collective digital studio v. annoying orange.pdf

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Bryan J. Freedman (SBN i51990) ^ ^[email protected] n , j

Brian E. Turnauer (SBN 214768) t& *- Ibturnauer(5),ftllp.com ^_ v-r~>

FREEDMAN &TAITELMAN, LLPpO'T'^O1901 Avenue of the Stars, Suite 500Los Angeles, California 90067 (^Tip- f/^/Telephone: 310-201-0005 ^"^ ^Facsimile: 310-201-0045 T)&B{JAttorneys for Petitioner Collective Digital Studio, LLC

SuperiorCourt 0/lkfanilaCoanry OfLoi Angeles

DEC 23 2014SherriK

By___- *., wwiuyc uiiicei/Clerk

^DeputyMTSP

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

COLLECTIVE DIGITALSTUDIO, LLCa California Corporation

Petitioner,

vs.

DANE BOEDIGHEIMER, an individual;and ANNOYING ORANGE, INC., aCalifornia corporation.

Respondents.

Case No. 8S12282(Petition filed: )

(Assigned to: Hon. ;_ )

NOTICE OF PETITION AND PETITION OFPETITIONER COLLECTIVE DIGITALSTUDIO, LLC FOR APPOINTMENT OFARBITRATOR AND STAY ARBITRATION;MEMORANDUM OF POINTS ANDAUTHORITIES AND DECLARATION OFBRYAN J. FREEDMAN IN SUPPORTTHEREO

Date:

Time:Dept.

[Request for Judicial Notice filed concurrently]

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on , at

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aito

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do the following:

(1) Appoint aneutral arbitrator to arbitrate adispute among the parties; and(2) Stay the arbitration until apending matter involving the respondents and a third

party is resolved.

The Petition is based upon CCP 1281.6 on the grounds that courts have the power toappoint a neutral arbitrator where the arbitration clause in the parties' agreement does notdesignate the arbitrator ora method for selecting the arbitrator. 0

In the instant matter, the arbitration clause contained in the April 22, 2013 "OnlineDistribution Agreement" (the "Agreement") entered into between Petitioner and respondentsDane Boedigheitner ("DB") and Annoying Orange, Inc. ("AO") (collectively, DB and AOreferred to herein as the "Respondents") (Petitioner and Respondents will be collectively referredto as, the "Parties") does not designate an arbitrator, method for selecting the arbitrator orarbitration venue.

The Agreement, among other things, sets for the terms in which Petitioner may distributeand produce content for the Annoying Orange cartoon character ("AO Character"). Respondentsclaim copyright ownership in the AO Character. Adispute has arisen between the Parties arisingout ofthe Agreement, including issues relating to the AO Character.

The Petition is also based upon CCP 1281.2(c) on the grounds that Respondents arealso aparty to apending court action with a third party, arising out ofaseries ofrelatedtransactions and there is apossibility ofconflicting rulings on acommon issue oflaw or fact, andarbitration is not the optimal forum for the Parties to address their disputes under the Agreementuntil the pending claims are litigated. Specifically, Respondents are sued by athird party in theDistrict Court ofNorth Dakota for copyright infringement over the AO Character. The District

Court's ruling on whether the AO Character infringes on the third party's copyrights will have asignificant impact on the Parties' arbitration proceedings in this matter, including the claims tobe arbitrated between the Parties.

The Petition will be based upon this Notice, the Petition, Request for Judicial Notice in

PETITION FOR APPOINTMENT OF ARBITRATOR AND TO STAY ARBITRATION

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Support of the Petition, the Memorandum of Points and Authorities and Declaration of Bryan J.Freedman, Esq. attached hereto and upon such evidence as may be presented at the time ofthehearing on the Petition.

Dated: December23, 2014 FREEDMAN & TAITELMAN,LLP

ByBryan J. PfeemanBrian E. Tumauer

Attorneys for Petitioner Collective Digital Studios, LLC



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PETITION FOR APPOINTMENT OF NEUTRAL ARBITRATOR

AND TO

STAY ARBITRATION PENDING THE OUTCOME OF ANOTHER MATTER

Petitioner Collective Digital Studio, LLC ("Petitioner" or "CDS") hereby states asfollows:

1. On or about April 22, 2013, Petitioner entered into an "Online Distribution

Agreement" with respondents Dane Boedigheimer ("DB") and Annoying Orange, Inc. ("AO")(collectively, DB and AOreferred to herein as the"Respondents") dated April 22,2013 (the"Agreement"). A true and correctcopyof the Agreement is attached heretoas Exhibit"A" to theDeclaration of Bryan J. Freedman, Esq.. ("Freedman DecL") and incorporated as though fully setforth herein.

2. The Agreement, in part, sets forth terms for the Petitioner to be the "on-line

distributor" for, among other things, the Annoying Orange cartoon character ("AO Character"),as well as the producerof certain content includingcontent pertaining to the AO Character.

Respondents claim to own the copyright and trademark in the AO Character.

3. A dispute has arisen between the Petitionerand Respondents (collectively, the"Parties") arisingout of the Agreement, including issuesrelating to the AO Character.

4. The Agreement contains an arbitration provision at paragraph 14c. which states:

c. Arbitration; Choiceof Law. Anyand all such disputes arisingunder this

Agreement shall be governed by the laws of the State of California without

regard to conflicts of laws and be settled by binding arbitration.

See Agreement, f 14. Paragraph 14 does not specify an arbitrator or arbitration provider.

5. On November 26, 2014, Respondents filed a "Statement of Claims and Demand

for Arbitration" ("Demand for Arbitration") with ADR Services.

6. On or about December 19, 2014, counsel for Petitioner wrote to counsel for the

Respondents. He informed Respondents' counsel that the Agreement does not name ADR

Services as the administrative body to govern arbitrationproceedingsbetween the Parties. He

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requested an in person meeting with Respondents' counsel for the week of December 22, 2014,

to discuss the parameters for arbitration between the Parties, including the selection of an

arbitrator and arbitration venue. A copy of theDecember 19, 2014 letter is attached to the

Freedman Dec!, as Exhibit "C," and incorporated by this reference,

7. Counsel for the Parties have been unable to come to an agreement on the selection

or an arbitrator, arbitration forum or arbitration rules.

8. On December 22,2014, counsel for Petitioner filed an objection to the Demandfor Arbitration with ADRServices on the grounds that ADRServices is not namedas the

administrative body to govern thearbitration proceedings and therefore ADRServices hasno

authority to act. A copy of Petitioner's objection is attached to the Freedman Decl. as Exhibit"D," and incorporated by this reference.

9. Pursuant to CCP 1281.6, the Court is empowered to appoint a neutral arbitratorwhen the parties' arbitration agreement does not provide a method for appointing an arbitrator or

arbitration forum.

10. Pursuant to CCP 1281.2(c)(4), the Court is also empowered to stay thearbitration proceeding if a partyto the arbitration agreement is also a partyto a pendingcourt

action with a third party, that arises out of the same transaction or series of related transactions,

and there is a possibility of conflicting rulings on a common issue of law or fact.

11. On or about March 5, 2013, thirdparty H2M, Inc.,a North Dakotacorporation

("H2M"), filed a lawsuit in the District Courtof North Dakota, Southeastern Division, againstDB, AO, Annoying Orange, LLC and SpencerGrove, alleging claims for Federal Copyright

Infringement (17 U.S.C. 501(a)), Seizure and Impounding (17 U.S.C. 503) andUnjustEnrichment, case number 3:13-cv-00031-KKK (the "Pending Federal Action"). H2M claimscopyright ownership in the Talking Orange cartoon character and allegescopyright infringement

by the AO Character. H2M is seeking damagesand an injunction to prevent the Respondentsfrom profitingoff of their product, the Talking Orange cartooncharacter.

12. The District Court's ruling on the copyright infringementclaim against the AO


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Character will have asignificant impact on the Parties' arbitration proceedings in this matter,including the claims to be arbitrated. Respondents have represented that they own the copyrightin the AO Character and that they are free to enter into the Agreement with the Petitioner.However, the District Court's ruling may say otherwise, thus completely changing the landscapeofthe Parties' arbitration proceedings in the instant matter, including the claims to be arbitrated.

13. Trial in the Pending Federal Action isscheduled for June 15, 2015.

14. Acopy ofthe Complaint in the Pending Federal Action isattached to the

concurrently field Request for Judicial Notice inSupport ofPetition asExhibit "B," and

incorporated by this reference.

15. Pursuant to CCP 1281.2(c)(4), once this Court appoints an arbitrator, Petitionerseeks to stay the arbitration pending the outcome ofthe Pending Federal Action.

Dated: December 23, 2014 FREEDMAN & TAITELMANCELP

Bryan J. FreemanBrian E. Tumauer

Attorneys forPetitioner Collective Digital Studios, LL

PETITION FORAPPOINTMENT OF ARBITRATOR AND TO STAY ARBITRATION

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MEMORANDUM OF POINTS AND AUTHORITIES

Petitioner Collective Digital Studio, LLC ("Petitioner" or "CDS") hereby submits itsmemorandum of pointand authorities in support of its Petition to appoint an arbitrator and stay

the arbitration proceedings pending theoutcome of an existing Federal Courtaction involving a

third party and the same respondents.

