Digital Arts Inc Form SB-2A

AGREEMENT (the "Agreement") made this day of , 20 (the "Effective Date"), by and between Entertainment Web, Inc., a New York corporation, with a principal place of business at 234 West 47th Street, New York, NY 10036 (referred to herein as "Company"), and Name in Lights Management, Inc., a California corporation, with a principal place of business at 1999 Avenue of the Stars, Los Angeles, California, 90210 (referred to herein as "Manager").

WHEREAS, Company is in the business of developing, producing and distributing multimedia products;

WHEREAS, Manager serves as the exclusive entity associated with the delivery by Ms. Olivia Star (referred to herein as "Talent") of the services contemplated to be delivered by Talent hereunder;

WHEREAS, Talent desires to provide Company with the rights to use the Talent Content (as hereinafter defined) and other services; and

WHEREAS, Company desires to utilize the services of Talent and desires to have the exclusive right to exploit the Talent Content in or in connection with the creation, development, production, manufacture, packaging, marketing, promotion, distribution, sale and updating of Products (as hereinafter defined) on the terms and pursuant to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, Company and Manager (collectively, the "Parties," and individually, a "Party") agree as follows:

1. Definitions

1.1. Products

"Products" shall mean products published, produced, distributed or transmitted by Company in CD-ROM or any other format or media now known or hereafter to become known which refer or relate to ballet. Products may, in whole or in part, be updated "on-line" by means of transmission or electronic distribution in a form now known or hereafter to become known, such updates to be considered part of the Products.

1.2. Talent Content

"Talent Content" shall mean Talent's full and formal name, nicknames or alias identities (collectively the "Names") or any shortening, abbreviations, or alternative renderings of the Names, signatures now used or hereafter to be used by Talent, and any or all renderings of Talent's voice, Talent's image and likenesses, and any and all attributes of Talent's personality and appearance.

1.3. Term

"Term" shall mean the period beginning on the Effective Date and, unless terminated earlier as provided herein, ending on .

1.4. Territory

"Territory" shall mean the universe.

2. License

2.1. License

Upon the terms and subject to the conditions of this Agreement, Talent and Manager grant to Company an exclusive, irrevocable license (the "License") to make use of, copy, reproduce, modify, adapt, distribute, transmit, broadcast, display, exhibit, project, and to otherwise exploit the Talent Content alone, or in composite with other materials, including, without limitation, audio, video, animation, text and graphics, by any means, methods and technologies now known or hereafter to become known, solely in connection with the creation, development, production, manufacture, packaging, promotion, distribution, sales or updating of Products, including without limitation, the production of commercials or promotional videos therefor. It is understood that the License allows Company to use the Talent Content delivered pursuant to Article 3 and 4 or otherwise lawfully acquired by Company.

2.2. No Obligation

Notwithstanding any other provision of this Agreement, Company shall not be required to actually use Talent's services or to produce, release, telecast, broadcast or use in any way, as the case may be, the Talent Content any other material in which, or in connection with which, Talent shall have performed services hereunder, and Company's obligations to Manager and Talent hereunder shall be fully discharged by making the payments to Manager required hereunder.

2.3. No Rights of Attribution

Nothing in this Agreement or otherwise shall be construed as granting Manager or Talent any rights of attribution with respect to Products.

2.4. Products Approval

Neither Manager nor Talent shall have any right of approval over the creation, development, manufacture, marketing, promotion, distribution, sale or updating of the Products, or the manner of use or exploitation of the Talent Content in connection with the creation, development, manufacture, marketing, promotion, distribution, sale or updating of the Products.

3. Talent Content Delivery

Upon execution of this Agreement, in order to provide Company with any and all portions of the Talent Content requested by Company, Talent shall be available at a recording, photography, film or interactive production studio designed by Company for not less than () consecutive dates designated by Company that are reasonably convenient to Talent, subject to Talent's schedule and professional commitments, to comment upon and provide narration as reasonably specified by Company and to be photographed, filmed, videotaped, recorded and otherwise visually and audiovisually recorded in the manner and at the times directed by Company and its representatives and agents. Talent shall deliver to Company, on such dates at such locations, samples of Talent's signature as reasonably directed by Company, its representatives or agents. Company shall be responsible for providing make-up services to Talent, if needed, in connection with any photographing, filming or videotaping of Talent in connection herewith. Manager and Talent acknowledge that Company shall utilize some or all of the Talent Content in the Products or packaging therefor.

