LICENSE AND ASSIGNMENT AGREEMENT
THIS LICENSE and ASSIGNMENT AGREEMENT made and entered into as of
the 21st day of August, 2009, by and between Lecia L. Walker and
Original Source Entertainment, Inc. ("Entertainment") a Nevada
corporation, with offices located at 8201 Santa Fe Drive #229,
Littleton, Colorado 80108, (together the "Parties").
W I T N E S S E T H
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WHEREAS, Lecia L. Walker has developed a certain Business Concept,
("Business Concept") under Original Source Music and various other DBA
names including Original Source Publishing (ASCAP), Dishy Publishing
(BMI), and The Dish Publishing (SESAC) and as a result, and as of the
date of this Agreement, has placed over 1191 songs under a Right To
License Assignment ( a list of such songs attached hereto and made a
part of this Agreement) from various recording artists, developed
certain methods of operating and marketing the Business Concept
including, but not limited to methods of selling, marketing,
advertising, art and design concepts, forms, printing, agreements and
other items relating to the Business Concept all herein collectively
called Intellectual Property ("Intellectual Property".) A part of the
Business concept is the method of marketing the songs which are under
contract, to various possible clients, including television and film
studios.
WHEREAS, Lecia L. Walker has filed, or may file, for the certain
Registered Trademarks and certain copyrighted material, pertaining to
the Business Concept (as hereinafter defined) and has used and currently
is using, the Trade Mark(s) and copyrighted materials in commerce and
WHEREAS, Entertainment desires to acquire License and Assignment of
the Business Concept along with the Intellectual Property, including any
related Trade Marks, when or if applied for and received, copyrighted
materials and all aspects of the Business Concept and Lecia L. Walker
desires to grant the License and Assignment to Entertainment the
Business Concept along with the exclusive right and related Intellectual
Property, Trade Marks, when or if applied for and when received,
copyrighted materials and all aspects of the Business Concept, including
the List of Songs Under Publication Rights and
Whereas the following definitions shall apply:
"Agreement" means this License and Assignment Agreement.
"Business Concept" means the overall description of the business
thus far created by Lecia L. Walker under the name Original Source
Music, Dishy Publishing (BMI), Original Source Publishing (ASCAP), and
The Dish Publishing (SESAC), using and including, the Trade Marks,
Copyrighted Materials, Trade Secrets, Intellectual Property, and web
sites, and including the List of Songs Under Publication Rights, thus
creating a viable business.
"Trademark(s)" "Licensed Marks" and "Copyright(s)" means any work
containing Trade Marks that Lecia L. Walker has or will apply for
pertaining to the Business Concept, and/or copyrightable subject matter
that Lecia L. Walker owns or has the right to license to others that
relates to the Business, including without limitation works registered
with the Copyright Office of the United States or any foreign country or
works for which an application to register the work with the Copyright
Office of the United States or any foreign country has been filed. It
is understood that Lecia L. Walker may file for additional
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Trademarks pertaining to the Business Concept in the future and that if
or when such trademarks are filed, such trademarks shall be included in
the Business Concept and shall automatically become a part of this
Agreement and therefore be licensed to Entertainment.
"Intellectual Property" means all of the methods of selling,
marketing, advertising, art and design concepts, forms, printing,
agreements, Trade Marks, copyrighted materials, websites and other items
and trade secrets relating to the Business Concept and improvements made
thereto or in the future.
"Trade Secrets" means all items described under "Intellectual
Property" which shall include all business methods developed by Lecia L.
Walker pertaining to the Business Concept, including methods of selling,
marketing, advertising, art and design concepts, websites, forms,
printing, agreements and other items relating to the Business Concept,
either existing now or developed in the future.
"Know-How" means the methods, skills, procedures, forms, and
operations developed by Lecia L. Walker as related to the Business
Concept including all items described above under Intellectual Property
and Trade Secrets that are known, possessed and used by Lecia L. Walker
as of the Effective Date of this Agreement and developed after the date
of this Agreement and that relate to the Business Concept.
"Marketing Materials" means the documents, forms and literature, and
websites, developed by Lecia L. Walker, for the purpose of contacting
musicians, contracting for their music, advertising to various
businesses, contracting with businesses for the use of the music, and
other uses relating to the Business Concept.
"Right To License Assignment" shall mean the Contract by which Lecia
L. Walker and any company by which she has been acting as a DBA, has
placed any particular song under an Agreement by which Lecia L. Walker
and any company by which she has been acting as a DBA has acquired the
"Rights To License Audio-Visual Synchronization and Master Use of a song
and by which gives her or her DBA the right to license to third parties
a non-exclusive right to synchronize the composition and the master
recordings in the soundtracks of specified theatrical motion pictures
and television programs for exploitation of same.
"List of Songs Under Publication Rights" or "Published Songs" means
all songs which have been placed under a publishing/licensing contract
by a company of which Lecia L. Walker has been acting as a DBA, up to
the date of this Agreement a list of which is attached hereto and made a
part of this Agreement.
"Subsidiary" means any corporation or other entity which is 100%
directly or indirectly owned by Entertainment.
"Affiliate" means any corporation or other entity which is at least 50%
owned by Entertainment.
