Exhibit 10.41
XXXX XXXX FINANCIAL CORPORATION
FORM OF SPEAKER AGREEMENT
This Speaker Agreement (the "Agreement) is entered into on this day of March,
1999 (the "Effective Date"), by and between Xxxx Xxxx Financial Corporation and
its subsidiaries, a Nevada Corporation, located at 00000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, ("WCFC"), and ___________.
BACKGROUND
WCFC, through its subsidiary Xxxx Xxxx Seminars, Inc. ("WCSI"), creates,
designs, produces, owns, markets and sells a variety of seminars and workshops
focused on investment strategies, financial planning and personal wealth
management. WCSI also produces and sells audio tapes, videotapes, books and
other written materials designed to teach various investment strategies and
financial planning techniques.
------------------- is an individual with experience in providing Speaker
Services.
WCFC and ------------------- desire to enter into a relationship, whereby
------------------- will act as an Independent Contractor and Authorized
Speaker, to provide speaker, sales and other services related to WCFC's seminar
business.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. Term
WCFC engages _________ as an Authorized Speaker, for the period commencing
upon the Effective Date through December 31, 1999, unless otherwise
terminated as provided herein. Thereafter, this Agreement may be renewed
for additional terms of one (1) year each upon the agreement of both
parties.
2. Relationship of the Parties
A. Independent Contractor
The parties intend that the relationship between them created under
this Agreement is that of an independent contractor only.
------------------- is not an employee of WCFC. Nothing in this
Agreement shall be construed as creating an agency relationship, a
partnership, or a joint venture between the parties.
------------------- shall not be covered by any WCFC benefit programs,
including but not limited to health insurance, social security,
workers' compensation or unemployment compensation.
B. No Guarantee of Employment
This Agreement may not be construed as an employment agreement, as a
guarantee of continued use of services, or as a limitation upon WCFC's
discretion with respect to the termination of -------------------'s
services, it being understood that -------------------'s services are
terminable at will by either party, subject to the terms and
conditions hereunder.
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3. Services
The primary services to be provided by ----------- shall be as a speaker at
seminars developed by WCFC or in which WCFC has either exclusive or
non-exclusive license to market and distribute, and shall also sell
authorized seminar products, books, audio and video tapes and such other
products as WCFC may from time to time add to its inventory (Exhibit B -
"Products"). The WCFC seminars for which ------------ shall be engaged as
the primary speaker are listed in Exhibit B. The parties from time to time
may add or delete seminars from this list, based on the business needs of
WCFC.
4. Compensation
Payment for services to be provided by ------------, shall vary according
to the amount of sales per event less refunds and returns, training
participation and such other specifics as may from time to time be agreed
upon by the parties in the ordinary course of business. The specifics of
the compensation shall appear in a Work Order, based on the areas outlined
below and submitted to the Authorized Speaker, for signature in advance of
the event. This Work Order shall include the name of the seminar, date,
time, location and compensation for each of the services to be provided.
The Work Order shall document ------------'s commitment to the particular
event and shall be incorporated into this contract by reference. The
proposed Work Order is attached as Exhibit C. For the term of this
Agreement, ----------- warrants that the Authorized Speaker(s) have Work
Order signature authority. Notwithstanding the above, cancellations,
refunds or returns received by WCFC more than sixty (60) days after the
date of sale shall not be deducted from ----------'s compensation.
A. Base Compensation
For each unit of Product(s) sold at a seminar, WCFC shall pay
------------- a percentage of the gross sales of Product(s) to
attendees. Proceeds realized during the event shall be identified by
the appropriate marketing key code, less any refunds and returns.
B. Additional Compensation
------------ will be paid an additional percentage of gross sales
which will be determined by the degree of participation in the
following:
1) Speaker Training
WCFC has an established schedule of dates and times for which all
Authorized Speakers may attend training classes at its corporate
offices in Seattle, Washington or such other locations as from
time to time it may designate. This portion of the additional
compensation will be paid only for complete attendance at the
speaker training classes. In the event that the speaker does not
attend the requisite training, this compensation shall not be
paid for any seminars during that month. The parties acknowledge
that training is currently monthly, however, WCFC reserves the
right, with advance notice, to alter the training schedule If
------------ feels that there is a valid reason for missing the
training sessions, this must be put in writing and sent to WCFC
prior to the training. WCFC shall have the sole right to accept
or reject written reasons for missed training.