I. INTRODUCTION

A. The Agreement Between the Parties.

On or about April 22,2013, Petitioner entered into an "Online Distribution Agreement"

with respondents Dane Boedigheimer ("DB") and Annoying Orange, Inc. ("AO")(collectively,DB and AO referred to herein as the "Respondents") dated April 22, 2013 (the "Agreement").The Agreement, in part, sets forth terms for the Petitioner to be the"on-line distributor" for,

among other things, theAnnoying Orange cartoon character ("AO Character"), as well as theproducer of certain content, including content pertaining to theAO Character. Respondents

claim toown the copyright and trademark in the AO Character and have represented to the

Petitioner that they are free to enter into theAgreement as it pertains to theAO Character free

and clear of any claims by third parties relating to the AO Character. A true and correct copy of

the Agreement is attached hereto as Exhibit "A" to the Declaration of Bryan J. Freedman, Esq.

("Freedman Decl.,") and incorporated herein.B. The Parties' Dispute and Respondents Demand for Arbitration.

A dispute hasarisen between thePetitioner and Respondents (collectively, the"Parties")arising outof theAgreement, including issues relating to theAO Character. See Freedman Decl.

T17-8,

The Agreement contains an arbitration provision at paragraph 14c. andstates as follows:

c. Arbitration; Choice of Law. Any and all such disputes arising under this

Agreement shall be governed by the laws of the State of California without

regard to conflicts of laws and be settled by binding arbitration.

See Agreement, %14. However, paragraph 14 does not specifyan arbitrator or arbitration forum.



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On November 26,2014, Respondents filed a "Statement of Claims and Demand for

Arbitration" ("Demand for Arbitration") with ADR Services. See Freedman Decl. V-C- Respondents AreSued in Federal Court Over CopyrightInfringement over

the AO Character.

On or about March 5,2013, third party H2M, Inc., aNorth Dakota corporation ("H2M"),filed a lawsuit in the District Court ofNorth Dakota, Southeastern Division, against DB, AO,Annoying Orange, LLC and Spencer Grove, alleging claims for Federal Copyright Infringement(17 U.S.C. 501(a)), Seizure and Impounding (17 U.S.C. 503) and Unjust Enrichment, casenumber 3:13-cv-00031-KKK (the "Pending Federal Action"). H2M claims copyright ownershipin the Talking Orange cartoon character and alleges copyright infringement by the AO CharacterH2M is seeking damages and an injunction to prevent the Respondents from profiting off oftheirproduct, the Talking Orange cartoon character. Trial in the Pending Federal Action is scheduledfor June 15, 2015. Acopy ofthe Complaint in the Pending Federal Action is attached to theconcurrently field Request for Judicial Notice in Support ofPetition as Exhibit "B," and

incorporated herein by this reference. See Freedman Decl. f!J4~6, See Request For JudicialNotice, Exhibit "B."

D- Parties Cannot Agree on an Arbitrator or Arbitration Forum.

On orabout December 19, 2014, Petitioner's counsel wrote to Respondents' counsel. Heinformed Respondents' counsel that the Agreement does not name ADR Services as the

administrative body to govern arbitration proceedings between the Parties. Petitioner's counsel

requested an in person meeting with Respondents' counsel for the week ofDecember 22,2014,

to discuss the parameters for arbitration between the Parties, including the selection ofanarbitrator and arbitration venue. Acopy of December 22 letter isattached to the Freedman Decl

as Exhibit "C," and incorporated by this reference. See Freedman DecL ffl|9-l0, Exhibit "C."The Parties have been unable to agree on an arbitrator, arbitration forum or set of

arbitration rules. See Freedman Decl. *,Jl 1.

On December 22, 2014, prior to the filing of this Petition, counsel for Petitioner filed an


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objection to the Demand for Arbitration with ADR Services on the grounds that ADRServices isnot named as theadministrative body to govern the arbitration proceedings and therefore ADR

Services has no authority to act. A copy of thisobjection is attached to the Freedman Decl. asExhibit"D," and incorporated by this reference. See Freedman Decl.^12-13, Exhibit "D."

II. ARGUMENT

A. This Court Should Appoint a Neutral Arbitrator and Set of Arbitration

Rules to Govern the Dispute Between the Parties.

A petition for appointment of an arbitrator maybe necessary where the arbitration clause

does notdesignate the arbitrator ora method for selecting the arbitrator; or the method provided

cannot be followed; or the designated arbitrator fails to act and the parties are unable to agree on

a replacement. CCP 1281.6 ("Section 1281.6"); see American Home Assur. Co. v. Benowitz

(1991)234 Cai.App.3d 192,199. Thecourt will nominate five personsselected from listssuppliedby the parties or obtained from governmental agencies or privateassociations concerned

with arbitration. Section 1281.6. If theparties do notagree onanarbitrator within five days after

receipt of the court's list, thecourtwill appoint one of the persons on that list. Id.

Paragraph 14c of the Agreement provides for binding arbitration of "[a]nyandall suchdisputes arising under thisAgreement." See Agreement, ^[14. However, theAgreement neitherdesignates a particular arbitrator to preside over the arbitration, nor specifiesan arbitration

provider, such as JAMS or AAA.

A dispute has arisen between the Petitioner and Respondents arisingout of the

Agreement, including issues relating to the AO Character. However, the Parties have been

unable to agree upon an arbitrator, arbitrationprovider/ forum or set of arbitration rules. See

Freedman Deck, ffi[7-l 1. Petitioner requests that the Courtapply Section 1281.6 and nominatefive potential arbitrators. If the Parties fail to select an arbitrator from the Court's nominees

within five days, then Petitioner requests that the Courtappoint an arbitratorfrom the list of

nominees.


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B. This Court Should Stay the Arbitration After it Appoints a Neutral

Arbitrator So As To Avoid Conflicting Rulings.

The Court has discretion to notorder arbitration of a controversy if a party to the

arbitration agreement isalso a party toa pending court action with a third party, that arises out of

the same transaction or "series of related transactions," and there isa possibility ofconflicting

rulings ona common issue of law or fact. See CCP 1281.2(c); Daniels v. Sunrise Senior Living,Inc., 212 Cal.App. 4th 674, 679 (2013); Best Interiors, Inc. . Millie &Severson, Inc., 161Cal.App. 4l 1320, 1329-1330 (2008); Whaley v. Sony Computer Entertainment America, Inc.,121 Cal.App. 4th 479, 485-486 (2004). The Court may also stay the arbitration pending theoutcome in the pending matter. "If the court determines that a party to the arbitration is also a

party to litigation in a pending court action orspecial proceeding with a third party as set forth

under subdivision (c) herein, the court...(4) may stay arbitration pending the outcome of thecourt action or special proceeding." See CCP 1281.2(c)(4) (emphasis added).

There is a Possibility of Conflicting Rulings if Arbitration is not Staved.

There isa possibility of conflicting rulings onthe common issues of ownership inthe

Copyright of the AO Character, copyright infringement of the AO Character, Respondents' right

to enter into agreements involving the AO Character and Respondents' right to make certain

representations about their ability to enter into agreements involving theAO Character if

arbitration is notstayed. For example, in the Pending Federal Action, the Court may find that the

AO Character infringes the copyright of the Talking Orange cartoon character and award

significant damages to H2M. Conversely, in the instant matter, the arbitrator may simply find

that Petitioner breached the Agreement and never address the copyright issue and whether

Respondents even had the authority to make certain representations about the AOCharacter to

the Petitioner priortoentering into the Agreement. Therefore, this Court should stay the

arbitration in the instant matter pending theoutcome of the Pending Federal Action.

Indeed, theDistrict Court's ruling onthecopyright infringement of the AO Character will

have a significant impact on the Parties' arbitration proceedings inthe instant matter, including


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the claims to be arbitrated. Respondents have represented that they own the copyright in the AOCharacter and are free to enter into the Agreement with the Petitioner. However, the District

Court's ruling may say otherwise, thus completely changing the landscape ofthe Parties'arbitration proceedings, including the claims brought by the Parties. If the District Court finds

copyright infringement by the AO Character, then Petitioner's claims in the instant matter will gobeyond just a breach ofthe Agreement. Petitioner's claims will include Respondents' fraudulentmisrepresentations about its ownership in the AO Character and its ability to enter into theAgreement as it relates to the AO Character. ,

Trial in the Pending Federal Action is scheduled for June 15,2015. Given the possibilityofconflicting rulings, and the importance ofthe court's finding in the Pending Federal Action,this Court should exercise its discretion by ordering this matter stayed until the Pending FederalAction is resolved.

UL CONCLUSION

For all ofthe foregoing reasons, Petitioner respectfully requests that the Court grant this

Petition and apply Section 128.6 for the purposes ofselecting an arbitrator and the stay the matterpursuant to CCP 1281.2(c)(4) pending the resolution ofthe Pending Federal Action.

Dated: December 23, 2014 FREEDMAN & TAITELMAN, LLP

Bv:

Bryan J. FreemanBrian E. Turnauer

Attorneys for Petitioner Collective Digital Studios, LLC


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DECLARATION OF BRYAN J. FREEDMAN, ESQ.