"Subsidiary" means any subsidiary that is a wholly owned subsidiary of
Entertainment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto covenant and agree as follows:
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ARTICLE 1
GRANT OF LICENSE
Upon the terms and conditions of this Agreement, Lecia L. Walker hereby
grants to Entertainment, for a period of ten (10) years from the date of
the signing of this Agreement, the sole and exclusive right and license
to use and develop the Business Concept, including Copyrights, Trade
Marks, if and when applied for by Lecia L. Walker, Intellectual Property
and Know-how, and the List of Songs Under Publication Rights, in
connection with developing and operating the Business Concept and on all
brand identifications, promotional material, publicity, sales,
advertising, web sites and similar media presently existing or that may
exist in the future, in connection solely with the creation, operation,
marketing, distribution, sale and advertising of the Business Concept.
ARTICLE 2
PERIOD OF GRANT OF LICENSE
This Grant of License shall be for a period of ten (10) years from the
date of this Agreement. At that time, providing all other terms of this
Agreement have been met, and at the discretion of the Board of Directors
of the Company, this Agreement may be renewed for another ten (10)
years.
ARTICLE 3
ASSIGNMENT FEE
For the grant of the License and Assignment of the Business Concept and
the use of the Intellectual Property, Trade Marks, Copyrighted Material,
Websites, Business and Know-How as described herein, and the assignment
of all List of Songs Under Publication rights, by Lecia L. Walker and
any company by which she operates as a DBA, Entertainment agrees to
Assign a total of Three Million (3,000,000) shares of the authorized
but unissued shares of Common Stock of Original Source Entertainment,
Inc., said shares to be fully paid and non-assessable.
It is understood that the shares so issued will not be registered and
shall be impressed with a legend similar to the following:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act, or
pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company."
In addition, it is hereby agreed that for the License and Assignment as
so stated above, and for the period that that this License and
Assignment Agreement is in effect, Lecia L. Walker, at her discretion,
shall be appointed to the Board of Directors of the Company and shall
serve as an officer of the Company, and shall be employed by the Company
to serve in the capacity and for a remuneration so voted and set by the
Board of Directors of the Company.
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ARTICLE 4
CONFIDENTIALITY
The Parties acknowledge that all non-public information relating to the
Business Concept and operations of Original Source Music, and
Entertainment, which they learn or have learned from the other during or
prior to the term of this Agreement is confidential. The Parties
acknowledge the need to preserve the confidentiality and secrecy of such
information and agree that, they shall not use or disclose same, and
shall take all reasonable steps to preserve in all respects such
confidentiality and secrecy, it being understood that a Party shall have
complied with the foregoing obligation if such Party understands at
least the same measures and precautions it uses to safeguard its own
confidential information. The provisions of this paragraph shall not
apply with respect to:
A. any information that is disclosed during the normal operation of
the Business Concept.
B. any information that is granted to a subsidiary of Entertainment
under an assignment of this Agreement.
C. any information that is generally available to the public other
than as a result of disclosure in violation of the foregoing;
D. any information that is required to be disclosed by judicial or
administrative order or required to be disclosed to enforce the terms
and conditions hereof.
The provisions of this paragraph shall survive the expiration or
termination of this Agreement.
ARTICLE 5
DOMAIN NAMES
Lecia L. Walker and/or any business that she is affiliated with, shall
not register any domain names incorporating any of the Business Concept
or the trade marks, if any, or any name or mark similar to the "Licensed
Marks", with any domain name registrar, without the express written
consent of Entertainment.
ARTICLE 6
INDEMNIFICATION
A. Entertainment agrees to defend, indemnify and hold harmless Lecia
L. Walker, and any company that does business under a DBA and their
principals, directors, officers, employees, and/or agents from and
against any and all liabilities, penalties, claims, demands, suits, and
causes of action of any nature whatsoever, whether groundless or
otherwise, and any and all damages, costs, and expenses sustained or
incurred (including cost of defense, settlement, and reasonable
attorneys' fees), asserted by or on behalf of any person or entity
arising out of the performance of Entertainment in use of the Business
Concept and/or Intellectual Property by Entertainment or under this
Agreement, or out of any breach of representation or warranty by
Entertainment, or out of the negligent acts or omissions or
Entertainment, its agents, representatives, and/or employees in
connection with the production, manufacture, distribution, use, offer
for sale, or sale of any Product and/or products and materials under the
Intellectual Property by Entertainment or under this Agreement. Further,
Entertainment must defend any such actions with counsel of its own
choosing. The provisions of this paragraph and Entertainment's
obligations hereunder shall survive the expiration or termination of
this Agreement.
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B. Lecia L. Walker agrees to defend, indemnify and hold harmless
Entertainment, its principals, directors, officers, employees, and/or
agents from and against any and all liabilities, penalties, claims,
demands, suits, and causes of action of any nature whatsoever, whether
groundless or otherwise, and any and all damages, costs, and expenses
sustained or incurred (including cost of defense, settlement and
reasonable attorneys' fees), asserted by or on behalf of any person or
entity arising out of an allegation of superior rights by a third party
in and to the Business Concept or any part thereof. Further, Lecia L.
