ShishKaboom

Rights Agreement

This RIGHTS AGREEMENT is made as of _________, 20__ (”Rights Agreement”), by and between _______________________, as creator of digital comic content (”You”), whose address is _______________________________________, and ShishKaboom, Inc. an Oregon corporation whose address is 7219 N Hurst Ave, Portland OR 97203 (“ShishKaboom”). All terms defined in the Submission Agreement (available on the Website and previously agreed to by You) shall have the same meanings when used herein.

BACKGROUND AND PURPOSE

ShishKaboom exists to discover and publish great comics by providing an online community for independent creators to find their audience and sell their works. The purpose of this Rights Agreement is to enable ShishKaboom to discover and publish great comics while allowing You, as the independent creator, to retain ownership to the copyrights in Your work and receive certain benefits as further described below.

You submitted the Submission on the Website, and either ShishKaboom chose the Submission as an Instant Winner or the Submission won a Competition. You and ShishKaboom want to enter into this Rights Agreement pursuant to which You grant to ShishKaboom certain rights in the Material (as defined below), currently entitled_________________________.

TERMS AND CONDITIONS

For good and valuable consideration, You and ShishKaboom agree as follows:

1. TEAM SUBMISSIONS

If You are a member of a Team, then You acknowledge that You are not the sole creator of the Material, and that ShishKaboom has entered or intends to enter into a separate rights agreement (in the form provided under the Submission Agreement) with the other Team members. This Rights Agreement shall only become effective when ShishKaboom has entered into such a rights agreement with each Team member.

2. GRANT OF RIGHTS

In consideration of all promises made herein, and subject to the reversion rights set forth in Paragraph 9,You hereby grant to ShishKaboom, its successors, licensees and assigns, solely and exclusively, the right to use, post, publish, display, distribute, sell, reproduce, create derivative works and otherwise exploit (in all forms and formats) the Material as permitted under this Rights Agreement (collectively, the “Rights”). As used herein, “Material” means the Submission and the literary work created or to be created by You, including without limitation the title of the work, the art and script comprising the work and the concepts, plots, themes, storylines, characters (including names and images), environmental settings, devices, characterizations, logos, trademarks and designs and other elements to the extent included in the work. The Rights include (a) All print and electronic publication rights, audio and/or visual recording and reproduction rights (including motion picture, television and radio rights), merchandising rights, computer software and multi-media rights, Internet and mobile device rights, live stage rights and commercial tie-in rights to the Material in connection with products and/or services based upon or relating to the Material; and (b) the right to advertise, publicize and promote the Material, and the right to use Your name, likeness and biography and the title of the Material in connection with marketing and promoting the Material and/or ShishKaboom’s products and/or service offerings.

3. EXCEPTIONS

Notwithstanding Section 2 above:

(a) ShishKaboom’s Rights do not include the right to utilize other authors or creators to create printed or electronic derivative works of the Material without your consent;

(b)You may (and ShishKaboom encourages you to) request exceptions to the exclusive grant of Rights under Section 2 above from time to time (each an “Exception”). Each Exception request should include a description of the specific requested exception to the exclusive grant of rights and a summary of how such Exception will further the economic, promotional, and/or cultural value of the Material. ShishKaboom will review each Exception request in good faith so long as you are not abusing this right to request Exceptions. If ShishKaboom, in its sole discretion, accepts your Exception request, ShishKaboom will issue you a limited written waiver to its exclusive grant of Rights to permit you to exercise rights in the Material consistent with your Exception request (as such request may be modified by ShishKaboom). Nothing herein guarantees that ShishKaboom will grant any particular Exception request.

4. SERVICES

Should ShishKaboom want to engage You to render and deliver additional pages or issues based on the Material for publication on the Website or in print form (the “Services”), and You want to perform the Services, then You need to execute the Services Agreement thereafter.

5. CONSIDERATION/ROYALTIES

ShishKaboom shall pay You the following amounts in consideration of the grant of the Rights to ShishKaboom hereunder. As the original creator of the Material, You shall be entitled to the royalty amounts set forth below. In addition, You may be entitled to receive additional payment or compensation under a Services Agreement for any Services you provide thereunder.

(a) Development and Website Exploitation: In consideration of Your development of the Material to date, and in consideration of the Rights you grant to ShishKaboom hereunder to edit, publish, post, distribute and display the Material on the Website, ShishKaboom shall pay You a one-time, non-recoupable fee of $500, payable within 30 days of full execution of this Rights Agreement, subject to ShishKaboom receiving an IRS Form W-9 from You.

