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This Agreement is entered into by and between Talent and Manager. The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, this “Agreement”), govern your access to and use of http://www.productionassistantnyc.com/ (“Website”) and all services provide by Manager, including any content, functionality and services offered on or through http://www.productionassistantnyc.com/ whether as a guest or a registered user.
WHEREAS, the person, or legal entity, registering herein (“Talent” or “you”) with International Film Talent Agency Corporation, (“Manager”). desires to engage Manager to represent Talent and to render services to Talent as Talent's sole and exclusive personal manager, throughout the world, with respect to all of Talent's affairs in the entertainment industry; and
WHEREAS, Manager desires to act in such capacity and to accept such engagement.
NOW, THEREFORE, in consideration of the premises and mutual promises contained herein, and for other good and valuable consideration, the parties hereto agree as follows:
1. (a) Talent hereby engages Manager to be the sole and exclusive (unless otherwise mutually agreed in writing) personal manager, throughout the world, of Talent in connection with all facets of his/her Career, as defined herein. As used herein, “Career” shall mean all endeavors in which Talent provides film, television and print support services including, but not limited to the following of a Executive Producer, Director, Line Producer, Cinematographer, Camera Operator, Costume Designer, Wardrobe Stylist, Makeup Artist, Hair Stylist, Gaffer, Lighting Designer, Production Assistant, Set Designer, Technical Director, Creative Designer, Locations Manager, Locations Scout, Still Photographer, Drone Operator, Sound Designer, Music Composer, Sound Mixer, Boom Operator, Casting Director, Editor, Prop Master, Art Director, Script Supervisor, Post Production Supervisor, Special FX Designer. Talent shall immediately advise Manager of all offers of employment and of all inquiries concerning Talent's Career.
(b) Manager hereby accepts such engagement and agrees to advise and counsel Talent regarding Talent's Career and to use his best efforts to promote, develop and advance Talent's Career, and exploit and commercialize her name, image, talent and abilities in connection therewith; supervise, negotiate and arrange the terms of any and all offers of employment or contracts for services of any kind and of any nature whatsoever in connection with her Career, subject in each case to Talent’s final approval. Manager's services hereunder are not exclusive to Talent and Manager shall be permitted to perform the same or similar services for other artists or persons during the Term. Manager shall also be permitted to devote such time and efforts to other business activities as Manager may deem necessary or desirable in Manager's sole discretion.
(c) Manager has advised Talent that Manager is not licensed under the Labor Code of the State of New York as a talent agent or employment agent or otherwise under the Business and Professions Code of the State of New York or as a theatrical employment agency or other employment or booking agency under the General Business Law of the State of New York or as any of the foregoing under the laws of any State. Manager has not offered or attempted or promised to obtain, seek, or procure employment or engagements for Talent; and Manager is not authorized, licensed or expected to do so. Therefore, Talent shall not look to Manager to procure or provide engagements or employment; provided, however, that Manager shall select, negotiate with and otherwise represent Talent to such agencies and other third parties that seek and procure employment and engagements for artists.
2. The initial term ("Initial Term") of this agreement shall be for a period of two (2) years from the Effective Date. However, at the end of said Initial Term, the Initial Term shall be extended for three (3) consecutive one (1) year option periods ("the Option Periods") unless either party provides written notice to the other party that he or she does not want the Initial Term to be so extended. The first Option Period, if any, shall commence immediately upon conclusion of the Initial Term and each successive Option Period, if any, shall commence immediately upon conclusion of the preceding Option Period unless either party gives the other party written notice of its intention not to exercise such option prior to the expiration of the Initial Term or the then-current Option Period. The Initial Term and any Option Periods are collectively referred to hereinafter as the "Term".
3. (a) In consideration of Manager's services hereunder, Talent shall pay Manager or cause Manager to be paid, as and when received by Talent or by any company, partnership, corporation or other entity on Talent's behalf, a sum ("Commission") equal to fifteen percent (15%) of any and all Gross Compensation for Talent’s services in connection with her Career during the Initial Term and each Option Period, if any.