I, Bryan J. Freedman, herebydeclare and state as follows

1. 1am an attorney at law, duly licensed to practice before all courts in the State of

California, and am a partner in the law firm of Freedman & Taitelman, LLP ("F&T"),attorneys of record for petitioner Collective Digital Studio, LLC ("Petitioner" or "CDS") inthis matter. I have personal knowledge of the facts stated herein and, if called upon as a

witness, I couldand would competently testify as to theveracity of such facts.

2. A true and correct copy of the written "Online Distribution Agreement" entered

into on or about April 22, 2013 between Petitioner, on the hand, and respondents Dane

Boedigheimer ("DB") and Annoying Orange, Inc. ("AO") (collectively, DB and AO referredto herein as the "Respondents") (the "Agreement"), on the other hand, is attached hereto asExhibit "A."

3. The Agreement, in part, sets forth terms for the Petitioner to be the "on-line

distributor" for, among other things, the Annoying Orange cartoon character ("AOCharacter"), as well as the producer of certaincontent, including content pertaining to the AOCharacter.

4. On or about March 5, 2013, third party H2M, Inc., a North Dakota corporation

("H2M"), filed a lawsuit in the District Courtof North Dakota, Southeastern Division, againstDB, AO, Annoying Orange, LLC and Spencer Grove, alleging claims for Federal Copyright

Infringement (17 U.S.C. S0l(a, Seizure and Impounding (17 U.S.C. 503) and UnjustEnrichment, case number 3:l3-cv-00031-KKK (the "Pending Federal Action"). Here, H2Mclaims copyright ownership in the AO Character and is seeking damages and injunction toprevent the defendants from profiting off of their product.

5. A copy of the Complaint in the Pending Federal Action that my office

downloaded from PACER is attached as Exhibit "B," to the concurrently filed "request for

judicial notice" and incorporated by this reference.6. I am informed that trial in the Pending Federal Action is set for June 15,2015.


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7. On orabout November 26, 2014, counsel for Respondents, Martin Singer, filed

a "Statement ofClaims and Demand for Arbitration" ("Demand for Arbitration") with ADRServices.

8. The dispute between the Parties involves, in part, which of the Parties breached

the Agreement with respect to, among other things, the on-line distribution of the AO

Character and the production of certain content, including content concerning the AOCharacter, by Petitioner.

9. On December 19, 2014, 1 wrote to Mr. Singer and informed him that the

Agreement does not name ADR Services as the administrative body to govern arbitration

proceedings between the Parties. Further, I requested an in person meeting with Mr. Singerfor the week of December 22, 2014, to discuss the parameters for an arbitration between the

Parties, including the selectionof an arbitratorand arbitrationvenue.

10. Acopy ofmy letter of December 19, 2014 isattached hereto as Exhibit "C", andincorporatedby this reference.

11. The Parties have been unable to agree on an arbitrator, arbitration venue or

forum, or arbitration rules.

12. On December 22, 2014, my office filed an objection to the Demand forArbitration with ADR Services on the grounds that ADR Services is not named as the

administrative body to govern the arbitration proceedings and therefore ADR Services has noauthority to act.

13. A copy of Petitioner's objection is attached hereto as Exhibit "D," andincorporated by this reference

I declare under penalty of perjury under the laws of the Stateof California that theforegoing is true and correct. ,

Executed on this _Lf__ day of_(J^ff^flQ 14, at Los Angeles, California.

Bryan J. Freedman

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EXHIBIT A

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EXHIBIT "A"

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ONLINE DISTRIBUTION AGREEMENT

This Online Distribution Agreement (the "Agreement") is effective as ofthe 22nd day ofApril, 20 i3 (the"Effective Date") by and between Collective Digital Studio, LLC, a California limited liability company,including its assignees, designees and affiliated entities (collectively, "Distributor"), on the one hand, andAnnoying Orange, Inc., including its affiliated entities, and Dane Boedigheimer, an individual (or such entityduly designated by Mr. Boedigheimer in writing) (collectively with Annoying Orange, Inc. referred to hereinas "Producer"), on the other hand.

RECITALS

WHEREAS, Distributor is a leading and adequately capitalized worldwide distributor ofdigital content ondigital andtraditional platforms;

WHEREAS, Producer is the creator and exclusive owner of certain videos and video content ("Content", asfurther definedherein); and

WHEREAS, Producer desires to appoint and engage Distributor, and Distributor desires to act as and.beengaged as Producer's exclusive on-line distributor for the purpose of exploiting the Content on digital Jplatforms; and \

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WHEREAS, Producer has previously entered into a similar online channel distribution agreement withDistributor dated April 22, 20! I ("Previous Distribution Agreement"); andWHEREAS, the parties hereto have agreed that the terms of the Previous Distribution Agreement shall jcontinue until the Effective Date, following which the Previous Distribution Agreement shall terminate, and all of the terms of this Agreement shall take effect and supersede and replace all of the terms of the Previous 'Distribution Agreement. !

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and undertakings set forth \herein, and other good and valuable consideration, the parties hereby agree as follows: iI. Definitions.

a. "Content" shall mean any and all audiovisual content created, owned or controlled by Producer, andwhether or not any such audiovisual content is funded by or on behalf Distributor, which Producer intends to \exploit, or is otherwise, in fact, exploited, initially on one or more Authorized Platforms (defined below),including, without limitation, any Content (including, the Distributor Funded Content (as defined in thisAgreement)) as may be distributed on or through the websites and/or YouTube channels as described iniy.ft'b'* Aattached hereto, and/or any and all other websites and/or YouTube channels that may be created,developed and/or acquired by Producer during the Term, and whether ornot such websites and/or channels arefunded by or on behalf ofDistributor. For purposes ofclarification, Producer intends or agrees that the initialexploitation ofContent is on an Online Platform prior to exploitation in any other form ofmedia.

b. "Online Rights" shall mean the right to stream, transmit, exhibit, display, and/or distribute theContent on Authorized Platforms (defined below).

c. "Authorized Platforms" shall mean the "internet", any computer ormobile network, any platformon which videos can be viewed within or accessed via a web browser, websites, social networks, mobileplatforms, smartphones, tablet devices, television sets via "connected devices" (such as Google TV, Boxee, orRoku), or applications developed for mobile device marketplaces (such as the Apple "App Store" or Google"Android Market") and any and all other digital platforms whether now known or later developed. For theavoidance of doubt, "Authorized Platforms" shall not include any tiaditiona! form of television distributionnow known orhereafter devised, including without limitation terrestrial, broadcast, satellite cable and so-called

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video ondemand ("VOD"). All other rights ofdistribution are reserved to Producer.

d. "Distribution Agreement" shall mean an agreement (including amendments, addenda, and the like)between Distributor and a Licensee (defined below) to distribute or sub-distribute Content on AuthorizedPlatforms.

e. "Licensee^)" shall mean those parties who enter into a Distribution Agreement for the purposes ofexhibiting, broadcasting, transmitting, displaying, and/or distributing Content on Authorized Platforms. Forpurposes ofclarification, such term shall include any person or entity who acquires rights and/or obligationsunder a Distribution Agreement, whether as asublicensee, successor orassign.

f. "Distribution Revenues" shall mean any and all monies or other considerations received by orcredited to Distributor (i) which are paid by Licensees pursuant to Distribution Agreements, whether suchpayments are characterized as license fees, royalties, or otherwise, or(ii) which are otherwise derived from: (a)the exploitation ofthe Online Rights, less any and all actual, out-of-pocket hosting, server or ad serving costsincurred by or on behalf ofDistributor in connection with the Content; provided, however, that such costs shallnot be incurred in connection with the YouTube channels described in Exhibit A: (b) the exercise of theOnline Rights, (c) any websites and/or YouTube channels as described in Exhibit Aattached hereto; and/or(d) any and ail other websites and/or YouTube channels that may be created, developed and/or acquired byProducer or through which the Content is exhibited during the Term, Distribution Revenues shall includeincome received by Distributor from YouTube and other players, Producer's owned and/or operated websites,orother destination or exhibition portals including websites directly controlled by Producer and/or Distributor,including, without limitation, from thewebsites and/or YouTube channels as described in Exhibit A attachedhereto, and/or any and all other websites and/or YouTube channels that may be created, developed and/oracquired by Producer during the Term or through which the Content is exhibited, whether in the form ofsubscription fees, advertising revenue, purchase fees, rental fees, "partnership program" revenue share, orotherwise. It is acknowledged that during the Term, Distribution Agreements shall provide that Licensees arerequired to direct all payments of Distribution Revenues to Distributor; and Distributor shall be entitled toreceive all Distribution Revenues.

g. "Territory" shall mean worldwide.

h. "Integrations" shall mean products or services integrated into or configured in association with theContent for which consideration is paid to Distributor. All Integrations shall be subject to the approval ofProducer.

i. "Integration Revenues" shall mean any and all monies or other considerations received by orcredited to Distributor from Integrations, whether in the form of monies or barter orotherwise.

