one and the same agreement.
This Agreement has been entered into in the State of _________, and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of _____________ applicable to contracts entered into and performed entirely within the State of ___________, with respect to the determination of any claim, dispute or disagreement, which may arise out of the interpretation, performance, or breach of this Agreement.
Agreed this day, ______________________________________
Label Name and Signature
___________________ /s/_____________________________
Artist Name(s), Signatures and Social Security Numbers
___________________ /s/_____________________________ ____________________
___________________ /s/_____________________________ ____________________
___________________ /s/_____________________________ ____________________
___________________ /s/_____________________________ ____________________
___________________ /s/_____________________________ ____________________
___________________ /s/_____________________________ ____________________
___________________ /s/_____________________________ ____________________