,J
`This Agreement is made this}? of Fe!
`
`195’, by
`
`and between SYNI‘H—BAM (hereinafter referred to as "SYNTH-
`
`BANK') , a proprietorship of Bryan Bell, with a principal
`
`business address at 12080 Southwest Parkway, Portland,
`
`Oregon
`
`(hereinafter referred to
`97225, and
`as 'Artist") with a
`rinci
`business address
`at
`
`
`
`
`
`WHEREAS. SYNI'H—BANK distributes synthesized and digi-
`
`tized sounds and music using on-line computer data storage
`
`and retrieval systems and through cartridges, cassettes,
`
`and other media; and
`
`WHEREAS, SYNTH-BANK seeks to distribute and copy
`
`certain works of Artist through computer systems and em-
`
`bodied in various media;
`
`MW mar-0R3, for mutual considerations, receipt of
`
`which is mutually acknowledged. SYNTB—EANK and Artist agree
`as follows:
`
`I-W
`
`For purposes of this Agreement, these terms are de-
`
`fined as follows:
`
`Apple Exhibit 1122 Page 00001
`
`Apple Exhibit 1122 Page 00001
`
`
`This Agreement is made this}? of Fe!
`
`195’, by
`
`and between SYNI‘H—BAM (hereinafter referred to as "SYNTH-
`
`BANK') , a proprietorship of Bryan Bell, with a principal
`
`business address at 12080 Southwest Parkway, Portland,
`
`Oregon
`
`(hereinafter referred to
`97225, and
`as 'Artist") with a
`rinci
`business address
`at
`
`
`
`
`
`WHEREAS. SYNI'H—BANK distributes synthesized and digi-
`
`tized sounds and music using on-line computer data storage
`
`and retrieval systems and through cartridges, cassettes,
`
`and other media; and
`
`WHEREAS, SYNTH-BANK seeks to distribute and copy
`
`certain works of Artist through computer systems and em-
`
`bodied in various media;
`
`MW mar-0R3, for mutual considerations, receipt of
`
`which is mutually acknowledged. SYNTB—EANK and Artist agree
`as follows:
`
`I-W
`
`For purposes of this Agreement, these terms are de-
`
`fined as follows:
`
`Apple Exhibit 1122 Page 00001
`
`Apple Exhibit 1122 Page 00001
`
`
`
`"Sounds" means digital and/or synthesized information
`
`related to generation of Sounds provided to SYNm—BANK by
`
`Artist pursuant to this Agreement, which are more specific—
`
`ally identified in Attachment A, a copy of which is at-
`
`tached hereto.
`
`“Cartridge Media'l means any data storage devices (includ-
`
`ing but not limited to cartridges, magnetic media, and
`
`other software,
`
`firmware, or hardware) which contain the
`
`electronic or digital information for Somds to be used in
`
`connection with Synthesizers.
`
`"On—Line System" means any remote computer facility at
`
`which electronic data embodying the Sounds are stored for
`
`access by End Users,
`
`typically via telecommunications and
`
`computer system (s) .
`
`'Synthesizer' means any electronic device capable of repli-
`
`cating the somds produced by conventional musical instru-
`
`ments and of generating and manipulating unique or unusml
`
`sounds.
`
`"Gross Receipts“ means all gross monies received by 5mm-
`
`BANK directly relating to the Sounds,
`
`less any sales,
`
`taxes, use taxes, or similar levies, and fees charged by
`
`telecommunications carriers (such as, without
`
`limitation,
`
`Telenet, Tymet, and Uninet).
`
`Page 00002
`
`Page 00002
`
`
`
`"End User" means a person who uses Sounds in connection
`
`with Synthesizers for purposes such as creating music. For
`
`example, without limitation, a customer of SIMS—BANK or
`
`its licensees, who is licensed to use Sounds in connection
`
`with SYnthesizers would be an End User.
`
`II. M
`
`2.1 License
`
`Artist hereby grants to SYNTH—BANK the exclusive
`
`worldwide right to input, store, retrieve,
`
`transmit, copy,
`
`distribute, and use the Sounds in On-Line Systems and/or
`
`Cartridge Media for use in connection with Synthesizers.
`
`2.2W
`
`Notwithstanding the foregoing, Artist may use the
`
`Sounds in musical recordings and performances, for purposes
`
`other than that of reproducing and/or distributing the
`
`Sounds to End Users for use in connection with Synthe-
`
`sizers .
`
`2.3 m
`
`'Ihe duration of the license granted hereunder shall
`
`begin as of the date of this Agreement and continue for a
`
`term of two (2) years. Thereafter, this Agreement shall
`
`automatically continue in effect for consecutive terms of
`
`five (5) years each, unless either party notifies the other
`
`in writing, at least ninety (90) days prior to the
`
`Page 00003
`
`Page 00003
`
`
`
`expiration of the then—current term, that it wishes to
`
`terminate this Agreement.
`
`III.W
`
`3.1W
`
`During the term of. this Agreement. Slam-BANK shall
`/'
`pay Artist a royalty of 'f“
`
`percent (E %) on SYNTH-
`
`BANK'S Gross Receipts directly relating to the Sounds de-
`
`rived from On—Line Systems.
`
`3.2W
`
`During the term of this Agreenent,
`/
`
`SYNm—EANK shall
`
`pay Artist a royalty of 13%?— percent (50 t) on
`
`SYNm-BANK'S Gross Receipts dir
`
`1y relating to the Sounds
`
`derived from Cartridge Media.
`
`3.3 W
`
`Accounting of all the Artist's earnings hereunder,
`
`accompanied by payment of any monies due, shall be rendered
`
`no later than March 1 and September 1 of each year, with
`
`reference to the periods ending the preceding December 31
`
`and June 30 respectively.