Walker may defend any such actions with counsel of her own choosing, has
the right to settle or compromise any such dispute or action when in her
sole judgment settlement or compromise is warranted, and has the sole
right to decide whether to appeal any adverse decision of a tribunal in
any action. The provisions of this paragraph and Entertainment's
obligations hereunder shall survive the expiration or termination of
this Agreement.
C. Lecia L. Walker will give Entertainment notice of any action,
claim, suit or proceeding in respect of which indemnification may be
sought and Entertainment shall defend such action, claim, suit or
proceeding on behalf of Lecia L. Walker. In the event appropriate action
is not taken by Entertainment within thirty (30) days after its receipt
of notice from Lecia L. Walker, then Lecia L. Walker shall have the
right, but not the obligation, to defend such action, claim, suit or
proceeding. Lecia L. Walker may, subject to Entertainment's indemnity
obligation under subparagraph A above, be represented by her own counsel
in any such action, claim, suit or proceeding. In any case, the Lecia L.
Walker and the Entertainment shall keep each other fully advised of all
developments and shall cooperate fully with each other in all respects
in connection with any such defense as is made. Nothing contained in
this paragraph shall be deemed to limit in any way the indemnification
provisions of the subparagraph A above except that in the event
appropriate action is being taken by Entertainment by counsel reasonably
acceptable to Lecia L. Walker, with respect to any not-trademark or
intellectual property, action, claim, suit or proceeding. Lecia L.
Walker shall not be permitted to seek indemnification from Entertainment
for attorneys' fees and expenses incurred without the consent of
Entertainment. In connection with the aforesaid actions, claims and
proceedings, the parties shall, where no conflict of interest exists,
seek to be represented by common reasonably acceptable counsel. In
connection with actions, claims or proceedings involving trademark or
other intellectual property matters which are subject to indemnification
hereunder, Lecia L. Walker shall at all times be entitled to be
represented by her own counsel, for whose reasonable fees and
disbursements she shall be entitled to indemnification hereunder.
ARTICLE 7
TRADE MARK(S), BUSINESS CONCEPT, DOMAIN NAMES
Entertainment acknowledges that (i) Lecia L. Walker is, the owner of the
Business Concept, Intellectual Property, "Licensed Marks" pertaining to
the Business Concept, when and if applied for, and Domain names in the
Territory, and the List of Songs Under Publication Rights (ii) the
rights of Lecia L. Walker in the Business Concept, Intellectual
Property, "Licensed Marks" and Domain Names and the List of Songs Under
Publication Rights are valid and enforceable. Entertainment covenants
and agrees not to challenge Lecia L. Walkers' ownership of the Business
Concept, Intellectual Property, "Licensed Marks", and Domain Name and
List of Publication List of Songs Under Publication Rights.
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Entertainment shall not attempt to acquire any ownership rights in the
Business Concept, Intellectual Property, "Licensed Marks" or Domain
Names and List of Songs Under Publication Rights or any other right
adverse to Lecia L. Walkers' interests in the Business Concept,
Intellectual Property, "Licensed Marks" or Domain Names and List of
Songs Under Publication Rights. Nothing herein shall be deemed,
intended, or implied to constitute a sale of any part of the Business
Concept, including the Intellectual Property, the "Licensed Marks" or
Domain Names and List of Songs Under Publication Rights to
Entertainment. Entertainment agrees that its use of the Business
Concept, Intellectual Property, "Licensed Marks" Domain Names and List
of Songs Under Publication Right under this Agreement shall inure to the
benefit of Lecia L. Walker, and this Agreement does not confer on
Entertainment any goodwill or ownership interest in the "Licensed Mark",
other than as implied by this Agreement.
Entertainment hereby covenants that it shall not: (i) use the "Licensed
Marks" pertaining to the Business Concept, if and when applied for and
received by Lecia L. Walker, in any way that may tend to impair their
validity as proprietary Trade Marks or service "Licensed Marks"; (ii)
take any action that would jeopardize or impair Lecia L. Walker's
ownership of the "Licensed Marks" or the legality and/or enforceability
of the "Licensed Marks", or Lecia L. Walker's right to use the "Licensed
Marks"; (iii) either directly or indirectly, apply for the registration
or renewal of registration of the "Licensed Marks" or any variation
thereon, or any trademark, service mark, domain name, or other matter
which contains or is similar to, the "Licensed Marks", without the prior
written consent of Lecia L. Walker; (iv) or attempt to register in any
jurisdiction, directly or indirectly, any trademarks, service marks,
domain name, or other matter containing or similar to any trademarks,
service marks, domain name, or name as to which Lecia L. Walker or their
Affiliates have any registration or proprietary rights; or (v) sub-
license any of the "Licensed Marks", except as permitted by this
Agreement.
Entertainment shall not join any name or names with the Licensed Mark(s)
so as to form a new mark, unless and until Lecia L. Walker consents
thereto in writing. Entertainment acknowledges the validity of the
Licensed Mark(s), the secondary meaning associated with the
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Licensed Mark(s), and the rights of Lecia L. Walker with respect to the
Licensed Mark(s) in any form or embodiment thereof and the goodwill
attached or which shall become attached to the Licensed Mark(s) in
connection with the business and goods in relation to which the same has
been, is or shall be used. Sales by Entertainment and any Subsidiary of
Entertainment shall be deemed to have been made by Lecia L. Walker for
purposes of trademark registration and all uses of the Licensed Mark(s)
by Entertainment and or any Subsidiary of Entertainment shall inure to
the benefit of Lecia L. Walker. Entertainment shall not, at any time, do
or suffer to be done, any act or thing which may in any way adversely
affect any rights of Lecia L. Walker in and to the Licensed Mark(s) or
any registrations thereof or which, directly or indirectly, may reduce
the value of the Licensed Mark(s) or detract from its reputation.
