EXHIBIT 10.1
WEB SITE LICENSE AGREEMENT
This Web Site License Agreement, dated as of June 1, 1997, between NIKI,
INC., c/o IMG Models, Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Company") and INTERACTIVE ENTERTAINMENT STUDIO, INC., 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 ("IES").
IES desires to contract with Company for a license related to its
fashion-oriented on-line service (the "Service"), and Company is willing to
grant such license and to render services (including the services of Xxxx
Xxxxxx ["Xxxxxx"]) as hereinafter provided. In consideration of the mutual
agreements and covenants set forth in this Agreement, the parties agree as
follows:
1. Establishment of Xxxxxx Home Page. IES will in consultation with and
subject to the approval of Company, design, produce and maintain a designated
area of the Service that will feature content regarding Xxxxxx and Company and
is accessible to users of the Internet through a "free" area of the Service
without the necessity of being a subscriber to the Service (hereinafter, the
"Xxxxxx Home Page"). IES and Company will also develop "premium" features
including, but not limited to, a "boutique" that will permit visitors to the
Xxxxxx Home Page to purchase merchandise licensed, endorsed or selected by
Xxxxxx ("Boutique Merchandise"); any such Boutique Merchandise would contain
such content, and be offered at prices and on terms, as may be mutually agreed
by IES and Company. In connection with the Xxxxxx Home Page, IES will, at its
sole cost and expense:
(a) Design and Maintenance. Maintain full responsibility for the design,
technical development, production, maintenance (including customer phone
support), and fulfillment related to the Xxxxxx Home Page which design shall,
in all events, be subject to the prior approval of Company;
(b) Marketing and Content. Coordinate all on-line marketing efforts and
work closely with Xxxxxx and other Company representatives regarding new
content areas, Boutique Merchandise and other initiatives to ensure that
Company maximizes its association with IES;
(c) Account Executive Availability. At Company's request, make Xxxxxx'x
Account Executive at IES responsible to ensure that Company is fully apprised
of the marketing, merchandising and communications goals and objectives related
to the Xxxxxx Home Page;
(d) Laptop Computer. Provide Company with use of a laptop computer during
the Contract Period (as defined below) to ensure that Xxxxxx can take full
advantage of the opportunity to monitor the Xxxxxx Home Page and to interact
with fans throughout the world;
(e) Training and Assistance. Make Xxxxxx'x Account Executive at IES
available to educate and train Xxxxxx or other Company representatives with
respect to the functionality of the IES Service and be available to assist
Xxxxxx, at her request, should Xxxxxx require any assistance regarding the use
of her laptop computer in connection with this Agreement;
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(f) Internet Access. Develop and provide Internet access with reputable
organizations to the Xxxxxx Home Page within one hundred twenty (120) days
after the execution of this Agreement;
(g) Customer Service and Billing. Be responsible for all customer service,
technical support, billing, credit card authorization and processing associated
with the Xxxxxx Home Page and the sale of Boutique Merchandise; and
(h) Reports to Company. At Company's request, provide Company with a
summary report, in a mutually agreed format, of user activity on the Xxxxxx
Home Page and other information reasonably requested by Company; such reports
shall be provided no more frequently than quarterly.
2. Use of Xxxxxx'x Name and Likeness. (a) Company grants to IES the
non-transferable right to use the Xxxxxx name and likeness ("Xxxxxx
Identification") as reasonably necessary in creating, distributing and
promoting the Xxxxxx Home Page and to repackage and reformat information
contained in, or related to, the Xxxxxx Home Page for promotional, advertising
and subject to Company's prior written approval of each "for profit" uses,
distribution-for-profit uses, in all media, including but not limited to, print
and electronic media, CD-ROM, video and other media. IES acknowledges that
Company will not accept uses which are in conflict with Company's existing or
prospective licensees. IES shall notify Company of its intended use of such
materials before they are used and any such use shall be subject to Company
consent, which consent shall not be unreasonably withheld.
(b) For this purpose, Company shall, upon request by IES, cause Xxxxxx to
provide IES with the use of then unpublished photographs of herself, with
respect to which Company or Xxxxxx has full ownership rights. IES and Company
have agreed upon a Thirty Thousand Dollar ($30,000) budget for the creation of
such photos, such photo shoot to be orchestrated by, and paid by, IES. The
Company shall make Xxxxxx available for this photo shoot for up to eight (8)
hours at a mutually agreed upon time. No payment is owed by IES to Company or
Xxxxxx for this photo shoot or resulting from the photo shoot, except as set
forth herein. During the Contract Period, IES shall have the right to use
photographs obtained through this photo shoot for any purposes related to the
promotion and advertising of the site as set forth above. Company will own the
photographs from the photo shoot.
(c) All rights of IES to use, in any manner, the Xxxxxx Identification or
to refer to Xxxxxx, shall cease immediately upon termination of this Agreement.
(d) It is understood that the recommendations and other material prepared
or delivered by Company hereunder shall not be deemed guarantees,
representations or warranties of Company.
(e) At the request of IES and on adequate notice to Company, Company will
cause Xxxxxx to provide her services for two (2) publicity appearances, not to
exceed four (4) hours each, to be arranged by IES at mutually agreed upon times
and places.
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(f) If the parties agree that Xxxxxx will participate in IES's Advisory
Board, Company grants to IES the non-transferable right to include on its
letterhead Xxxxxx'x name as a member of the Advisory Board. Xxxxxx'x name shall
be listed with other members of IES's Advisory Board, such list to appear in a
commercially reasonable and customary manner.
3. Services of Company. (a) Company shall render, or elect to have Xxxxxx
render, all of the following services (the "Services") during the Contract
Period (as hereinafter defined):
(i) Advisory Board. Designate Xxxxxx to serve on IES's advisory board (it
is understood and agreed that Xxxxxx will not be required to attend or appear
at any scheduled advisory board meetings unless she chooses to do so, will not
be a member of IES's Board of Directors, will not have any vote, will not have
any legal liability, will have none of the duties or obligations applicable to
an actual Board member, including but not limited to fiduciary duty, duty of
loyalty, etc., and will not be required to perform any services that would be
subject to federal or state securities laws);
(ii) Consultation. Consult with and advise IES from time to time at IES's
request and Company's convenience with respect to corporate, business and
marketing strategy with respect to the Xxxxxx Home Page;
(iii) Introduction to Corporate Sponsors and Strategic Partners. Introduce
IES, upon IES's request and at Company's convenience, to potential corporate
sponsors and strategic partners and assist IES in the sale of advertising and
sponsorships. All fees, charges or other amounts payable for any such
sponsorships and advertising shall be payable to and retained by IES; provided,
that IES will be obligated to compensate Company with respect to such
sponsorship or advertising revenues which are generated by Company in
accordance with Section 5 hereof;
(iv) Introduction to Licensees. Introduce IES to Company's licensees
(companies which have the right to sell Xxxxxx endorsed or licensed merchandise
or services) for purposes of possible sale of such merchandise or services
through the boutique area of the Xxxxxx Home Page. All fees, charges or other
amounts payable with respect to such sales shall be payable to and retained by
the merchandise vendor, subject to IES's commission (and Company's share under
Section 5 hereof) on such sales negotiated with such vendor and Company's
royalties on such sales negotiated with such vendor. IES shall be solely
responsible for entering into and administering any such arrangement with
Company. It is further agreed that at the end of the Contract Period, both IES
and Company will have the right to receive all names and related information
for each purchaser of Boutique Merchandise;
(v) Monthly Column. Review the content of a monthly column (approximately
150 words) written by IES to be published under Xxxxxx'x name and approved by
Xxxxxx on a variety of appropriate topics relating to fashion, health or beauty
and whatever other content Company desires to include in the Xxxxxx Home Page;
and
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(vi) Interviews and/or Chat Sessions. Upon request and at Company's
option, to make Xxxxxx available (by telephone or in-person, at Xxxxxx'x
option) at mutually agreed upon times (with no more than one hour of actual
time on-line per occasion), to conduct exclusive interviews and/or chat
sessions.
4. Xxxxxx'x Availability. Except as required by Paragraph 2(e) above,
Company agrees to cause Xxxxxx to devote such time as Company elects to provide
toward the performances of its duties hereunder. Whenever Company elects to
make Xxxxxx available, IES understands and agrees that any such occasion is
subject to Xxxxxx'x personal and professional schedule. IES understands that
IES's failure to utilize services of Xxxxxx hereunder when she offers to
provide them shall not result in any reduction in payments to Company
hereunder. Company will not elect to provide any services of Xxxxxx hereunder
unless payments to Company are current and up to date and IES is not otherwise
in breach of any provisions of the Agreement. If Company confirms Xxxxxx'x
availability for any service and Xxxxxx is unable to appear due to illness,
injury or other emergency, such non-appearance is not a breach of this
Agreement and neither Company nor Xxxxxx shall be responsible for any expenses
incurred due to such non-appearance.
5. Payments by IES.
(a) In consideration for the rights herein granted, IES shall pay Company
a "Guaranteed Minimum Royalty" in the amount of Xxx Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx Dollars (US$150,000) payable in two (2) installments -- the first
being Fifty Thousand Dollars ($50,000) payable contemporaneously with the
execution and delivery of this Agreement and the second being One Hundred
Thousand Dollars ($100,000) payable upon the earlier of (i) final approval of,
or (ii) use of, the "Xxxx Xxxxxx Home Page." The Guaranteed Minimum Royalty
shall be credited against earned royalties payable to Company as follows:
(i) Site Revenues. Fifteen percent (15%) of any gross revenues received by
IES generated by, or in connection with, the Xxxxxx Home Page except for
revenues received from corporate sponsors, strategic partners, or licensees
introduced by Company, and fifty percent (50%) of any gross revenues received
by IES generated in connection with the Xxxxxx Home Page from corporate
sponsors, strategic partners, or licensees introduced by Company; and
(ii) Net Premium Revenues. Thirty-five percent (35%) of any Net Premium
Revenues. The term "Net Premium Revenues" means IES's gross revenues from the
sale of Boutique Merchandise and other "for profit" distribution of materials
contained in or related to the Xxxxxx Home Page minus reasonable documented
out-of-pocket expenses including, but not limited to, the cost of inventory,
shipping and handling but excluding normal overhead expenses, which expenses
are incurred by IES and are directly associated with the generation of such
revenues.
(b) IES will make payments due to Company under this Agreement on a
quarterly basis, within fifteen (15) days following the end of the applicable
calendar quarter. Each such payment shall be accompanied by a statement showing
in reasonable detail how such payment was computed.
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(c) IES shall keep true and complete books and records in which all
information necessary to determine and verify all fees and payments
contemplated hereunder shall be reflected along with the amounts payable to
Company under the terms of this Agreement. IES shall maintain such books and
records for a period of at least two (2) years after the termination of this
Agreement. During the term of this Agreement and for a period of two (2) years
after such termination, Company shall have the right, at its expense and upon
reasonable notice to IES, to examine, or have examined by its authorized
representative, IES's books and records, at IES's principal place of business,
in order to determine or verify all amounts due, and the accuracy of any
reports furnished by IES under this Agreement. In the event that an error is
discovered in the calculation of the amounts payable to Company, the party that
received the benefit of the error shall promptly thereafter pay to the other
the amount of overpayment or underpayment, as the case may be. If any
underpayment by IES for a period examined by Company is five percent (5%) or
more, IES shall pay Company's reasonable out-of-pocket costs with respect to
such examination and the next subsequent reexamination. Company's receipt of
any statement, or any payment, does not prelude it from challenging the
correctness of that statement or payment.
(d) IES shall reimburse Company promptly upon receipt of an invoice
therefore all reasonable out-of-pocket expenses incurred by Company (and/or
Xxxxxx) under this Agreement and approved by IES in advance.
6. Provisions of Content, Additional Responsibilities of IES and Company.
(a) Laptop Computer and Support Software. In addition to all other
obligations of IES hereunder, IES will provide to Company during the term of
this Agreement the use of a laptop computer and related equipment and such
software as is necessary for Xxxxxx'x or Company's representatives to transmit
information to IES in accordance with the terms of this Agreement. All such
hardware and software shall be the property of Company. Any software that IES
provides to Company to further the purpose of this Agreement ("Support
Software") shall be provided subject to the following: IES grants to Company a
royalty-free, non-exclusive license to use the Support Software (and any
accompanying user documentation). If the Support Software becomes unavailable
due to a claim that it infringes a third party's rights, IES shall provide
substitute software or a procedure for accomplishing the same objectives.
(b) Company Information. For purposes of this Agreement, the term "Company
Information" means all information created and/or delivered by Company to IES
for inclusion in the Service, including any trademark, service xxxx, trade name
or logo, whether or not registered, included in such information. Company shall
be solely responsible for the content of all Company Information, and
represents and warrants to IES that to the best of Company's knowledge (i) all
Company Information: (A) will be accurate and Company's own and original
creation, except for information validly licensed for use by Company or in the
public domain; (B) will consist only of information that Company is authorized
to use and to authorize IES to use as contemplated in this Agreement; (C) will
not constitute a libel or defamation or conflict with any copyright, right of
privacy or other rights of any third party; and (D) will conform to all
applicable federal, state and local laws and regulations, and (ii) Company has
the full right and authority to grant the rights and
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consents set forth herein. IES shall be entitled at any time to bring any
concerns it has regarding Company Information to the attention of Company,
whereupon the parties will cooperate in good faith to address IES's concerns.
Subject only to the next sentence, IES shall distribute Company Information
only as transmitted by Company, and shall not, and shall not authorize any
third party to, modify or edit such information without Company's prior written
request. If IES, in its reasonable judgment, believes that immediate action is
required with regard to any Company Information, IES may delete, modify or
revise such information, provided that IES shall notify Company of such action
prior thereto, if reasonably possible (or, if not, as soon thereafter as
practicable) and all representations, warranties, indemnifications and other
obligations of Company wherever with respect to such Company Information shall
immediately terminate and be of no force and effect.
(c) Transmission of Company Information. Company shall transmit to IES all
Company Information and updates thereof necessary for inclusion in the Xxxxxx
Home Page (including any Boutique Merchandise). Information and updates shall
be transmitted by telephone or electronically in a format to be agreed upon by
IES and Company, on a prescheduled basis and/or as such information and updates
become available, as the case may be. IES shall provide Company with a Service
Identification number or numbers that will allow Company to gain access to the
Service at no cost or charge for purposes of electronically delivering Company
Information and content updates. All content supplied by Company shall be
consistent with the editorial standards used by IES for content displayed on
the Service (which standards IES reserves the right to amend from time to time)
provided IES timely and accurately conveys such standards to Company.