(b) For the purposes of this Agreement, "Gross Compensation" (unless otherwise mutually agreed in writing) shall include, without limitation, all forms of income, consideration and compensation relating to Talent's services in connection with her Career, including salaries, advances, earnings, fees, royalties, residuals, partnership interests, shares of stock, bonuses, shares of profits shares of receipts, income in kind, and other considerations of any kind or nature whatsoever earned or received directly or indirectly by Talent, individually or as a member of a group or by any party or entity on Talent's behalf or by any party or entity through which Talent has furnished services in connection with her Career, regardless of by whom procured.
(c) Manager's Commission shall be payable upon all Gross Compensation as and when such Gross Compensation is paid to Talent or to any third party on Talent's behalf, during the Term or after the Term, as a result of and/or pursuant to:
(i) any and all engagements, contracts, commitments and agreements entered into or substantially negotiated during the Term;
(ii) any and all engagements, contracts, commitments and agreements negotiated and entered into after the expiration of the Term to the extent such contracts, commitments and agreements pertaining to studio motion pictures, theatrical performances, live broadcast, print, digital/online content, television shows, music and other videos, commercials, production company and/or musical compositions recorded, in whole or in part, by Talent during the Term;
(iii) any and all extensions, renewals, substitutions, replacements, amendments, additions and modifications of all such contracts, engagements, commitments and agreements referred to in (i) and (ii) above; and
(iv) any and all judgments, awards, settlements, payments, damages and proceeds relating to any suits, claims, actions or proceedings arising out of alleged breach, non-performance or infringement by others of any of the contracts, engagements, etc., referred to in (i), (ii) and (iii), above, where such judgment, award, settlement, payment, damage or proceeds serve as compensation to Talent for lost Gross Compensation resulting from such breach, non-performance or infringement, and excluding therefrom reasonable costs and attorneys’ fees incurred by Talent in connection with obtaining such judgment, award, settlement, payment, damage or proceeds.
4. If Manager and Talent mutually agree to terminate Manager’s services after the Initial Term set forth in subparagraph 3(a) above, Manager shall be entitled to receive the following percentages of Gross Compensation earned by Talent described in subparagraph 3(b) above as a result of Manager’s efforts and resources. The percentages shall be as follows, limited only to the following periods:
(a) Five percent (5%) for the first one (1) year Option Period, which shall commence immediately upon conclusion of the Initial Term, ending exactly one year after.
(b) Two and one-half percent (2½%) for the second one (1) year Option Period which shall commence immediately upon conclusion of the First Option Period, ending exactly one year after.
(c) One percent (1%) for the third one (1) year Option Period which shall commence immediately upon conclusion of the Second Option Period, ending exactly one year after.
Notwithstanding anything to the contrary contained herein, no Commission shall be payable to Manager pursuant to this subparagraph after the expiration of the Third Option Period.
(d) No expense, cost or disbursement incurred in connection with receipt of Gross Compensation, including, without limitation, salaries, professional fees and booking agency fees shall be deducted therefrom prior to calculation of Commission. In addition to the foregoing, Talent and/or Talent’s chosen Accountant shall reimburse Manager for any and all reasonable bona fide expenditures incurred by Manager on Talent's behalf or in direct connection with Talent's career or in the performance of Manager's services hereunder within the later of either (i) thirty (30) days of such expenses being incurred, or (ii) thirty (30) days of Manager requesting reimbursement of such expenses in writing. It is agreed and understood that Talent and/or Talent’s chosen Accountant will be responsible for all booking agency fees and commissions, union dues, publicity and promotion costs, legal fees and accounting fees and any and all taxes due with respect to Gross Compensation. In the event Manager advances any of the foregoing fees, costs or expenses on Talent's behalf, Talent and/or Talent’s chosen Accountant shall reimburse Manager for such advances within thirty (30) days of Manager's payment and/or in the event Manager does not take or withhold its Commission from Gross Compensation for any reason, such amounts shall be deemed a loan from Manager to Talent. Talent hereby authorizes and empowers Manager to deduct the amount of any such loans and advances from any sums received by Manager for Talent's account.