Notwithstanding anything to the contrary contained herein, all uses of
the Licensed Mark(s), materials using or incorporating the Licensed
Mark(s) and items used in connection with the Licensed Mark(s) are
subject to Lecia L. Walker's review and approval.
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The "Licensed Mark(s)" may only be used under the License in the same
manner, including in the same style, typeface, and graphic appearance,
as supplied by Lecia L. Walker. Notwithstanding any other provision of
this Agreement, Entertainment may not combine the "Licensed Mark(s)"
with any other trademark or service mark (including any logo, design, or
symbol), domain name (except for the Domain Names), name, prefix or
suffix, or any other modifying word or term or matter without Lecia L.
Walker's prior written approval.
Upon the expiration or termination of this Agreement for any reason,
Entertainment, except as specified below, will immediately discontinue
use of the Business Concept, including any part of the Business Concept,
the Licensed Marks, will not resume the use thereof or adopt any
colorable imitation of the Licensed Marks or any of its parts.
ARTICLE 8
INFRINGEMENT
Entertainment shall immediately notify Lecia L. Walker of any
unauthorized use and/or suspected infringement of the Business Concept,
Intellectual Property or Licensed Marks. Such notification on shall
include, without limitation, immediately forwarding to Lecia L. Walker
any and all documents relating to any such unauthorized use or suspected
infringement and providing Lecia L. Walker with any and all facts and
circumstances relating to such unauthorized use or suspected
infringement.
Lecia L. Walker shall have the primary, and in the first instance sole,
right to institute a suit for infringement, unfair competition, or other
action with respect to any unauthorized use or suspected infringement.
Lecia L. Walker shall have the sole discretion to determine how to
handle or otherwise deal with any infringement or unauthorized use of
the Intellectual Property, including the right to settle or otherwise
compromise any dispute or suit and shall promptly notify Entertainment
of its decision. Lecia L. Walker shall have no duty to initiate such
litigation if in its sole judgment such litigation is not wanted or is
not in its best interests.
Entertainment agrees that it shall, at all times, reasonably cooperate
with Lecia L. Walker and its counsel, with respect to any unauthorized
use or suspected or alleged infringements at Lecia L. Walker's expense,
including, but not limited to, having Entertainment's principals,
directors, employees, officers, and/or agents testify, and making
available any records, papers, information, specimens, and the like when
requested by Lecia L. Walker. Entertainment may join and be represented
in, at its own expense by its own counsel, any proceeding relating to
any unauthorized use or suspected infringement to prow its own
interests.
If Lecia L. Walker decides in her discretion not to take any action with
respect to an unauthorized use or suspected infringement, then Lecia L.
Walker may, at her own option and sole expense, take such action on its
our behalf as she deems appropriate and any damages, recovery,
settlement, or compromise obtained thereby shall be for the account of
Entertainment.
Any damages and/or recovery received pursuant to such litigation or
settlement or compromises shall be the sole and exclusive property of
Lecia L. Walker.
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ARTICLE 9
TERMINATION- MERGER
If Lecia L. Walker, on the one hand, or Entertainment, on the other,
fails to discharge a material obligation or to correct a material
default hereunder, Entertainment or Lecia L. Walker, respectively, may
give written notice to such other Party specifying the material
obligation or material default and indicating an intent to terminate
this Agreement if the material obligation is not discharged or the
material default is not cured. The Party receiving such notice shall
have sixty (60) days from the date of receipt of such notice to
discharge such material obligation or cure such material default. If
such material obligation is not discharged or such material default is
not cured by the end of such sixty (60) day period, the non-defaulting
Party may terminate this Agreement immediately by written notice given
at any time after the end of such period; provided that the material
obligation has not been discharged or the material default is continuing
on the date of such termination notice.
Upon the expiration or termination of this Agreement, Entertainment will
promptly discontinue any and all use of the Trade Mark, Intellectual
Property, copyrighted materials and all other aspects of the Business
Concept.
Upon the expiration or termination of this Agreement, Entertainment
will, destroy and/or delete the Intellectual Property from all of
Entertainment's publications, stationery, business cards, promotional
materials, computer hard-drives, and all other documents related to the
Business Concept.
Any amounts paid by the Entertainment up to the termination of the
Agreement, for whatever reason, shall be non-refundable.
If, in the future, Entertainment, or any subsidiary of Entertainment
that has the rights to the Business Concept, effects a merger with
another company which is in a business unlike the Business Concept, it
is agreed that all rights to the Business Concept, including any
contracts for List of Songs Under Publication Rights, web sites, and any
and all other rights pertaining to the Business Concept shall revert
back to Lecia L. Walker. Or, in the event that Entertainment merges with
another company and Entertainment is operating the Business Concept in a
subsidiary, Lecia L. Walker will be issued an amount of shares in that
Subsidiary reflecting an equal percentage, as she would own in
Entertainment at the time of any merger.