(b) Print Work:

(i) For each Print Work (as defined below), ShishKaboom shall pay You an amount equal to 5% of the cover price of the Print Work multiplied by the Net Print Work Sales (as defined below) for the Print Work.

(ii) As used herein, (A) “Print Work” means a physical print format publication (for example, a hardcover or softcover book or magazine) that is based entirely upon the Material and that is published by ShishKaboom for distribution and sale to the public and (B) “Net Print Work Sales” means the number of copies that are actually sold by ShishKaboom through ShishKaboom’s wholesale and retail distribution channels (including subscriptions), less the number of copies that are returned, damaged, lost, distributed by ShishKaboom as premiums or promotions and/or distributed to uncollectible accounts or sold at discounts in excess of 70% of cover price.

(c) Retail Products:

(i) For each Retail Product (as defined below), ShishKaboom shall pay You an amount equal to 5% of the suggested retail selling price of the Retail Product multiplied by the Net Retail Product Sales (as defined below) for the Retail Product.

(ii) As used herein, (A) “Retail Product” means an item of merchandise, other than a Print Work or Media Work created by ShishKaboom, that is based entirely upon the Material and that is manufactured by ShishKaboom and distributed or rendered by ShishKaboom itself for sale to the public through ShishKaboom’s wholesale and retail distribution channels (that is, not manufactured and distributed or rendered for sale by a licensee of ShishKaboom) such as collectible statues, posters, action figures, book-ends and snow-globes and (B) “Net Retail Product Sales” means the number of units that are actually sold by ShishKaboom through ShishKaboom’s wholesale and retail distribution channels, less the number of units that are returned, damaged, lost, distributed by ShishKaboom as premiums or promotions and/or distributed to uncollectible accounts or sold at discounts in excess of 70% of the suggested retail selling price.

(d) Licensed Reprint Editions:

(i) For each Licensed Reprint Edition (as defined below), ShishKaboom shall pay You an amount equal to 50% of Net Receipts (as defined below) for the Licensed Reprint Edition.

(ii) As used herein, “Licensed Reprint Edition” means a physical print format reprint of a Print Work (in whole or in part) in any language that is based entirely upon the Material and that is published by a licensee of ShishKaboom for distribution and sale to the public anywhere in the world through normal retail and wholesale distribution channels. As used herein, “Net Receipts” means all amounts actually received by ShishKaboom from the licensing of rights to the Material for a Licensed Reprint Edition, Licensed Publication (as defined below), Media Work (as defined below) or Licensed Merchandise (as defined below), as applicable, less any unrecouped foreign taxes, import duties, agency fees, and/or currency exchange losses, and less all direct costs incurred by ShishKaboom. Any advance against royalties paid to ShishKaboom by a licensee shall be considered received by ShishKaboom if and when such amount is either earned out or forfeited by the licensee.

(e) Licensed Publications:

(i) For each Licensed Publication, ShishKaboom shall pay You an amount equal to 50% of Net Receipts for the Licensed Publication.

(ii) As used herein, “Licensed Publication” means a physical print format publication, such as a hardcover or softcover book or magazine (including any original novel or novelization) or an audio book that is based entirely upon the Material and that is published by a licensee of ShishKaboom for distribution and sale to the public anywhere in the world through normal retail and wholesale distribution channels.

(f) Media Work and Licensed Merchandise:

(i) For each Media Work, ShishKaboom shall pay You an amount equal to 50% of Net Receipts for the Media Work and, for each Licensed Merchandise, ShishKaboom shall pay You an amount equal to 50% of Net Receipts for the Licensed Merchandise.

(ii) As used herein, (A) “Media Work” means: (1) any audio and/or visual work of all types now known or hereafter devised that is based entirely upon the Material and that is produced by ShishKaboom or a licensee of ShishKaboom for exploitation in any medium now known or hereafter devised (including without limitation theatrical, television, home video and digital download) or (2) a live stage production that is based entirely upon the Material and that is produced by ShishKaboom or a licensee of ShishKaboom and is open to the general public for admission and (B) “Licensed Merchandise” means a promotional service or an item of merchandise (other than Media Work created by a licensee of ShishKaboom, a Licensed Reprint Edition or a Licensed Publication), that is based entirely upon the Material and that is manufactured by a licensee of ShishKaboom and distributed for sale to the public by a licensee of ShishKaboom.

