EXHIBIT 10.29
PRODUCTION AGREEMENT
This agreement is made September 22, 1998 by and between Flex Marketing, an Ohio
corporation located at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, and Banyan
Productions, a Pennsylvania corporation located at 000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000.
Banyan will produce an infomercial for the product currently known as the
Backstroke Back Massager (The Product) for National Boston Medical, Inc. Banyan
will deliver a finished master of approximately 28:30 in length to National
Boston Medical, Inc. of the infomercial on broadcast digital videotape, Superred
and superless split audio. As discussed, National Boston Medical, Inc. will be
responsible for any tags and customization (blue screens $ 800 #'s). Banyan
agrees to completely produce the infomercial for $49,940. For this fee Banyan
will also help to write all telemarketing scripts for said product. Banyan is
not responsible for payment of fees, expenses or royalties to any major talent
use in connection with the infomercial. Banyan is also not responsible for any
legal fees associated with said infomercial. All legal fees shall be paid by
Flex Marketing.
Payment by Flex Marketing/National Boston Medical, Inc. to Banyan Productions
shall be as follows:
a. 30% of the budget upon signing of this agreement (Receipt of which is
acknowledged by Banyan on 9/21/98)
b. 30% upon the start of principal photography
c. 30% upon delivery of the first rough cut.
d. 10% upon delivery of the final show.
Additionally, Banyan will receive 3% percent of Adjusted Gross Revenues on all
sales of the product with no exclusions. The royalty will be on the sales price
($59.95) minus Cost of goods (approx.
$12.50.) (AGR definition attached).
Royalties shall be paid monthly, within 30 days following the end of each
calendar month. Payment shall be accompanied by an accounting of sales and
shipments. Banyan Productions shall have the right to review telemarketing and
fulfillment company sales reports twice per year.
The term of this contract is for 5 years from the date of signing.
Banyan shall not be entitled to receive any royalty resulting from the sale of
the Product through the airing of any infomercial, or any commercial produced
from material contained in the infomercial, beyond that date which is six (6)
months subsequent to the Termination Date of this Production Agreement, as
herein above defined.
Flex Marketing agrees that it shall supply Banyan Productions with reasonable
reports that are industry standard, of all media time purchased for running of
the infomercial. These reports shall be supplied every 60 days.
If Flex Marketing shall transfer ownership of the infomercial or any material
contained therein, it will ensure that all obligations assumed under this
Agreement are passed along as well.
Non-Competition/Confidentiality
(a) Once production agreement(s) between Flex Marketing have been executed for
a particular product Banyan shall not perform services for, endorse,
promote, sell or otherwise distribute via any means any product(s) that are
substantially similar and competitive in form or function to the product(s)
being marketed in any media for a term of 2 years.
(b) Banyan acknowledges and agrees to treat as confidential information any and
all information regarding the client, product, or its operations that is
disclosed to Banyan in conjunction with this Agreement, and any information
regarding the sale and promotion of the Product(s) by the client or any
third party. Banyan further acknowledges, and agrees that they shall not
disclose any such confidential information to any third party at any time
during the term of this agreement and thereafter and shall not use any such
confidential information for any purposes other than for purposes
contemplated by this Agreement. Notwithstanding anything herein to the
contrary, however, confidential information shall not be deemed to include
information which, (i) is public knowledge or becomes generally available
to the public other than as a result of disclosure by Banyan or its agents
and representatives; (ii) becomes available to Banyan on a non-confidential
basis, from a source (other than Banyan or its agents and representatives)
who is not bound by a confidentiality agreement with THE CLIENT or (iii) is
in the possession of Banyan or its agents and representatives prior to
disclosure by THE CLIENT, provided that the source was not bound by a
confidentiality agreement with THE CLIENT.
Indemnification
(a) Banyan hereby agrees to release, protect, defend, hold harmless and
indemnify THE CLIENT and its designee, affiliates and licensees, and each
of their respective employees, agents, officers and directors, and each of
them, from and against any and all claims, actions, suits, costs.
liability, damages and expenses (including, but not limited to, attorneys'
fees and court costs) arising out of or resulting from (i) the breach by
Banyan of any representation, warranty, covenant or agreement provided in
this Agreement.