ARTICLE 10
NOTICES
(A) To be effective, unless otherwise specified in this Agreement,
all notices and demands, consents, and other communications under this
Agreement must be in writing and must be given by (a) depositing the
same in the United States mail, postage prepaid, certified or
registered, return receipt requested, (b) delivering the same in person
and receiving a signed receipt therefore, (c) sending the same by a
nationally recognized overnight delivery service, or (d) telecopy
(promptly confirmed by telephone and followed by personal or nationally
recognized overnight delivery). For purposes of notices, demands,
consents, and other communications under this Agreement, the addresses
of the Parties (and their respective counsel
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(B) Notices, demands, consents, and other communications mailed in
accordance with the foregoing clause (a) shall be deemed to have been
given, made, and received three (3) Business Days following the date so
mailed. Notices, demands, consents, and other communications given in
accordance with the foregoing clauses (b) and (d) shall be deemed to
have been given, made, and received when sent on a Business Day or, if
not a Business Day, then the next succeeding Business Day. Notices,
demands, consents, and other communications given in accordance with the
foregoing clause (c) shall be deemed to have been given, made, and
received when delivered or refused on a Business Day or, if not a
Business Day, then the next succeeding Business Day. Any Party may
designate a different address to which notices or demands shall
thereafter be directed and such designation shall be made by written
notice given in the manner hereinabove required, provided that at all
times each Party shall be required to maintain a notice address in the
continental United States.
Notices shall be sent to:
If to Lecia L. Walker:
Original Source Music
8201 S. Santa Fe Drive #229
Littleton, CO 80120
Telephone: 303-495-3728
Facsimile: 303-495-3728
Attention: Lecia Walker
If to Entertainment:
Original Source Entertainment
8201 S. Santa Fe Drive #229
Littleton, CO 80120
Telephone: 303-495-3728
Facsimile: 303-495-3728
Notice of the change of any such address shall be duly given by either
party to the other in the manner herein provided.
ARTICLE 11
COMPLIANCE WITH LAW
Entertainment shall comply in all material respect with all applicable
Laws now and hereinafter enacted in connection with the Business
Concept, its use of the "Licensed Marks", and the performance of its
other obligations under this Agreement.
Entertainment, at its sole expense, shall be responsible for obtaining
and maintaining all licenses, permits, and regulatory approvals which
are required by any Governmental Entity, if any, with respect to this
Agreement and to comply in all material respect with any requirements of
such Governmental Entity. Entertainment shall furnish Lecia L. Walkers
with written evidence from such regulatory authorities of any such
licenses, permits, clearances, authorizations, or regulatory approvals
at Lecia L. Walkers' request. Any Sub-license granted by the
Entertainment, likewise shall be responsible for obtaining any permits,
licenses, or regulatory approvals, if required, in their respective
territory. Entertainment shall furnish Lecia L. Walkers with written
evidence from such regulatory authorities of any such licenses, permits,
clearances, authorizations, or regulatory approvals at Lecia L. Walkers'
request.
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ARTICLE 12
INTELLECTUAL PROPERTY PROTECTION
Entertainment shall, at its own expense, notify Lecia L. Walker, within
ten (10) Business Days after it becomes aware thereof, of (i) any use,
application to register, or registration of any word, name, phrase,
term, logo, or design, or any combination of any of the foregoing, that
might constitute infringement or other violation of the "Licensed
Marks"; or (ii) any claim of any rights in a Mark, or in any confusingly
similar mark, adverse to Lecia L. Walker's interests in and to such
Mark, or any claim that Entertainment's use of a Mark infringes or
otherwise violates the rights of any other Person.
Entertainment agrees, at its own expense and as Lecia L. Walker may
reasonably request, to (i) cooperate fully with Lecia L. Walker in the
prosecution and elimination of any infringement or other violation of
the "Licensed Mark(s)", including, but not limited to, joining in a suit
or proceeding against a Person making such infringing or other violating
use; and (ii) execute any further agreements or documents as may become
necessary or useful in connection therewith.
ARTICLE 13
ASSIGNABILITY.
Neither this Agreement nor the license or other rights granted hereunder
may be assigned, sublicensed or transferred by Entertainment, whether to
a Subsidiary or Affiliate except as approved by Lecia L. Walker in
advance, in writing, which approval will not be unreasonably denied.
Other than the license granted herein, all rights, titles, and interest
in and to the Intellectual Property is owned and expressly reserved by
Lecia L. Walker for her own use and benefit subject to the terms and
conditions of this Agreement.
Except as relates to the enforcement of any rights granted to
Entertainment hereunder, Entertainment will not at anytime challenge the
validity or enforceability of the Business Concept, or any part thereof,
including Intellectual Property and/or of any registrations thereof, or
challenge Lecia L. Walker's ownership rights, titles, or interest in the
Business Concept or to the Intellectual Property or to List of Songs
Under Publication Rights or that of any successor, assignee, affiliate,
or subsidiary of Lecia L. Walker.
