1. SCOPE OF WORK AND FEES
ACG shall create a profile of artists and celebrities ("Artists Listings") to enable the membership of the Company ("Members") to register online or otherwise, to review the Artists Listings, and purchase service(s) from the various Artists and celebrities found on such Artists Listings over the Internet. Services may include, but are not limited to endorsements, product placement/brand integrations, music licensing and sponsorships.
Company shall pay ACG a flat fee of Twenty-five percent (25%) of the gross value of the contract between the Company and the artist(s)/celebrity(s) chosen from the Artists Listings.
ACG shall collect all compensation due to the artist/celebrity on their behalf. The Company shall pay ACG 50% of the gross value of the contract, on behalf of the artist/celebrity upon the signing of the contract with the remaining 50% due upon full performance by the Artist/celebrity.
In the event that the Company requires ACG to be more involved with the campaign i.e. the creative process, production, design, SEO/PPC, planning/coordinating LIVE events, the Company shall pay ACG an additional fee, negotiated on a case by case basis, in addition to the 25% fee.
ACG represents that the performance of the services shall be of a professional quality and shall be accomplished in compliance with all applicable laws and regulations and in accordance with any terms and conditions set forth in this Agreement.
This Agreement shall remain in effect for the period commencing with the effective date and terminating two (2) years after the Effective Date (the "Initial Term").
B. This Agreement shall be automatically renewed for an additional twenty four (24)-month period ("Extension Term") on the same terms and conditions as provided for herein without the requirement of further notice.
3. ACG'S RIGHTS
ACG shall have the exclusive right during the Term of this Agreement to develop, customize, maintain, and manage an Internet-based Artists Listing consisting of service(s) offered by Artists that are associated with ACG.
During the Initial Term, any Extension Term, and for two (2]) years following the expiration of this Agreement, Company shall notify ACG of any offer, proposal, or solicitation to Company by any entity wishing to provide services to Company similar to that provided by ACG under this Agreement. ACG shall have an absolute right to match any such offer, proposal, or solicitation and Company shall execute an agreement with ACG to provide services pursuant to such matched contract terms.
4. RELATIONSHIP AND DUTIES
ACG is retained by Company solely for the purposes set forth herein. ACG, in rendering performance under this Agreement, shall be deemed an independent contractor, and nothing contained therein shall constitute this arrangement to be employment, a joint venture, or a partnership. ACG shall not have the power to bind Company nor shall ACG make any such representation. ACG shall be solely responsible for and shall hold Company harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen's compensation.
5. OWNERSHIP RIGHTS
Company hereby grants ACG a royalty free, non-exclusive right to use Company's name, logo, trademarks, and/or service marks, and all other such images for which Company grants ACG express permission, for the purpose of creating and developing Company's Program under the terms of this Agreement. ACG's use of Company's name, logo, or trademarks owned by Company shall be limited to the purposes described in this Agreement. ACG agrees that ownership of such name, logo, and trademarks shall remain with Company. Any copyrightable material shall be exclusively owned by Company and shall be considered a "Works Made for Hire." In the event that it should be determined that any of such copyrightable material does not qualify as a "Work Made for Hire," ACG will and hereby does assign to Company for no additional consideration, all right, title, and interest that it may possess in such copyrightable material including, but not limited to, all ACG and proprietary rights relating thereto.
B. All right, title, and interest in and to any computer code (both source and object), including, but not limited to, all interfaces, navigational devices, menus, menu structures or arrangements, help and other operational instructions, and the literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the content and appearance provided hereunder (the "Software") including without limitation, any copyrights, patents, trade secrets, and other intellectual or industrial property rights therein, are and shall be held by ACG, except for the rights reserved to Company as more fully described in herein.
6. PROTECTION OF PROPRIETARY RIGHTS
Company shall not assist or permit others to de-compile, decrypt, disassemble, or otherwise reverse-engineer the Software to create or derive the source code thereof from the object code thereof or from any other information.
B. Each party shall use its best efforts to ensure that its employees, independent contractor agents, sales and distribution agents, and others acting in concert with it or on its behalf are prohibited from taking any action otherwise prohibited to each party hereunder and to promptly notify the other party of the circumstances surrounding any such use or possession of the Software or any part thereof.
Either party may terminate this Agreement on Ten (10) days' written notice to the other party in the event of a breach of any material provision of this Agreement by the other party, provided that, during the Ten (10)-day period, the breaching party fails to cure such breach or, should the breach not be curable within said Ten (10)-day period, the breaching party has not initiated steps to cure such breach.
Either party may terminate this Agreement upon expiration of the Initial Term or any Extension Term by delivering written notice of such termination at least Ten (10) days prior to the expiration of the Initial Term or the then-current Extension Term, in which event the Agreement shall automatically terminate at the end of the Initial Term or such Extension Term.
In the event that this Agreement is terminated as a result of a breach of this Agreement by ACG, Company shall have the right, in addition to any other claims that it might otherwise have against ACG, to complete the services either itself or through the services of a third-party developer and charge back to ACG any costs incurred.
In the event that either party terminates this Agreement, Company and ACG shall be entitled to receive any and all unpaid commissions and fees due up to the date of termination. In no event, however, will ACG be obligated to refund to Company any monies paid.
Upon termination of this Agreement for any reason all intellectual property licenses granted to Company hereunder shall continue in full force and effect as long as Company has provided to ACG any and all payments required by this Agreement and all rights and licenses granted ACG hereunder shall remain in full force and effect.
8. REPRESENTATIONS AND WARRANTIES
ACG REPRESENTS AND WARRANTS TO COMPANY THAT THE SERVICES PROVIDED SHALL CONFORM TO THE TERMS OF THIS AGREEMENT. ACG DOES NOT WARRANT AGAINST FAILURE OF PERFORMANCE DUE TO FAILURE OR DISRUPTION OF THE INTERNET AND/OR COMPANY'S WEB SITE SERVER OR CONNECTIVITY, FAILURE OF COMPANY'S COMPUTER HARDWARE OR SOFTWARE, AND/OR THIRD-PARTY SERVICES UNDER COMPANY'S CONTROL OR THE SERVICES OF THE ARTIST(S) RETAINED BY COMPANY. THE FOREGOING WARRANTY IS THE ONLY WARRANTY MADE WITH RESPECT TO SERVICES PROVIDED UNDER THIS AGREEMENT AND IS A LIMITED WARRANTY. ACG EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED. THE LIABILITY OF ACG FOR ANY REASON AND UPON CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE TO ACG THROUGH COMPANY'S PROGRAM. IN NO EVENT SHALL ACG BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR OTHER ECONOMIC LOSS (WHETHER ARISING FROM BREACH OF CONTRACT, TORT, STRICT LIABILITY) EVEN IF ACG HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9. Non-Circumvention: The Parties agree to not circumvent each other and work with business associates, clients, and other third party vendors introduced by each party. The parties may introduce each other to companies that are interested in acquiring services provided by each party. It is understood that the introducing party retains ownership of such a referral and that the other party cannot deal directly with such referred company without the written consent of the referring party. This non-circumvention provision shall expire at the end of two (2) years from the termination of this Agreement.