This AGREEMENT ("Agreement") is made as of May 18, 2013, by and between ("Artist") and Peter Ligeti, (TTEE), Ligeti Artists LLC Individual 401-k, Roth 401k #114650, c/o Equity Trust Company, 225 Burns Road, Elyria, OH 44035, 50% Undivided Interest and Equity Trust Company Custodian FBO Peter Ligeti IRA, 50% Undivided Interest ("Company").
WHEREAS, Company operates the website http://www.theshowstore.com (the "Website");
WHEREAS, Company wishes to obtain an option to present Artist as a live performer throughout the United States and Canada pursuant to the terms and conditions hereinbelow;
WHEREAS, Artist wishes to grant to Company such option;
NOW, THEREFORE, in consideration of the mutual covenants made herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Artist and Company hereby agree as follows:
TERMS AND CONDITIONS
1. Option. For a period of two (2) years from the date hereof (the "Option Period"), Artist hereby grants to Company a non-exclusive, irrevocable, fully transferable and assignable option (the "Option") to present live performances of Artist's act throughout the United States and/or Canada (each, and "Engagement"), subject to the terms and conditions set forth herein. Artist shall be notified by Company thirty (30) days prior to the end of the Option Period, and the Option Period shall automatically renew unless Artist chooses to "opt out" during the thirty (30) day period prior to the end of the Option Period.
2. Exercise. Company may exercise the Option by booking an Engagement at any time during the Option Period. The Option may be exercised by Company an unlimited number of times during the Option Period, subject to the terms hereof. Artist agrees to use reasonable efforts to be professionally available at all times during the Option Period. Artist agrees to provide to Company at least forty-five (45) days' notice of any date(s) that Artist shall not be available to render services during the Option Period by notifying Company through the Website.
In the event Company wishes to book an Engagement, Artist agrees to abide by the following procedure, unless Company shall notify Artist of an alternate procedure:
2.1 Company shall notify Artist of the date, time, location, venue and nature of the Engagement, and the fee (the "Engagement Fee") being offered (collectively, the "Engagement Proposal"), as well as the date by which Company must receive confirmation of Artist's acceptance of the Engagement Proposal (the "Expiration Date");
2.2 If Artist wishes to accept the Engagement Proposal and appear and perform the Engagement for the Engagement Fee being offered, Artist shall notify Company of same through the Website prior to the close of business (5:00pm Eastern Standard Time) on the Expiration Date. ARTIST'S ACCEPTANCE OF THE ENGAGEMENT DOES NOT GUARANTEE A BOOKING.
2.3 If Artist wishes to request a higher Engagement Fee for the Engagement, Artist shall notify Company of same through the Website prior to the close of business (5:00pm Eastern Standard Time) on the Expiration Date.
2.4 If Artist does not wish to accept the Engagement Proposal, Artist does not need to respond to the Engagement Proposal, which will automatically expire if no response is received by the Company prior to the close of business (5:00pm Eastern Standard Time) on the Expiration Date.
2.5 If Artist has requested a higher Engagement Fee for the Engagement, Company shall send a notification to Artist within fourteen (14) days of the Expiration Date which either:
(i) confirms that the Engagement Fee requested by Artist has been accepted and the Engagement has been booked; or,
(ii) provides a counter-offer to Artist with an alternate Engagement Fee for the Engagement.
2.6 If and when the Engagement Proposal is accepted by Artist, Company shall notify Artist within fourteen (14) days of the end of the Engagement Period as to whether or not the Engagement has been booked. ARTIST'S ACCEPTANCE OF THE ENGAGEMENT DOES NOT GUARANTEE A BOOKING.
2.7 If the Engagement has been booked, Company shall send a confirmation to Artist notifying Artist of same, along with an "Artist Services Agreement" for such Engagement. Artist shall sign the Artist Services Agreement where indicated, and return a signed copy to Company as instructed thereon.