(d) Right, Title and Interest to Company Information. All right, title and
interest in Company Information, Xxxxxx Identification, trade name(s),
trademarks and service xxxx(s) are and shall remain Company's, subject to the
right and license grated to IES herein. IES shall have the right, at no cost,
to use, display (privately or publicly) and distribute Company Information, or
any portion thereof, on the Service or in connection with any demonstration,
promotion or advertisement of the Service in any medium; to enter Company
Information into IES's computer database; and to store, process, retrieve and
transmit the same on the Service. Any use of the Xxxxxx name and likeness, or
use of Company trade name(s), trademark(s) and service xxxx(s), other than as
included in Company Information, or as materials previously approved for use by
Company for whatever purpose, shall be subject to Company's prior consent
(which consent shall not be unreasonably withheld). IES's rights hereunder
shall include the right to offer subscribers the option of printing and
downloading Company Information or any portion thereof as a function of the
Service generally.
(e) Operation of Service: Non-Company Information, Charges for Service.
Other than with respect to the Xxxxxx Home Page, IES will have sole discretion
to determine all aspects of the operation of the Service and all matters
relating to the content, structure and sequence of material appearing on the
Service; provided, however, that Company shall have approval over any links to
the Xxxxxx Home Page. IES represents and warrants to Company that, to the best
of IES's knowledge, all content on the Service other than Company Information
(to the extent not revised, modified or deleted by IES) ("Non-Company
Information"), (A) will be accurate and
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IES's own and original creation, except for information validly licensed for
use by IES or in the public domain; (B) will consist only of information that
IES is authorized to use; (C) will not constitute a libel or defamation or
conflict with any copyright, right of privacy or other rights of, any third
party; and (D) will conform to all applicable federal, state and local laws and
regulations and (ii) IES has the full right and authority to grant the rights
and consents set forth herein. Company shall be entitled at any time to bring
any concerns it has regarding Non-Company Information to the attention of IES,
whereupon the parties will cooperate in good faith to address Company's
concerns. Nothing in this Agreement shall limit IES's rights regarding charges
for any aspect of the Service (including any product or service offered by IES,
whether alone or in conjunction with others, through means of the Service)
other than the Xxxxxx Home Page. All right, title and interest to IES's name,
trade name(s), trademark(s) or service Xxxx(s) ("IES Identification") are and
shall remain IES's. Nothing herein shall be deemed to grant Company any
proprietary rights to use of IES's trade name(s), trademark(s) or service
xxxx(s). Company shall have the right to use IES Identification in connection
with advertising and promoting the Xxxxxx Home Page, subject to IES's prior
written consent, not to be unreasonably withheld. Company's approval over links
to the "Xxxxxx Home Page" shall not be unreasonably withheld, and shall not
extend to the content of any of the links, but only to the approval over
whether or not the link may be accessed through the "Xxxxxx Home Page" only.
(f) Compliance with Applicable Law. IES will be solely responsible to
ensure that all aspects of the Service (other than the Company Information, to
the extent not modified or revised by IES), including the promotion thereof,
comply with applicable law,
(g) Subscriber Agreement. IES will distribute a subscriber agreement
prohibiting republication, redistribution, public broadcast, public display,
resale, offering for resale or other commercial exploitation of copyrighted or
trademarked materials published in the Service without the copyright or
trademark owner's consent.
(h) Compliance with Industry Standards. IES represents and agrees that the
Service will at all times during the Agreement be a first-class service, in
content and technical quality, that is devoted to fashion, health and beauty
information, activities and events, and that the Service will comply with all
on-line broadcasting industry standards.
(i) Database from Xxxxxx'x Home Page. IES shall own all information
received through the service, including all names, addresses, mail, and other
information relating to users of the Service obtained by IES through the
Service, including the "Xxxxxx Home Page." IES shall supply to Company, at
Company's reasonable request and in such format as reasonably requested by
Company, a database of names and addresses of users of the "Xxxxxx Home Page"
for Company's or Xxxxxx'x use. IES agrees not to use any information obtained
through the Service in any way to imply an endorsement by Company or Xxxxxx of
any company, product or service following the termination of this Agreement.
7. Exclusivity. (a) During the Term hereof and subject to the remainder of
this Section, Company shall not: (i) license the use of Xxxxxx Identification
for any web site or home page devoted to Xxxxxx or (ii) be employed by, act as
a consultant to or otherwise render services
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similar in the aggregate to those provided hereunder with respect to
fashion-related programming to or for any on-line service (regardless of
whether such service is accessed through the Internet, a commercial on-line
service or otherwise). The "Official Xxxx Xxxxxx Home Page" is exclusive to IES
during the Contact Period. The foregoing is not intended to prohibit Company or
Xxxxxx from advertising on other sites, providing services for other sites or
on-line services, having Xxxxxx Identification on the web sites of Company's
licensees or others, or participating in on-line interviews or articles.
(b) Neither Company nor Xxxxxx is responsible for initiating action
against, enjoining or otherwise attempting to dissuade any person or entity not
licensed by Company, which in contravention of this Agreement use Xxxxxx
Identification in promoting or advertising any products or services which are
the same as or similar to or directly competitive with the Service. Neither
Company nor Xxxxxx shall incur any liability to IES or any third party arising
out of any such activity by any such person or entity. Company agrees that at
IES's sole cost and expense, Company shall give such reasonable assistance to
IES as may be required to cause any such person or entity to cease and desist
from such activities, or in connection with any lawsuit or other proceeding by
IES against such person or entity.
8. Contract Period. (a) The Contract Period will commence on the date
hereof and will continue until the earlier of the first anniversary of the date
the Xxxxxx Home Page was launched or September 30, 1998, (the "Termination
Date"), and thereafter will be extended pursuant to Section 8(b) hereof.
(b) Extension of Contract Period. The Contract Period will be extended for
two (2) separate twelve (12) consecutive month periods after the Termination
Date unless either party gives written notice to terminate to the other party
on or before the Termination Date with respect to the first twelve (12) month
extension period, or on or before the first anniversary of the Termination Date
with respect to the second twelve (12) month extension period.
(c) Good Faith Renewal Discussions, Termination of Agreement. Prior to the
end of the Contract Period, the parties shall discuss in good faith the
possible renewal of this Agreement. If the parties are unable to agree on
mutually satisfactory terms, then this Agreement shall terminate at the end of
the Contract Period, without further obligation of either party to the other
(except for any amounts that are owed to such party per the terms of this
Agreement).
(d) Morals. If at any time during the term of this Agreement the
commercial association of IES with Xxxxxx is substantially impaired by reason
of Xxxxxx'x conviction of a felony or of Xxxxxx'x commission of an act which
offends a demonstrable majority of the people in the U.S., IES shall have the
right to terminate this Agreement on written notice to Company.
9. Confidentiality. All information disclosed by either party to the other
party, including but not limited to the terms and conditions of this Agreement
or any other agreement between the parties, trade secrets of the party, any
nonpublic information relating to any party's product plans, designs, ideas,
concepts, costs, prices, finances, marketing plans, business opportunities,
personnel, research, development or know-how and any other nonpublic technical
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or business information of a party, that is marked "Confidential" or identified
by the disclosing party in writing as confidential before or within thirty days
after disclosure to the receiving party, will be treated as confidential by the
receiving party and not disclosed to any third party without the disclosing
party's prior written consent. "Confidential Information" as referred to in
this Section does not include (a) information that is generally available to
the public other than as a result of disclosure in violation of this Agreement,
(b) information already known or which becomes known to the receiving party
from a third party source which is not, to the receiving party's knowledge,
under an obligation of confidentiality, (c) information independently developed
by the receiving party (as shown by competent documentation), and (d) otherwise
confidential information that is required to be disclosed by law, including
administrative or judicial action. Any breach of these confidentiality
provisions will entitle the injured party to see injunctive relief and damages
without the necessity of giving notice or posting bond or other security.
10. Indemnification. (a) IES Indemnification. IES hereby indemnifies and
agrees to defend and hold Company and Xxxxxx free and harmless from and against
all claims, costs, liabilities, judgments, expenses or damages (including
reasonable attorneys' fees) (collectively, "Damages") arising out of or in
connection with: (A) Xxxxxx'x activities and position as a member of IES's
Advisory Board, (B) any information, other than Company Information (to the
extent not deleted, modified or revised by IES), displayed on the Service, (C)
any breach of any representation, warranty or covenant of IES hereunder or (D)
any use of or reference to Company's name or logo or Xxxxxx name or likeness
not expressly permitted hereunder or based upon IES's use of any intellectual
property other than Company's name or logo or Xxxxxx name or likeness; except
to the extent any such Damages arise from the gross negligence or willful
misconduct of Company or its employees or Xxxxxx.
(b) Company Indemnification. Company hereby indemnifies and agrees to
defend and hold IES free and harmless from and against all Damages arising out
of or in connection with (A) relating to any Company Information displayed on
the Service (to the extent not deleted, modified or revised by IES), (B) any
breach of any representation or warranty of Company hereunder, or (C) any use
of or references to IES's name or logos not expressly permitted hereunder,
except to the extent such Damages arise from the gross negligence or willful
misconduct of IES or its employees.
(c) No Liability for Punitive or Consequential Damages. Notwithstanding
anything stated or implied to the contrary herein, in no event shall either
party be liable to the other for exemplary, punitive or consequential damages,
even if advised of the possibility of such damages, in any manner arising out
to this Agreement or the breach of any term, covenant, representation, warranty
or obligation contained herein.
(d) Notification. Each party shall notify the other as soon as reasonably
possible of any claim of which it becomes aware.
11. Remedies. (a) Injunctive Relief. In the event either party materially
breaches this Agreement, IES and Company agree that, in addition to any and all
other remedies available at law or in equity, the non-breaching party shall be
entitled to injunctive relief to the extent
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permitted by law from further violation of this Agreement, during any
proceeding as well as on final determination thereof, without prejudice to any
other right of either part and without the necessity of giving notice or
posting bond or other security.
(b) Company's Liability not to Exceed Remuneration Paid to IES by
Company. Notwithstanding anything to the contrary herein, in the event IES
incurs any expenses, damages or other liabilities (including, without
limitation, reasonable attorneys' fees) in connection with this Agreement or
Company's services, Company's liability to IES hereunder shall not exceed the
remuneration, excluding reimbursement of expenses, actually paid to IES by
Company hereunder.
12. Insurance. IES shall provide and maintain, at its own expense,
commercial general liability insurance, including product liability and
advertising injury coverage, with limits of not less than One Million Dollars
($1,000,000.00), shall cause such policy to be endorsed to state that Xxxxxx
and Company are additional named insureds thereunder. A certificate of
insurance evidencing such coverage shall be furnished to IES within thirty (30)
days of the full execution of this Agreement. Such insurance policy shall
provide that the insurer shall not terminate or materially modify such policy
or remove Company or Xxxxxx as additional named insureds without prior written
notice to Company at least twenty (20) days in advance thereof.
13. Relationship of the Parties. The parties to this Agreement are
independent contractors, and this Agreement shall not be construed to create a
partnership, joint venture, employment or principal agent relationship between
the parties. It is understood that Xxxxxx is not a party to this Agreement and
has no liability whatsoever under this Agreement. Each party shall be solely
responsible to compensate any employees, agents or representatives employed or
engaged by it to perform duties under this Agreement and for all taxes,
imposts, duties and all charges of any governmental authority arising from its
activities under this Agreement. Neither IES nor Company, nor any other person
or entity employed by either IES or Company, are authorized to make any
warranty concerning the other party or incur or assume any obligation or
liability for the other party and nothing in this Agreement gives or is
intended to give any rights of any kind to any third party, except as expressly
set forth herein.
14. Amendment Waiver. No amendment to this Agreement shall be valid
unless such amendment is in writing and is signed by both of the parties to
this Agreement. Any of the terms and conditions of this Agreement may be waived
at any time in writing by the party entitled to the benefit thereof, but a
waiver in one instance shall not be deemed to constitute a waiver in any other
instance. A failure to enforce any provision of this Agreement shall not
operate as a waiver of the provision or of any other provision hereof.
15. Severability. In the event that any provision of this Agreement
shall be held to be invalid, illegal or unenforceable in any circumstances, the
remaining provisions shall nevertheless remain in full force and effect and
shall be construed as if the unenforceable portion or portions were deleted.
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
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17. Arbitration. The parties agree to submit to arbitration any dispute
related to this Agreement and agree that the arbitration process shall be the
exclusive means for resolving disputes which the parties cannot resolve. Any
arbitration hereunder shall be conducted under the Dispute Resolution Rules of
the American Arbitration Association ("AAA") as modified herein. Arbitration
proceedings shall take place in New York, New York, before a single arbitrator
who shall be a lawyer. All arbitration proceedings shall be confidential.
Neither party shall disclose any information about the evidence produced by the
other party in the arbitration proceedings, except in the course of judicial,
regulatory, or arbitration proceeding, or as may be demanded by government
authority. Before making any disclosure permitted by the preceding sentence, a
party shall give the other party reasonable advance written notice of the
intended disclosure and an opportunity to prevent disclosure. Each party shall
have the right to take the deposition of one individual and any expert witness
retained by the other party. Additional discovery may be had only where the
arbitrator so orders, upon a showing of substantial need. Only evidence that is
directly relevant to the issues may be obtained in discovery. Each party bears
the burden of persuasion of any claim or counterclaim raised by that party. The
arbitration provisions of this Agreement shall not prevent any party from
obtaining injunctive relief from a court of competent jurisdiction to enforce
the obligations for which such party may obtain provisional relief pending a
decision on the merits by the arbitrator. Each of the parties hereby consents
to the jurisdiction of New York courts for such purpose. The arbitrator shall
have authority to award any remedy or relief that a court of the State of New
York could grant in conformity to applicable law, except that the arbitrator
shall have no authority to award attorneys' fees or punitive damages. Any
arbitration award shall be accompanied by a written statement containing a
summary of the issues in controversy, a description of the award, and an
explanation of the reasons for the award. The arbitrator's award shall be final
and judgment may be entered upon such award by any court.
18. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to be given or made: on the same business day when
sent by confirmed facsimile, on the next business day after mailing when
delivered by overnight courier or on the fifth business day after mailing if
sent by first-class, registered or certified mail to the following address or
addresses or such other address or addresses as the parties may designate in
writing in accordance with this Section:
If to IES Interactive Entertainment Studio, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxx Need PLLC
0000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Facsimile No. (000) 000-0000
If to Company: Niki, Inc.
c/o IMG Models, Inc.
-11-
If to Company: Niki, Inc.
c/o IMG Models, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mia Lolardo
Facsimile No.: (000) 000-0000
with a copy to: TR Management
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
19. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder without the prior
written consent of the other party; provided, however, that Company may assign
this Agreement to Xxxxxx without consent.