2- Ownership/Grant of Rights.

a. Producer hereby grants and appoints Distributor the exclusive distributor ofthe Content (includingDistributor Funded Content (as defined below)) with respect to any and all Online Rights. During the Term,Producer shall submit to Distributor all new content that Producer intends for Distributor to finance.Distributor shall have thirty (30) days following the date that Producer submits such content to Distributor tonotify Producer in writing that Producer shall finance such content. IfDistributor fails to notify Producer inwriting ofits agreement to finance such new content within such 30-day period, then Distributor shall onlyhave the right to distribute such new content if it shall be distributed on the Annoying Orange or DaneboeYouTube channels as determined by Producer in Producer's sole discretion. Without limiting the foregoing,such rights shall include, but not be limited to, the right to monetize the Content by distributing and/orlicensing the exploitation of the Content for distribution and exploitation on Authorized Platforms and topromote, negotiate, administer and manage the Online Rights (including the execution of ail DistributionAgreements) for the exploitation of the Content. In furtherance of the foregoing, and solely to facilitateDistributor's administration of the back-end and revenues for the Content, Producer shall transfer to

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Distributor during the Term the control necessary for Distributor toadminister all channels ofdistribution withrespect to all Authorized Platforms, including all websites owned or controlled by Producer or Producer'saffiliated entities, on which the Content is exploited, including, without limitation, any and all websites andYouTube channels as described in Exhibit Aattached hereto, and including, without limitation, sole decisionmaking with respect to the same; provided, however, notwithstanding the foregoing, nothing contained hereinshall be deemed to transfer or convey from Producer to Distributor any (i) rights concerning the descriptions orlinks from or to the Content as they appear in the Authorized Platforms or (ii) copyright or ownership interestin or to the Content or in or to any Authorized Platforms on which the Content is exhibited or exploited, exceptas otherwise provided for in Paragraph 2(e) and 2(f) hereof. If Distributor is in material default hereunder orupon expiration of the Term of this Agreement, Distributor shall within two (2) business days return toProducer administrative control over the Authorized Platforms. Distributor agrees to execute, acknowledgeand deliver to Producer and/or any third parry related to the Authorized Platforms any and all documents,forms (whether in electronic format or otherwise) that Producer deems necessary to effectuate the transfer toProducer of administrative control over such Authorized Platforms. If Distributor fails to do so within three(3) business days following Producer's request, then Producer is hereby irrevocably appointed as the attorney-in-fact for Distributor, which shall be a power coupled with an interest with full rights ofsubstitution anddelegation for the sole purpose of effectuating such transfer of administrative control to Producer. Produceragrees to provide Disrributor with any and all documentation executed in the name ofDistributor pursuant tothis paragraph. Distributor acknowledges and agrees that Producer shall retain one hundred percent (100%)control solely over creative matters relating to the Content, except that Producer agrees to meaningfullyconsult with Distributor throughout the Term with respect to the same. Producer shall have final approval overall programming decisions on all websites and YouTube channels owned or controlled by Producer orProducer's affiliated entities, including without limitation, programming decisions in connection with third-partycontent thatDistributor desires to distribute on suchwebsites and/orYouTube channels.

b. Producer hereby grants and appoints Disrributor the exclusive right to procure, solicit and arrangeIntegrations (subject to Producer's approval rights as described above).

c. Producer hereby grants Distributor the right to exploit Producer's name and likeness (and the nameand likeness of its principals) in order to market, promote and exploit the Content; provided, however,Producer shall have the right to approve such uses, such approval not to be unreasonably withheld. For theavoidance of doubt, Distributor shall not be entitled to exploit Producer's name or likeness except asspecifically related to the Content.

d. Subject to any agreement previously entered into by Producer with respect to the Content, Producerhereby grants Distributor the first right of negotiation in connection with distributing the Content in off-lineplatforms (i.e., non Authorized Platforms), e.g., on TV, VOD, etc.; provided, however, Producer shall have anapproval right as to ail such decisions, such approval not to be unreasonably withheld. Producer shall provideto Distributor with copies ofall previously entered into agreements regarding the Content.

e. Subject to all of the terms hereof, Producer and Distributor shall jointly own (on a sixty-fortypercent basis - i.e., sixty percent (60%) to Producer and forty percent (40%) to Distributor) any and all right,title and interest of every kind and nature in and to the Distributor Funded Content (as defined herein below)throughout the world in perpetuity, including, without limitation all rights ofcopyright and any and all otherintellectual property rights therein and thereto, all right, title and interest in and to any development materials,scripts, programs, and components (hereof in whatever stage of completion, created in connection with theDisrributor Funded Content, as well as all ofthe results and proceeds ofProducer's services in whatever stageof completion, together with the rights generally known as the "moral rights of authors". Subject to the termshereof, Producer acknowledges and agrees that Distributor shall have exclusive, irrevocable, universal,perpetual right, but not the obligation, to produce, distribute, market, administer and exploit any and all aspectsof the Distributor Funded Content, including any and all development materials and any production(s)ancillary- or derivative of the Distributor Funded Content, including, without limitation, any subsequentproductions, and all components thereof in any manner, whether now or hereafter known or created (andcollect one hundred percent (100%) of any and all monies or revenues arising therefrom for the purpose of

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administering and distributing such receipts in accordance with the terms of this Agreement), and all suchrights, shall, for the avoidance of doubt, include, without limitation, all of the exclusive rights as set forth inthis Paragraph 2, including all of the exclusive distribution rights. Further, for the avoidance of doubt theparties acknowledge and agree that Distributor shall have the complete authority to license, market and exploitthe Distributor Funded Content (and/or any derivative thereof) and all rights therein, or to refrain from sodoing, as Distributor may choose in Distributor's sole discretion (and in consultation with Producer) Forpurposes of this Agreement, the term "Distributor Funded Content" shall mean any and all Content that isfunded in whole or in part by or on behalf of Disrributor pursuant to the Distributor Production Funds (asdefined in Paragraph 5below), and which Content includes, without limitation, any and all new formats and/ornew channels, and any and all elements thereof, including, without limitation, any and all new charactersplots, storylines, concepts and/or ideas. Producer and Distributor shall mutually agree on Content which isDistributor Funded Content for the purposes hereof.,

3. Term.

Subject to Paragraph 10 hereof, the term of the Agreement shall commence on the Effective Date and continueuntil three (3) calendar years thereafter ("Term").4. Pjoduction.of Conjent. Throughout the Term, Distributor shall have the exclusive right to finance theproduction of any or all Content from Distributor's funds ("Distributor Production Funds"), as Distributordetermines in its sole discretion; provided, however, Distributor shall not have the exclusive right to financethe production of new Annoying Orange content. Distributor shall provide no less than $500,000 annuallythroughout the Term as Distributor Production Funds, which can be used by Producer towards infrastructureequipment, personnel or such other actual out-of-pocket costs necessary to produce the Content. Producershall submit to Distributor written details of the infrastructure costs and Content that Producer wishes toproduce using Distributor Production Funds prior to commencing production of such Content. Producer willhave final creative approval over Distributor Funded Content; provided, however, Producer shall meaningfullyconsult with Distributor on ail creative matters. If Distributor decides not to fund Content submitted byProducer as provided herein, then Producer may produce such content without further obligation toDistributor; provided, however, that Distributor is given reasonable time (not to exceed 30 days) to considerthe proposed project and affirmatively rejects the proposal in writing (an e-mail from Distributor to Producershall suffice).

5. Compensation to Producer

Subject to all the terms of this Agreement, and provided that Producer is not in breach or default hereofProducer shall be entitled to the following:

a- Guaranteed Revenue S,hare Payment.

-, ,M , ^ Ttal Payment- Producer shall receive a total guaranteed revenue share payment of$1,700,000 for the first year ofthe Term, 21,850,000 for the second year of the Term, and $2,000 000 for thethird year of the Term (each a"Guaranteed Revenue Share Payment"), payable monthly and fully recoupabiefrom any and all of Producer's Revenue Share (as defined herein below) payable hereunder. Upon executionot this Agreement by Producer and delivery of same to Distributor, Distributor shall pay Producer $500 000 asan advance from the Guaranteed Revenue Share Payment due for the first year of the Term. Distributor shallreconcile on an annua! basis any discrepancy between (x) actual pavments made to Producer monthlv fromProducer's Revenue Share and (y) the Guaranteed Revenue Share Payment and remit the difference (if any) toProducer on an annual basis, but not less than thirty (30) days after the anniversary ofthe Effective Date andno more than 60 days following the anniversary ofthe Effective Date.

^ Content Commitment. The parties understand and agree that the Guaranteed Revenuebnare Fayment is contingent upon (I) Producer creating and producing aminimum of fifty-two (52) contentitems annually on mmMMhMmlmmmmm and twenty-five (25) content items annually on

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www.youtube.corn/daneboe during the Term of aquality and duration consistent with the content produced byProducer during the previous year prior to the Effective Date; and (2) Producer not unreasonably withholdingapproval for Integrations procured, solicited and arranged by Distributor.

,b' Contingent Compensation for non Distributor Funded Content. Ashare of Distribution Revenues,Integration Revenues and/or Advertising Revenues (ifany) with respect to non Distributor Funded Content(which for the avoidance of doubt includes any new Annoying Orange content and the 25 Daneboe videos),solely as follows:

(i) Distribution Revenues. An amount equal to seventy percent (70%) ofall DistributionRevenues ("Producer's Distribution Revenue Share") with Distributor retaining as compensation thirty percent(30%) ofall Distribution Revenues (the "Distribution Fee").

(ii) Integration Revenues. An amount equal to seventy percent (70%) of all IntegrationRevenues ("Producer's Integration Revenue Share") with Distributor retaining as compensation thirty percent(30%) ofall Integration Revenues (the "Integration Fee").