3. Consideration. As set forth herein, Artist shall be entitled to an Engagement Fee for each Engagement during the Option Period (unless the parties otherwise agree). Such Engagement Fee shall in all cases be paid to Artist directly by Company pursuant to the terms of the Artist Services Agreement for such Engagement, but in any event shall be delivered to Artist within thirty (30) days of the final performance of the applicable Engagement. In addition to the foregoing, Company's services to Artist in connection with the Website, including the maintenance thereof, and any services rendered by Company in connection with booking an Engagement for Artist, shall constitute sufficient consideration for the rights granted by Artist hereunder.
4. Rights. Company shall have the right, in its sole discretion, to seek and contract with third party producers, venues, presenters and others (collectively, "Presenters") to present Artist's act, to book Engagements for Artist during the Option Period, and to license to Presenters all of the rights necessary and related to Artist's performance of the Production for such Engagement(s). Company shall have the right to promote, advertise, and market Artist on and through the Website and elsewhere during the Option Period, throughout the universe, in any and all media now known or hereafter devised. During the Option Period, Artist agrees not to circumvent Company by entering into an agreement with a third party presenter, producer, venue or other person or entity with whom Company has entered into an agreement or commenced negotiations for same in connection with the exercise of the Option hereunder. Company shall also have a non-exclusive, perpetual, irrevocable, sublicensable (through multiple tiers), assignable, fully paid, royalty free, worldwide license, in any and all media now known or hereafter devised, to use the name, image, likeness, voice, performance or other indicia of identity of Artist (or any party constituting Artist) in connection with the Website and/or any Engagement, and any advertising or promotion thereof, including without limitation any recordings of any rehearsals, interviews or performances from prior Engagements.
5. Special Opportunities. Through the content management section of the Website, Company may, at Company's sole discretion, permit Artist to advertise itself in the "Deals and Special Opportunities" section of the Website, subject to the terms and conditions set forth therein. In such event, Artist shall have to ability to advertise specific dates/locations for an Engagement for which Engagement Fees may be discounted by a certain percentage, alternative fee arrangements may be implemented (e.g. box office splits or the like), or other special opportunities (collectively, each a "Special Opportunity") that Artist wishes to present to Presenters. Artist shall notify Company should it wish to add a Special Opportunity to the Deals and Special Opportunities section of the Website, and Company shall add such Special Opportunity in such event; provided, however, that Company shall have the right, in its sole discretion, not to add, or to at any time remove, any such Special Opportunity for any reason whatsoever. Any Special Opportunity must be booked through the Website, and failure to abide by the foregoing shall constitute a breach of the non-circumvention provision of Section 4 hereof and this Agreement for which Company shall have the right to seek and obtain any and all remedies available at law or in equity.
6. Materials. The Website will enable Artist to upload video files, audio files, biographical information and other information about the Artist and/or which provides a sample of Artist's act (collectively, "Materials"). Artist hereby acknowledges and agrees that Company shall not have any obligation to review the Materials, and that Company shall have the right, in its sole discretion, to remove any or all of the Materials from the Website at any time for any reason. Artist hereby warrants that (i) Artist owns all rights in and to the Materials, and (ii) the Materials shall not infringe upon any party's intellectual property, publicity, privacy or other rights and that such Materials shall not be defamatory or libelous. Furthermore, Artist agrees not to post or upload to the Website any Materials which:
6.1 are fraudulent;
6.2 are designed to interrupt, or destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or interferes with or disrupts the Website, services connected to the Website, or otherwise interfere with operations or services of the Website in any way;
6.3 infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party; including the promoting of an illegal or unauthorized copy of another person's copyrighted work;
6.4 are offensive to the Website community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual or which harasses or harms, or advocates the harassment or harming of another person;
6.5 involve the transmission of "junk mail", "chain letters," or unsolicited mass mailing or "spamming", or solicits personal information from visitors to the Website;
6.6 promote information that is false or misleading, or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
6.7 link to materials or other content, directly or indirectly, to which the user posting such Material does not have a right to link to or which competes in any manner with the Website or Company;
6.8 violate a person's rights of publicity and/or privacy; or
6.9 violate any applicable local, state, national, or international law.