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2) Trading
Trading, either paper or actual trades on all strategies that are
taught by WCFC are to be performed by the Authorized Speaker on a
consistent basis. Upon request, copies of all trades for the week
shall be sent to WCFC to verify compliance and entitlement to the
additional payment.
3) Video Taping
Authorized Speaker's should videotape all seminars and workshops
that they teach. ----------- shall retain these tapes for a
period of three (3) years. WCFC will have the right to
periodically audit and request tapes from specific seminars, to
verify entitlement to payment under this section. Furthermore,
since WCFC is unable to monitor every seminar to assure that no
misrepresentations, exaggerations or other activities prohibited
by Section 7 of this Agreement occur, videotaping of seminars
will be necessary in order for WCFC to provide ------------ with
indemnification as provided in Section 6.A. below.
4) Content & Testing
At WCFC's discretion, one week prior to a seminar, WCFC will send
to the Authorized Speaker training materials and testing designed
to determine the speaker's understanding of the content
associated with the next seminar he will be teaching. Upon
request, tests shall be returned to WCFC prior to the seminar.
C. Method of Payment
Payment shall be due and payable no later than fourteen (14) days
after each seminar and shall accompany the reports described in
Section 4E. Payment shall be made directly to ------------ or as
otherwise directed, and shall be in United States dollars.
D. Taxes
WCFC shall collect and pay all national, state and local sales, use,
value-added and other taxes, customs duties and similar tariffs and
fees, imposed by any jurisdiction and required by law, based on this
Agreement or any deliveries made hereunder, excluding any income taxes
levied on -----------'s income. ----------- shall be responsible for
the payment of any and all taxes relating to WCFC's compensation to it
for its services rendered under this Agreement.
E. Reports
WCFC shall maintain sales reports, for sales made by ------------,
from seminars taught by each Authorized Speaker. Said reports shall
specify the Authorized Speaker, event, date, location, total sales,
refunds and returns and total compensation per event. WCFC shall
submit such reports to ----------- with each compensation check.
F. Records
WCFC shall keep accurate records, books of account and logs concerning
the sales and distribution of the Products, adequate to determine the
amount of Compensation and Additional Compensation owed to ----------,
which
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shall be preserved by WCFC in a safe place for a period of two (2)
years, following the termination of this Agreement.
The parties recognize that WCFC is a public company, and as such, an
independent public accountant audits its records. Therefore, during
the term of this Agreement, and during the two-year period immediately
following termination, any audit of WCFC's books and records by
------------ shall be permitted, only if it directly relates to the
sales and distribution of the products at seminars taught by an
Authorized Speaker, and if requested by ------------, such audit shall
be performed by the above mentioned independent public accountant, at
the requesting entity's expense. Such audits shall be conducted during
regular business hours at the facilities of WCFC, and shall be limited
to once every six months, and shall not unreasonably interfere with
WCFC's business activities. WCFC reserves the right to exclude its
customers names and addresses and any other information identifying
its customers from such audit.
G. Cancellation of Seminars
WCFC reserves the right to cancel any seminar or event due to low
attendance, acts of God, or as reasonably necessary in the ordinary
course of business. Each of the parties will bear their own expenses
incurred prior to such cancellation. WCFC shall notify Authorized
Speaker, by telephone or e-mail, within twenty-four (24) hours of the
cancellation of the event. Notwithstanding the above, in the event
that cancellation occurs within seven (7) days of the event, and the
Authorized Speaker is unable to obtain a refund for incurred travel
expenses, WCFC will reimburse ------------ up to $400 of the actual
nonrefundable amount.
5. Confidential Information
A. Definition
For purposes of this Agreement, "Confidential Information" means: (i)
All proprietary information of WCFC, (ii) all information marked or
designated by WCFC as confidential, (iii) all information, whether or
not in written or other tangible form and whether or not designated as
confidential, which is treated by WCFC as confidential, (iv) the
subject matter of this Agreement, (v) all information provided to WCFC
by third parties, which WCFC is obligated to keep confidential.
Without limiting the foregoing, Confidential information includes:
Inventions, discoveries, trade secrets, ideas, drawings,
specifications, techniques, data, models, programs, documentation,
processes, know-how, customer lists, product plans, marketing plans
and financial information.