4. Public Appearances; Telephone Interviews; Consulting

4.1. Public Appearances

In addition to the dates described in Article 3 herein, Talent shall be available for public appearances related to promoting the Products. The dates and locations of such appearances shall be specified in writing by Company at least () days in advance, and shall be subject to Talent's schedule and professional commitments. At such appearances, Talent shall promote, market and otherwise encourage the sale of the Products by performing such activities as may be reasonably required by Company, including without limitation, autographing Products, speaking with the press or addressing the public.

4.2. Appearance

Talent shall be groomed and dressed on the dates specified in Article 3 herein and Section 4.1 in a manner which comports with Talent's professional reputation and image.

4.3. Telephonic or On-line Interviews and Chats

Talent shall be available for telephone or on-line interviews (or, in the case of on-line media, chats) related to promoting the Products, for at least a total of () hours, the times and technical access instructions for such interviews to be specified in writing by Company at least () days in advance, subject to Talent's schedule and professional commitments. During such interviews, Talent shall promote, market and otherwise encourage the sale of the Products.

4.4. Consulting

In addition to the other Services contained in Article 3 herein and this Article 4, Talent shall be available to consult with Company and its designees for at least () hours with respect to the design and development of the Products.

5. Fees And Royalties

In consideration of the License granted herein and Talent's performance of its obligations hereunder, Company shall pay Manager for the Fees specified in Exhibit A hereto and Royalties as set forth in Exhibit B hereto. Except as set forth herein, Company shall not be responsible for any third party fees (including without limitation, broker's, agent's, or guild fees and/or commissions) in connection with this Agreement.

6. Waiver And Release

Manager and Talent hereby waive all rights and release Company, its shareholders, partners, officers, directors, employees, agents, and licensees and assigns from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, privacy, infringement of rights of publicity or personality, intrusion, false light, or public disclosure of private facts, or any similar matter, or based upon or relating to the use and exploitation of the Talent Content.

7. Ownership and Intellectual Property

7.1. Ownership

As between Manager, Talent and Company, all materials created by Talent for use in connection with the Products are the property of Company and all rights, title and interest therein shall vest in Company and shall be deemed to be a "work made for hire" made in the course of the services rendered hereunder. Company shall own all rights, title and interest in and to the (i) materials created by Talent for use in connection with the Products hereunder; (ii) embodiments of the Talent Content created pursuant to Article 3; and (iii) Products, including, without limitation, all copyrights, trademarks and other intellectual property rights inherent therein and appurtenant thereto (collectively, the "Company Properties").

7.2. Intellectual Property

Neither Manager nor Talent shall, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever in any aspect of the Company Properties, including, without limitation, any of Company's videos, images, computer programs, audiovisual displays, packaging, sound recordings and/or artwork created for the Products. Manager and Talent hereby assign to Company or its designees any and all rights (including moral rights) they may have, now or in the future, in and to the Company Properties, including, without limitation, any copyrights, trademark rights and other intellectual property rights inherent therein and appurtenant thereto.

8. Representations And Warranties

8.1. Manager's Representations and Warranties

Manager and Talent represent and warrant to Company that: (i) they have full right and power to enter into this Agreement and to perform fully all of its obligations hereunder; (ii) the Talent Content is free and clear of any claims, liens or rights of third parties; (iii) that there are no other agreements, written or oral, with any third party in conflict herewith; (iv) there are no claims, litigation or other proceedings pending or threatened which would adversely affect any Talent Content, or the rights of Company hereunder; and (v) with respect to any and all material provided by Talent for use in connection with the Products, whether in written or oral form, Talent and Manager shall have obtained all rights necessary thereto and the same shall not contain any language or material which is obscene, libelous, slanderous or defamatory and will not infringe upon or give rise to any adverse claim with respect to any common law or other rights whatsoever (including without limitation any copyright, trademark, service mark, literary right, right of privacy or publicity or contract right) of any person, firm or corporation, or violate any other applicable law.

8.2. Company's Representations and Warranties

Company represents and warrants to Manager that: (i) Company has full right and power to enter into this Agreement and to perform fully all of its obligations hereunder; (ii) there are no other agreements, written or oral, with any third party in conflict herewith; and (iii) there are no claims, litigation or other proceedings pending or threatened which would adversely affect the rights of Manager hereunder.