ARTICLE 14
REMEDIES FOR BREACH
Entertainment acknowledges and agrees that (i) the Business Concept,
including Intellectual Property and Trade Marks and List of Songs Under
Publication Rights constitute valuable property of Lecia L. Walker and
have acquired a valuable reputation and goodwill; (ii) violation by
Entertainment or its directors, officers, employees, agents,
subcontractors, or Subsidiary of Entertainment's of any provision of
this Agreement may cause Lecia L. Walker irreparable injury not
compensable by money damages for which Lecia L. Walker may not have an
adequate remedy at law; and (iii) if Lecia L. Walker institutes an
action or proceeding to enforce the provisions of this Agreement and
seek injunctive or other equitable relief as may be necessary to enjoin,
prevent, or curtail any breach thereof, threatened or actual, then Lecia
L. Walker shall not be required to prove irreparable injury, and shall
be entitled to such relief without the posting of any bond or other
security.
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ARTICLE 15
RESOLUTION OF DISPUTES
This Agreement shall be governed by and interpreted in accordance with
the laws of the state of Colorado. The parties agree that the
procedures set forth herein shall be the exclusive means for resolving
any claim, dispute, or controversy arising from or relating to this
Agreement, whether sounding in contract, tort, equity, or otherwise,
including any dispute over the validity and/or scope of this Section or
of any other aspect of this Agreement. Any dispute arising under this
Agreement will be first referred for resolution to each party's
respective management designee. To the extent that such designees cannot
resolve the dispute within ten (10) business days of referral to them,
the parties agree to try in good faith to settle the dispute by
non-binding mediation under the Commercial Mediation Rules of Judicial
Arbitration and Mediation Services, Inc. ("JAMS"). Any and all mediation
hearings shall be held in Denver County, Colorado, unless the parties
agree otherwise. If and to the extent after five (5) days of mediation
with the mediator, the dispute is not settled, or if the mediator
declares an impasse prior to the end of the five (5) day period, then
and only then the aggrieved party may pursue arbitration as set forth
herein. Any arbitration hereunder shall be conducted under the Dispute
Resolution Rules of JAMS as modified herein. Arbitration proceedings
shall take place in Denver County, Colorado, before a single arbitrator
who shall be a lawyer. The parties shall request that JAMS provide them
with a list of five (5) arbitrators and each party, beginning with
Entertainment, shall alternately strike one name from such list until
one arbitrator remains and such arbitrator shall conduct the
proceedings. All arbitration proceedings shall be confidential. Neither
party shall disclose any information about the evidence produced by the
other party in the arbitration proceedings, except in the course of
judicial, regulatory, or arbitration proceeding, or as may be demanded
by government authority. Before making any disclosure permitted by the
preceding sentence, a party shall give the other party reasonable
advance written notice of the intended disclosure and an opportunity to
prevent disclosure. In connection with any arbitration provisions
hereunder, each party shall have the right to take the deposition of up
to two individuals and any expert witness retained by the other party.
Additional discovery may be had only where the arbitrator so orders,
upon a showing of substantial need. Only evidence that is directly
relevant to the issues may be obtained in discovery. Each party bears
the burden of persuasion of any claim or counterclaim raised by that
party. The arbitration provisions of this Agreement shall not prevent
any party from obtaining injunctive or other equitable relief from a
court of competent jurisdiction to enforce the obligations for which
such party may obtain provisional relief pending a decision on the
merits by the arbitrator. Each of the parties hereby consents to the
jurisdiction of Colorado courts for such purpose. The arbitrator shall
have authority to award any remedy or relief that a court of the State
of Colorado could grant in conformity to applicable law, except that the
arbitrator shall have no authority to award attorneys' fees or punitive
damages. Any arbitration award shall be accompanied by a written
statement containing a summary of the issues in controversy, a
description of the award, and an explanation of the reasons for the
award. The arbitrator's award shall be final and judgment may be entered
upon such award by any court.
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ARTICLE 16
EFFECT OF TERMINATION
(a) Upon the expiration or termination of this Agreement for any
reason:
(i) Subject to the terms of this Agreement, Entertainment's License
immediately and automatically shall terminate, and all rights in the
Business Concept, including the Intellectual Property, including any
"Licensed Mark" granted to Entertainment under this Agreement shall
revert to Lecia L. Walker; and
(ii) Entertainment shall, within sixty (60) days from the
termination of this Agreement (such period, the "Transitional Period"),
discontinue using the "Licensed Marks" and remove the "Licensed Mark"
from all promotional and advertisement materials, stationery, computer
and electronic systems (including all Internet websites), and any and
all documents (whether in written, electronic, optical, or other form)
in the possession or control of Entertainment, and during the
Transitional Period (the last day of such period being the "Cessation
Date") all of the obligations of Entertainment hereunder shall remain in
force; provided, however, that Entertainment shall not be required to
remove the "Licensed Marks" from internal business records.