(iii) Advertising Revenues. As to the revenue from any and all advertising sales("Advertising Revenues") made directly by Distributor (i.e., there are no "middlemen" commissioning orotherwise charging fees on such revenue), an amount equal to seventy percent (70%) of all AdvertisingRevenues ("Producer's Advertising Revenue Share") with Distributor retaining as compensation thirty percent(30%) ofall Advertising Revenues (the "Advertising Fee").For the avoidance ofdoubt, all revenues shall be characterized as either Distribution Revenues, IntegrationRevenues or Advertising Revenues, For purposes of this Agreement, "Producer's Distribution RevenueShare", "Producer's Integration Revenue Share" and "Producer's Advertising Revenue Share" shallcollectively be referred to herein as "Producer's Revenue Share". Further, and for the purposes of thisAgreement, "Producer's Revenue Share" and "Producer's New [P Revenue Share" shall collectively bereferred to herein as"Producer's Contingent Compensation".

c Compensation to Producer for Distributor Funded Content. An amount equal to sixty percent (60%)of the non-returnable, non-refundable, non-contingent gross receipts actually received or credited to andretained by Distributor in US Dollars in the United States (but excluding any reasonable and customaryproducer fees received by or on behalf of Distributor in connection with the Distributor Funded Content)resulting solely and directly from the exploitation of the Distributor Funded Content ("Producer's New IPRevenue Share"), but only following the deduction by Producer from such gross receipts of (I) any mutuallyapproved payments or participations required to be paid to any third-party distributor, broadcaster or financieror any third party, including, without limitation, any agency packaging fee(s), (2) any and all actual third-partyout of pocket expenses incurred by Distributor directly in connection with the Distributor Funded Content,including any and all costs incurred in connection with the development, production, marketing, promotion^distribution and/or other exploitation of the same, including, without limitation any and all of Distributor'sProduction Funds, and (3) eight percent (8%) of all Integration Revenues and Advertising Revenuesattributable to the exploitation ofthe Distributor Funded Content. For the avoidance of doubt, Distributor shalldeposit Producer's share of any funds blocked pursuant to a foreign government's applicable rules orregulations in a bank account in such territory under Producer's name and Producer shall have full rights andaccess tosuch funds, subject tothe laws ofsuch jurisdiction.

d- firant ofUnits.. Producer is hereby granted as ofthe Effective Date an option to acquire 750,000Units under Distributor's Long Term Incentive Plan (the "LTIP"), with an exercise price per Unit equal to$0.20. Such option shall be exercisable as to one-quarter (1/4) of such Units as of and after the Effective Date,as to one-half (1/2) ofsuch Units as ofand after the first (1st) anniversary ofthe Effective Date, as to three-quarters (3/4) ofsuch Units as ofand after the second (2nd) anniversary ofthe Effective Date, and as to all ofsuch Units as of and after the third (3rd) anniversary of the Effective Date. Notwithstanding the foregoing,

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Producer shall be entitled to exercise all or any portion of suchoption from and after notice by Distributor ofthe pendency of a Liquidity Event or Extraordinary Dividend as defined in the LTIP, which notice shall begiven no later than ten (10) business days prior to a Liquidity Event or Extraordinary Dividend. The grantherein will constitute an "Award Agreement" for purposes of the LTIP. The Units will be subject in allrespects to the terms'and conditionsof the LTIP. Within sixty (60) days of a Liquidity Eventor ExtraordinaryDividend as defined in the LTIP, Producer shall beentitled to an additional feepayable incash for Producer'sservices rendered during the Term equal to one hundred and fifty thousand U.S. dollars (5150,000), which forthe avoidance of doubt may be applied at Producer's election to the exercise price of the options grantedherein.

6. Un-crossed Recoupment, Prior to Distributor paying through to Producer any of Producer's Revenue Sharehereunder, and without limitation to any recoupment pursuant to Paragraph 5(c) above, Distributor shall beentitled to first recoup therefrom all of the Guaranteed Revenue Share Payment; provided, however, that theGuaranteed Revenue Share Payment is not recoupable from the New IP Revenue Share. Prior to Distributorpaying through to Producer any of Producer's New IP Revenue Share, Disrributor shall be entitled to firstrecoup therefrom all of Distributor's Production Funds paid by or on behalf of Distributor to Producerhereunder; provided, however, that Distributor's Production Funds are not recoupable from Producer'sRevenue Share.

7. Accounting. Provided that Producer is not in breach ordefault of thisAgreement, and subject at all times toall of the terms hereof, including any and ai! recoupment provisions assetforth in this Agreement, Distributorshall pay to Producer Producer's Contingent Compensation (if any), as aforesaid, on a monthly basis; that is,by the fifteenth (15th) day of the month following forty-five (45) days after the receipt of the applicableProducer's Contingent Compensation during the Term (and thereafter insofar as Distribution Revenues,Integration Revenues and/or revenues relating to the Distributor Funded Content are collected by Distributor).Notwithstanding the foregoing, Distributor may, at Distributor's election, from time to time, pay ProducerProducer's Contingent Compensation ona more frequent basis, butDistributor shall notbethereafter obligatedto continuesuch practice.

8- Royalty Reports and Records

a. Books and Records. Distributor shall maintain accurate andup-to-date books andrecords regardingtheactivities hereunder, including each License Agreement.

b. Reports. Distributor shall provide to Producer with each payment of Producer's ContingentCompensation (if and as applicable) a report setting forth the revenues received by Distributor during thepreceding quarter, the sources thereof (i.e., the parties that paid the same) and other pertinent information.Distributor shall also send copies to Producer ofany income reports from any third parties regarding any oftheabove revenues. Producer shall have the right toaudit any of Distributor's reports and Producer shall provideat least 30 days written notice in advance ofany such audit. No such audit may beconducted for any report orfor any period covering such report after two (2) years following the date ofreceipt by Producer ofsuch report.Producercovenants and agrees that all information in connection withsales shall be maintained as confidentialby Producer.

9- Expiration and Termination

a. Expiration. This Agreement shall expire at theend of the Term pursuant to Section 3 above unlessrenewed as provided therein.

b. Termination. This Agreement shall be subject to early termination if any of the following eventsoccurs:

(i) By either party if the other party commits a material breach of the Agreement, whichbreach isnot cured by thebreaching party within thirty (30) days following its receipt ofwritten notice ofsuch

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breach from the terminating party,

(u) By either party ifthe other party becomes insolvent, files for bankruptcy or has its assetsassignedto a receiver for the benefit of its creditors.

(iii) By either party, if the other party commits fraudulent or illegal conduct resulting in amaterial adverse effect on the terminating party.

d. Survival of Distributor's Right to Share Revenues. It is agreed that, notwithstanding the earlytermination or natural expiration of this Agreement (but not in the event of an actual termination of thisAgreement based on an uncured material breach by Distributor of this Agreement), Distributor's right toreceive Distribution Revenues and retain its share of such Distribution Revenues, and Distributor's right toreceive Integration Revenues and Advertising Revenues as aforesaid and retain its Integration Fee andAdvertising Fee, shall continue for any particular Distribution Agreements and Integrations and AdvertisingRevenue for so long as any those Distribution Agreements and Integrations and Advertising Revenues remainin force and effect (e.g., with respect to Distribution Agreements, as long as the Licensees ofthose DistributionAgreements continue to pay fees in accordance with such Licensing Agreements, whether pursuant to terms ofthe initial Distribution Agreements or to any renewals, modifications or extensions thereof; provided, however,Distributor shall not derive the benefit of any improved terms (e.g., increased royalty percentages or payments)negotiated by Producer or Producer's other representatives following the termination or expiration of thisAgreement. If Distributor breaches for failure to pay, and fails to cure within ten (10) business days afterbeing notified of such breach, then, in addition to any other rights that Producer may have pursuant to terms ofthis Agreement, at law or in equity, Producer shall have the option to terminate the distribution rights grantedin this Agreement and Disrributor shall quitclaim the ownership rights to any Distributor Funded Content thathas not in fact been financed by Distributor's Production Funds,

e. Producer acknowledges and agrees that neither Distributor's ownership ofany Distributor FundedContent nor any grant ofrights to Distributor in connection therewith shall be affected, limited or terminated inany way by termination, expiration or cancellation of this Agreement for any reason, and Distributor's rights inand to any and all Distributor Funded Content shall continue in perpetuity, notwithstanding any suchtermination, expiration orcancellation ofthis Agreement.

10- EosKTjarm^^ If, during the Term of this Agreement and in the ordinary course ofDistributor providing the services contemplated hereunder, Distributor has commenced negotiations with aprospective Licensee who has expressed abona fide interest in licensing, distributing, or otherwise exhibitingthe Content (a "Bona Fide Opportunity"), but either (A) such Licensee or prospective License Agreement isrejected by Producer or (B) an agreement with such prospective Licensee is not executed for any reason duringthe Term of this Agreement, and if within nine (9) months after the termination or expiration of thisAgreement, Producer or Producer's authorized licensee or representative and the prospective Licenseeidentified by Distributor enter into an agreement to proceed with the Bona Fide Opportunity, Distributor shallbe entitled to receive the applicable fees above (i.e., Distribution Fee, Integration Fee and Advertising Fee)relative to such relationship as provided under this Agreement. Distributor shall provide to Producer a list ofall prospective Licensees upon the expiration or termination ofthis Agreement.

