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CO-PUBLISHING AGREEMENT

 

This Agreement made and effective as of the 23rd day of June, 2009.

 

BETWEEN:

DESMAN INC.,

f/s/o SHAWN FERNANDES,

ALSO PROFESSIONALLY KNOWN AS

SHAWN DESMAN AND

SHAWN FERNANDES,

ALSO PROFESSIONALLY KNOWN AS

SHAWN DESMAN, PERSONALLY

 

 

(hereinafter jointly and severally referred to as the "Owner")

 

OF THE FIRST PART;

 

-

and  -

 

SHAWN FERNANDES,

ALSO PROFESSIONALLY KNOWN AS

SHAWN DESMAN, PERSONALLY

 

(hereinafter referred to as the "Writer")

 

OF THE SECOND PART;

 

-

and –

 

UOMO MUSIC PUBLISHING INC.

161 Bay Street, 27 th Floor

Toronto, ON

M5J 2S1

 

(hereinafter referred to as the "Administrator")

 

OF THE THIRD PART.

 

WHEREAS the Owner and Writer have acquired and will from time to time acquire rights in musical compositions;

 

AND WHEREAS the Owner and Writer are desirous of having Administrator administer pursuant to the terms of this Agreement the Compositions as defined in this Agreement;

 

AND WHEREAS it is the intention of the Administrator and the Owner that they shall jointly own the Compositions pursuant to the terms hereof;

 

 

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NOW THEREFORE in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

1.00

ADMINISTRATOR'S RIGHTS

 

1.01

Grant of Rights

 

Administrator shall have and is hereby granted by Owner and Writer, subject to the terms hereof, the sole and exclusive right and licence during the term hereof to administer and exploit the Compositions, as defined in paragraphs 1.03(a) to (c) inclusive, throughout the entire world (the "Territory"), including, without limitation:

 

(a)

the right to print, publish, sell, use and license the use of the Compositions throughout the Territory, and to execute in its own name any and all licences and agreements whatsoever affecting and respecting the Compositions in the Territory including, without limitation, licences for mechanical reproduction, public performances, merchandising, sub-publishing, synchronization uses, printing uses, and the right to licence such rights and uses to others, and without limiting the foregoing;

 

(b)

Owner and Writer hereby grant to Administrator any and all other rights, licences and uses, whether now known, or which may come into existence hereafter, customarily granted to an administrator of musical compositions, as that term is normally defined in the music industry, including, without limiting the generality of the foregoing, to secure copyright registration and protection of the Compositions in Administrator's and Owner's name, including any and all rights to renewals and extensions of copyrights, and to have and to hold said copyrights, renewals, extensions and all rights of whatsoever nature thereunder existing, subject to the terms of this Agreement, for and during the full term of all said copyrights and all renewals and extensions thereof;

 

(c)

Subject to consultation with Owner and the provisions of Section 12.18 hereof and in Administrator's reasonable business judgment, to substitute a new title or titles for the Compositions and to make any arrangement, adaptation, translation, dramatization and transportation of the Compositions, in whole or in part, and in connection with any other musical, literary or dramatic material, in and to the lyrics of the Compositions, all as Administrator, acting reasonably, may deem expedient or desirable; provided however the following shall require Writer’s consent which shall not be unreasonably withheld:

 

(i)

Any change which would reduce the Owner's or Writer’s percentage entitlement and a share of the royalties, other than a payment to a translator at then prevailing minimum rate of the applicable performing rights society.

 

(d)

Owner does hereby authorize Administrator or any of its officers as its agent to take such reasonable action which Administrator, from time to time, may reasonably deem desirable or necessary to vest in Administrator, its successors, assigns and licensees, concerning any of the rights or interest granted by Owner

 

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and Writer hereunder, including but not limited to the right to prepare reasonable documents required to secure to Administrator its respective interest in the renewals and extensions of copyright throughout the world of the Compositions, and also such reasonable documents necessary to assign to Administrator, its successors and assigns, its respective interest in such renewal copyrights, and all rights therein for the terms of such renewals and extensions for the use and benefit of Administrator, its successors and assigns.

 

(e)

Notwithstanding any other provision herein, Company agrees that it will issue mechanical and synchronization licenses as required by and on the same terms as the controlled composition clause and related clauses (i.e. dealing with videos and home audio visual devices) as set out in that Record Production Agreement by and between Owner and UOMO Productions Inc. dated of even date herewith, as well as with the corresponding clauses of any future agreement in respect of Artist’s recording and/or record producing services.  Company will not issue, insofar as reasonably possible, any mechanical licenses at less than the industry statutory rate and any synchronization licenses for commercials without first consulting Owner.  

 

1.02

(a)

Owner furthermore sells, assigns and transfers to Administrator an undivided fifty percent (50%) interest in and to the Net Publisher's Income derived from the Compositions together with a fifty percent (50%) interest in and to any and all right, title and interest in and to the Compositions, including but not limited to any and all copyright that may now exist in or with respect to the Compositions, or which may become known under any amendments to the Copyright Act and in and to any renewals and extensions thereof throughout the Territory for the entire life of such copyright, including any extension or renewal thereof, including without limitation, the right to obtain copyright therein in the joint names of Owner and Administrator for the entire Territory.

 

(b)

Owner shall have the right on a case-by-case basis, with Administrator’s knowledge and prior written approval, to be contracted under work-for-hire agreements to score audio-visual productions, including video games and internet programs, provided the Gross Receipts and Net publisher’s Income therefrom is dealt with pursuant to the terms hereof.  