7. Use of Materials. By posting any Materials to the Website, Artist automatically grants, and represents and warrants that Artist has the right to grant to Company, a non-exclusive, perpetual, irrevocable, sublicensable (through multiple tiers), assignable, fully paid, royalty free, worldwide license to use, copy, modify, adapt, publish, display, broadcast, create derivative works of or incorporate into other works such Materials, in any form, media or technology, now known or hereafter devised, and to grant and authorize sublicenses of the foregoing through multiple tiers of sublicensees, including without limitation the right to exercise the copyright, and other rights over any of the Materials (or any portion thereof) for any purpose, including without limitation for the purpose of advertising, promoting, and marketing Artist and/or Artist's performance(s). Notwithstanding the foregoing, no posting or uploading of the Materials to the Website shall impose any obligation on Company, and Company shall not be liable for any use of or failure to use the Materials. Artist hereby releases Company, and Company's employees, principals, owners, affiliates, successors, subsidiaries, licensees, assignees and representatives, in perpetuity, worldwide, from any liabilities resulting from any exploitation of the Materials by Company as authorized hereunder, including, without limitation, in connection with a claim of libel, slander, defamation, disclosure, revelation, appropriation of name and/or image, false light, violation of Artist's rights of privacy or infringement of copyright, trademark, trade secret or right of publicity. Artist hereby agrees that Company may rely upon such release in using and exploiting the Materials.
8. Termination. Company shall have the right to terminate the Option at any time for any or no reason. Such termination shall be effective immediately upon notification to Artist, in which event all Materials shall be removed from the Website, and neither party shall have any further rights or obligations to the other hereunder, except that Company shall pay to Artist any amounts owed to Artist prior to the date of such termination.
9. User Account. In order to use the Website as contemplated herein, Artist must create a user account (the "Account"). When creating the Account, Artist must provide accurate and complete information. Once Artist has established the Account, Artist will be issued a user name (which will be your email address) and password. Artist is solely responsible for the activity that occurs in and through the Account, and Artist must keep his or her Account password secure. Artist must notify Company immediately of any breach of security or unauthorized use of Artist's Account. Although Company will not be liable for your losses caused by any unauthorized use of Artist's account, Artist may be liable for the losses of Company or others due to such unauthorized use. Company reserves the right to terminate Artist's Account and to refuse any current or future use of Website, pursuant to the terms and conditions herein, and to modify, purge and/or to discontinue the Website or any aspect thereof.
10. Notices. Artist hereby acknowledges and agrees that Company shall have the right to communicate with Artist electronically, via email (to the email address provided by Artist to Company when creating Artist's Account) or by posting notices to Artist account on the Website. Artist hereby agrees that all agreements, notices, disclosures and other communications that Company will provide to Artist electronically shall satisfy any legal requirement that such communications be made in writing, and shall be deemed received twenty-four (24) hours after such electronic communication has been sent.
11. Assignment. Company may freely assign this Agreement and/or any of its rights and obligations hereunder to third parties. Artist shall not have the right, at any time, to assign any of its rights or obligations hereunder to any third party.
12. Independent Contractor. Artist warrants that Artist is and shall be an independent contractor for all purposes, and that Company shall not be responsible for any of Artist's tax liability, nor any workers compensation, insurance, benefits, pension, health, overtime, holiday, weekend or other benefits not explicitly set forth herein. Nothing in this Agreement shall constitute a joint venture, partnership arrangement or employment agreement between Artist and Company, and neither party is or shall be an agent of the other.