5. (a) Talent shall notify and irrevocably direct and cause any and all third parties for whom Talent renders services in connection with the entertainment industry to pay directly to Manager the Commission due to Manager hereunder, and such Commission shall be payable to Manager immediately upon payment or credit to Talent or to any person on Talent's behalf of the Gross Compensation upon which such Commission is based. The aforesaid direction to any such third party shall be included in any and all agreements through which Talent shall receive Gross Compensation:
"Talent hereby irrevocably authorizes and directs you to pay to Manager, or Manager’s assignee, a sum equal to fifteen percent (15%) of all sums due to, or paid on behalf of, the undersigned hereunder. Such payment shall be made at the same time that payments are due to the undersigned hereunder. Each payment shall be accompanied by a duplicate of the statement rendered to the undersigned."
(b) The interest and compensation set forth herein above which shall be paid to Manager shall be a continuing interest, and shall not be revocable at Talent's pleasure. It is intended by Talent to create an agency coupled with an interest and the appointment and engagement of Manager and Manager's right to receive the Commission as provided for herein are the inducements for Manager to enter into this Agreement.
(c) In the event Talent receives Gross Compensation with respect to which Manager's Commission has not been paid pursuant to paragraph 3(a), above, Talent shall, within fifteen (15) days after the close of each monthly period during the Term of this Agreement and thereafter so long as Talent collects or receives such Gross Compensation hereunder, render a written accounting statement to Manager setting forth all Gross Compensation received by Talent hereunder during the preceding month, specifying the source thereof and Manager's Commission hereunder and including the amount of any expenses and any loans or advances paid by Manager to Talent or on Talent's behalf. Each such accounting statement shall be accompanied by payment to Manager of the sum thereon shown to be due to Manager for such accounting period.
(d) Talent agrees that Manager and Manager's representatives may inspect and audit Talent's books and records to ascertain the amounts due Manager hereunder. The aforementioned audits and/or inspections, if any, may be conducted no more than once per year and shall be conducted upon reasonable notice to Talent. "Books and records" as used hereunder shall include ledgers, journals, receipt books, checks and all other records concerning financial matters.
6. No breach of this Agreement on the part of either party shall be deemed material, unless the non-breaching party shall have given written notice specifying the nature of such breach to the breaching party and the breaching party shall have failed to cure such breach within thirty (30) days after receipt of such notice or, if such breach is not capable of being cured within such thirty (30) day period, if the breaching party commences reasonable efforts to cure, and proceeds with reasonable diligence to complete the curing of such breach.
7. Talent hereby irrevocably authorizes and appoints Manager as Talent's true and lawful agent and attorney-in-fact to execute for Talent in Talent's name and on Talent's behalf, any and all agreements, documents, and contracts for Talent's services. Talent hereby ratifies and affirms all acts performed by Manager pursuant to this power of attorney and confirms that this power is coupled with an interest. Notwithstanding the foregoing, Manager shall not execute for Talent in Talent's name and on Talent's behalf any major agreement committing Talent's time, services and/or Talent’s materials, the terms of which Agreement shall not have been previously approved in writing by Talent.
8. (a) Manager shall not assign this Agreement or any rights or obligations hereunder without Talent's consent, except that Manager may assign this Agreement without Talent's consent to any parent, subsidiary or other related or affiliated company or to any other person, firm or corporation acquiring a significant portion of Manager's stock or assets or entering into a merger or joint venture with Manager.
(b) Talent may not assign this Agreement or any of Talent's rights hereunder and any such attempted assignment shall be void. This Agreement shall be binding upon Talent and Manager and shall inure to the benefit of Talent's and Manager's successors. This Agreement shall also be binding upon any entity (including, without limitation, any loan out company which furnishes Talent's services) which directly or indirectly, in whole or in part, through one or more intermediaries, owns or controls, or is under common ownership or control with, Talent. Accordingly, this Agreement is hereby accepted by Talent on Talent's behalf and on behalf of any such entity.
9. Talent hereby jointly and severally warrants and represents that:
(a) Talent is free to enter into and to perform under this Agreement and is not a party to any presently existing contract which would interfere with the full performance of the terms and conditions of this Agreement.
(b) Talent is over eighteen (18) years of age and has retained thoroughly experienced and knowledgeable attorneys in the entertainment industry to advise and counsel Talent with regard to this Agreement.
(c) Talent will at all times during the Term devote herself to her Career and do all things necessary to promote such Career.