11 Representations and Warranties: Indemnifications

a. By Distributor. Distributor represents and warrants (i) that Distributor is a company in goodstanding, with the full right, power and authority to enter into this Agreement and to perform the servicespromised hereunder, (ii) that Distributor will indemnify, defend and hold Producer harmless from any and alldamages, liabilities, actions, causes of action, claims, costs and expenses, including, but not limited to,reasonable outside attorneys' fees (collectively, "Claims"), arising from any breach by Disrributor of theaforesaid representations and warranties.

00/00/2014 10:23:30 FAX 2132499990 NATIONWIDE LEGAL A 22Li

b. By Producer. Producerrepresents, warrants and undertakes (i) that it has the full right, power,andauthority to enter into this agreement without obtaining the permission of, or making any payments to, anythird party or entity, and to grant all the rights granted hereunder free of any claims, liens, demands orencumbrances, (ii) it has not granted and will not grant nor exerciseduring the Term of this Agreement anysuch rights which would conflict with or impair the rights, privileges, duties and responsibilities of Distributorunder this Agreement; (iii) the Content is or shall be original to Producer; (iv) the Content shall produced infull compliance with anynetwork or platform terms andconditions; (v) (heContent, theuse thereof and/or anyexploitation of the Online Rights shall not infringe on any rights of any third-party, including, withoutlimitation, any and all intellectual property rights; (vi) Producer knows of no material claims, nor basis forsuch claims, which may affect the ownership or validity of the Content; and (vii) Producer has the requisiteauthority as of the Effective Date to grant all rights in and to the Contentas contemplated hereunder. Producershall indemnify and hold Distributor harmless from any and all Claims arising out of (a) any breach of theaforesaid representations and warranties and(b) any claims of infringement by third parties upon their rightsarising from Distributor's authorized actions hereunder.

12.Confidentiality. The terms and conditions of this Agreement are confidential and shall not be disclosed byeither party (or any of its employees, officers, directors, agents or other representatives) to any third partywithout the other party's prior writtenconsentexcept as may be required to be disclosed by applicable law orlegal process; provided that any party disclosing the terms of this Agreement as required by law or legalprocessshall notify the other partyat least five (5) days prior co suchdisclosureso as to allow such other partyan opportunity to protect such terms through protective order or otherwise. Notwithstanding the foregoing,The Collective may disclose the terms and conditions of this Agreement to its Licensees and theirrepresentatives if such clients (and on behalf of their representatives) agree, in writing, to maintain theconfidentiality of this Agreement. The Collective shall not be liable for any breach of the foregoingconfidentiality obligations byany of itsclients or their representatives. Any breach of this paragraph byeitherparty shall be deemed a material breach of this Agreement, which will entitle the non-breaching party toterminate the Term by written notice to the breaching party; provided that, such termination right shall notapply to a Collectiveclient's (or its representative's) disclosure, so long as Collective has otherwisecompliedwith its obligations pursuant to this paragraph. For purposes of clarification, Producer acknowledges andagrees that any and all Distribution Agreements are deemedto be confidential information and the same shallbe subject to the sameconfidentiality provisions as set forth above.

13. Notices. Statements and Payments. All notices, statements, or payments to be made hereunder shall begiven to or made at the respective addresses of the parties as set forth below unless written notification of achange of address is given to the otherparty. All notices and communications required or permitted under thisAgreement shall be given by addressing them as indicated below and by delivering them by certified orregistered mail, return receipt requested, postage prepaid or through a national overnight courier service (e.g.,FedEx) and shall beeffective as of thedateof receipt of such notice by theotherparty.

As to Distributor: 8383 Wilshire Blvd., Suite 1050, Beverly Hills, CA 90211

As to Producer:

14. Miscellaneous

a. Entire Agreement/Waiver. This Agreement contains the entire understanding between the partiesand supersedes all prior agreements, representations and undertakings whether oral or written. It mayonly bemodified, supplemented or altered by a writing signed by bothparties. No failure or delayon thepart of eitherparty ininsisting on compliance herein or inexercising any right, power orremedy hereunder shall operate as awaiver or modification thereof; nor shall any single or partial exercise of any such right, power or remedyhereunder, preclude anyotheror further exercise or anyother right, power or remedy hereunder.

b. Validity of Agreement. In case any term of this Agreement shall be held invalid, illegal, orunenforceable in whole or in part, neither thevalidity of the remaining part of such term northevalidity of any

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r'-

other terms shall be affected thereby.

c. Arbitration; Choice of Law. Any and all such disputes arising under this Agreement shall begoverned by the laws of the State of California without regard to conflicts oflaws and be settled by bindinoarbitration. "

d. Headings, The headings contained in this Agreement are for convenience only, and shall not beused tointerpret orconstrue any substantive provisions hereof.

e. Force Majeure. If either party is prevented from performing any obligation hereunder by reason ofan Act of God, insurrection, fire, explosion, strike, labor dispute, casualty accident, lack or failure oftransportation facilities, failure of suppliers or other third parties, flood, war, civil commotion, or any law,order or decree of any government or subdivision thereof or any other cause beyond its reasonable control("Force Majeure"), then such party shall be excused from performance hereunder to the extent and for theduration of such Force Majeure and such amount of time reasonably necessary to recover, provided the partynotifies the other party ofthe existence ofthe Force Majeure.

f. No Joint Venture. This Agreement creates no partnership, employment, joint relationship, jointventure, master-servant, or mutual responsibility on behalf ofone party for the debts or liabilities ofthe other.The parties agree that Distributor is acting as an independent contractor and that any Distributor employees arein no sense the employees, agents or servants ofProducer. Neither party shall have the power to bind norobligate the other, except asexpressly setforth herein.

g. Assignment. This Agreement shall net be assigned, sub-licensed, mortgaged, divided or otherwiseencumbered by either party without the prior written permission of the other party, provided, however, thatDistributor shall have the right to assign this Agreement to any successor entity or, pursuant to anyreorganization, consolidation, combination, or merger, to any corporation, partnership or other firm, as long assaid successor assumes this Agreement in writing, is both capable of, and contractually bound to perform allthe terms and conditions hereof and appropriately discharge all of Distributor's obligations in this Agreement.It is acknowledged that the restriction on assignment shall not in any way interfere with or limit Distributor'sright in its sole discretion to engage sub-distributors to render or exercise any ofthe services described herein.

h. Conflict Acknowledgment, Waiver of Claims and Waiver of Commissions: Produceracknowledges that certain of the principals of Distributor are also the principals of The Collective ManagementGroup, LLC, amanagement company that manages the career of Producer pursuant to aseparate managementagreement (the "Management Agreement") between Producer and The Collective; and that, as aconsequenceof the foregoing, aconflict of interest exists or may hereafter exist. Notwithstanding such conflict or potentialconflict, Producer has determined that (i) its interests are served by Distributor notwithstanding the conflict(ii) Producer has no objection to the conflict of interest and (iii) Producer will not make any claim to terminate!rescind or modify this Agreement or the Management Agreement based solely on the fact that a conflict orpotential conflict exists. Furthennore, it is agreed that, as a condition ofsuch waiver, Distributor shall causeThe Collective Management Group, LLC to waive its right to commission by virtue of the ManagementAgreement any of the Distribution Revenues earned and received by Producer under the terms of thisAgreement.

i. Engagement ofCounsel: Producer represents and warrants that Producer has been advised of itsright to seek legal counsel of its own choosing in connection with the negotiation and execution of thisAgreement and Producer has been given a reasonable time to engage such counsel. Producer irrevocablyagrees that the failure ofProducer to retain the services of an attorney to review and negotiate this Agreementshall not thereafter be used by Producer as the basis for termination or modification of this Agreement.IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and effective as oftheEffective Date.

00/00/2014 10:23:30 FAX 21324 99990

Producer: Annoying Orange, Inc.

By: \ ___

Producer: Dane Boedigheimer

NATIONWIDE LEGAL

Distributor: Collective Digital Studio, LLC

CXk)

THE COLLECTIVE MANAGEMENT GROUP, LLC ("THE COLLECTIVE") THE ENTITY WHICHMANAGES PRODUCER PURSUANT TO ASEPARATE MANAGEMENT AGREEMENT BETWEENTHE COLLECTIVE AND PRODUCER, HEREBY AGREES TO WAIVE ITS RIGHT TO COMMISSIONON ANY OF THE DISTRIBUTION REVENUES EARNED AND RECEIVED BY PRODUCER UNOERTHETERMSOF THIS AGREEMENT.

THE COLLECTIVE

Name: jj^ ^7 ^Title: fkth^^

10

24


http .//www, youtube.com/annoyineoranee

http://www.youtube.com/daneboe

EXHIBIT A

11

25

EXHIBIT C

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EXHIBIT "C"


FREEDMAN + TAITELMAN, LLPATTORNEYS AT LAW

1901 AVENUE OF THE STARS. SUITE 500LOS ANGELES, CALIFORNIA 90067-6007

TEL: (310} 201-0005FAX: (3 10) 201-0045

E-MAIL: lifrccilrmin'iWrtlp.con!