9. Indemnification

Each Party will defend, indemnify and hold the other and their shareholders, partners, officers, directors, employees, agents, and licensees and assigns harmless from and against any claims, demands, actions and/or proceedings which may be threatened and/or instituted by any person and/or entity against such parties which, if true, would constitute a breach of such party's representations, warranties or obligations set forth in this Agreement.

10. Termination

10.1 Termination by Either Party

Either Party shall have the right to terminate this Agreement upon written notice to the other Party upon a material breach by the other Party of any provision of this Agreement, which material breach remains uncured () days after written notice thereof has been provided to the breaching Party in accordance with Section 15.5 hereof.

10.2 Company's Right of Termination for Cause

Company may terminate this Agreement upon written notice to Manager: (i) upon Talent's death; (ii) upon Talent's Disability (as hereinafter defined; and (iii) for Cause (as hereinafter defined). For purposes of this Agreement, "Disability" shall mean the inability of Talent to perform his duties and obligations for Company as required by this Agreement because of a disability which is not of an apparently temporary nature, which results from mental or bodily injury, sickness, disease, disorder or any combination thereof, and which has lasted for a period of () or more days (whether or not consecutive) within any () month period. For purposes of this Agreement, "Cause" shall mean an omission, act or action or series of omissions, acts or actions of Talent which constitute(s), cause(s) or result(s) in:

(A) the refusal of Talent to follow the directions of Company in connection with providing Company with the services described herein (provided that compliance therewith by Talent would not subject Talent to criminal liability); or

(B) the arrest, indictment or conviction for the commission of a crime by Talent; or

(C) any other conduct, public or private, involving moral turpitude or which has or may reasonably be expected to have a material adverse effect on the Company, its business, reputation or interests.

10.3 Rights Upon Termination

Upon termination or expiration of this Agreement, the License shall terminate except to the extent necessary to allow Company to package, market, promote, distribute and sell previously manufactured Products.

11. Non-Compete

Manager and Talent shall, at no time during the Term or for () months thereafter, use, or allow or permit anyone to use, the Talent Content in connection with the creation, development, production, manufacture, promotion, distribution, packaging or sale of any software program, including without limitation a program residing on or accessed via CD-ROM, the Internet, an on-line service, or other media now known or hereafter to become known, relating to .

12. Confidentiality

Any and all information of Company provided by Company to Talent and Manager pursuant to this Agreement relating to Company's financial or sales data, Company's Products, or Products development plans, techniques and activities shall be deemed proprietary and confidential information of Company (hereinafter "Confidential Information"). Talent and Manager agree to hold all such Confidential Information in strict confidence and secure and protect it in a manner consistent with the maintenance of Company's ownership and proprietary rights therein and to take appropriate action by instruction or agreement with their agents and representatives who are permitted access to said Confidential Information to satisfy Talent's and Manager's obligations hereunder. Talent and Manager shall use their best efforts to assist Company in identifying and preventing any unauthorized use, copying or disclosure of the Confidential Information or any portions thereof. Without limitation of the foregoing, Talent and manager shall advise Company immediately in the event Talent or Manager learns or has reason to believe that any person to whom Talent or Manager has given access to the Confidential Information, or any portion thereof, has violated or intends to violate the terms of this Agreement Notwithstanding the obligations set forth in this Article 12, the confidentiality obligations of Talent and Manager shall not extend to information that: (i) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than Talent and Manager, (ii) is subsequently learned from a third party not under a confidentiality obligation to Company; or (iii) is required to be disclosed pursuant to court order or government authority, whereupon the Talent and Manager shall provide notice to Company prior to such disclosure.

13. Insurance

Company may secure in its own name or otherwise, and at its own expense, life, health, accident, cast or other insurance covering Talent and Talent shall not have any right, title or interest in or to any such insurance. Manager shall, if requested by the Company, reasonably assist the Company in procuring such insurance by causing Talent to submit to the usual and customary medical and other examinations and to sign applications and other instruments in writing as may be reasonably required by any insurance company to which application for such insurance may be made.