13. Warranties, Indemnification.
13.1 In addition to the other warranties contained herein, Artist hereby warrants that Artist is at least eighteen (18) years of age, that Artist has been given the opportunity to seek and obtain the advice of counsel with respect to this Agreement, and that Artist has the right to enter into this Agreement. Artist further warrants that Artist is not a member of any collective bargaining organization (including without limitation Actors' Equity Association), and that any membership by any party therein shall not in any manner effect the terms hereof or subject the Company to any liability or obligation not specifically set forth herein, and that Artist acknowledges that Company is not a signatory to any collective bargaining agreement.
13.2 Artist and Artist's employees, principals, directors, owners, affiliates, agents and representatives agree to indemnify, defend and hold Company and Company's employees, principals, directors, owners, affiliates, successors, subsidiaries, licensees, assignees, agents and representatives harmless from any claim, expense or demand, including without limitation reasonable attorneys' fees, made by any third party due to or arising out of Artist's breach of any of the warranties, covenants or agreements made herein, or Artist's violation of any law or the rights of a third party. Company shall not be liable to Artist or any other person or entity for any punitive, special, indirect, consequential, incidental or other similar damages, costs or losses arising out of this Agreement, even if Company has been advised of the possibility of such damages, costs or loss.
13.3 Company warrants that it has the right to enter into this Agreement. Company does not make any other warranties, express or implied, regarding the Website, the Option or the exercise thereof, including without limitation with respect to Company's ability to book Artist's act during the Option Period.
13.4 Company and Company's employees, principals, directors, owners, affiliates, successors, subsidiaries, licensees, assignees, agents and representatives agree to indemnify, defend and hold Artist and Artist's employees, principals, owners, affiliates, successors, subsidiaries, licensees, assignees and representatives harmless from any claim, expense or demand, including without limitation reasonable attorneys' fees, made by any third party due to or arising out of Company's breach of any of the warranties, covenants or agreements made herein.
14. Remedy. This Agreement shall be construed in accordance with the laws of the State of New York, without regard to conflicts of law principles. Any and all disputes, claims and controversies arising out of or relating to any provision of this Agreement, or the breach or alleged breach hereof, will be settled by arbitration in New York City, before a single arbitrator, in accordance with the rules then obtaining of the American Arbitration Association, and the award rendered in such proceeding will be binding and conclusive upon the parties.
15. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
16. Force Majeure. Neither Company nor Artist shall be liable to the other for the nonperformance of its obligations hereunder due to an event of "Force Majeure," which term shall include, without limitation, fire, flood, epidemic, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, war (declared or undeclared) or any federal, state or local government law, order or regulation, order of any court or jurisdiction, or other cause not reasonably within the control of the non-performing party.
17. Disability/Default. If Artist shall be unable to render fully any of his/her services hereunder due to death or any sickness, mental and/or physical disability or legal disability ("Disability"), or if Artist fails or refuses to perform the work hereunder, or Artist otherwise fails or refuses to perform or comply with any of the material terms or conditions hereof (if other than by reason of a Artist's "Disability" as described herein or an event of Force Majeure, "Default"), Company shall have the right to suspend Artist's services hereunder for the duration of any such Disability/Default, in which event the Option shall be extended for the entire duration of such Disability/Default.
18. Severability. If one or more of the provisions contained herein shall be held to be unenforceable in any respect under New York or federal law, such unenforceability shall not affect any other provision of this Agreement. The Agreement shall then be construed as if such unenforceable provision or provisions had never existed.
19. Prior Agreements. This Agreement incorporates and supersedes all prior agreements, whether oral or written, between the parties with respect to the subject matter hereof.
20. Modification. Company reserves the right to modify this Agreement at any time, in which case Artist shall be notified of any such modifications. Artist agrees that Artist shall have seven (7) days from the date of such notification to "opt out" of this Agreement. If Artist does not "opt out" within such time, then Artist shall be deemed to have agreed to and accepted such modifications. This Agreement is current as of the date first written above.
May 18, 2013