6. CONTINGENCIES AFFECTING CONSIDERATION

(a) Multiple Contributors: If You are a member of a Team, You shall be entitled to a pro-rata portion of all consideration payable pursuant to Paragraph 4 above, calculated based upon the number of members comprising the Team, with each member getting an equal share of such consideration (unless ShishKaboom is directed to split the payments in another way, in a writing signed by each member of the Team).

(b) Commingling of Properties and Spin-Offs: If ShishKaboom uses or licenses the use of the Material, or any element thereof, in combination with any other property, then ShishKaboom shall pay You royalties based upon ShishKaboom’s pro rata allocation of the amounts set forth in Paragraph 4 above among all such properties. The foregoing allocation (and all other allocations) made by ShishKaboom pursuant to this Rights Agreement shall be made by ShishKaboom in good faith.

7. ACCOUNTINGS

Accountings and accompanying royalty payments due under Paragraph 4 above (but specifically not the fee in Paragraph 4(a) above) shall be made quarterly within 45 days of the close of each calendar quarter, provided that ShishKaboom may withhold from any payments a reasonable reserve to cover anticipated future returns. Notwithstanding the foregoing, ShishKaboom shall not issue an accounting statement or royalties payment hereunder until a payment of at least $50, in total, is due to You pursuant to this Rights Agreement and/or a Services Agreement, provided that You can request a copy of such a statement from ShishKaboom at any time.

8. COPYRIGHT AND TRADEMARK

(a) Subject to and in accordance with the Rights granted to ShishKaboom hereunder, You or the Team, as applicable, shall retain the copyright in and to the Material.

(b) ShishKaboom shall affix a copyright notice in Your name or the Team members’ names, as applicable, to all versions of the Material produced and distributed by ShishKaboom, and shall contractually require any of its licensees to do the same.

(c) Either Party (ShishKaboom or You) shall have the right, but not the obligation, to take any legal action in order to protect the Material and/or any Version of the Material against any infringement or violation of any of its rights hereunder. If either party shall elect to prosecute any such claim, they shall do so at their own cost and expense. If You become aware of any infringements or violations of any of ShishKaboom’s Rights in and to the Material, You shall promptly notify ShishKaboom and shall cooperate with ShishKaboom in the prosecution of any resulting claims.

9. REVERSION RIGHTS

You shall have the following reversion rights

At any time following the earlier of (i) ShishKaboom’s initial commercial exploitation of the Material in digital and print form (e.g. commercial publication) or (ii) one (1) year from the date of this Rights Agreement, You may request, in writing, a reversion of the Rights granted to ShishKaboom hereunder. Ninety (90) days following ShishKaboom’s receipt of Your written request, the Rights granted to ShishKaboom pursuant to this Rights Agreement shall automatically revert back to You and ShishKaboom will have no further rights in or to the Materials except that:

(a) ShishKaboom shall perpetually retain the exclusive right to publish (in print and digital forms) all Material delivered to ShishKaboom by You prior to reversion to You, subject to the payment of any royalties that may become due on account thereof, and otherwise in accordance with all of the terms and conditions of this Rights Agreement.

(b) Any option to acquire film, television or other rights in and to the Material (each, an “Option”), and any license or other grant of rights in and to the Material (each, a “Grant”), which may be in effect at the time of reversion shall remain in full force and effect and shall not be assigned to You. ShishKaboom shall advise You of any such Options and Grants, and You shall be bound by the exclusivity provisions therein, if any. After reversion, if and when any Option or Grant terminates or expires, any rights that would then be held by ShishKaboom shall automatically revert back to You.

(b) Additionally, ShishKaboom may continue to sell its remaining inventory of Retail Products and Licensed Merchandise on a non-exclusive basis for a period of one year from the date of reversion, subject to the payment of any royalties that may become due on account thereof, and otherwise in accordance with all of the terms and conditions of this Rights Agreement.

10. FURTHER ASSURANCES

As the owner of the copyright in and to the Materials, You hereby agree to (i) promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as ShishKaboom may reasonably require from time to time for the purpose of giving effect to this Rights Agreement, including without limitation renewing copyrights, and (ii) use commercially reasonable efforts and take all such steps as may be reasonably within Your power to implement to their full extent the provisions of this Rights Agreement.