 

1.03

Compositions

 

For the purposes of this Agreement, the term "Compositions" shall mean, to the extent of Owner’s ownership therein, all of the following:

 

(a)

all musical compositions or parts thereof including words and music written or created in whole or in part by Owner during the term hereof;

 

(b)

all musical compositions or parts thereof which are now owned or controlled or have been written in whole or in part by the Owner, or which may throughout the term hereof become owned or controlled by the Owner, and

 

(c)

those musical compositions listed in Schedule "C" and in any Exhibits thereto.

 

 

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1.04

Collection of Gross Receipts

 

Subject to the terms and conditions hereof, Administrator shall be entitled, on an exclusive basis, to receive and collect and shall employ best efforts consistent with its reasonable business judgment to receive and collect all Gross Receipts (as defined in paragraph 2.01 hereof).

 

2.00

PAYMENTS TO OWNER AND COMPOSERS OF COMPOSITIONS

 

2.01

Gross Receipts

 

For the purposes of this Agreement, "Gross Receipts" shall mean all revenues and monies of any kind whatsoever actually received by the Administrator (or credited to its account in reduction of a previous advance received by it) from the exploitation of the Compositions in the Territory during the term, from all sources now known or hereafter devised, including any monies which may be owing with respect to the Compositions in the Territory as of the date hereof, but shall not include any monies payable directly to any composer of the Compositions by any performing rights society in respect of the public performance of any of the Compositions.  

 

2.02

Net Publisher's Income

 

For the purposes of this Agreement, "Net Publisher's Income" shall mean Gross Receipts, less the following:

 

(a)

any and all amounts paid to any writer, author, composer, lyricist, arranger or translator of the Compositions including without limitation, any and all amounts paid to the Writer of the Compositions pursuant to Schedule "A" Royalties;

 

(b)

actual and reasonable collection or other fees charged by any arms-length collection agent, administrator or sub-publisher used by Administrator, provided the same are not recouped from the Writer of the Compositions pursuant to Schedule “A”;

 

(c)

the actual cost to Administrator of printing, transcribing, engraving, arranging and editing printed copies of the Compositions, provided the same are not recouped from the Writer of the Compositions pursuant to Schedule “A”;

 

(d)

the actual costs of any recordings of the Compositions distributed for promotional purposes and the out-of-pocket costs of such distribution, unless otherwise deducted as Recordings Costs as defined in that Record Production Agreement by and between Owner, Writer and UOMO Productions Inc. dated of even date herewith; and all costs reasonably related to producing demonstration recordings (demos), provided the same are approved by Owners prior to being incurred;

 

(e)

all reasonable costs incurred by the Administrator in collecting revenue from the Compositions or exploiting in any manner the Compositions, provided they are direct, reasonable and actually incurred in marketing, promotion or exploitation of Compositions (not including legal fees and overhead);

 

(f)

Administrator shall be entitled to deduct all such costs pursuant to this paragraph 2.02 prior to Owner being paid Net Publisher's Income hereunder.

 

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2.03

Payment of Owner's Share of Net Publisher's Income

 

The Administrator shall pay, or credit to Owner's account, an amount equal to fifty percent (50%) of Net Publisher's Income, provided, however Administrator shall be entitled to a reasonable reserve against future expenses (as permitted in paragraph 2.02) which reserve shall be insofar as reasonably possible not to exceed twenty-five percent (25%) of gross income hereunder and it shall insofar as reasonably possible, be equally liquidated over two accounting periods and which in no event shall be greater than customary record industry reserve provisions for similar expenses.

 

2.04

Payments from Third Party Publishers or Licensees

 

Notwithstanding anything contained in this Agreement to the contrary, any advance payments, guaranteed payments or minimum royalty payments received by Administrator from third party sub-publishers, co-publishers, administrators or licensees (hereinafter referred to as "Sub-Publishers") in conjunction with any sub-publishing license or other agreements between Administrator and Sub-Publishers solely respecting the Compositions only (these payments are referred to as Advances which agreements are hereinafter referred to as "Sub-Publishing Agreements") shall be dealt with according to paragraph 2.02 and 2.03.  In no event prior to recoupment by Administrator of all of its expenses (as permitted in Section 2.02 above) incurred shall Owner be entitled to share in any advance payments or minimum royalty payments which Administrator shall receive in connection with any sub-publishing agreement, administrating  agreement, collection agreement, licensing agreement or other agreement governing the Compositions.

 

2.05

Small Performing Rights

 

So called “small performing rights” in the Compositions, to the extent permitted by law, shall be assigned to and licensed by the performing rights society to which the Administrator and Owner belong.  Such society shall be authorized to collect and receive all monies herein for the public performance of the composition and to pay directly to the Administrator 100% of the amount allocated by such societies of the publisher's share of public performance fees with respect to the Compositions and the terms of this Agreement shall be subject to Owner and Administrator's agreement with such society.

 

3.00

TERM

 

3.01

Term

 

(a)

The term as set out in this Agreement shall consist of an initial period of one (1) year plus three (3) one year irrevocable and consecutive and separate options of twelve (12) months each to renew this Agreement on the effective date of this Agreement.  Such options shall be deemed to be exercised on such date unless not later than one (1) month prior to the expiration of the applicable period, Administrator shall have given to Artist written notice of the termination of the term of this Agreement (in which case the term of this Agreement, including any and all remaining options, if any, shall terminate thirty (30) days following Artist’s receipt of such notice).  

 

 

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(b)

Notwithstanding the expiration or termination of the term hereof, any and all copyright interests granted or assigned hereunder shall be retained and enjoyed by Administrator and/or the Owner, as the case may be, for the entire life of copyright and to any of the Compositions and in and to any extensions or renewals thereof throughout the Territory.

 

(c)

Notwithstanding anything contained herein to the contrary, the term of this Agreement shall be the longer of the Term set out herein or be co-terminus with the Term of that Production Agreement by and between Artist and UOMO Productions Inc. entered into contemporaneously with the dat


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