20. Execution in Counterparts. This Agreement may be executed by the
parties in counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, each of the parties has executed this Advisory
Agreement as of the date first written above.
NIKI, INC. INTERACTIVE ENTERTAINMENT
STUDIO, INC.
By /s/ Xxxx Xxxxxx By /s/ Xxxx Xxxxxx
--------------- ---------------
Name: Name:
Title: Title: President
-12-
June 1, 1997
Interactive Entertainment Studio, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
To Whom It May Concern:
I have been advised of an agreement by and between Interactive Entertainment
Studio, Inc. ("IES") and Niki, Inc. ("Company") pursuant to which Company
grants IES certain rights to use my name and likeness, and certain materials
created by me.
This letter is to advise you that I am an employee of Company, that Company has
all of the authority necessary to make the commitments made by it and to grant
the rights granted by it in that agreement and that I, for my part, in
consideration of IES having entered into that agreement with Company, agree to
fully and completely perform all of the services which Company is required
thereby to cause me to perform.
Sincerely yours,
/s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx
-13-
EXHIBIT 10.2
WEB SITE LICENSE AGREEMENT
This Web Site License Agreement, dated as of January 1, 1998, between TY
GIRL, INC., c/o IMG Models, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Company") and INTERACTIVE ENTERTAINMENT STUDIO, INC.,
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 ("IES").
IES desires to contract with Company for a license related to its
fashion-oriented on-line service (the "Service"), and Company is willing to
grant such license and to render services (including the services of Xxxx Xxxxx
["Banks"]) as hereinafter provided. In consideration of the mutual agreements
and covenants set forth in this Agreement, the parties agree as follows:
1. Establishment of Banks Home Page. IES will in consultation with and
subject to the approval of Company, design, produce and maintain a designated
area of the Service that will feature content regarding Banks and Company and
is accessible to users of the Internet through a "free" area of the Service
without the necessity of being a subscriber to the Service (hereinafter, the
"Banks Home Page"). IES and Company will also develop "premium" features
including, but not limited to, a "boutique" that will permit visitors to the
Banks Home Page to purchase merchandise licensed, endorsed or selected by Banks
("Boutique Merchandise"); any such Boutique Merchandise would contain such
content, and be offered at prices and on terms, as may be mutually agreed by
IES and Company. In connection with the Banks Home Page, IES will, at its sole
cost and expense:
(a) Design and Maintenance. Maintain full responsibility for the design,
technical development, production, maintenance (including customer phone
support), and fulfillment related to the Banks Home Page which design shall, in
all events, be subject to the prior approval of Company;
(b) Marketing and Content. Coordinate all on-line marketing efforts and
work closely with Banks and other Company representatives regarding new content
areas, Boutique Merchandise and other initiatives to ensure that Company
maximizes its association with IES;
(c) Account Executive Availability. At Company's request, make Banks'
Account Executive at IES responsible to ensure that Company is fully apprised
of the marketing, merchandising and communications goals and objectives related
to the Banks Home Page;
(d) Laptop Computer. Provide Company with use of a laptop computer during
the Contract Period (as defined below) to ensure that Banks can take full
advantage of the opportunity to monitor the Banks Home Page and to interact
with fans throughout the world;
(e) Training and Assistance. Make Banks' Account Executive at IES
available to educate and train Banks or other Company representatives with
respect to the functionality of the IES Service and be available to assist
Banks, at her request, should Banks acquire any assistance regarding the use of
her laptop computer in connection with this Agreement;
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(f) Internet Access. Develop and provide Internet access with reputable
organizations to the Banks Home Page within one hundred twenty (120) days after
the execution of this Agreement;
(g) Customer Service and Billing. Be responsible for all customer service,
technical support, billing, credit card authorization and processing associated
with the Banks Home Page and the sale of Boutique Merchandise; and
(h) Reports to Company. At Company's request, provide Company with a
summary report, in a mutually agreed format, of user activity on the Banks Home
Page and other information reasonably requested by Company; such reports shall
be provided no more frequently than quarterly.
2. Use of Banks' Name and Likeness. (a) Company grants to IES the
non-transferable right to use the Banks name and likeness ("Banks
Identification") as reasonably necessary in creating, distributing and
promoting the Banks Home Page and to repackage and reformat information
contained in, or related to, the Banks Home Page for promotional, advertising
and, subject to Company's prior written approval of each "for profit" use,
other distribution-for-profit uses, in all media, including but not limited to,
print and electronic media, CD-ROM, video and other media. IES acknowledges
that Company will not accept uses which are in conflict with Company's existing
or prospective licensees. IES shall notify Company of its intended use of such
materials before they are used and any such use shall be subject to Company
consent, which consent shall not be unreasonably withheld.
(b) For this purpose, Company shall, upon request by IES, cause Banks to
provide IES with the use of then unpublished photographs of herself, with
respect to which Company or Banks has full ownership rights. The Company shall
make Banks available for a photo shoot for up to eight (8) hours at a mutually
agreed upon time. No payment is owed by IES to Company or Banks for this photo
shoot or resulting from the photo shoot, except as set forth herein. During the
Contract Period, IES shall have the right to use photographs obtained through
this photo shoot for any purposes related to the promotion and advertising of
the site as set forth above. Company will own the photographs from the photo
shoot.
(c) Company grants IES the right to use photos of Banks taken from the
photo shoot on January 28 through February 1, 1998 ("Photos") pursuant to that
certain calendar license agreement between IES and Company dated January 1,
1998 ("Calendar Agreement"). IES will include the Calendar Photos on the Banks
Home Page, provided that Banks approves of each Photo selected for the Banks
Home Page prior to its use.
(d) All rights of IES to use, in any manner, the Banks Identification or
to refer to Banks, shall cease immediately upon termination of this Agreement.
(e) It is understood that the recommendations and other material prepared
or delivered by Company hereunder shall not be deemed guarantees,
representations or warranties of Company.
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(f) If the parties agree that Banks will participate in IES's Advisory
Board, Company grants to IES the non-transferable right to include on its
letterhead Banks' name as a member of the Advisory Board. Banks' name shall be
listed with other members of IES's Advisory Board, such list to appear in a
commercially reasonable and customary manner.
3. Services of Company. (a) Company shall render, or elect to have Banks
render, all of the following services (the "Services") during the Contract
Period (as hereinafter defined):
(i) Consultation. Consult with and advise IES from time to time at IES's
request and Company's convenience with respect to corporate, business and
marketing strategy with respect to the Banks Home Page.
(ii) Introduction to Corporate Sponsors and Strategic Partners. Introduce
IES, upon IES's request and at Company's convenience, to potential corporate
sponsors and strategic partners and assist IES in the sale of advertising and
sponsorships. All fees, charges or other amounts payable for any such
sponsorships and advertising shall be payable to and retained by IES; provided,
that IES will be obligated to compensate Company with respect to such
sponsorship or advertising revenues which are generated by Company in
accordance with Section 5 hereof;
(iii) Introduction to Licensees. Introduce IES to Company's licensees
(companies which have the right to sell Banks endorsed or licensed merchandise
or services) for purposes of possible sale of such merchandise or services
through the boutique area of the Banks Home Page. All fees, charges or other
amounts payable with respect to such sales shall be payable to and retained by
the merchandise vendor, subject to IES's commission (and Company's share under
Section 5 hereof) on such sales negotiated with such vendor and Company's
royalties on such sales negotiated with such vendor. IES shall be solely
responsible for entering into and administering any such arrangement with
Company. It is further agreed that at the end of the Contract Period, both IES
and Company will have the right to receive all names and related information
for each purchaser of Boutique Merchandise;
(iv) Monthly Column. Review the content of a monthly column (approximately
150 words) written by IFS to be published under Banks' name and approved by
Banks on a variety of appropriate topics relating to fashion, health or beauty
and whatever other content Company desires to include in the Banks Home Page;
and
(v) Interviews and/or Chat Sessions. Upon request and at Company's option,
to make Banks available (by telephone or in-person, at Banks' option) at
mutually agreed upon times (with no more than one hour of actual time on-line
per occasion), to conduct exclusive interviews and/or chat sessions.
4. Banks' Availability. Company agrees to cause Banks to devote
such time as Company elects to provide toward the performances of its duties
hereunder. Whenever Company elects to make Banks available, IES understands
and agrees that any such occasion is subject to Banks' personal and
professional schedule. IES agrees to pay or reimburse Company for the
reasonable travel expenses incurred by Banks' and one companion in providing
Banks'
3
services to IES herein. "Reasonable travel expenses" shall mean first-class
airfare and deluxe hotel accommodations, if applicable, ground transportation
and meals. IEF agrees to provide, at its own expense, hair and make-up
personnel for Banks when such services are required. IES understands that
IES's failure to utilize services of Banks hereunder when she offers to provide
them shall not result in any reduction in payments to Company hereunder.
Company will not elect to provide any services of Banks hereunder unless
payments to Company are current and up to date and IES is not otherwise in
breach of any provisions of the Agreement. If Company confirms Banks'
availability for any service and Banks is unable to appear due to illness,
injury or other emergency, such non-appearance is not a breach of this
Agreement and neither Company nor Banks shall be responsible for any expenses
incurred due to such non-appearance.
5. Payments by IES.
(a) In consideration for the rights herein granted, IES shall pay Company
a "Guaranteed Minimum Royalty" in the amount of Xxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Dollars (US$100,000) payable in two (2) installments -- the first being
Fifty Thousand Dollars ($50,000) payable contemporaneously with the execution
and delivery of this Agreement and the xxxxxx being Fifty Thousand Dollars
($50,000) payable upon the earlier of (i): final approval of, or use of, the
"Xxxx Xxxxx Home Page"; or (ii) March 31, 1998. The Guaranteed Minimum Royalty
shall be credited against earned royalties payable to Company as follows:
(i) Site Revenues. Fifteen percent (15%) of any gross revenues received by
IES generated by, or in connection with, the Banks Home Page except for
revenues received from corporate sponsors, strategic partners, or licenses
introduced by Company, and fifty percent (50%) of any gross revenues received
by IES generated in connection with the Banks Home Page from corporate
sponsors, strategic partners, or licensees introduced by Company; and
(ii) Net Premium Revenues. Thirty-five percent (35%) of any Net Premium
Revenues. The term "Net Premium Revenues" means IES's gross revenues from the
sale of Boutique Merchandise and other "for profit" distribution of materials
contained in or related to the Banks Home Page minus reasonable documented
out-of-pocket expenses including, but not limited to, the cost of inventory,
shipping and handling but excluding normal overhead expenses, which expenses
are incurred by IES and are directly associated with the generation of such
revenues.
(b) IES will make payments due to Company under this Agreement on a
quarterly basis, within fifteen (15) days following the end of the applicable
calendar quarter. Each such payment shall be accompanied by a statement showing
in reasonable detail how such payment was computed.
(c) IES shall keep true and complete books and records in which all
information necessary to determine and verify all fees and payments
contemplated hereunder shall be reflected along with the amounts payable to
Company under the terms of this Agreement. IES shall maintain such books and
records for a period of at least two (2) years after the termination of this
Agreement. During the term of this Agreement and for a period of two (2) years
after such termination, Company shall have the right, at its expense and upon
reasonable notice to
4
IES, to examine, or have examined by its authorized representative, IES's books
and records, at IES's principal place of business, in order to determine or
verify all amounts due, and the accuracy of any reports furnished by IES under
this Agreement. In the event that an error is discovered in the calculation of
the amounts payable to Company, the party that received the benefit of the
error shall promptly thereafter pay to the other the amount of overpayment or
underpayment, as the case may be. If any underpayment by IES for a period
examined by Company is five percent (5%) or more, IES shall pay Company's
reasonable out-of-pocket costs with respect to such examination and the next
subsequent reexamination. Company's receipt of any statement, or any payment,
does not preclude it from challenging the correctness of that statement or
payment.
(d) IES shall reimburse Company promptly upon receipt of an invoice
therefore all reasonable out-of-pocket expenses incurred by Company (and/or
Banks) under this Agreement and approved by IES in advance.
6. Provisions of Content, Additional Responsibilities of IES and Company.
(a) Laptop Computer and Support Software. In addition to all other
obligations of IES hereunder, IES will provide to Company during the term of
this Agreement the use of a laptop computer and related equipment and such
software as is necessary for Banks' or Company's representatives to transmit
information to IES in accordance with the terms of this Agreement. All such
hardware and software shall be the property of Company. Any software that IES
provides to Company to further the purpose of this Agreement ("Support
Software") shall be provided subject to the following: IES grants to Company a
royalty-free, non-exclusive licence to use the Support Software (and any
accompanying user documentation). If the Support Software becomes unavailable
due to a claim it infringes a third party's rights, IES shall provide substitute
software or a procedure for accomplishing the same objectives.
(b) Company Information. For purposes of this Agreement, the term "Company
Information" means all information created and/or delivered by Company to IES
for inclusion in the Service, including any trademark, service xxxx, trade name
or logo, whether or not registered, included in such information. Company shall
be solely responsible for the content of all Company Information, and
represents and warrants to IES that to the best of Company's knowledge (i) all
Company Information: (A) will be accurate and Company's own and original
creation, except for information validly licensed for use by Company or in the
public domain; (B) will consist only of information that Company is authorized
to use and to authorize IES to use as contemplated in this Agreement; (C) will
not constitute a libel or defamation or conflict with any copyright, right of
privacy or other rights of any third party; and (D) will conform to all
applicable federal, state and local laws and regulations; and (ii) Company has
the full right and authority to grant the rights and consents set forth herein.
IES shall be entitled at any time to bring any concerns it has regarding
Company Information to the attention of Company, whereupon the parties will
cooperate in good faith to address IES's concerns. Subject only to the next
sentence. IES shall distribute Company Information only as transmitted by
Company, and shall not, and shall not authorize any third party to, modify or
edit such information without Company's prior written consent. If IES, in its
reasonable judgment, believes that immediate action is required with regard to
any Company Information, IES may delete, modify or revise
5
such information, provided that IES shall notify Company of such action prior
thereto, if reasonably possible (or, if not, as soon thereafter as
practicable) and all representations, warranties, indemnifications and other
obligations of Company wherever with respect to such Company Information shall
immediately terminate and be of no force and effect.
(c) Transmission of Company Information. Company shall transmit to IES all
Company Information and updates thereof necessary for inclusion in the Banks
Home Page (including any Boutique Merchandise). Information and updates shall
be transmitted by telephone or electronically in a format to be agreed upon by
IES and Company, on a pre-scheduled basis and/or as such information and
updates become available, as the case may be. IES shall provide Company with a
Service Identification number or numbers that will allow Company to gain access
to the Service at no cost or charge for purposes of electronically delivering
Company Information and content updates. All content supplied by Company shall
be consistent with the editorial standards used by IES for content displayed on
the Service (which standards IES reserves the right to amend from time to time)
provided IES timely and accurately conveys such standards to Company.