(b) Upon expiration of the Transitional Period, Entertainment
shall: (i) destroy all materials utilizing the "Licensed Marks" and
provide confirmation of same to Lecia L. Walker; (ii) not use any
trademark, service mark, domain name, or name that is confusingly
similar to or dilutive of the "Licensed Marks", and at Lecia L. Walker's
request Entertainment will assign any rights to the "Licensed Marks" to
Lecia L. Walker or to one or more Affiliates of Lecia L. Walker, as
requested by Lecia L. Walker; (iii) remove all content from any
Internet website corresponding to the Domain Names, and shall (x) post,
at the request of Lecia L. Walker and subject to the prior written
approval of Lecia L. Walker, a notice or legend which shall state that
the license granted hereunder has been terminated and any other
information reasonably requested by Lecia L. Walker, including hypertext
links to Lecia L. Walker, or one or more of its Affiliates, other
Internet websites; or (y) redirect the Domain Names to a website of
Lecia L. Walker's choosing; (iv) take all steps necessary, and fully
cooperate with Lecia L. Walker and/or their Affiliates, to remove the
"Licensed Marks" from Entertainment's trade and assumed names and Sub-
Entertainment's corporate names and cancel any recordation of such names
with any Governmental Entity; and (v) change any corporate, trade, and
assumed name that uses the "Licensed Marks" to a name that does not
include the "Licensed Marks" or any variation, derivation, or colorable
imitation thereof.
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ARTICLE 17
MISCELLENOUS
(A) RIGHT AND AUTHORITY: The Parties respectively represent and
warrant that they have full right, power and authority to enter into
this Agreement and perform all of their obligations hereunder and that
they are under no legal impediment which would prevent their signing
this Agreement or consummating the same. Lecia L. Walker represents and
warrants that she has the right to license to Entertainment the Business
Concept including the Licensed Marks, when and if granted, and that
Lecia L. Walker has not granted any other existing license to use the
Licensed Marks on products covered hereunder in the Territory and that
no such license will be granted during the term of this Agreement except
in accordance with the provisions hereof.
Not withstanding anything to the contrary contained in this Agreement,
Lecia L. Walker shall not have the right to negotiate or enter into
agreements with third parties pursuant to which it may grant a license
to use prior to the termination or expiration of this Agreement.
(B) RELATIONSHIP OF THE PARTIES: This Agreement does not create a
partnership, joint venture, or agency relationship between the parties,
and neither Entertainment nor Lecia L. Walker shall have the right,
power, or authority to act as a legal representative of the other, and
neither party shall have any power to obligate or bind the other, or to
make any representations, express or implied, on behalf of or in the
name of the other in any manner or for any purpose. This Article shall
also apply to any Sub-Entertainment which may enter into an agreement
with Entertainment.
(C) VOID PROVISIONS: If any provision or any portion of any
provision of this Agreement shall be held to be void or unenforceable,
the remaining provisions of this Agreement and the remaining portion of
any provision held void or unenforceable in part shall continue in full
force and effect.
(D) LIMITATION OF LIABILITY: Notwithstanding anything to the
contrary contained herein, in the event Entertainment incurs any
expenses, damages or other liabilities (including, without limitation,
reasonable attorneys' fees) in connection with the breach by Lecia L.
Walker of any term or provision hereof, Lecia L. Walker's liability to
Entertainment thereunder shall not exceed the remuneration, excluding
reimbursement of expenses, actually paid to Lecia L. Walker by
Entertainment hereunder.
(E) CONSTRUCTION: This Agreement shall be construed without regard to
any presumption or other rule requiring construction against the party
causing this Agreement to be drafted. If any words or phrases in this
Agreement shall have been stricken out or otherwise eliminated, whether
or not any other words or phrases have been added, this Agreement shall
be construed as if those words or phrases were never included in this
Agreement, and no implication or inference shall be drawn from the fact
that the words or phrases were so stricken out or otherwise eliminated.
(F) FORCE MAJEURE: Neither party hereto shall be liable to the other
for delay in any performance or for the failure to render any
performance under the Agreement (other than payment or any accrued
obligation for the payment of money) when such delay or failure is by
reason of lockouts, strikes, riots, fires, explosions, blockade, civil
commotion, epidemic, insurrection, war or warlike conditions, terrorism
or threat of terrorism, the elements, embargoes, act of God or the
public enemy, compliance with any law, regulation or other governmental
14
order, whether or not valid, or other similar causes beyond the control
of the party effected. The party claiming to be so affected shall give
notice to the other party promptly after it learns of the occurrence of
said event and of the adverse results thereof. Such notice shall set
forth the nature and extent of the event. The delay or failure shall not
be excused unless such notice is so given. Notwithstanding any other
provision of this Agreement, either party may terminate this Agreement
if the other party is unable to perform any or all of its obligations
hereunder for a period of six (6) months by reason of said event as if
the date of termination were the date set forth herein as the expiration
date hereof. If either party elects to terminate this Agreement under
this paragraph, Entertainment shall have no further obligations for the
License Fee beyond the date of termination (which shall be prorated if
less than an Annual Period is involved) and shall be obligated to pay
any Sales Royalty which is then due or becomes due.
(G) BINDING EFFECT: This Agreement shall inure to the benefit of
and shall be binding upon the parties, their respective successors,
Lecia L. Walker's transferees and assigns and Entertainment's permitted
transferees and assigns.
(H) CAPTIONS: The captions used in this Agreement have been inserted
only for reference purposes. The captions and order of such captions
shall not be deemed to govern, limit, modify, or in any manner affect
the scope, meaning, or intent of any of the provisions and/or terms of
this Agreement nor shall any captions be given any legal effect.