11. REPRESENTATIONS, WARRANTIES AND COVENANTS

You hereby represent, warrant and covenant as follows:

(a) You have the full right, power and authority to enter into this Rights Agreement and to grant to ShishKaboom all the Rights herein stated to be granted, and You are at least 18 years old and, upon ShishKaboom’s request, shall provide ShishKaboom with proof of the foregoing,

(b) all Material prepared and/or furnished by You hereunder shall be wholly original to You, and such Material and any publication thereof shall not be unlawful and do not and shall not defame or infringe or violate any personal, proprietary or other rights (including copyright, trademark or contract rights, moral rights or rights of privacy or publicity) of any Person,

(c) except as set forth in the Submission Agreement, the Material has not been published, posted, distributed or displayed online, in print or in any other manner, and neither the Material nor any elements thereof have been used in any manner or media,

(d) the Material is not in the public domain in any country of the world that provides for copyright or similar protection, and

(e) You have not granted to any Person, and You shall not grant to any Person, any right, or option to acquire any right, that would or might conflict with any of the Rights granted to ShishKaboom hereunder or that might impair or diminish the value of the Rights granted to ShishKaboom hereunder.

12. INDEMNITIES AND LIMITATION OF LIABILITY

(a) You shall indemnify, defend and hold harmless ShishKaboom, its parents, subsidiaries, affiliates and its and their employees, agents, officers, directors, representatives, licensees, successors, heirs and assigns, from and against any and all claims, losses and expenses (including counsel fees and costs) that any of them may suffer or incur as a result of a breach of any representation, warranty or covenant made by You herein. ShishKaboom shall have the sole and exclusive right to undertake the defense and/or settlement of any such claim.

(b) SHISHKABOOM SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SHISHKABOOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE TOTAL CUMULATIVE LIABLITY OF SHISHKABOOM IN CONNECTION TO THIS RIGHTS AGREEMENT SHALL NOT EXCEED THE GREATER OF ONE THOUSAND DOLLARS ($1,000.00) OR THE SUM OF THE CONSIDERATION DUE TO YOU UNDER SECTIONS 4 AND 5 OF THIS RIGHTS AGREEMENT. THESE LIMITATIONS SHALL APPLY TO ANY AND ALL CLAIMS OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, IN LAW OR IN EQUITY, OR IN ANY OTHER THEORY.

13. CREDIT.

(a) ShishKaboom shall accord You credit as creator of the Material in connection with its publication of any Screens on the Website and on the credits page of all Print Works, in a size and manner consistent with ShishKaboom’s standard practices at the time of publication. ShishKaboom shall use reasonable efforts to cause its licensees to accord You a similar credit on Licensed Reprint Editions and, where such a credit is usual and customary, on other products based upon the Material.

(b) No failure by ShishKaboom or any other Person to comply with the provisions of this Paragraph 13 shall constitute a breach by ShishKaboom of this Rights Agreement, or shall entitle You to injunctive relief, provided that upon notice by You, ShishKaboom shall use reasonable efforts to prospectively cure any such failure to comply with the provisions of this Paragraph 13.

14. COMPLIMENTARY COPIES

In addition to the complimentary copies that you may be entitled to receive under a Services Agreement, ShishKaboom shall provide You with at least one complimentary copy of each Print Work that includes Material for which You rendered Services and shall use reasonable efforts to provide You with at least one complimentary copy of each Licensed Reprint Edition that includes Material for which You rendered Services.

15. MISCELLANEOUS

The parties are independent contractors with respect to each other, and nothing in this Rights Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. You will not assign, transfer or delegate Your rights or obligations under this Rights Agreement (in whole or in part) without ShishKaboom’s prior written consent. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Rights Agreement must be in a writing that is signed by the parties hereto and expressly references this Rights Agreement. This Rights Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Rights Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Rights Agreement. In the event that any provision of this Rights Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Rights Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Rights Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Rights Agreement, together with any exhibits or schedules attached hereto which are hereby incorporated into this Rights Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications. Nothing contained herein shall be construed to obligate ShishKaboom to produce, publish, complete or exploit, in any media, any Version of the Material. All notices, consents and approvals under this Rights Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the respective addresses provided by the parties above.

IN WITNESS WHEREOF, the parties have executed this Rights Agreement as of the date first written above.

SHISHKABOOM, INC.
By:________________________________________________________
Name: Scott Davis
Title: CEO

CREATOR
By:________________________________________________________
Name: