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Non-Exclusive License Agreement (Heads of Agreement)
Dated as of __________ 2008 by and between
_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
(hereinafter referred to as "Licensor")
and
TOTAL RECALL e.K.
Marcus Gabler
Paul-Ehrlich-Str. 28-30/G8
63322 Roedermark
Germany
(hereinafter referred to as "TOTAL RECALL").
This agreement (the “Agreement”) shall set out the terms upon which Licensor has agreed to license to TOTAL RECALL certain rights in respect to audio recordings and/or audio-visual recordings as set out in section 3 below (the “Recording/s”) as follows:
1 - TERRITORY
The entire world (the “Territory”).
2 - EXPLOITATION PERIOD / TERMINATION
TOTAL RECALL shall be non-exclusively entitled to exploit the Product hereunder thru digital
distribution starting on January 1st 2003 with no dedicated duration or termination date. (the
“Exploitation Period”).
This agreement may be terminated by either party at any time with 30 days notice.
3 - PRODUCT / OPTIONS
3.1
TOTAL RECALL shall be non-exclusively entitled to exploit the following audio recordings (the “Recordings”) thru digital distribution (name artist & title):
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4 - ROYALTIES
4.1
With regard to Digital Distribution of the Recordings TOTAL RECALL shall pay to
Licensor a royalty of 70 % of its Net-Receipts.
4.2
Net-Receipts under this agreement shall mean monies actually paid to and received by
TOTAL RECALL resulting from digital distribution less VAT.
5 - RIGHTS
The Licensor assigns to TOTAL RECALL for the Territory and the Exploitation Period the nonexclusive and non-transferable digital exploitation rights to the Recordings
6 - ACCOUNTING
6.1
Where applicable, VAT will be payable to Licensor in addition to all sums payable to
Licensor hereunder.
6.2
Licensor acknowledges that TOTAL RECALL may be obliged pursuant to German tax law
to withhold taxes unless TOTAL RECALL receives a certificate of the German Tax Authority that
payments to Licensor are not subject to the German taxes (“tax exemption”). TOTAL RECALL
will use reasonable efforts to avoid and/or minimise the effects of withholding taxes on payments to
Licensor hereunder.
6.3
Licensor shall have the right to inspect TOTAL RECALL’s books and records relating to
Licensor’s account once per calendar year upon not less than 30 days prior written notice.
7 - WARRANTIES
7.1
Licensor has the right, power and authority to enter into this Agreement and to fully perform the terms hereof and has obtained all necessary permissions for recording, reproduction and
the licensing hereunder of all Recordings and any other material delivered by Licensor hereunder.
Licensor further agrees to indemnify and hold TOTAL RECALL harmless from and against any
and all claims, liability, loss, damage, cost or expenses, including reasonable legal fees, paid or
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incurred by reason of any breach or claim of breach of any of Licensor’s covenants, warranties
and representations hereunder. Pending the determination of any claim involving such breach,
TOTAL RECALL may withhold sums payable to Licensor hereunder in an amount reasonably
consistent with said claims.
7.2
Notwithstanding the generality of Licensor's responsibilities under this Agreement the
parties explicitly agree that all audio and/or audiovisual samples that may be contained in Recordings must be cleared by Licensor, meaning that it is the sole responsibility of Licensor to obtain all permissions from composers and/or publishers as well as from master owners and/or any
other person that may own rights in this respect necessary for the exploitation of such contractual
recordings containing of samples. TOTAL RECALL is held free from any 3rd party claims concerning such works and will pass any such claims on to the licensor.
8 - MISCELLANEOUS
8.1
Licensor acknowledges that royalties for digital distribution until have already been paid
out by distributors to 3rd parties. Licensors hereby passes his claims against those 3rd parties on to
TOTAL RECALL. Licensor can under no circumstances have any claims against TOTAL RECALL for royalties TOTAL RECALL has never received.
8.2
Licensor authorizes TOTAL RECALL to take in his own name all necessary measures
and actions, including legal actions, to stop any infringement or violation of Licensee’s rights in
the Territory and to obtain redress and Licensor shall co-operate fully with Licensee in such regard.
8.3
TOTAL RECALL shall only be in breach of any warranties or obligations specified in
this Agreement (except for reasons of force majeure) if such breach is not cured within 30 days
after written notice thereof by Licensor to TOTAL RECALL, except otherwise provided herein.
8.4
This Agreement represents the entire understanding of the parties and constitutes the
whole agreement, in relation to its subject matter and supersedes any previous agreement between the parties with respect thereto.
8.5
Illegality or unenforceability of any portion or part of this Agreement shall not affect the
legality or enforceability of the entire Agreement. The parties hereto agree to substitute in good
faith any illegal or unenforceable portions or parts hereof by valid provisions of the same or similar content.
8.6
No change of the terms of this Agreement shall be binding on either party unless embodied in a written document signed by both parties.
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8.7
This Agreement shall be exclusively governed by German law. Exclusive place of fulfilment and place of jurisdictions is Roedermark.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on or about the day
and year first above written.
Roedermark, ___________
Date
____________
Place
____________
Date
________________________
for and on behalf of
TOTAL RECALL e.K.
________________________
for and on behalf of
Licensor
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