14. Unique Services

14.1. Unique Services

Manager acknowledges that Talent's services to be furnished by Manager and the rights and privileges granted to Company hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot reasonably or adequately by compensated for in damages in an action at law, and that, in the event of any material breach by Manager or Talent of any of the provisions hereof, Company shall be entitled to injunctive and other equitable relief to prevent such breach. The foregoing provisions shall not constitute a waiver by Company of any right which Company may have to damages or other relief.

14.2. Manager Efforts

Manager agrees to use best efforts to cause Talent to perform the services and obligations set forth herein.

15. Miscellaneous

15.1. Entire Agreement

This Agreement sets forth the entire agreement between the Parties in connection with the subject matter hereof and it incorporates, replaces and supersedes all prior agreements, promises, proposals, representations, understandings and negotiations, written or not, between the Parties in connection therewith. The making, execution, and delivery of this Agreement have been induced by no representations, statements, warranties or agreements other than those expressed herein.

15.2. Survival

Articles 1, 5, 6, 7, 8, 9, 10, 11, 12 and 15 shall survive termination of this Agreement.

15.3. Assignment

This Agreement will be binding on the Parties' respective successors and permitted assigns. Except as otherwise expressly provided herein neither Party shall be permitted to delegate its duties or assign its rights hereunder without the express written consent of the other, which such consent shall not be unreasonably withheld, provided, however, Company may assign any of its rights and obligations hereunder without prior written consent of Manager or Talent to any parent, subsidiary, or related company, or affiliate of Company, or in connection with the sale of all or substantially all of Company's assets.

15.4. Force Majeure

Neither Party will be liable for any delay or failure to perform under this Agreement if and to the extend such failure is reasonably beyond the control and without the fault or negligence of the Party claiming excusable delay. The Party claiming excusable delay must promptly notify the other Party of such delay. If the delay continues for more than () days and involves a material obligation, the Party not claiming excusable delay may terminate this Agreement by giving () days notice to the other Party; provided that the Agreement will not terminate if the Party claiming excusable delay substantially performs the obligation which has been delayed within () days after receipt of notice of such termination.

15.5. Notice

All notices will be in writing and will, unless otherwise provided, be delivered personally or by overnight courier services, proper postage prepaid, to the addresses specified above. Either Party may change the person or the address to which notices are directed by giving written notice to the other Party in the manner prescribed herein. Personally delivered notices will be deemed given when delivered. Notices sent by overnight courier service will be deemed given on the next business day after dispatch. Notwithstanding the foregoing, any notice of change of address will be deemed given upon upon receipt by the Party to whom it is directed.

15.6. Choice of Law

This Agreement has been entered into in the State of New York and will be governed by those laws of the State of New York which are applicable to contracts entered into and performed entirely within the State of New York without regard to conflict of laws principles. Any disputes which arise under this Agreement, including after termination of this Agreement, will be heard only in the State or Federal courts located in New York, New York. Manager and Talent expressly agree to submit to the jurisdiction of the foregoing courts in New York, New York. Manager and Talent expressly waive any right to contest the jurisdiction, venue or convenience of any court sitting in the State of New York.

15.7. Modification

No modification, amendment, supplement to or waiver of any provision of this Agreement shall be binding upon the Parties hereto unless made in writing and duly signed by both Parties.

15.8. Waiver

A failure of either Party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

15.9. Severability

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Any unenforceable provision will be replaced by a mutually acceptable provision which comes closest to the intention of the Parties at the time the original provision was agreed upon.

15.10. Claims and Actions Thereon

In the event of the bringing of any action, insolvency proceedings or bankruptcy suit by a Party hereto against the other Party hereunder, or by reason of any breach of any representation, warranty or condition on the part of the other Party, arising out of or relating to this Agreement, then the Party in whose favor the final judgment or award shall be entered shall be entitled to have and recover from the other Party the costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys' fees and expenses at all trial and appellate levels.

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives as of the date hereof.

To induce the Company to enter into the foregoing Agreement and for other good and valuable consideration, receipt of which is hereby acknowledged, I hereby agree as follows: I confirm the foregoing Agreement insofar as I am concerned, and the grant of all rights granted therein; and I confirm the authority and right of Name in Lights Management, Inc. to enter into the foregoing Agreement. I agree to perform all services required of me as specified in such Agreement; I agree that all payment to Name in Lights Management, Inc. shall discharge any obligations of the Company to me in connection with the rights granted pursuant to such Agreement; and I agree that I hereby waive any rights of droit moral or similar rights which I may have.