10. Talent agrees that during the Term Talent will not assign, sell, convey, pledge or otherwise dispose of any property rights in Talent, her trade or personal name, by stock interest, wage assignments, partnerships or percentage or otherwise, without the prior written consent of Manager.
11. (a) Talent hereby acknowledges and agrees that Manager's right to represent Talent as Talent's sole and exclusive personal manager and Talent's obligation to solely and exclusively use Manager in such capacity are unique, irreplaceable and extraordinary rights and obligations and that any breach or threatened breach by Talent thereof shall be material and may cause immediate and irreparable harm to Manager’s reputation and goodwill in the entertainment industry, and other immediate and irreparable harm which cannot be adequately compensated for by a money judgment. Accordingly, Talent agrees that, in addition to all other forms of relief and all other remedies which may be available to Manager in the event of any such breach or threatened breach by Talent, Manager shall be entitled to specific performance, an injunction or other equitable relief against Talent to enforce Manager's exclusive rights hereunder.
(b) If at any time Talent fails, for any reason whatsoever, to fulfill or perform any obligation assumed by Talent hereunder, or engages any other person or entity to perform any services which Manager is entitled to perform exclusively on Talent's behalf hereunder, then, without limiting Manager's rights, Manager shall have the right, exercisable at any time by notice to Talent, to extend the expiration date of the then-current period of the Term. Such extension shall continue until Talent has fully cured such failure or engagement or terminated any engagement which is in violation of this Agreement and the then-current period of the Term shall be extended for a period of time equal to the duration of any such failure or engagement. Talent hereby acknowledges that Manager's exercise of its rights hereunder shall not in any way affect or diminish its right to equitable relief under this paragraph 11.
12. For the purpose of this agreement, wherever required, the singular shall include the plural and, unless the context otherwise requires, the masculine gender includes the feminine and the neuter.
13. All notices hereunder shall be in writing and shall be given by mail, postage pre-paid or by facsimile transmission with all charges pre-paid at the address provided by Talent at the time of registration with Manager, or such other address as either Talent or Manager may designate by notice to the other and date of such mailing or facsimile transmission shall be the time of the giving of notice. All notices to Manager shall concurrently be addressed to 45 W.139th street Suite 11P, New York, NY 10037.
14. (a) This Agreement sets forth the entire understanding between the parties with respect to the subject matter thereof, and no modification, amendment, waiver, termination or discharge of this Agreement or any provisions thereof shall be binding upon either party unless confirmed by an express written instrument signed by Manager and Talent. No waiver of any provision of, or default under this Agreement shall affect either party's rights thereafter to enforce such provision or to exercise any right or remedy in the event of any other default whether or not similar.
(b) All matters relating to the services provided by Manager, this Agreement and/or the Website and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, services provided by Manager, this Agreement, or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the City of New York and County of New York although Manager retains the right to bring any suit, action or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
(c) The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the tribunal's power to rule on its own jurisdiction and the validity or enforceability of the agreement to arbitrate, the tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.
(d) If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect.
(e) This Agreement may be executed, including by electronic signature, in two or more counterparts, each of which shall be an original and all such counterparts together shall constitute one and the same Agreement. Electronically transmitted (including via facsimile transmission) signatures shall have the full force and effect of original signature.
(f) EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY
15. IN NO EVENT WILL THE MANAGER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND/OR YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. IN NO EVENT SHALL MANAGER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
17. At Manager's sole discretion, it may require You to submit any disputes arising from the provision of the services hereunder, this Agreement and/or use of these the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New York law.
18. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICES, THIS AGREEMENT, OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. Manager shall not be liable or responsible to Talent, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Manger including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
20. You shall at all times, defend, indemnify and hold Manager, its directors, officers and respective agents, employees, representatives, affiliated entities, successors, heirs and designees or legatees, harmless from and against any and all claims, damages, liabilities, costs and expenses, including, without limitation, reasonable legal expenses and attorneys’ fees, arising out of any breach by you of any warranty, representation or agreement made by you hereunder or otherwise arising out of any third party claim relating this agreement (including, without limitation claims by any end-user, customer or client of Talent’s services provided to third parties).
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