Notwithstanding the foregoing, Confidential Information shall not
include information which: (i) was in -----------'s lawful possession
prior to the disclosure and had not been obtained by ------------
either directly or indirectly from WCFC, (ii) is independently
developed by ------------ without reference to WCFC's Confidential
Information, (iii) is lawfully disclosed to ----------- by a third
party without restriction on disclosure, (iv) is publicly disclosed by
WCFC. It shall be the receiving party's burden to show information is
not Confidential Information of the other party.
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B. Obligation of Confidentiality
------------ agrees that it shall not directly or indirectly disclose,
disseminate, publish articles concerning, or otherwise make known or
available to any person or entity not confidentially bound to WCFC,
any Confidential Information of WCFC, without prior written permission
of WCFC. ------------- agrees not to use Confidential Information for
any purpose other than the implementation of this Agreement, and then
such use shall only be by employees and authorized independent
contractors of WCFC in the course of performing this Agreement.
------------ agrees to take all necessary steps to ensure that
Confidential Information is not disclosed or distributed by its
employees, Independent Contractors or Agents in violation of the
provisions of this Agreement.
Upon WCFC's request, ------------- shall provide WCFC in writing, the
names of the persons to whom the Confidential Information has been
disclosed and/or the steps being taken to maintain the confidentiality
of WCFC's Confidential Information. THE DISCLOSING PARTY MAKES NO
OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO CONFIDENTIAL
INFORMATION AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
6. Indemnification
A. By WCFC
WCFC shall indemnify, defend and hold harmless -------------, against
any claim that the Products infringe any copyright, trademark
(provided use of such trademark has been in accordance with this
Agreement), or trade secret. Each party shall have full authority, at
its sole option, to defend or settle such claim. However, WCFC shall
fully cooperate in the defense or settlement of such claim, and shall
render reasonable assistance to the other party as required. If WCFC
becomes aware that the products do or may infringe any such rights,
WCFC will either: (i) obtain the right to continue using and licensing
the Product, (ii) replace or modify the Products so that they become
non-infringing, or if such remedies are not reasonably available,
(iii) require return of the Products, in which case ------------ will
promptly refund the compensation paid, with respect to such returned
products.
WCFC will also indemnify ------------ against claims that information
provided by WCFC, in accordance with WCFC-approved speakers' text and
training, results in false, deceptive or misleading representations
relating to WCFC or the Products. Other than as set forth in this
Section, WCFC shall have no liability to ------------- for any claim
arising from or based on the provision of speaker services.
B. By -----------------
------------- shall indemnify and hold harmless, WCFC against any
claim that information provided to customers by ------------- results
in false, deceptive or misleading representations, relating to the
content of the presentation, WCFC or the Products. Notwithstanding the
foregoing, --------------, shall not be required to indemnify WCFC, if
----------
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and its Authorized Speakers materially follow the speakers' text and
training as approved and provided by WCFC.
C. Conditions
The foregoing indemnity shall be contingent upon the following
conditions: (i) give prompt written notice to the other of any claim,
demand, or action for which indemnity is sought as soon as it becomes
aware of such a claim, demand or action, (ii) fully cooperate, at the
expense of the indemnifying party, in the defense or settlement of any
such claim, demand, or action; and (iii) obtain the written agreement
of the other party prior to any settlement or proposal of settlement,
which agreement shall not unreasonably be withheld. Each party shall
have the right, at its own expense, to retain its own attorney in the
defense of such claim, demand or action.
7. Prohibited Marketing Activities
During the course of the seminar, WCFC shall not, and shall not permit
Authorized Speakers, to make false or misleading representations, with
regard to WCFC or its Products. ------------ shall not, and shall not
employ or cooperate in the publication or employment of, any
misleading or deceptive advertising with regard to the Products. Nor
shall ------------ make representations, warranties or guarantees to
WCFC attendees or to the trade with respect to the specifications,
features or capabilities of the Products, other than those which are
consistent with the then-current sales literature and documentation of
WCFC.
8. Ownership, Reproduction and Use
A. Proprietary Rights
----------- acknowledges that WCFC is the owner or licensee of all
copyrights and other proprietary rights to the Products. -----------
shall not remove, destroy, obfuscate or conceal any copyright or other
proprietary markings or confidential legends, placed upon or contained
within the Products, and will not duplicate or modify all or any
portion of the Products, unless expressly authorized by WCFC.