BRYAN j.RU-EDMAN

December 19,2014

Via Email: [email protected] and Via Messenger

Mr, Martin D. Singer, Esq.LaveIy & Singer2049 Century Part EastLos Angeles, CA 90067-2906

Re: Dane Boedigheimer and Annoying Orange, Inc. v. Collective Digital Studio, LLCMeetand confer regarding the selection of arbitrators and arbitration forum

Dear Marty:

I am in receipt ofyour December 16, 2014 letter requesting that I inform you whether myclient will agree to arbitrate this dispute before ADR Services ("ADRS") and the ADRSrules.

OUR FILE NUMBER1651.6

To be clear, and as you are well aware, the "Online Distribution Agreement"("Agreement") entered into between our clients does not name ADRS as theadministrative body to govern arbitration proceedings betvveen^our clients. While myclient agrees to arbitrate this dispute, certain parameters such as the selection ofarbitratorand arbitration forum must first be discussed. Iam happy to meet with you at your officeearly next week to discuss these parameters. As of now, I can meet you on Tuesday,December 23 or Wednesday, December 24, Please let me know what works for you.

This letter is not intended to constitute., nor shall it be deemed to constitute, a fullstaiement: ofall facts, rights or claims relating to this matter, nor is it intended, nor shouldit be construed, as a waiver, release, or relinquishment ofany rights or remedies availableto my client.

Very truly yours,

FREPBMAN - TAITELMAN, LLP

Bryan J. Freedman, Esq.

2083-1

I'O

f-

EXHIBIT D

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EXHIBIT "D"

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NATIONWIDE LEGAL

FREEDMAN +TAITELMAN, LLPATTORNEYS AT LAW '

1901 AVENUE OFTHE STARS, SUITE500LOS ANGELES,CALIFORNIA 90067-6007

TEL: (310) 201-0005FAX: (310) 201-0045

E-MAIL: bfrcc([email protected]

BRYAN J, FREEDMAN

December 23, 2014

Via Messenger

Ms. Theresa AslinArbitration CoordinatorADR Services, Inc.1900 Avenue of the Stars, Suite250Los Angeles, CA 90067

OUR FILE NUMBER1651.6

Re: Dane Boedigheimer and Annoying Orange, Inc. v. Collective Digital Studio, LLCDemand for ArbitrationADRS Case No. 14-7458

OBJECTION TO DEMAND FOR ARBITRATION

Dear Ms. Aslin:

This firm represents Collective Digital Studio, LLC (the "CDS") in connection with theabove-referenced dispute. As such, all future communications shall be with this officeonly.

On or about November 26, 2014, Dane Boedigheimer and Annoying Orange, Inc. filed aDemand for Arbitration with your office claiming damages in excess of $700,000 fromCDS. On December 5, 2014, ADR Services sent a letter to the parties requesting thatthey select one often arbitrators by Monday, December 29. 2014.

The Demand for Arbitration states that the demand is made pursuant to the "OnlineDistribution Agreement between Claimants and Respondents dated as of April 22, 2013"(the "Agreement"). The Agreement is attached to the Demand for Arbitration as Exhibit"A."

The arbitration provision in the Agreement is found at paragraph 14 c. and states asfollows:

c. Arbitration; Choice of Law. Any and all such disputes arisingunder this Agreement shall be governed by the laws ofthe State of

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99990 NATIONWIDE LEGAL

Ms. Theresa AslinRe: Collective Digital Studio, LLC adv. Annoying Oratwe Inc el al

December 23, 2014 ''Page 2

California without regard to conflicts of laws and be settled bybinding arbitration.

ADR Services is not named as the administrative body to govern the arbitrationproceedings Therefore, ADR Services lacks any jurisdiction to consider this matterpursuant to the terms stated herein and pursuant to Exhibit "A." As such we respectfully'request and expect ADR Services to immediately withdraw from this dispute based onthe reasons set out in this letter.

This letter is not intended to constitute, nor shall it be deemed to constitute afullstatement of all facts, rights or claims relating to this matter, nor is it intended, nor shouldit be construed, as awaiver, release, or relinquishment of any rights or remedies availableto my client.

Very truly yours,

FRE^DrVJkN +TAITELMAN, LLP

Bryan J. Freedman, Esq.

30

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ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. Slew ear number, ana address',:"Bryan J. Freedman (SBN.151990)Brian E. Turnauer (SBN214768)Freedman + Taitelman, LLP1901 Avenue of the Stars, Suite 500Los Angeles, CA 90067

TELEPHONE NO.: 310-201-0005 FAX NO.: 310-201-0045ATTQHNEYpQRf.va.TC), Collective Digital Studio. LLCSUPERIOR COURT OF CALIFORNIA, COUNTY OF Lo S Ange 16S

street address: 111 North Hill streetMAILING ADDRESS:

cityandzip code: Los Angeles, CA 90012branch name: Central

CASE name: Collective Digital Studio, LLC v. DaneBoedigheimer and Annoying Orange, Inc.

_ CIVIL CASE COVER SHEETIJG Unlimited Limited

(Amount (Amountdemanded demanded isexceeds $25,000) $25,000 or less)I

Complex Case DesignationCounter [ ] Joinder

Filed with first appearance by defendant(Cal. Rules of Court, rule 3.402)

FOR COURT USE ONLY

SuperiorCourtOfCaliforniaCoonty OfLos Alleles

DEC 23 201*

CM-011

Ry S^g*? .Deputy'IoALot

CASE NUMBER:

JUDGE:

OEPT:

Bb'152232

Items 1-6 below must be completed (see instructions on page 2).1. Check one box below for the case type that best describes this case:

Auto Tort Contract Provisionally Complex Civil Litigationr IAuto (221 | | Sreach ofcontract/warranty (06) (Cal. Rules of Court, rules 3.400-3.403)1 1Uninsured motorisl (46) [ j Rule 3740 collections (09) [ i Antitrust/Trade regulation (03)Other PI/PO/WD (Personal Injury/Property i ~] Other collections (0S1 Q ] Construction defect (10)Damage/Wrongful Death) Tortd] Asbestos (04)

lH Insurance coverage (18) [ 1 Mass tort (40)f "lOther contract (37) I | Securities litigation (28)

l~ .1 Product liability (24) Real Property I | Environmental/Toxic tort (30)i | Medical malpractice (45) [ j Eminent domain/Inverse 1 1Insurance coveraqe claims arisinq from theL._ J Other PI/PO/WD (23) condemnation (14) above lisied provisionally complex caseNon-PI/PD/WD (Other) Tort | | Wrongful eviction (33) types (41)i J Business tort/unfair business practice (0?) I | Other real property (26) Enforcement of JudgmentL j Civil rights(08) Unlawful Detainer i J Enforcement ofjudgment (20)I jOefamation(13) f ICommercial (31) Miscellaneous Civil Complaint1 i Fraud(161 I I Residential (32) 1 1RICO (27)i 1Intellectual property (19) Drugs (38) i j Other complaint (nol specified above) (42)I IProfessional negligence (25) Judicial Review Miscellaneous Civil PetitionI !Other non-PI/PD/WD tort (35) C ] Asset forfeiture (05) i | Partnership and corporate governance (21)Employment | i Petition re: arbitration award (11) i_Xj Other petition (not specified above) (43)[ IWrongful terminalion (36) i__J Wril ofmandate (02)L | Other employment (15) | | Otherjudicial review (39)Thiscase [ j is LiD is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark thefactors requiring exceptional judicial management:a CZj Large number of separately represented parties d. LI] Large number of witnessesb L i Extensive motion practice raising difficult or novel e. (ZZl Coordination with related actions pending in one or more courts

issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal courtc LZj Substantia! amount of documentary evidence f. L~j| Substantial postjudgment judicial supervision

3. Remedies sought (checkailthat apply): a

(TYPE OR PRINT NAME)

L J monetary b, [_X ] nonmonetary; declaratory or injunctive relief c. 1 I punitive4. Number of causes of action (specify): 15. This case I"""""] is LXJ is not aclass action suit. /"~\6. If there are any known related cases, file and serve a notice of related case. (YompayysefarrriPM^OISiDate: 12/23/2014 " "'Brvan J. Freedman (SBN151990)

(SIGNATURE CF PARTY OR ATTORNEY FOR PARTY]

NOTICEPlaintiff must file this coversheet with the first paper filed inthe action or proceeding (exceptsmall claims cases or cases filedunder the ProbateCode, Family Code,or Welfare and Institutions Code). (Cal. Rules ofCourt, rule 3.220.) Failure tofile may resultin sanctions.File this cover sheet in addition to any cover sheet required by local court rule.ifthis case is complex under rule 3.400 et seq. ofthe California Rules ofCourt, you must serve a copy of this cover sheetonallother parties to the action or proceeding.Unless this is a collections case under rule 3,740or a complex case, thiscoversheet will be used for statistical purposesonly.