(d) Right, Title and Interest to Company Information. All right, title and
interest in Company Information, Banks Identification, trade name(s),
trademarks and service xxxx(s) are and shall remain Company's, subject to the
right and license granted to IES herein. IES shall have the right, at no cost,
to use, display (privately or publicly) and distribute Company Information, or
any portion thereof, on the Service or in connection with any demonstration,
promotion or advertisement of the Service in any medium; to enter Company
Information into IES's computer database; and to store, process, retrieve and
transmit the same on the Service. Any use of the Banks name and likeness, or
use of Company trade name(s), trademark(s) and service xxxx(s), other than as
included in Company Information, or as materials previously approved for use by
Company for whatever purpose, shall be subject to Company's prior consent
(which consent shall not be unreasonably withheld). IES's rights hereunder
shall include the right to offer subscribers the option of printing and
downloading Company Information or any portion thereof as a function of the
Service generally.
(e) Operation of Service; Non-Company Information, Charges for Service.
Other than with respect to the Banks Home Page, IES will have sole discretion
to determine all aspects of the operation of the Service and all matters
relating to the content, structure and sequence of material appearing on the
Service; provided, however, the Company shall have approval over any links to
the Banks Home Page. IES represents and warrants to Company that, to the best
of IES's knowledge, all content on the Service other than Company Information
(to the extent not revised, modified or deleted by IES) ("Non-Company
Information"), (A) will be accurate and IES's own and original creation, except
for information validly licensed for use by IES or in the public domain; (B)
will consist only of information that IES is authorized to use; (C) will not
constitute a libel or defamation or conflict with any copyright, right of
privacy or other rights of, any third party; and (D) will conform to all
applicable federal, state and local laws and regulations and (ii) IES has the
full right and authority to grant the rights and consents set forth herein.
Company shall be entitled at any time to bring any concerns it has regarding
Non-Company Information to the attention of IES, whereupon the parties will
cooperate in good faith to address Company's concerns. Nothing in this
Agreement shall limit IES's rights regarding
6
charges for any aspect of the Service (including any product or service offered
by IES, whether alone or in conjunction with others, through means of the
Service) other than the Banks Home Page. All right, title and interest to IES's
name, trade name(s), trademark(s) and service xxxx(s) ("IES Identification")
are and shall remain IES's. Nothing herein shall be deemed to grant Company any
proprietary rights to any of IES's trade name(s), trademark(s) or service
xxxx(s). Company shall have the right to use IES Identification in connection
with advertising and promoting the Banks Home Page, subject to IES's prior
written consent, not to be unreasonably withheld. Company's approval over links
to the "Banks Home Page" shall not be unreasonably withheld, and shall not
extend to the content of any of the links, but only to the approval over
whether or not the link may be accessed through the "Banks Home Page" only.
(f) Compliance with Applicable Law. IES will be solely responsible to
ensure that all aspects of the Service (other than the Company Information, to
the extent not modified or revised by IES), including the promotion thereof,
comply with applicable law.
(g) Subscriber Agreement. IES will distribute a subscriber agreement
prohibiting republication, redistribution, public broadcast, public display,
resale, offering for resale or other commercial exploitation of copyrighted or
trademarked materials published in the Service without the copyright or
trademark owner's consent.
(h) Compliance with Industry Standards. IES represents and agrees that the
Service will at all times during the Agreement be a first-class service, in
content and technical quality, that is devoted to fashion, health and beauty
information, activities and events, and that the Service will comply with all
on-line broadcasting industry standards.
(i) Database from Bank's Home Page. IES shall own all information received
through the service, including all names, addresses, mail, and other
information relating to users of the Service obtained by IES through the
Service, including the "Banks Home Page." IES shall supply to Company, at
Company's reasonable request and in such format as reasonably requested by
Company, a database of names and addresses of users of the "Banks Home Page"
for Company's or Banks' use. IES agrees not to use any information obtained
through the Service in any way to imply an endorsement by Company or Banks of
any company, product or service following the termination of this Agreement.
7. Exclusivity. (a) During the Term hereof and subject to the remainder of
this Section, Company shall not: (i) license the use of Banks Identification
for any web site or home page devoted to Banks or (ii) be employed by, act as a
consultant to or otherwise render services similar in the aggregate to those
provided hereunder with respect to fashion-related programming to or for any
on-line service (regardless of whether such service is accessed through the
Internet, a commercial on-line service or otherwise). The "Official Xxxx Xxxxx
Home Page" is exclusive to IES during the Contract Period. The foregoing is not
intended to prohibit Company or Banks from advertising on other sites,
providing services for other sites or on-line services, having Banks
Identification on the web sites of Company's licensees or others, or
participating in on-line interviews or articles.
7
(b) Neither Company nor Banks is responsible for initiating action
against, enjoining or otherwise attempting to dissuade any person or entity not
licensed by Company, which in contravention of this Agreement use Banks
Identification in promoting or advertising any products or services which are
the same as or similar to or directly competitive with the Service. Neither
Company nor Banks shall incur any liability to IES or any third party arising
out of any such activity by any such person or entity. Company agrees that at
IES's sole cost and expense, Company shall give such reasonable assistance to
IES as may be required to cause any such person or entity to cease and desist
from such activities, or in connection with any lawsuit or other proceeding by
IES against such person or entity.
8. Control Period. (a) The Contract Period will commence on the date
hereof and will continue until the earlier of the first anniversary of the date
the Banks Home Page is launched or March 31, 1999 (the "Termination Date") and
thereafter will be extended pursuant to Section 8(b) hereof.
(b) Extension of Contract Period. Subject to the receipt by Company of the
Guaranteed Minimum Royalty (as set forth below), the Contract Period will be
extended for two (2) separate twelve (12) consecutive month periods after the
Termination Date unless either party gives written notice to terminate to the
other party on or before the Termination Date with respect to the first twelve
(12) month extension period (the "First Revival Period"), or on or before the
first anniversary of the Termination Date with respect to the second twelve
(12) month extension period ("Second Renewal Period"). The Guaranteed Minimum
Royalty of One Hundred Fifty Thousand Dollars ($150,000) for the First Renewal
period is due simultaneously with the commencement of the First Renewal Period.
The Guaranteed Minimum Royalty of Two Hundred Fifty Thousand Dollars ($250,000)
for the Second Renewal Period is due simultaneously with the commencement of
the Second Renewal Period.
If the Calendar Agreement between Company and IES is renewed with respect to a
2000 calendar, the Contract Period of this Agreement will be automatically
extended for the First Renewal Period (as defined above) upon the terms set
forth herein and for the Guaranteed Minimum Royalty set forth above.
(c) Good Faith Renewal Discussions, Termination of Agreement. Prior to the
end of the Contract Period and extensions (if any), the parties shall discuss
in good faith the possible renewal of this Agreement. If the parties are unable
to agree on mutually satisfactory terms, then this Agreement shall terminate at
the end of the Contract Period, without further obligation of either party to
the other (except for any amounts that are owed to such party per the terms of
this Agreement).
(d) Morals. If at any time during the term of this Agreement the
commercial association of IES with Banks is substantially impaired by reason of
Banks' conviction of a felony or of Banks' commission of an act which offends a
demonstrable majority of the people in the U.S., IES shall have the right to
terminate this Agreement on written notice to Company.
9. Confidentiality. All information disclosed by either party to the other
party, including but not limited to the terms and conditions of this Agreement
or any other agreement
8
between the parties, trade secrets of the party, any nonpublic information
relating to any party's product plans, designs, ideas, concepts, costs, prices,
finances, marketing plans, business opportunities, personnel, research,
development or know-how and any other nonpublic technical or business
information of a party, that is marked "Confidential" or identified by the
disclosing party in writing as confidential before or within thirty days after
disclosure to the receiving party, will be treated as confidential by the
receiving party and not disclosed to any third party without the disclosing
party's prior written consent. "Confidential Information" as referred to in
this Section does not include (a) information that is generally available to
the public other than as a result of disclosure in violation of this Agreement,
(b) information already known or which becomes known to the receiving party
from a third party source which is not, to the receiving party's knowledge,
under an obligation of confidentiality, (c) information independently developed
by the receiving party (as shown by competent documentation), and (d) otherwise
confidential information that is required to be disclosed by law, including
administrative or judicial action. Any breach of these confidentiality
provisions will entitle the injured party to see injunctive relief and damages
without the necessity of giving notice or posting bond or other security.
10. Indemnification. (a) IES Indemnification. IES hereby indemnifies and
agrees to defend and hold Company and Banks free and harmless from and against
all claims, costs, liabilities, judgments, expenses or damages (including
reasonable attorney's fees) (collectively, "Damages") arising out of or in
connection with: (A) Banks' activities and position as a member of IES's
Advisory Board, (B) any information, other than Company Information (to the
extent not deleted, modified or revised by IES), displayed on the Service, (C)
any breach of any representation, warranty or covenant of IES hereunder or (D)
any use of reference to Company's name or logo or Banks name or likeness not
expressly permitted hereunder or based upon IES's use of any intellectual
property other than Company's name or logo or Banks name or likeness; except to
the extent any such Damages arise from the gross negligence or willful
misconduct of Company or its employees or Banks.
(b) Company Indemnification. Company hereby indemnifies and agrees to
defend and hold IES free and harmless from and against all Damages arising out
of or in connection with (A) relating to any Company Information displayed on
the Service (to the extent not deleted, modified or revised by IES), (B) any
breach of any representation or warranty of Company hereunder, or (C) any use
of or references to IES's name or logos not expressly permitted hereunder,
except to the extent such Damages arise from the gross negligence or willful
misconduct of IES or its employees.
(c) No Liability for Punitive or Consequential Damages. Notwithstanding
anything stated or implied to the contrary herein, in no event shall either
party be liable to the other for exemplary, punitive or consequential damages,
even if advised of the possibility of such damages, in any manner arising out
to this Agreement or the breach of any term, covenant, representation, warranty
or obligation contained herein.
(d) Notification. Each party shall notify the other as soon as reasonably
possible of any claim of which it becomes aware.
9
11. Remedies. (a) Injunctive Relief. In the event either party materially
breaches this Agreement, IES and Company agree that, in addition to any and all
other remedies available at law or in equity, the non-breaching party shall be
entitled to injunctive relief to the extent permitted by law from further
violation of this Agreement, during any proceeding as well as on final
determination thereof, without prejudice to any other right of either party and
without the necessity of giving notice or posting bond or other security.
(b) Company's Liability not to Exceed Remuneration Paid to Company by
IES. Notwithstanding anything to the contrary herein, in the event IES incurs
any expenses, damages or other liabilities (including, without limitation,
reasonable attorneys' fees) in connection with this Agreement or Company's
services, Company's liability to IES hereunder shall not exceed the
remuneration, excluding reimbursement of expenses, actually paid to Company by
IES hereunder.
12. Insurance. IES shall provide and maintain, at its own expense,
commercial general liability insurance, including product liability and
advertising injury coverage, with limits of not less that One Million Dollars
($1,000,000.00), shall cause such policy to be endorsed to state that Banks and
Company are additional named insureds thereunder. A certificate of insurance
evidencing such coverage shall be furnished to IES within thirty (30) days of
the full execution of this Agreement. Such insurance policy shall provide that
the insurer shall not terminate or materially modify such policy or remove
Company or Banks as additional named insureds without prior written notice to
Company at least twenty (20) days in advance thereof.
13. Relationship of the Parties. The parties to this Agreement are
independent contractors, and this Agreement shall not be construed to create a
partnership, joint venture, employment or principal agent relationship between
the parties. It is understood that Banks is not a party to this Agreement and
has no liability whatsoever under this Agreement. Each party shall be solely
responsible to compensate any employees, agents or representatives employed or
engaged by it to perform duties under this Agreement and for all taxes,
imposts, duties and all charges of any governmental authority arising from its
activities under this Agreement. Neither IES nor Company, nor any other person
or entity employed by either IES or Company, are authorized to make any
warranty concerning the other party or incur or assume any obligation or
liability for the other party and nothing in this Agreement gives or is
intended to give any rights of any kind to any third party, except as expressly
set forth herein.
14. Amendment, Waiver. No amendment to this Agreement shall be valid unless
such amendment is in writing and is signed by both of the parties to this
Agreement. Any of the terms and conditions of this Agreement may be waived at
any time in writing by the party entitled to the benefit thereof, but a waiver
in one instance shall not be deemed to constitute a waiver in any other
instance. A failure to enforce any provision of this Agreement shall not
operate as a waiver of the provision or of any other provision hereof.
15. Severability. In the event that any provision of this Agreement shall
be held to be invalid, illegal or unenforceable in any circumstances, the
remaining provisions shall nevertheless remain in full force and effect and
shall be construed as if the unenforceable portion or portions were deleted.
10
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
17. Arbitration. The parties agree to submit to arbitration any dispute
related to this Agreement and agree that the arbitration process shall be the
exclusive means for resolving disputes which the parties cannot resolve. Any
arbitration hereunder shall be conducted under the Dispute Resolution Rules of
the American Arbitration Association ("AAA") as modified herein. Arbitration
proceedings shall take place in New York, New York, before a single arbitrator
who shall be a lawyer. All arbitration proceedings shall be confidential.
Neither party shall disclose any information about the evidence produced by the
other party in the arbitration proceedings, except in the course of judicial,
regulatory, or arbitration proceeding, or as may be demanded by government
authority. Before making any disclosure permitted by the preceding sentence, a
party shall give the other party reasonable advance written notice of the
intended disclosure and an opportunity to prevent disclosure. Each party shall
have the right to take the deposition of one individual and any expert witness
retained by the other party. Additional discovery may be had only where the
arbitrator so orders, upon a showing of substantial need. Only evidence that is
directly relevant to the issues may be obtained in discovery. Each party bears
the burden of persuasion of any claim or counterclaim raised by that party. The
arbitration provisions of this Agreement shall not prevent any party from
obtaining injunctive relief from a court of competent jurisdiction to enforce
the obligations for which such party may obtain provisional relief pending a
decision on the merits by the arbitrator. Each of the parties hereby consents
to the jurisdiction of New York courts for such purpose. The arbitrator shall
have authority to award any remedy or relief that a court of the State of
New York could grant in conformity to applicable law, except that the
arbitrator shall have no authority to award attorneys' fees or punitive
damages. Any arbitration award shall be accompanied by a written statement
containing a summary of the issues in controversy, a description of the award,
and an explanation of the reasons for the award. The arbitrator's award shall
be final and judgment may be entered upon such award by any court.
18. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to be given or made: on the same business day when
sent by confirmed facsimile, on the next business day after mailing when
delivered by overnight courier or on the fifth business day after mailing if
sent by first-class, registered or certified mail to the following address or
addresses or such other address or addresses as the parties may designate in
writing in accordance with this Section:
If to IES: Interactive Entertainment Studio, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxx Need PLLC
0000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Facsimile No. (000) 000-0000
11
If to Company: Ty Girl, Inc.
c/o IMG Models, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx Xxx, Esq.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
19. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder without the prior
written consent of the other party; provided, however, that Company may assign
this Agreement to Banks without consent.
20. Execution in Counterparts. This Agreement may be executed by the
parties in counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, each of the parties has executed this Advisory
Agreement as of the date first written above.
TY GIRL, INC. INTERACTIVE ENTERTAINMENT
STUDIO, INC.
By /s/ Xxxx X. Xxxxx By
----------------- -----------------
Name: Xxxx X. Xxxxx Name:
Title: President Title: President
12
January 1, 1998
Interactive Entertainment Studio, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
To Whom It May Concern:
I have been advised of an agreement by and between Interactive Entertainment
Studio, Inc. ("IES") and Ty Girl, Inc. ("Company") pursuant to which Company
grants IES certain rights to use my name and likeness, and certain materials
created by me.
This letter is to advise you that I am an employee of Company, that Company has
all of the authority necessary to make the commitments made by it and to grant
the rights granted by it in that agreement and that I, for my part, in
consideration of IES having entered into that agreement with Company, agree to
fully and completely perform all of the services which Company is required
thereby to cause me to perform.
Sincerely yours,
Xxxx X. Xxxxx
-----------------------
Xxxx Xxxxx
13
EXHIBIT 10.3
AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of January, 1998,
by and between TY GIRL, INC. (hereinafter referred to as "Licensor") having an
address c/o IMG Models, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and INTERACTIVE ENTERTAINMENT STUDIO, INC. having an address of
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 ("IES").
WITNESSETH:
WHEREAS, IES desires to obtain the right to use the name, likeness and
endorsement of Xxxx Xxxxx (hereinafter called "Tyra") in connection with the
advertisement, promotion and sale of Company's "Licensed Calendars"
(hereinafter defined);
WHEREAS, Banks has granted such rights to Licensor together with the right
to sublicense such rights;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
promises and conditions herein contained, the parties do hereby agree as
follows:
1. Definitions. As used herein, the following terms will be defined as
follows:
(a) "Licensor Identification" will mean Tyra's name and image of Tyra in
the form as approved in writing in advance by Licensor and as provided
by Licensor to IES.
(b) "Licensed Calendars" will mean one (1) or more versions of a sixteen
(16) month 1999 calendar with separate or multiple photographs for
each month, produced in accordance with the terms hereof in a form as
approved in writing in advance by Licensor.
(c) "Contract Period" will mean that period of time commencing on the
date hereof and continuing until December 31, 1999.
(d) "Contract Territory" will mean worldwide.
2. Format of the Licensed Calendar. The Licensed Calendars will consist of
a collection of sixteen (16) monthly calendar pages in one (1) format with an
approximate size of 13 inches by 15 inches and other formats, including
electronically or by CD-ROM, as approved by Licensor in writing in advance.
Such Licensed Calendar will contain photographs of Tyra supplied to IES in the
manner described in Paragraph 3 immediately below. IES agrees that advertising
material and credit as designated by Licensor will be included in the contents
of the Licensed Calendar or published or packaged together with the Licensed
Calendar with Licensor's written approval given in advance.
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3. Images. (a) Provided that IES pays the amount set forth in Section 3(b)
below on or before January 23, 1998, Licensor agrees to supply to IES
approximately sixteen (16) photographic images approved by Licensor (the
"Images") for use by IES in the Licensed Calendar.
(b) IES agrees to pay to Licensor the amount of up to Eighty-Seven Thousand
United States Dollars (US$87,000) for the production expenses of Licensor in
connection with the creation of the Images for the Licensed Calendar. Payment
of this amount is due within ten (10) days of an invoice with documentation of
the expenses.
4. Grant. (a) Subject to all the terms and conditions of this Agreement,
Licensor hereby grants to IES the right and license to use the Images and
Licensor Identification throughout the Contract Territory and during the
Contract Period in connection with the manufacture, advertisement, distribution
and sale of Licensed Calendars.
(b) IES shall have no right to grant any sublicenses hereunder, but IES
will have the right to make arrangements for the subcontract manufacture,
finishing, packaging and storing of Licensed Calendars, provided that IES shall
ensure that no such subcontractor shall take any action contrary to or
inconsistent with the terms and conditions set forth in this Agreement.
5. Guaranteed Minimum Royalty. As compensation to Licensor for the grant to
IES of the above rights, IES shall pay to Licensor a guaranteed minimum royalty
payment in the amount of Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars
(US$100,000). Such amount is payable upon the execution of this Agreement. Time
is of the essence with regard to this payment.
6. Earned RoYaltY. (a) IES shall pay to Licensor an earned royalty at the
rate of twelve percent (12%) of the total "Net Wholesale Sales" of all
quantities of Licensed Calendars sold hereunder by IES; provided, however the
full amount of the guaranteed minimum royalty payable to Licensor by IES as
described in Paragraph 5 above will first be credited against the payment of
any earned royalty with respect to sales of Licensed Calendars achieved. Earned
royalties shall be payable within forty-five (45) days following the end of
each calendar year quarter with respect to sales made during such calendar year
quarter.
(b) For the purposes hereof, "Net Wholesale Sales" shall mean IES's
invoiced wholesale billing price to its customers or distributors, less only
actual shipping charges, discounts actually given, sales taxes, and credits
allowed for actual returned or defective merchandise. All royalties due
Licensor will accrue upon the sale of the Licensed Calendars regardless of time
of collection by IES. Licensed Calendars will be considered "sold" as of the
date on which such Licensed Calendars are invoiced, shipped or paid for,
whichever first occurs. If sales are made to any party affiliated with or
related to IES, royalties will be computed based upon the regular price for
such Licensed Calendars charged to unrelated third parties. There will be no
deduction from "Net Wholesale Sales" for uncollectable accounts and no reserve
for returns.
- 2 -
7. Sales Reports. IES shall supply Licensor with an itemized, detailed
sales report with respect to all sales of Licensed Calendars sold during each
calendar year quarter, said sales reports to be delivered to Licensor within
forty-five (45) days following the conclusion of each calendar year quarter.
Such sales reports shall indicate the number of each item of Licensed Calendars
sold during the calendar year quarter, the price at which such items of
merchandise were sold, and itemization of all deductions, credits and returns
and shall be certified by the chief financial officer of IES.
8. Books and Records. IES will keep and maintain accurate books and records
with respect to all purchases of Licensed Calendars and the computation of
earned royalties with respect thereto, which books and records will be
available upon reasonable advance notice for inspection and copying by Licensor
or its authorized agents or representatives during ordinary business hours
prior to the conclusion of a two-year period following the conclusion of the
relevant calendar year quarter. If any examination of IES's books and records
reveals that IES has failed properly to account for and pay royalties owing to
Licensor hereunder, and the amount of any royalties which IES has failed
properly to account for and pay for any calendar year quarter exceeds, by five
percent (5%) or more, the royalties actually accounted for and paid to
Licensor for such period, then IES will, in addition to paying Licensor such
past due royalties with interest, reimburse Licensor or its authorized
representatives for their direct out-of-pocket expenses incurred in conducting
such examination.
9. Payments. All payments to be made by IES to Licensor hereunder will be
made by way of check payable to the order of "IMG Models, Inc." and mailed to
Licensor at the following address:
IMG Models, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
All sales reports to be submitted by IES to Licensor will be sent to the
above address. Past due payments hereunder will bear interest at the rate of
(i) one percent (1%) per month or (ii) the maximum rate permissible under
law, whichever is less.
10. Approval of Licensed Calendars. (a) IES agrees that Licensor shall have
the right to approve or disapprove in advance of sale the quality, style,
colors, appearance, material and workmanship of all Licensed Calendars and the
packaging therefor, and to approve or disapprove any and all endorsements,
trademarks, trade names, designs and logos used in connection with Licensed
Calendars. IES shall not distribute or sell any product which has not been
approved by Licensor in writing or which is, at any time, disapproved in
writing within five (5) business days after receipt thereof.
(b) Before selling or distributing any Licensed Calendars hereunder, IES
will submit to Licensor, at the address set forth in Paragraph 12 below, for
its examination and approval or
- 3 -
disapproval, a production sample thereof together with its containers, labels
and the like. Licensor agrees that it will promptly examine and either
approve or disapprove in writing such samples, and that Licensor will promptly
notify IES of its written approval or disapproval. Licensor agrees that it will
not unreasonably disapprove any item and, if any item is disapproved, that IES
will be advised of the specific reasons in each case.
11. Approval of Advertising and Promotional Materials. IES agrees that
Licensor shall have the right to approve or disapprove in writing in advance
the contents, appearance and presentation of any and all advertising or
promotional materials which incorporate the Licensor Identification or which
make reference in any way to Tyra. IES agrees that it will not produce, publish
or in any manner distribute any such advertising materials which have not been
approved in writing in advance by Licensor or which are, at any time,
disapproved by Licensor in accordance with the provisions hereinbelow. Before
producing, publishing or distributing any advertising materials hereunder,
IES will submit to Licensor, at the address set forth in Paragraph 12 below,
for its examination and written approval or disapproval, a sample thereof
together with text, coloring and a copy of any photograph proposed to be used.
Licensor agrees that it will promptly examine and either approve or disapprove
in writing such sample advertising material, and that Licensor will promptly
notify IES of its approval or disapproval. Licensor agrees that it will not
unreasonably disapprove any sample advertising and, if any is disapproved, that
IES will be advised of the specific reasons in each case.
12. Notices and Submissions. (a) All notices or submissions to be made or
delivered by IES to Licensor pursuant to this agreement will be delivered to
the address of Licensor as follows:
Ty Girl, Inc.
c/o IMG Models, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
with a copy to:
Xxxxxx Xxx, Esq.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
London Management
00000 Xxxxxxxxx Xxxxx, #0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
- 4 -
All such materials will be delivered to Licensor free of all charges such as,
for example, shipping charges or customs charges. In the event that any such
charges are paid by Licensor, IES agrees to make prompt reimbursement. The
foregoing notwithstanding, this agreement may not be changed or modified except
as provided herein.
(b) All notices or submissions to be made or delivered by Licensor to IES
pursuant to this Agreement will be delivered to the address of IES as follows:
Interactive Entertainment Studio, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxxxx
00. Products for the Use of Licensor. During the Contract Period, IES will
supply Licensor, free-of-charge, and at no cost or expense, with one hundred
(100) copies of each version of the Licensed Calendar for the promotional use
of Licensor (not for resale). IES agrees to sell additional copies of the
Licensed Calendars requested by Licensor's at IES's wholesale price for the
Licensed Calendars.
14. Licensor Identification. (a) IES agrees that nothing herein will give
to IES any right, title or interest in the Licensor Identification (except the
licensed rights in accordance with this Agreement), that each and every part of
the Licensor Identification is, and is to be, the sole property of Licensor and
that any and all use by IES of any part of the Licensor Identification, and the
goodwill arising therefrom, will inure to the benefit of Licensor.
(b) IES agrees never to raise or to cause to be raised any questions
concerning, or objections to the validity of, or the right to the use of, the
Licensor Identification or the right of Licensor thereto, on any grounds
whatsoever.
(c) IES agrees that it will not file any application for any xxxx, or
obtain or attempt to obtain ownership of any xxxx or trade name, in any country
of the world, which refers to or is suggestive of the Licensor Identification
or any other xxxx, design or logo intended to identify or refer to the
Licensor.
(d) IES acknowledges and agrees that use of the Licensor Identification
other than as expressly permitted in this Agreement will cause Licensor
immediate irreparable harm for which an adequate remedy does not exist at law.
Accordingly, IES agrees that Licensor will be entitled to prevent any
threatened misuse or breach by obtain injunctive relief without being required
to post any bond or security and without giving advance notice to IES.
(e) IES acknowledges the great value of the goodwill associated with the
name "Xxxx Xxxxx."
15. Notices. IES shall cause to be imprinted irremovably and legibly on
each Licensed Product manufactured, distributed or sold under this Agreement
and on all material
- 5 -
used in connection therewith, including, but not limited to, advertising,
promotional, packaging and wrapping material and any other such material
wherein the Licensor Identification appears, any copyright or trademark,
notices designated by Licensor, together with a statement that the Licensed
Product is manufactured and distributed under license from Licensor.
16. Product Liability Indemnity. (a) IES agrees to provide and maintain, at
its own expense, product liability insurance with limits of no less than
$1,000,000 and within thirty (30) days from the date hereof, IES will submit to
Licensor a fully paid policy or certificate of insurance naming Licensor and
Tyra as insured parties, requiring that the insurer shall not terminate or
materially modify such policy without written notice to Licensor at least twenty
(20) days in advance thereof.
(b) IES agrees to protect, indemnify and save harmless Licensor and
Licensor's authorized employees, agents, etc., or either of them, from and
against any and all expenses, damages, claims, suits, actions, judgments and
costs whatsoever, including reasonable attorneys' fees, arising out of, or in
any way connected with, any claim or action for injury, death or other cause of
action involving alleged defects in IES's Products, any infringement by IES of
the trademark rights, copyrights, personal or proprietary rights of any third
party, and any breach by IES of any statutory or regulatory obligation,
provided that IES will be given prompt notice of any such action or claim.
17. Use of Licensor Identification After Termination. It is understood and
agreed by IES that from and after the termination of the Contract Period all of
the rights of IES to the use of the Licensor Identification shall cease
absolutely, and IES will not thereafter manufacture or sell any item whatsoever
with the use of the Licensor Identification or use the Licensor Identification
in any way whatsoever.
18. Termination for Default. If either party at any time during the period
of this Agreement shall (a) fail to make any payment of any sum of money herein
specified to be made, or (b) fail to observe or perform any of the covenants,
agreements, or obligations hereunder (other than the payment of money), the
non-defaulting party may terminate this Agreement as follows: as to (a) if such
payment is not made within ten (10) days after the defaulting party will have
received written notice of such failure to make payment, or as to (b) if such
default is not cured within thirty (30) days after the defaulting party will
have received written notice specifying in detail such default. Failure to
terminate this Agreement pursuant to this section will not effect or constitute
a waiver of any remedies the non-defaulting party would have been entitled to
demand in the absence of this section, whether by way of damages, termination
or otherwise. Termination of this Agreement for whatever reason will be without
prejudice to the rights and liabilities of either party to the other in respect
of any matter arising under this agreement.