(b) THE CLIENT hereby agrees to indemnify, protect, defend and hold harmless
Banyan from and against any and all claims, actions, suits, costs,
liability, damages and expenses (including, but not limited to, reasonable
attorneys' fees and court costs) arising out of or resulting from (i)
allegations of deceptive or misleading advertising or promotion associated
with the promotion of the Product(s) by THE CLIENT, (ii) any product
liability claims relating to the Product(s), and (iii) any other claims
relating to the Commercial(s) and/or the Product(s) other than those
relating to any breach by Banyan of any representation, warranty, covenant
or agreement provided in this Agreement.
(c) Flex Marketing shall furnish or cause to be furnished to Banyan information
regarding the Product's attributes and capabilities that are promoted in
the infomercial ("Product Information"). Flex Marketing will provide or
cause to be provided Product samples in a quantity that Flex Marketing
determines to be sufficient in order to aid in the production of the
Infomercial. It is specifically understood that, in writing the script and
producing the Infomercial, Banyan will rely on such Product Information
provided by Flex Marketing and will not be responsible for the
authenticity, accuracy or verification thereof or of any claims or
attributes to the extent that Producer has relied upon the Product
Information provided by Flex Marketing only.
Governing Law
This Agreement shall be construed according to the internal laws of the
Commonwealth of Pennsylvania without regard to conflict of law principles. Each
of THE CLIENT and Banyan hereby consents to the exclusive jurisdiction of the
state courts of the Commonwealth of Pennsylvania, Philadelphia County, and the
United States District Court for the Eastern District of Pennsylvania, in
all matters arising out of this Agreement. Banyan hereby consents to service of
process by certified mail, return receipt requested, at the addresses indicated
below or such other address as Banyan may from time to time inform THE CLIENT.
Any notice, demand, election or communication required, permitted or desired to
be given hereunder shall be in writing and shall be personally delivered or
shall be sent by commercial courier service, certified mail (return receipt
requested), or electronic facsimile (but in the case of facsimile transmission,
also by commercial courier service). Notices, demands, elections or
communications shall be deemed received on the first to occur of the following:
(a) when personally delivered; (b) when actually received; or (c) when sent by
commercial courier service, to (2) business days following the deposit thereof
with such service. Notices, demands, elections or communications shall be
addressed as follows (or to any other address which the relevant party may
designate to the other parties by written notice):
If to THE CLIENT: Flex Marketing
X.X. Xxx 00
Xxxxxxxx, XX 00000
Attn: Xxxxx Zavarol, President
Fax: 000-000-0000
If to Banyan: Banyan Productions
000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx, CEO
Ph: 215-928-1414
Fax: 000-000-0000
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have executed this Agreement on the date first above written.
By: /s/ Xxxxxx Zavarol, President By: /s/ Xxx Xxxxxxx , CEO
------------------------------------ ---------------------------------
Name/Title Name/Title
Flex Marketing Banyan Productions
Definitions
(a) Gross Revenues. "Gross Revenues" shall mean gross revenues from sales
of Product and any up sells of the Product, exclusive of shipping and
handling charges and sales taxes, use taxes, value added taxes, and any
other taxes imposed upon sales.
(b) Adjusted Gross Revenues. "Adjusted Gross Revenues" or "AGR" shall mean
Gross Revenues from sales of the Product and any up sells of the Product,
less all of the following:
(i) refunds, credits or other allowances on account of return or rejection
of goods or otherwise granted in the ordinary course of business, as
actually incurred and as reserved for ("Returns").
(ii) uncollectible accounts due to credit card charge backs, bad checks or
other reasons of uncollectibility, as actually incurred and as reserved for
("Uncollectibles"); and
(iii) sales made at or below cost of goods for purposes of liquidation or
closeout ("Liquidation Sales").