. Pago 1 of 2form Adopted foeMandmoryUse

Judicial Council of CaliforniaCM-OtOjRov Jul)/ t 2007J

CIVIL CASE COVER SHEETSdyCWS

Cal. Rulaa of Court, rulss 2.30, 3 220. 3.4O0-3.403, 3.740;,t-,o- Cal, Standards a! JudicialAdministration, sld. 3.10IUS

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INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010To Plaintiffs and Others Filing First Papers, If you are filing a first paper (for example, a complaint) in a civil case you mustcomplete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compilestatistics about the types and numbers of cases filed. You must complete items 1through 6on the sheet In item 1 you must checkone box for the case type that best describes the case. If the case fits both a general and amore specific type of case listed in item 1check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action'To assist you in completing the sheet, examples of the cases that belong under each case type in item 1are provided below Acoversheet must be filed only with your initial paper. Failure to file acover sheet with the first paper filed in acivil case may subject aparty itscounsel, or bothto sanctions under rules 2.30 and 3.220of the California Rulesof Court,To Parties in Rule 3.740 Collections Cases. A'collections case" under rule 3.740 is defined as an action for recovery of money owedin a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in whichproperty, services, or money was acquired on credit, Acollections case does not include an action seeking the following- (1) tortdamages (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachmentThe identification of a case asa rule 3,740 collections case on this form means that it will be exempt from the general time-for-servicerequirements and case management rules, unless adefendant files a responsive pleading. Arule 3.740 collections case will be subjectto therequirements for service and obtaining a judgment in rule 3.740.To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether thecase is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court this must be indicated bycompleting the appropriate boxes in items 1and 2. If a plaintiff designates a case ascomplex, the cover sheet must be served with thecomplaint on all parties to the action, Adefendant may file and serve no later than the time of its first appearance a joinder in theplaintiffs designation, acounter-designation that the case is not complex, or, if the plaintiff has made no designation adesignation thatthe case is complex.

Auto Tort

Auto (22)~-Personal Injury/PropertyDamage/Wrongful Death

Uninsured Motorist(46) (itthecase involves an uninsuredmotorist claimsubject toarbitration, check this iteminstead of Auto)

Other PI/PDAfVD (Personal Injury/Property Damage/Wrongful Death)Tort

Asbestos (04)Asbestos Property DamageAsbestos Personal injury/

Wrongful OeathProduct liability (notasbestos or

toxic/environmental) (24)Medical Malpractice (45)

Medical Malpractice-Physicians &Surgeons

Other Professional Health CareMalpractice

Other PI/PD/WD (23)Premises Liability (e.g., slip

and fall)Intentional Bodily Injury/PD/WO

(e.g., assault, vandalism)Intentional Infliction of

Emotional DistressNegligent Infliction of

Emotional Distress''" Other PI/PD/WOl>fon-PI/PO/WD (Other) Tort

Business Tort/Unfair BusinessPractice (07)

l, .Civil Rights (e.g., discrimination,false arrest) (not civil

U' harassment) (08)Defamation (e.g., slander, libel)

(13)(...Fraud (16).... intellectual Property (19)'-Professional Negligence (25)I Legal Malpractice

Other Professional Malpractice('- (not medical orlegal}

Other Non-PI/PD/WD Tort(35)Employment

Wrongful Termination(36)Other Employment (15)

CM.OlO [Rev. July1. 200/|

CASE TYPES AND EXAMPLESContract

Breach of Contract/Warranty (06)Breach of Rental/Lease

Contract (notunlawful detaineror vjrongtu! eviction)

Contract/WarrantyBreachSellerPlaintiff (not fraud ornegligence)

Negligent Breach of Contract/Warranty

OtherBreach ofContract/WarrantyCollections(e.g., money owed, open

book accounts) (09)Collection CaseSeller PlaintiffOther Promissory Note/Collections

CaseInsurance Coverage (not provisionally

complex) (18)Auto SubrogationOther Coverage

Other Contract (3?)Contractual FraudOther Contract Dispute

Real PropertyEminent Domain/Inverse

Condemnation (14)Wrongful Eviction(33)Other RealProperty (e.g.. quiet title) (26)

Writ of Possession of RealProperlyMortgage ForeclosureQuiet TitleOther Real Property (not eminentdomain, landlord/tenant, orforeclosure)

Unlawful DetainerCommercial (31)Residential (32)Drugs (33)(ifthecase involves illegal

drugs, check this item;otherwise,report as Commercial orResidential)

Judicial ReviewAsset Forfeiture (05)Petition Re: Arbitration Award (II)Writ of Mandate (02)

Writ-Administrative MandamusWrit-Mandamus on Limited Court

Case MatterWrit-Other Limited Court Case

ReviewOther Judicial Review(39)

Review of Health Officer OrderNotice of Appeal-Labor

Commissioner Appeals

CIVIL CASE COVER SHEET

Provisionally Complex Civil Litigation (Cal.Rules of Court Rules 3.400-3.403)

Antitrust/Trade Regulation (03)Construction Defect (10)Claims Involving Mass Tort (40)Securities Litigation (28)Environmental/Toxic Tort (30)Insurance Coverage Claims

(arising from provisionally complexcase type listed above) (41)

Enforcement of JudgmentEnforcement of Judgment (20)

Abstract of Judgment (Out ofCounty)

Confession of Judgment (non-domestic relations)

Sister State JudgmentAdministrative AgencyAward

(not unpaid taxes)Petition/Certification of Entry of

Judgment on Unpaid TaxesOtherEnforcement ofJudgment

CaseMiscellaneous Civil Complaint

RICO (27)Other Complaint (not specified

above) (42)DeclaratoryReliefOnlyInjunctive ReliefOnly(non-

harassment)Mechanics LienOther Commercial Complaint

Case (non-tort/non-complex)Other CivilComplaint

(non-ton/non-complex)Miscellaneous Civil Petition

Partnershipand CorporateGovernance (21)

Other Petition (not specifiedabove) (43)Civil HarassmentWorkplace ViolenceElder/Dependent Adult

AbuseElection ContestPetition forName ChangePetition for Relief from Late

ClaimOther Civil Petition

Page loll

00/00/20*1-4 10:23:30 FAX 2132499990 NATIONWIDE LEGAL Tuesday, December 23, 2014

shorttitie Collective Digital Studio, LLC v. DaneBoedigheimer and Annoying Orange. Inc.

CASE NUMBER

BS1E228'CIVIL CASE COVER SHEET ADDENDUM AND

STATEMENT OF LOCATION(CERTIFICATE OF GROUNDS FOR ASSIGNMENT TO COURTHOUSE LOCATION)

This form is required pursuant to Local Rule2.0in all new civil case filings in the Los AngelesSuperiorCourt.

Item I Check the typesof hearing and fill in the estimated length of hearing expected for thiscase:

JURY TRIAL? [Z3 YES CLASS ACTION? [ZD YES LIMITED CASE? YES TIME ESTIMATED FOR TRIAL I IHOURS/fTl DAYSItem II. indicate the correctdistrict and courthouse location (4 steps - Ifyou checked "Limited Case", skipto Item III, Pg. 4):

Step 1: After first completing theCivil Case Cover Sheet form, find the main Civil Case Cover Sheet heading for yourcase in the left margin below, and, to the right in Column A , the Civil Case Cover Sheetcase type you selected.

Step 2; Check one Superior Court type of action in Column B below which best describes the nature of this case.

Step 3: In Column C, circle the reason for the court location choice that applies tothetype ofaction you havechecked. For any exception to the court location, see Local Rule 2.0.

Applicable Reasons for Choosing Courthouse Location (see Column C below)1. Class actions must be filed in the Stanley Mosk Courthouse, central district.2. Maybe filed in central (other county, or no bodily injury/property damage).3. Location where cause ol action arose.4. Location where bodilyinjury, death or damage occurred.5. Location where performance required or defendant resides.

6. Location of propertyor permanently garaged vehicle.7. Location where petitioner resides.8. Location wherein defendant/respondent functions wholly.9. Location where one or more of the parties reside.

10. Location of Labor Commissioner Office

X

Step 4: Fill in the information requestedon page4 in Item III; complete Item IV. Sign the declaration.

o

"ft *

" O --*. A7270 Intentional Inflictionof Emotional Distress

I i A7220 Othei Personal Injury/PropertyDamageAWrongful Death

1..4.

1,4.

1..3.

1..4.

LACIV 109 (Rev. 03/11)LASC Approved 03-04

CIVIL CASE COVER SHEET ADDENDUMAND STATEMENT OF LOCATION

Local Rule 2.0

Page 1 of 4U-CV109

ORIGINAL

0O/OO/2Qi'4 10:23:30 FAX 2132499990 MtlONWiOE LEGAL Tuesday, December 23, 2014

short title collective Digital Studio, LLC v. DaneB.aejijiheime.:a^^

CASE NUMBER

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Civil Case Cover SheetCategory No.

Business Tort (07)

Civil Rights (08)

Defamation (13)

Fraud (16)

Professional Negligence (25)

Other(35)

Wrongful Termination(36)

Other Employment (15)

Breach of Contract/ Warranty(06)

(not insurance)

Collections (09)

Insurance Coverage (18)

Other Contract (37)

Eminent Domain/InverseCondemnation (14)

Wrongful Eviction(33)

Other Real Property (26)

Unlawful Detainer-Commercial(31)

Unlawful Detainer-Residential(32)

Unlawful Oetainer-Post-Foreclosure (34)

Unlawful Detainer-Drugs (38)

BType of Action

(Check only one)

I A6029 Other Commercial/BusinessTort (not fraud/breach of contract)

_j A6005 Civil Rights/DiscriminationA6010 Defamation (slander/libel)

A6013

collective digital studio v. annoying orange.pdf

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