19. Representations and Warranties of IES. (a) IES hereby represents and
warrants to Licensor that:
- 6 -
(i) IES is not insolvent and has financial resources adequate to
undertake the exploitation of the rights herein granted to IES.
(ii) IES will, throughout the Contract Period, use its diligent good
faith efforts to exploit the rights herein granted to IES,
(iii) IES will devote an adequate amount of financial resources and
personnel so as to meet the obligations of IES herein set forth.
(iv) Licensed Calendars actually distributed and sold by IES will be of
no lesser quality than the sample products submitted to Licensor and
approved by Licensor as hereinbefore described.
(v) IES will, in connection with the production, advertising, and
distribution of Licensed Calendars comply with all applicable
statutory laws and regulatory orders within the Contract Territory.
All of the representations and warranties made by IES will survive the
termination of this Agreement.
(b) IES agrees to protect, idemnify and save harmless Licensor and
Licensor's authorized agent, or either of them from and against any and all
expenses, damages, claims, suits, action, judgments and costs whatsoever,
including reasonable attorney's fees, arising out of, or in any way connected
with, any default by IES of its representations and warranties as hereinbefore
set forth.
20. Waiver. The failure of either party at any time or times to demand
strict performance by the other of any of the terms, covenants or conditions
set forth herein will not be construed as a continuing waiver or relinquishment
thereof and each may at any time demand strict and complete performance by the
other of said terms, covenants and conditions.
21. Bankruptcy. If IES files or has filed any petition for bankruptcy,
reorganization or similar relief, ceases or winds-up its business, makes and
assignment for the benefit of creditors, or if IES's business will be placed in
the hands of a receiver or trustee, whether by voluntary act of IES or
otherwise, the Contract Period will, at the option of Licensor, immediately
terminate. Upon termination, Licensor, at its option, may purchase any
remaining inventory of Licensed Calendars at one-half the manufacturing cost,
exclusive of overhead, and IES hereby grants a security interest in such
inventory to Licensor solely for the purposes of effectuating this Paragraph.
If Licensor elects not to exercise such option within sixty (60) days after the
occurrence of any such event of bankruptcy, it will discharge its security
interest and the bankruptcy trustee, receiver or assignee may sell the
inventory on hand, subject to the royalty provisions herein. IES agrees to
execute any and all documents necessary to effectuate this Paragraph.
- 7 -
22. Warranty by Licensor. Licensor hereby warrants and represents to IES
that Licensor has all of the right and authority to grant to IES the right to
use the Licensor Identification as herein described. Licensor agrees to
protect, indemnify and save harmless IES from and against any and all expenses,
damages, claims, suits, actions, judgments and costs whatsoever, including
reasonable attorneys' fees, arising out of, or in any way connected with, any
claim or action in which it is alleged that use by IES of the Licensor
Identification and the Images constitutes an infringement of the trademark
rights, copyrights, personal or proprietary rights of any third party, provided
that Licensor will be given prompt written notice of any such action or claim.
23. Assignment. This agreement shall bind and inure to the benefit of
Licensor, its successors and assigns. IES understands and agrees that Licensor
may assign this Agreement and/or its rights in the Licensor Identification to a
party related to or affiliated with Licensor, but that any such assignment will
not diminish the rights granted to IES hereunder. The rights granted IES
hereunder will be personal to it and shall not, without the prior written
consent of Licensor, be transferred or assigned to any other party.
24. Significance of Headings. Paragraph headings contained herein are
solely for the purpose of aiding in speedy location of subject matter and are
not in any sense to be given weight in the construction of this Agreement.
Accordingly, in case of any question with respect to the construction of this
Agreement, it is to be construed as though such paragraph headings had been
omitted.
25. Entire Agreement. This writing constitutes the entire agreement between
the parties hereof and may not be changed or modified except by a writing
signed by the party or parties to be charged thereby.
26. Joint Venture. This Agreement does not constitute and will not be
construed as constituting a partnership or joint venture between Licensor and
IES. Neither party will have any right to obligate or bind the other party in
any manner whatsoever, and nothing herein contained will give, or is intended
to give, any rights of any kind to any third persons.
27. Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the state of New York without regard to conflict of
laws.
28. Arbitration. If a dispute arises under this agreement which cannot be
resolved, the dispute will be submitted to arbitration and resolved by a single
arbitrator (who will be a lawyer) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect. All arbitration
will take place at the office of the American Arbitration Association located
in New York City, New York. Each party is entitled to depose one (1) fact
witness and any expert witness designated by the other party, and to conduct
such other discovery as the arbitrator deems appropriate. The award or decision
rendered by the arbitrator will be final binding and conclusive and judgment
may be entered upon the award by any court.
- 8 -
29. Limit of Liability. Licensor's and Tyra's maximum liability to IES for
all claims related to this Agreement will not exceed the total amount due
Licensor under this Agreement. IES's sole remedy against Licensor and Tyra for
loss or damage arising out of the performance or non-performance under this
Agreement shall be proven direct, actual damages. Licensor and Tyra shall not
be liable for any indirect, incidental, reliance, special, punitive, or
consequential damages arising out of its performance or non-performance under
this Agreement, whether or not Licensor or Tyra had been advised of the
possibility of such damages.
30. Confidentiality. Except as required by law, neither party shall
disclose to anyone any confidential or proprietary information designated as
such obtained hereunder, including any of the financial terms of this
Agreement.
31. Execution and Delivery Required. This instrument when signed by IES
will be deemed only on application for a license and will not be considered to
be a binding agreement unless and until signed by all parties noted at the
appropriate place at the conclusion of this instrument. Acceptance of the offer
made herein is expressly limited to the terms of the offer.
32. First Negotiation. Before granting any rights to others for the use of
Licensor Identification within the Contract Territory with respect to a 2000
calendar, Licensor agrees that it will first negotiate in good faith
exclusively with IES during a thirty (30) day period ("Negotiation Period") as
designated in writing by Licensor. If IES and Licensor fail to reach a mutually
acceptable agreement, then Licensor may enter into an agreement with a third
party with respect to a 2000 calendar, but in no event shall the terms of any
such third party agreement be more favorable to such third party than the terms
most recently proposed by IES to Licensor during the Negotiation Period.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
TY GIRL, INC. INTERACTIVE ENTERTAINMENT
STUDIO, INC.
By: /s/ Xxxx X. Xxxxx By
----------------- -------------
- 9 -
January 1, 1998
Interactive Entertainment Studio, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
I have been advised of an agreement between Interactive Entertainment
Studio, Inc. ("IES") and Ty Girl, Inc. ("Licensor") pursuant to which Licensor
agrees to cause me to perform certain services for IES and in which Licensor
grants IES certain rights to use my name, image and likeness.
This letter is to advise you that Licensor has all of the authority necessary
to make the commitments made by it and to grant the rights granted by it in
that agreement and that I, for my part, in consideration of IES having entered
into that agreement with Licensor agree to fully and completely perform all of
the services which Licensor is required thereby to cause me to perform.
Best regards.
Sincerely yours,
/s/ Xxxx Xxxxx
Xxxx Xxxxx
- 10 -
EXHIBIT 10.4
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
(000) 000-0000
Facsimile: (000) 000-0000
LEASE AGREEMENT
Dated February 27, 1998
This agreement is made and entered into between First Xxxxxx Limited
Partnership, c/o Xxxxx Xxxxx 000 Xxxxxxx Xx., Xxx Xxxxx, Xxxxxxxx 00000
(Lessor or Landlord) (Maintenance Beeper 796-0555) and
PTN Media, Inc. c/o Xxxxx Xxxxxxx, 00 X. 00xx Xx., Xxx Xxxx, Xxx Xxxx 00000
(Lessee or Tenant) Phone: (O) 000-000-0000; (F) 000-000-0000.
WITNESSETH
1. Tenant shall have possession of Suite 8B, per attached plan, 000 X. Xxxxx
Xx., Xxx Xxxxx 00000, at the First & Xxxxxx Technology Center.
2. The Tenant shall relocate to equivalent or better space approximately May 1,
1998 within First & Xxxxxx.
3. Tenant's rent shall commence March 1, 1998.
4. The monthly rent will be $690, with March rent due upon execution of this
lease.
5. The initial term shall be for two years.
6. The purpose for the premises shall be web site development.
7. The space shall include two parking spaces marked Secodyne.
8. The tenant shall pay an additional charge of $63 for utilities. These costs
are fixed so long as tenant has normal utility consumption.
9. The security deposit is $690.
10. Will name as additional insured on existing corporate policy.
11. Tenant shall install professional signs, compatible with existing signs, on
entry and parking at his expense.
SIGNED Leasee LESSOR First Xxxxxx
/s/ Xxxxx Xxxxx
ATTEST TITLE General Partner
LESSEE
ATTEST TITLE
EXHIBIT 10.5
WEBSITE DESIGN SERVICES AGREEMENT
This Website Design Services Agreement ("Agreement") is effective as of
December 20, 1996 ("Effective Date"), by and among zoecom, inc., an Indiana
corporation, having its principal place of business located at 000 Xxxxxxxx,
Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 ("zoecom"), and Interactive Entertainment
Studio, Inc. a Nevada corporation, having its principal place of business
located at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("Client").
In consideration of the mutual promises and covenants set forth below, the
parties hereto agree as follows:
1. Work Orders. This Agreement will incorporate one or more separate
attachments that describe specific services and deliverables to be provided by
zoecom, provided that such attachments (i) are signed by both parties and (ii)
refer to the same Agreement Number as appears above (collectively, the "Work
Orders"). THE TERMS AND CONDITIONS CONTAINED IN THE WORK ORDERS ARE IN ADDITION
TO AND, TO THE EXTENT THAT THEY ARE CONTRADICTORY, SUPERSEDE THE PROVISIONS OF
THE MAIN BODY OF THIS AGREEMENT. Together the Agreement and the Work Orders
represent the complete and exclusive statement of the mutual agreement of the
parties and supersede and cancel all previous written and oral agreements and
communications concerning the subject matter of this Agreement.
2. Services and Deliverables. zoecom agrees to undertake and provide Client
with the services (the "Services") and the deliverables (the "Deliverables") in
relation to one or more sites on the World Wide Web (the "Website(s)"), all as
set forth on the Work Orders. The Deliverables may include, without limitation,
certain designs for the aesthetic and functional characteristics of Websites
and the HTML and other computer files and code that implement the Website
("Website Designs") to be created by zoecom for Client, as set forth on the
Work Orders. The parties agree that zoecom's obligations with respect to the
Services and Deliverables are dependent on Client providing assistance and
information to zoecom and on Client providing zoecom with any access to
Client's materials, products and facilities as is set forth in the applicable
Work Order. Accordingly, zoecom will not be responsible for any delays caused
by Client's failure to provide such assistance, information or access and any
time schedules shall be adjusted accordingly. If a party proposes to change a
Work Order after it has been signed, the other party will reasonably and in
good faith consider and discuss the proposed change. If zoecom agrees to accept
any change proposed by Client, Client agrees to bear any extra expense and pay,
at zoecom's standard time and material rates, for any additional work required
by such change.
3. Delivery and Acceptance of Deliverables. When zoecom believes it has
appropriately completed a Deliverable, it will deliver the same to Client.
Delivery shall be made in a format or medium that is mutually acceptable to
both parties or as specified in the applicable Work Order. Client will accept
or reject the Deliverable within five (5) business days after delivery. Any
approval of IES are also subject to approvals by Niki Inc. Failure to give
notice of acceptance or rejection within that period or prior to first public
on-line use or other commercial distribution (regardless of notice of
rejection) will constitute acceptance. Client may reject any Deliverable that
fails to meet substantially all the requirements stated in the applicable Work
Order. If Client rejects the Deliverable, zoecom will correct the failures
specified in the rejection notice within fifteen (15) days of the rejection
1
notice. When zoecom believes that it has made the necessary corrections, it
will again deliver the Deliverable to Client and the
acceptance/rejection/correction provisions above shall be reapplied until the
Deliverable is accepted by Client.
4. Payment.
a. Client shall pay zoecom the amounts specified in the applicable Work
Order for the Services and Deliverables. Each payment will be in U.S. dollars
and will be made in accordance with the payment schedule specified in the
applicable Work Order. In addition, Client shall reimburse zoecom for
reasonable travel (transportation, lodging and meals) and other expenses zoecom
is required to incur in providing the Services and Deliverables outside of New
York City. All travel and lodging will be coach class or equivalent. Expenses
must be approved by IES.
b. Unless otherwise specified, all payments are due and payable within
thirty (30) days of the date of the invoice from zoecom. Late payments will
bear interest at the rate of 2% per month to cover costs of collections as well
as interest, or, if lower, the maximum rate allowed by law.
5. Ownership.
a. The parties acknowledge that each Website Design to be delivered to
Client by zoecom hereunder will be a compilation of various components, which
may include, without limitation, graphics, diagrams, images, graphical user
interfaces, text, figures, tables, sounds, video, names, trademarks and service
marks (collectively "Content"), that will be selected, coordinated and arranged
by zoecom for Client, in accordance with Client's reasonable directions. zoecom
hereby assigns to Client the copyright for each of such compilations.
b. The parties also acknowledge that each Website Design will include
Content created by or licensed to zoecom ("zoecom Content") and Content created
by or licensed to Client ("Client Content"). zoecom retains all right, title
and interest to zoecom Content, except for the license granted under Section 6
hereof, and Client retains all right, title and interest to Client Content.
c. The parties also acknowledge that each Website Design may include
computer programs, algorithms, cookies or applets that were created or licensed
by zoecom (collectively "zoecom Software"). zoecom retains all right, title and
interest to zoecom Software, except for the license granted under Section 6
hereof.
d. Client agrees that any assignments to Client hereunder do not extend to
any zoecom Content or zoecom Software.
e. In the event any third party software is supplied by zoecom to Client,
Client agrees to be bound by and comply with all the terms and conditions
provided by the original manufacturer or vendor of such software, including,
but not limited to, any license or other agreement and any warranties,
disclaimers and limitations of liability set forth therein. Client agrees and
understands that any rights and claims it may have in connection with any third
party software are with the original manufacturer or vendor of such software
and not with zoecom, who shall "pass through" any warranties provided by the
original manufacturer or vendor to the fullest extent possible under applicable
law.
2
f. The parties acknowledge that each Website Design may incorporate
concepts and/or metaphors that zoecom uses or will reuse for other clients.
zoecom shall not require any prior consent from Client for any reuse of a
concept and/or metaphor used in a Website Design created by zoecom for Client.