`
`3.4 Auditjighra
`
`The Artist or a certified public accountant desig-
`
`nated by Artist shall have the right, upon reasonable
`
`written notice, to examine the records of Sim—BANK (inso-
`
`far as they relate to the Sounds) during normal business
`
`Page 00004
`
`Page 00004
`
`
`
`hours and under such conditions as SYNTH—BANK may reason—
`
`able prescribe.
`
`IV. mm
`
`4.1 Warranty
`
`Artist warrants and represents that:
`
`a) Artist has the full right and power to enter into
`
`and perform this Agreement;
`
`b) Artist is the sole owner and proprietor of the
`
`Sounds to the extent permitted by copyright law and that
`
`the Sounds do not infringe the copyrights or other rights
`
`of any third party.
`
`4.2 Indemity
`
`Artist hereby indemnifies and holds SYNI‘H-BANK,
`
`its
`
`officers, employees, and agents, harmless against any and
`
`all claims. actions, damages, liabilities, costs, expenses
`
`(including attorneys' reasonable fees) arising out of a
`
`breach or alleged breach of any warranty or representation
`
`made by Artist herein.
`
`V. W
`
`5.1 Martians
`
`SEEM-BANK shall use reasonable efforts to advertise,
`
`promote, and distribute the Sounds, but may determine the
`
`scope and extent of such efforts in its sole discretion.
`
`Page 00005
`
`Page 00005
`
`
`
`5.2 W
`
`SYN'IH—BANK may use Artist's name,
`
`likeness, and bio—
`
`graphical details for purposes of advertising and trade
`
`relating to the Sounds; provided that SYN'I'H-BANK submits
`
`any proposed advertising or promotional material to Artist
`
`for his or her approval prior to distribution.
`
`If Artist
`
`does not approve or reject any proposed advertising or
`
`promotional material within ten (10) days of such notice,
`
`the material shall be deemed to be approved; and Artist's
`
`awroval shall not in any case be unreasonably withheld.
`
`5.3 WE
`
`Notwithstanding Paragraph 3.1, SYNm-BANK may publish
`
`Artist's name without seeking Artist's approval in lists of
`
`artists and Sounds available through On-Line Systems and
`
`Cartridge Media.
`
`VI. WM
`
`6.1 Bragging
`
`If Artist and SYNTE—BANK desire to add additional
`
`Sounds of Artist, Artist shall supply such additional
`
`Sounds to SYNl‘H-BANK along with a letter authorizing SYN'm-
`
`BANK to include these additional Sounds hereunder.
`
`6.2W
`
`All of the terms and conditions under this Agreement
`
`relating to Sounds shall apply to such additional Sounds.
`
`Page 00006
`
`Page 00006
`
`
`
`VII. W
`
`7.1 Bxegution
`
`This Agreement shall not become effective or binding
`
`upon either party until it has been executed by both par—
`
`ties .
`
`7.2 WIS.
`
`This Agreanent shall be binding on the parties hereto
`
`and on their successors, executors. administrators, as—
`
`signs. and heirs.
`
`7.3 mixer
`
`No waiver of any breach of any provision of this
`
`Agreement shall constitute a waiver of any other breach of
`
`the same or any other provisions, and no waiver shall be
`
`effective unless it is in writing.
`
`7.4 W
`
`he invalidity or unenforceability of any provision
`
`of this Agreement shall in no way affect the validity or
`
`enforceability of any other provision.
`
`7.5 34min].
`
`Articles 4 and 7 herein shall survive any termination
`
`of this Agreement.
`
`Page 00007
`
`Page 00007
`
`
`
`7.6W
`
`Nothing in this Agreement shall be considered to
`
`create a partnership or joint venture between the parties
`
`hereto, nor shall either of the parties hereto be bound or
`
`become liable because of any representation, action or
`
`omission of the other.
`
`7.7. W
`
`Neither party hereto shall be deemed to be in default
`
`under the terms of this Agreement unless the party alleging
`
`the default sends a written notice to the other setting
`
`forth the exact nature of the alleged default, and the
`
`defaulting party shall fail to cure such default within
`
`ninety (90) days following its receipt of such notice.
`
`7.8 Notice
`
`Except as the parties have expressly agreed otherwise
`
`in this Agreement. all communications provided for here-
`
`under by either party to the other shall be in writing and
`
`shall be delivered or sent to the other party addressed as
`
`follows:
`
`If to SYNm-BANK:
`
`Hr. Bryan Bell
`Sim—BANK
`
`12080 Southwest Parkway
`Portland, Oregon
`97225
`
`If to Artist:
`
`Page 00008
`
`Page 00008
`
`
`
`Either party may by written notice designate a change
`
`of address.
`
`7.9 Cautions
`
`The captions and descriptive headings of the various
`
`sections and other provisions of this Agreement are in—
`
`cluded for purpose of convenience only, and shall not be
`
`deemed to affect the meanings or constructions of any of
`
`the provisions hereof.
`
`7.10 W
`
`This Agreement constitutes the entire mflerstanding
`
`of the parties in relation to the subject matter hereof.
`
`Except as provided for herein, this Agreement may be amen-
`
`ded or modified only by written documents signed by both
`
`parties .
`
`IN WI'mESS WHEREDP, the parties hereto have caused this
`
`Agreement to be executed as of the day and year first
`
`written above.
`
`
`
`bblsynl .mfa 11/12/85
`
`Page 00009
`
`Page 00009
`
`
`
`WA
`
`Sounds provided by Artist to SYN—BANK:
`
`Page 00010
`
`Page 00010
`
`
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