(I) WAIVER INTEGRATION, ALTERATION: No provision of this Agreement
shall be deemed to have been waived unless such waiver is contained in a
written notice given to the Party claiming such waiver has occurred. A
waiver or consent, express or implied, of or to any breach or default by
any Person in the performance by that Person of its obligations with
respect to this Agreement is not a consent or waiver to or of any other
breach or default in the performance by that Person of the same or any
other obligations of that Person with respect to this Agreement. Failure
on the part of a Person to complain of any act of any Person or to
declare any Person in default with respect to this Agreement,
irrespective of how long that failure continues, does not constitute a
waiver by that Person of its rights with respect to that default until
the applicable statute-of-limitations period has run. Acceptance of
payments by Lecia L. Walker shall not be deemed a waiver by Lecia L.
Walker of any violation of or default under any of the provisions of
this Agreement by Entertainment.
(J) MODIFICATION OF AGREEMENT: Any modification or amendment of this
Agreement shall be effective if made in writing and signed by both
parties.
(K) ILLEGAL OR UNENFORCEABLE: If, any part, term, or provision of
this Agreement shall be found illegal, unenforceable, or in conflict
with any valid controlling Law, the validity of the remaining portions
of any provisions, and any other provisions in this Agreement, shall not
be affected thereby.
(L) THIRD PARTIES: Third Parties. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person, corporation or
other entity other than the parties hereto and their successors or
assigns, any rights or remedies under or by reason of this Agreement.
15
(M) ASSIGNMENT/DELEGATION: Entertainment shall not assign or
delegate or otherwise transfer their obligations under this Agreement
without the prior written consent of Lecia L. Walker. Any assignment or
other transfer in violation of the foregoing sentence shall be void and
of no force and effect. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective permitted successors
and assigns.
(N) PARAGRAPH HEADINGS: The paragraph headings in this Agreement are
for convenience of reference only and shall be given no substantive
effect.
(O) COUNTERPARTS: This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which
will constitute one and the same instrument.
(P) INVALIDITY: Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable
law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such provision shall be ineffective only to the extent
of such invalidity, illegality, or unenforceability without invalidating
the remainder of such invalid, illegal, or unenforceable provision or
provisions or any other provisions hereof, unless such a construction
would be unreasonable.
(Q) AMENDMENT: Except as expressly provided herein, this Agreement
may be amended only by a written agreement executed by all of the
Parties. Following such amendment, this Agreement, as amended, shall be
binding upon the Parties.
(R) EFFECT OF WAIVER AND CONSENT: No provision of this Agreement
shall be deemed to have been waived unless such waiver is contained in a
written notice given to the Party claiming such waiver has occurred. A
waiver or consent, express or implied, of or to any breach or default by
any Party in the performance by that Party of its obligations with
respect to this Agreement is not a consent or waiver to or of any other
breach or default in the performance by that Party of the same or any
other obligations of that Party with respect to this Agreement. Failure
on the part of a Party to complain of any act of any Party or to declare
any Party in default with respect to this Agreement, irrespective of how
long that failure continues, does not constitute a waiver by that Party
of its rights with respect to that default until the applicable
statute-of-limitations period has run.
(S) HEADINGS: The headings of the Articles and Sections herein are
inserted for convenience
(T) INTERPRETATION: Each definition in this Agreement includes the
singular and the plural. The words "include" or "including" when used in
this Agreement shall mean "including, without limitation". The word "or"
shall not be exclusive. Except as otherwise stated, reference to
Articles, Sections, Schedules and Exhibits means the Articles, Sections,
Schedules and Exhibits of this Agreement. The Schedules and Exhibits are
hereby incorporated by reference into and shall be deemed a part of this
Agreement.
(U) SEVERABILITY: If, any part, term, or provision of this Agreement
shall be found illegal, unenforceable, or in conflict with any valid
controlling Law, the validity of the remaining portions of any
provisions, and any other provisions in this Agreement, shall not be
affected thereby.
16
(V) GOVERNING LAW: THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO
THE CHOICE OF LAWS OR RULES THEREOF, AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS. Any legal suit, action, or proceeding against any of the Parties
arising out of or relating to this Agreement shall only be instituted in
any federal or state court in Denver, Colorado, and each Party hereby
irrevocably submits to the exclusive jurisdiction of any such court in
any such suit, action, or proceeding. The Parties hereby agree to venue
in such courts and hereby waive, to the fullest extent permitted by law,
any claim that any such action or proceeding was brought in an
inconvenient forum. Each of the Parties hereby irrevocably waives all
right to trial by jury in any suit, action, or proceeding arising out of
or relating to this Agreement.
(W) ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties hereto with respect to
the subject matter hereof, supersedes all other agreements,
representations, understandings, and warranties, express or implied,
oral or written understandings and agreements relating thereto
concerning the Business Concept and any part thereof, and may not be
modified, discharged or terminated, nor may any of the provisions hereof
be waived, orally.
SIGNATURES
LECIA L. WALKER - ORIGINAL SOURCE MUSIC
By:
/s/Lecia L. Walker Date: August 21, 2009
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Lecia L. Walker
ORIGINAL SOURCE ENTERTAINMENT, INC.
By:
/s/Lecia L. Walker Date: August 21, 2009
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Lecia L. Walker
President - Director
/s/ E. Lynn Atwood Date: August 21, 2009
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E. Lynn Atwood
Secretary - Director