6. License.
a. Subject to all the terms and conditions of this Agreement, zoecom hereby
grants to Client a perpetual, non-exclusive, worldwide license to reproduce,
use and transmit the zoecom Content and zoecom Software as part of the
applicable Website Design and Website on the World Wide Web. Client may not use
or allow any third party to use the zoecom Content or zoecom Software for any
other purpose, including, but not limited to, using any of the zoecom Content
or any zoecom Software in or in relation to any other World Wide Web sites or
in any other medium, such as CD-ROM or print. Client may not modify, adapt,
translate or create any derivative work from any zoecom Content or zoecom
Software. In the event that Client desires to make any use of zoecom Content or
zoecom Software which exceeds the foregoing license, or if Client desires to
modify, adapt, translate or create a derivative work from any zoecom Content or
zoecom Software, Client must first obtain zoecom's written consent. Any
material breach by Client of the terms of the foregoing license shall entitle
zoecom to terminate Client's license in respect of the zoecom Content or zoecom
Software in question.
7. Notices and Credit.
a. zoecom may include the following credit in the Website Design (the
"Credit"):
Site Design: zoecom, Inc.
where the word "zoecom" serves as an external hypertext link (opening
another browser window, thereby not forcing the visitor to leave the
Niki-Site) to zoecom's World Wide Website.
The Credit shall appear on the bottom of the home page or introductory page.
The Credit shall be displayed in normal HTML height font. Except for the
foregoing. Client shall not use or reproduce the ZOECOM xxxx, ZOECOM LOGO or Z
LOGO without zoecom's prior written consent.
8. Confidentiality. Except as expressly allowed herein, a party receiving
any Proprietary Information of another party (the "Receiving Party") will hold
in confidence and not use or disclose any such Proprietary Information of the
disclosing party (the "Disclosing Party") and shall similarly bind its
employees, officers, directors, consultants and agents. For purposes of this
agreement, "Proprietary Information" shall mean any information that is not
generally known and the Disclosing Party regards as confidential, proprietary
and/or a trade secret. zoecom's Proprietary Information includes, but is not
limited to, zoecom's original proposal for the Website Design, the discussions
between the parties, the zoecom Software and zoecom Content, and the terms and
conditions of this Agreement and any Work Order. The Receiving Party shall not
be obligated under this Section 8 with respect to information the receiving
party can document: (i) is or has become readily publicly available without
restriction through no fault of the Receiving Party or its employees or agents;
(ii) is received without restriction from a third party lawfully in possession
of such information and lawfully empowered to disclose such information; or
(iii) was rightfully in the possession of the Receiving Party without
restriction prior to its disclosure by the Disclosing Party.
3
9. Warranties and Disclaimer.
a. Client warrants to zoecom that:
(a) Client has, or shall, obtain all rights, licenses, waivers,
permissions, credits and attribution necessary for zoecom to use the Client
Content for purposes of this Agreement, including but not limited to,
incorporating Client Content into the Website Design. Client shall at its sole
cost and expense, obtain any rights that zoecom identifies as necessary for
zoecom to incorporate the Client Content into the Website Design.
(b) Client will diligently maintain and regularly update the Website(s)
that incorporate a Website Design prepared by zoecom, so as to ensure the
availability, accessibility, currency, accuracy, aesthetic quality, proper
functionality and technical performance of such Website(s), consistent with
standards generally applicable to sites on the World Wide Web. The Website(s)
that incorporate a Website Design prepared by zoecom shall not defame zoecom,
its employees, officers, directors, consultants or agents or any third party or
constitute a violation of the rights of privacy of zoecom's employees or any
third party.
b. zoecom warrants to Client that:
(a) The Services will be performed in a professional and xxxxxxx-like
manner;
(b) Each Website Design will conform substantially with the
specifications therefore in the applicable Work Order; and
(c) zoecom has and will obtain agreements with its employees, officers,
directors, consultants and agents sufficient to allow it to grant
Client the assignments and licenses provided for herein.
OTHER THAN THE FOREGOING, ZOECOM MAKES NO WARRANTIES WITH RESPECT TO ANY
WEBSITE DESIGN, ZOECOM CONTENT, ZOECOM SOFTWARE, OR ANY OTHER DELIVERABLE, OR
WITH RESPECT TO THE SERVICES, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. SPECIFICALLY, ZOECOM MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE
WEBSITE DESIGN OR ANY CONTENT WILL APPEAR IN THE SAME WAY TO ALL VISITORS TO
THE APPLICABLE WEBSITE, (II) THE WEBSITE DESIGNS WILL BE ERROR FREE, OR (III)
ANY WEBSITE WHICH INCORPORATES A WEBSITE DESIGN PREPARED BY ZOECOM WILL BE
POPULAR OR PROFITABLE.
4
10. Indemnification.
a. zoecom shall indemnify and hold Client and its officers, directors,
agents and employees (collectively, "Client Indemnitees") harmless from
liability (including without limitation fees and disbursements of legal counsel
incurred by a Client Indemnitee in any action or proceeding between Client
Indemnitee and zoecom, or between Client Indemnitee and any third party or
otherwise) resulting from infringement by any Website Design of any United
States copyright of any third party; provided that zoecom is promptly notified
of any and all threats, claims and proceedings related thereto and given
reasonable assistance and the opportunity to assume sole control over the
defense and all negotiations for a settlement or compromise. zoecom will not be
responsible for any settlement it does not approve in writing. The foregoing
obligations of zoecom do not apply with respect to Deliverables or portions or
components thereof (i) that include Client Content or that are modified after
delivery by zoecom, if the alleged infringement relates to such Client Content
or such modification, (ii) where Client Indemnitee continues allegedly
infringing activity after being notified thereof or after being informed of
modifications that would have avoided the alleged infringement, or (iii) where
Client Indemnitee's use of the zoecom Content or zoecom Software is not in
accordance with the license granted hereunder.
b. Client shall indemnify and hold zoecom and its officers, directors,
agents and employees (collectively, "zoecom Indemnitees") harmless from
liability (including without limitation fees and disbursements of legal counsel
incurred by a zoecom Indemnitee in any action or proceeding between zoecom
Indemnitee and Client, or between zoecom Indemnitee and any third party or
otherwise) resulting from either (i) a breach by Client of any of its
representations and warranties to zoecom contained in this Agreement or the
Work Orders or (ii) any other liability resulting from any Website that
incorporates a Website Design prepared by zoecom, except for liabilities
covered by zoecom's indemnity in favor of Client Indemnitees in Section 10.a.
hereof; provided that Client is promptly notified of any and all threats,
claims and proceedings related thereto and given reasonable assistance and the
opportunity to assume sole control over the defense and all negotiations for a
settlement or compromise. Client will not be responsible for any settlement it
does not approve in writing.
11. Limited Liability.
a. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, ZOECOM
SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
(I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNT OF THE FEES PAID
TO ZOECOM HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE
OF ACTION AROSE, OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES.
b. NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR
ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFITS OR REVENUES.
12. Term and Termination.
a. This Agreement will remain in effect until terminated in accordance with
this Section 12. Upon any termination of this Agreement for any reason, zoecom
shall promptly return all Proprietary Information of Client and Client shall
promptly return all Proprietary Information of zoecom.
5
b. If either party should breach a material provision of this Agreement,
the other party may terminate this Agreement upon seven (7) days written notice
unless the breach is cured within such seven (7) day notice period.
c. Either party may terminate this Agreement with or without cause upon
fifteen (15) days prior written notice to the other party; provided, however,
that Client shall be liable to pay zoecom for any Services or Deliverables
provided to Client and expenses incurred in connection with the provision for
such Services prior to the effective date of termination.
d. Sections 5, 6, 7, 8, 9, 10, and 11 of this Agreement, any accrued rights
to payment and any remedies for breach of this Agreement shall survive
termination.
13. Relationship of the Parties. Notwithstanding any provision hereof, for
all purposes of this Agreement the parties shall be and act as independent
contractors and not as partners, joint venturers or agents of each other and
shall not bind nor attempt to bind the other party to any contract. The parties
acknowledge and agree that zoecom shall have no responsibility or liability for
any services or goods that are provided to Client by any third party in
relation to the Website(s).
14. Publicity and Press Releases. The parties agree that the terms of this
Agreement and the Work Orders are confidential and shall not be disclosed by
either party. zoecom may publicize the fact that Client is a client of zoecom.
Client shall mention zoecom, Inc. for their involvement and design in relation
to the Website as part of their Website press releases.
15. Assignment. The parties shall not have any right or ability to assign,
transfer, or sub-license any obligations or benefit under this Agreement
without the written consent of the other party except that a party (i) may
assign and transfer this Assignment and its rights and obligations hereunder to
any entity which acquires substantially all of its business, stock or assets,
and (ii) may assign or transfer any rights to receive payments hereunder, or
(iii) is working for zoecom.
16. Notice. All notices under this Agreement shall be in writing, and shall
be deemed given when personally delivered, or five (5) days after being sent by
prepaid certified or registered U.S. mail, or upon receipt after being sent by
commercial overnight courier service with tracking capabilities, to the address
of the party first set forth above or such other address as such party last
provided to the other party by written notice.
17. Miscellaneous.
a. The failure of any party to enforce its rights under this Agreement at
any time for any period shall not be construed as a waiver of such rights.
b. No changes or modifications to or waivers of any provision of this
Agreement shall be effective unless evidenced in writing and signed by both
parties.
c. During the term of this Agreement and for a period of one (1) year
thereafter, neither party will solicit any employee or consultant of the other
party to leave the employ of such party; the foregoing does not prohibit mass
media "want ads" not specifically directed towards the employees or consultants
of a party.
d. In the event that any provision of this Agreement shall be determined to
be
6
illegal or unenforceable, such provision will be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
e. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to the conflicts of laws
provisions thereof. The sole jurisdiction and venue for actions related to the
subject matter of this Agreement shall be the state and federal courts located
in New York City. In any action or proceeding to enforce rights under this
Agreement, the prevailing party will be entitled to recover costs and
attorneys' fees.
f. Headings herein are for convenience of reference only and shall in no
way affect interpretation of the Agreement.
g. A party shall not be liable for nonperformance or delay in performance
(other than of obligations regarding payment of money or confidentiality)
caused by any event beyond the reasonable control of such party including, but
not limited to, wars, hostilities, revolutions, riots, civil commotion,
national emergency, strikes, lockouts, unavailability of supplies, epidemics,
fire, flood, earthquake, force of nature, explosion, embargo, or any other Act
of God, or any law, proclamation, regulation, ordinance, or other act or order
of any court, government or governmental agency.
h. Except as otherwise expressly stated in this Agreement, the rights and
remedies of a party set forth herein with respect to failure of the other to
comply with the terms of this Agreement (including, without limitation, rights
of full termination of this Agreement) are not exclusive, the exercise thereof
shall not constitute an election of remedies and the aggrieved party shall in
all events be entitled to seek whatever additional remedies may be available in
law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Website Design
Services Agreement as of the Effective Date.
zoecom, inc. CLIENT: IES, Inc.
By: /s/ Till Xxxxxxx By: /s/ Xxxxx Xxxxxx
---------------- ----------------
Name: Till Xxxxxxx Name: Xxxxx Xxxxxx
Title: President Title: President
7
E. PAYMENT SCHEDULE
1. PRE-LAUNCH PAYMENTS Payment ($)
------------------- -------------
Initial payment on signature of Work Order US$ 15,000.00
Mid-point payment US$ 30,000.00
Acceptance of final Website Design US$ 45,000.00
Total payments US$ 90,000.00
2. POST-LAUNCH PAYMENTS
To be agreed on a project by project basis and set forth in subsequent Work
Orders. Payments for such post-launch projects will be made 50% in advance on
execution of the Work Order, and 50% on final acceptance of the completed
project.
IN WITNESS WHEREOF, the parties hereto have executed this Work Order as of the
last date written below.
zoecom, inc. CLIENT: IES, Inc.
By: /s/ Till Xxxxxxx By: /s/ Xxxxx Xxxxxx
---------------- ----------------
Name: Till Xxxxxxx Name: Xxxxx Xxxxxx
Title: President Title: President
*IES AGREES TO USE ITS BEST EFFORTS TO MEET ABOVE SCHEDULE. ALL PAYMENTS
SUBJECT TO APPROVAL BY NIKI INC. IN THE EVENT OF CHANGES TO THIS SCHEDULE,
SECTION 4 (a & b) SHALL GOVERN.
8
EXHIBIT 10.6
8 September 1997
Xx. Xxxxx Xxxxxx
Interactive Entertainment Studio
0000 Xxxxxxxx Xxx. Xxx 000
Xxx Xxxxx, XX 00000
Re: Letter of Intent between CDnow, Inc. and Interactive Entertainment Studio
Dear Xxxxx:
Pursuant to conversations between Xxxx Xxxxxx and yourself, I have summarized
below the major business terms to be included in the merchandising agreement
between CDnow, Inc. ("CDnow") and Interactive Entertainment Studio (IES) with
regard to IES' website "Fashion House with Xxxx Xxxxxx" ("Fashion House").
In addition to the specific points below we would like to discuss an integrated
promotional arrangement. We believe that a high level of visibility for the
joint CDnow/Fashion House store can only reinforce both brands.
* CDnow will create co-branded pages accessible only to Fashion House users by
placing a carry-through bar which links back to Fashion House on every page
of the CDnow/Fashion House site.
* For all visitors who initially create an account at CDnow on a registered
direct link through Fashion House. CDnow will pay Fashion House the
following graduated commission percentages on net revenues derived from
sales for music, movie, and apparel products through CDnow using those
accounts ("Fashion House Accounts") whether they are used to make purchases
directly through Fashion House or through any other site during the length
of the term.
Range of Net Sales Revenues Per Quarter % Applicable to Orders for Music
--------------------------------------- --------------------------------
From $0 up to and including $24,999.99 3%
From $25,000 up to and including $49,999.99 4%
In excess of $50,000 5%
Range of Net Sales Revenues Per Quarter % Applicable to Orders for Movies
--------------------------------------- ---------------------------------
From $0 up to and including $24,999.99 4%
From $25,000 up to and including $49,999.99 5%
In excess of $50,000 6%
1
Range of Net Sales Revenues Per Quarter % Applicable to Orders for Apparel
--------------------------------------- ---------------------------------
From $0 up to and including $24,999.99 8%
From $25,000 up to and including $49,999.99 9%
In excess of $50,000 10%
* Fashion House will include CDnow in its "advertisers", "sponsors" or "links"
sections.
* Fashion House will grant CDnow the exclusive right to be the online video
and music retailer promoted through links from the Fashion House site.
* Fashion House will brand CDnow with a CDnow logo anywhere a link to CDnow's
site is located on Fashion House' sites.
* Fashion House will be entitled to commissions on net revenues on the basis
of account ownership ("Fashion House Accounts").
* The agreement will remain in effect for six months, and renew automatically
for subsequent one year terms unless either party terminates the agreement
within 30 days of the end of the term.
This letter of intent is intended to summarize the discussions by Fashion House
and CDnow to date of certain major business terms, and to constitute a
non-legally binding letter of intent. The discussions expressed in this letter
of intent are intended to be embodied into a legally binding final agreement to
be signed by CDnow and Fashion House. It is understood that the final agreement
may contain other terms and conditions which will have to be negotiated and
agreed to before such final agreement can be signed. Until the final agreement
is properly executed, no party shall have any legally binding obligation to the
other (whether under this letter of intent or otherwise).
In the meantime, we would like to move forward and begin work under the terms
noted above. If you are in agreement, please sign below.
Regards, Accepted,
/s/ Xxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx
Director, New Business Development President
CDnow, Inc. IES
EXHIBIT 10.7
Agreement for Fashion House Flowers & Gifts Service w/Xxxx Xxxxxx
This Agreement is entered into this 9 day of September, 1997 by and between PC
Flowers & Gifts, Inc., a Delaware Corporation, doing business at 0 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (PC) and Interactive Entertainment, a
Nevada Corporation, doing business at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxx
(IE).
Definitions:
"Order" shall mean any order for a Product through the Xxxx Xxxxxx'x Fashion
House Flowers & Gifts service by consumers who will view and utilize the Xxxx
Xxxxxx'x Fashion House Flowers & Gifts service and will consider the Service as
part of the IE content and the 1-800 PC FLOWERS toll free service which will be
utilized in conjunction with a unique operator number for IE customers only.
"Product" shall mean any flowers, balloons, gift baskets, greeting cards,
stuffed animals, gourmet foods or any other items chosen by PC and IE to be
offered on the Xxxx Xxxxxx'x Fashion House Flowers & Gifts service.
"Net Sales Price" ("NSP") shall mean PC's suggested retail price of any Product
sold through the Xxxx Xxxxxx'x Fashion House Flowers & Gifts service, less
applicable sales tax, service charge, discounts, credits or returns for each
Order.
"Proprietary Xxxx" shall mean any trademark, service xxxx, trade name or design
logo of either IE or PC.
The Xxxx Xxxxxx'x Fashion House Flowers & Gifts service shall mean a service
which is offered by IE as an integral part of IE's content to its customers to
enable a customer to gain access to and purchase Products from the Xxxx
Xxxxxx'x Fashion House Flowers & Gifts service. The service will also be
available to IE customers through the 1-800 PC FLOWERS telemarketing program
which will be utilized in conjunction with a unique operator number for IE
customers only.
1. Responsibilities of the Parties
PC Responsibilities
a. PC will develop and maintain a "private label" Xxxx Xxxxxx'x Fashion
House Flowers & Gifts service in HTML format. The entire flowers and gifts
service will reside on PC's web servers. When an IE customer enters the
Xxxx Xxxxxx'x Fashion House Flowers & Gifts service to review the
content and ultimately to place an order, they will be seamlessly
transported to the PC Flowers & Gifts web servers. PC will also assign a
unique operator number to IE which will be made available to IE
customers in conjunction with the 1-800 PC FLOWERS toll free number.
Page 1 of 6
Product Categories IE Sales Commission
------------------ -------------------
Flowers shipped directly from growers
to the IE consumer.....................................10%
Flowers delivered through PC Flowers &
Gifts' network of FTD florists (PC Net).................8%
Balloons delivered through PC Flowers &
Gifts' network of FTD florists (PC NET).................8%
Gourmet foods & gift baskets.............................10%
Greeting cards...........................................10%
*All commissions are exclusive of applicable sales tax, shipping and
handling charges, credits, discounts, and/or returns for each Order.
b. PC will update the home page for the Xxxx Xxxxxx'x Fashion House Flowers
& Gifts service on a monthly basis in order to take advantage of the
event-driven nature of the floral and gift business and help IE to
increase traffic and gain a promotional opportunity on a monthly basis.
c. PC will utilize a proprietary technical program to track all orders
placed on the Xxxx Xxxxxx'x Fashion House Flowers & Gifts service.
d. PC shall at all times keep an accurate and auditable account of the
Orders subject to this Agreement and shall render to IE monthly statements
containing the number of visitors which originate from the PC Flowers &
Gifts site at IE, the product ordered and the total sales price less the
service charge and applicable sales tax. PC shall retain such records
for a period of one (1) year following the date of each order subject to
this Agreement. IE shall have the right to audit such accounts up to two
(2) times during the year.
e. PC shall abide by all applicable portions of the Direct Marketing
Association's then-current Guidelines for Ethical Business Practices,
and all Federal, State and local laws and regulations, applicable to any
advertisements, promotions or offers made by PC on the Xxxx Xxxxxx'x
Fashion House Flowers & Gifts service.
IE Responsibilities:
a. IE will include the Xxxx Xxxxxx'x Fashion House Flowers & Gifts service
as an integral part of its content and promote the Service on a monthly
basis in order to take advantage of the event-driven nature of the
flower and gift business.
b. IE will include a reference to the availability of the Xxxx Xxxxxx'x
Fashion House Flowers & Gifts service on the IE web site and through the
1-800 PC FLOWERS phone number and the unique operator number whenever
possible on promotional print materials in order to enable IE customers
to order PC Flowers & Gifts flowers and gifts products through the Xxxx
Xxxxxx'x Fashion House Flowers & Gifts service on the IE web site and
through the 1-800 PC FLOWERS phone number which will be utilized in
conjunction with a unique operator number.
Page 2 of 6
2. Use of PC Flowers & Gifts content and technology on the Xxxx Xxxxxx'x
Fashion House Flowers & Gifts service.
PC hereby grants IE a non-exclusive, paid-up, royalty-free, perpetual,
world-wide license to use, distribute, perform, exhibit, reproduce, publish,
display and prepare derivative works of, PC Materials as necessary and
approved by PC to fulfill the rights and obligations of IE under this
Agreement, including without limitation the right to display the Xxxx
Xxxxxx'x Fashion House Flowers & Gifts service home page and seamlessly
direct customers to the PC Flowers & Gifts Silicon Graphic web servers for
review of the content of the Xxxx Xxxxxx'x Fashion House Flowers & Gifts
service and to place orders on the Service.
PC shall have the responsibility for determining the adequacy and
acceptability of the Xxxx Xxxxxx'x Fashion House Flowers & Gifts service.
PC shall retain all right, title and interest, including ownership of
copyright, for all programs, program listings, programming tools,
documentation, drawings and reports developed hereunder by PC or its
affiliates.
3. PC Represents and Warrants
PC represents and warrants that it has the full right, title and authority
to grant IE the rights and licenses herein granted.
PC warrants that it is and will remain free of any obligations and
restrictions that would interfere or be inconsistent with, or present a
conflict of interest concerning the services to be furnished by it under
this Agreement.
PC represents and warrants that the Products which will be offered on the
Xxxx Xxxxxx'x Fashion House Flowers & Gifts Service will comply with all
applicable governmental regulations, rules and guidelines.
4. Charges and Payments
PC will remit to IE, within twenty (20) days after the end of each calendar
month, an amount equal to the percent listed on paragraph 1, page 2 of PC
Responsibilities. This monthly payment shall hereinafter be referred to as
the "royalty payment".
5. Indemnification
PC shall indemnify, defend and hold IE harmless against any claim, action,
liability, losses, and expenses (including reasonable attorneys' fees)
relating to or arising out of any Product offered by, or ordered or
requested from PC by means of the Xxxx Xxxxxx'x Fashion House Flowers &
Gifts service.
Page 3 of 6
PC assumes all responsibility for the content and subject matter of PC's
Commerce Service screens and related material (including text and
illustrations), and shall indemnify, defend and hold IE harmless against any
claim, action, liability, losses, and expenses (including reasonable
attorneys' fees) resulting from or arising out of IE's use of such
Material under this Agreement or IE's performance hereunder.
6. Limitation of Liability
a. IE will have no liability for failure for any reason to direct IE
consumers to the PC Flowers & Gifts web server, for the unavailability
of the Xxxx Xxxxxx'x Fashion House Flowers & Gifts service, for the
adequacy of performance of the Xxxx Xxxxxx'x Fashion House Flowers &
Gifts service.
b. PC will have no liability for failure for any reason for the
unavailability of the Xxxx Xxxxxx'x Fashion House Flowers & Gifts
Service or for the adequacy of performance of the Xxxx Xxxxxx'x Fashion
House Flowers & Gifts Service.
7. Term and Termination
Either party may terminate this Agreement at any time upon ninety (90) days
written notice to the other.
It is the intent of PC and IE to evaluate and develop mutually beneficial
applications, products or services, for merchandising on the Xxxx Xxxxxx'x
Fashion House Flowers & Gifts service.
Either IE or PC may propose to the other new marketing programs, promotions
and/or revenue sharing programs. Each party may, at its sole discretion,
decide to forego or engage in any particular business opportunity.
8. General
IE accepts any PC Material intended for use in connection with the Xxxx
Xxxxxx'x Fashion House Flowers & Gifts service only upon the representation
that PC has the right (including all necessary content) to publish the
entire content and subject matter thereof. Submission (including electronic
transmission) of material for display on the Xxxx Xxxxxx'x Fashion House
Flowers & Gifts service constitutes consent to display.
IE reserves the right to reject any material submitted from PC for any
reason at any time, regardless of any prior acceptance or display of any
such material.
Governing Law. The final Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of the State of New York.
Page 4 of 6
If any provision of this Agreement shall be found by a court of competent
jurisdiction to be invalid or unenforceable, such finding shall not affect the
validity or enforceability of this Agreement as a whole or of any other part of
this Agreement. Any such provision shall be enforced to the maximum extent
permissible. In the event such provision is considered an essential element of
this Agreement, PC and IE agree to promptly negotiate a replacement thereof.
All notices and other official communications under this Agreement shall be in
writing and addressed as follows for each of the parties:
For PC: Xxxxxxx X. Xxxxx
PC Flowers & Gifts, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
For IE: -------------------------------
Interactive Entertainment
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Notices shall be effective upon receipt.
All terms of this Agreement which by their nature extend beyond its termination
remain in effect until fulfilled, and apply to respective successors and
assigns.
PC shall not sell, transfer, assign, or subcontract any right or obligation
hereunder without the prior written consent of IE. IE shall not sell, transfer,
assign, or subcontract any right or obligation hereunder without the prior
written consent of PC.
No failure to enforce any provision, assert any right, or insist on performance
of any obligation under this Agreement in any instance shall be deemed a waiver
of the ability to enforce such provision, assert such right, or insist on the
performance of such obligations in the future. No course of dealing or informal
communication of any kind shall be deemed to amend this Agreement. This
Agreement will be the only agreement between PC and IE, and will supersede all
other Agreements relating to the Xxxx Xxxxxx'x Fashion House Flowers & Gifts
service. This Agreement may be amended only by mutual written amendment signed
by both PC and IE.
No terms or provisions under this Agreement shall be deemed waived and no
breach excused, unless such waiver or consent shall be in writing and signed by
the party claimed to have waived or consented. Any consent by any party to, or
waiver of, a breach by the other, whether expressed or implied, shall not
constitute a consent to or waiver of, or excuse for any other different or
subsequent breach.
Page 5 of 6
The provisions of this Agreement set forth the entire agreement and
understanding between PC and IE as to the subject matter hereof and supersedes
all prior agreements, oral or written, and all other communications between PC
and IE relating to the subject matter hereof.
This Agreement may be executed in counterparts, each of which shall constitute
an original but all of which, when taken together, shall constitute one
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other party.
This Agreement is Accepted by:
Interactive Entertainment PC Flowers & Gifts, Inc.
By: /s/ By: /s/ Xxxxxxx X. Xxxxx
Hereunto Duly Authorized Hereunto Duly Authorized
Name: ---------------------- Xxxxxxx X. Xxxxx
Title: President President
Page 6 of 6
EXHIBIT 10.8
STANDARD PUBLICISTS GUILD AGENCY - CLIENT AGREEMENT
[LOGO]
Xxxxx 00, 0000
X. The following will confirm the terms upon which you PTN Media have engaged
an agency of The Publicists Guild as your publicity and public relations
representative.
II. The Xxxxxxxxxx Company will provide publicity and public relations service
to you, on a non-exclusive basis and agree to devote such time as the
agency deems necessary to accomplish the desired results on your behalf.
III. The contract shall be for a period of Eight (8) Months effective May 1,
1998.
IV. For planning and deadline purposes, it is necessary that you advise us by
registered mail at least 30 days prior to the expiration of this
agreement if you do not plan to continue. It is mutually agreed that in
the event we do not receive such written notification within the time
period specified this agreement shall be renewed automatically under the
same terms and conditions outlined.
V. As compensation for our services you agree to pay us a fee of $28,000.00
payable at the rate of $3,500.00 per month.
VI. You further agree to pay expenses rendered mandatory under the Publicists
Guild Contract which include business class transportation, travel
subsistence, mileage plus expenses such as photography, long distance
telephone, cable, message service, press entertainment mailings and
sundry other expenses and services as may be customarily incurred on
your behalf in the course of a publicity campaign.
VII. A copy of this agreement is required to be filed with legal counsel
representing The Publicists Guild. The Guild may take whatever action is
necessary to protect the agency should any provision of this agreement be
breached by you and you agree to pay whatever costs of collection should
arise out of said default, if any.
VIII. We mutually agree, should disputes between us arise which cannot be
solved by the parties involved, to submit same for adjudication to the
American Arbitration Association.
IX. The foregoing properly sets forth this agreement. Please sign in the
space provided below and return two copies of this contract to us.
The Xxxxxxxxxx
------------------------------------------
(Name of Company)
/s/ Xxx
------------------------------------------
Officer
AGREED AND ACCEPTED BY: Xxxxx Xxxxxx for PTN Media Inc.
----------------------------------
(Name of Client)
/s Xxxxx Xxxxxx
----------------------------------
Signature
If the agreement is to be signed by the client's authorized
representative, please complete the following:
AGREED AND ACCEPTED ON BEHALF OF ------------------------------
(Client's Name)
BY SAID AUTHORIZED REPRESENTATIVE -----------------------------
Signature
THIS AGREEMENT HAS BEEN DULY APPROVED AS TO FORM BY THE PUBLICISTS GUILD,
LOCAL 818, I. A. T. S. E. & M. P. M. O.
Original (WHITE), to be returned with CANARY copy to Agency. Client to
retain PINK.