B. Return of Materials
Upon termination of this Agreement, or earlier if WCFC requires,
------------- agrees to deliver to and leave with WCFC, any and all
objects, materials, documents or devices (including without
limitation, all documents, records, notebooks, recordings, drawings,
video and audio tapes, seminar instructional materials, sales
literature, prototypes, models, schematic diagrams, computer programs,
customer lists and other materials belonging to WCFC (regardless of
the media on which they are stored) and similar repositories or
objects, which describe, depict, contain, constitute, reflect or
record Confidential Information, and all copies thereof, in
------------'s possession or under its control, whether or not
prepared by --------------.
9. Use of Voice, Photographs, Audio and Video Tapes
-------------- grants to WCFC permission to use, reuse, broadcast,
display, reproduce, distribute and reprint, in any form and through
any
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media, the image or likeness in a photograph, videotape, film, digital
medium, illustration or art work, the name, voice and biographical
information of the Authorized Speaker. This grant shall be for
purposes of advertising or marketing WCFC Products.
10. Non-Solicitation
During the term of this Agreement, and for a period of two (2) years
thereafter -------------- shall not, directly or indirectly, solicit,
divert or appropriate (or attempt to solicit, divert or appropriate)
to or for himself or any other third party, any person or entity that
is or was a customer or prospective customer of WCFC during such
non-solicitation period. During the term of this Agreement and for a
period of one (1) year thereafter, ------------ shall not, directly or
indirectly, solicit, divert or hire away (or attempt to solicit,
divert, or hire away) to or for himself or any third party, any
employee of WCFC, whether or not such employee is full-time, part-time
or temporary, whether or not such employment is pursuant to a written
agreement and whether or not such employment is for a determined
period or terminable at will.
11. Disclosure of Proposed Employment
------------ agrees that before it agrees to undertake any other
employment, consultancy or independent contractor relationship, for
itself or with a third party, that will utilize or involve subject
matter related to activities of the type contemplated by this
Agreement or in which WCFC is involved, ------------ shall give WCFC
reasonable advance notice of no less than thirty (30) days, and fully
disclose the proposed employment, consultancy, or independent
contractor relationship to WCFC. -------------'s duty to give notice
and disclose under this Section shall apply during the Effective Date
of this Agreement and during the period of time the non-competition
provisions of Section 10 above are in full force and effect.
12. Injunctive Relief
------------- acknowledges that the breach or threatened breach of
this Agreement would cause irreparable injury to WCFC, that could not
be adequately compensated by money damages. Accordingly, WCFC may seek
and obtain a restraining order and/or injunction prohibiting
-------------'s breach or threatened breach of this Agreement, without
the need to prove damages or losses, in addition to any other legal or
equitable remedies that may be available.
13. Termination
A. Termination for Cause
Either party hereto, may terminate this Agreement upon (a) thirty (30)
days written notice to the other, or following any material breach or
omission by the other with respect to any term, representation,
warranty, condition, or covenant hereof, and (b) the failure of such
other party to cure such breach or omission prior to the expiration of
such 30-day period.
B. Automatic Termination
This Agreement shall terminate automatically if (I) a receiver is
appointed for any party or its property; (ii) any party makes an
assignment for the benefit of its creditors; (iii) any proceedings are
commenced by, for or against any party under any bankruptcy,
insolvency or debtor's relief law; (iv) any party is liquidated or
dissolved; or (v) --------- comes under the direct or indirect control
of
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any person, firm, company or entity manufactures, markets or otherwise
deals with any products which compete with WCFC products or services.
C. Termination Without Cause
Any party may terminate this Agreement for any reason upon thirty (30)
days written notice.
D. Effect of Termination
Upon termination of this Agreement, ------------ shall immediately
cease to hold itself out as representing or performing any Services on
behalf of or for WCFC, and shall return all WCFC property in its
possession in accordance with Section 8B.
E. Final Accounting
Following the normal reporting timetable under this Agreement, the
parties will render a complete and final accounting and will promptly
pay all moneys due each other.
14. Entire Agreement
This Agreement, Exhibits and any Work Orders contain the entire
understanding and agreement of the parties with respect to matters
addressed herein, and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
15. Severability
If one or more of the provisions contained in this Agreement shall for
any reason be held to be unenforceable or excessively broad as to
time, duration, scope, activity or subject, such provision will be
construed, by limiting or reducing it, so as to be enforceable to the
extent compatible with the then applicable law. If any provision of
this Agreement, or the application of such provision to any person or
circumstance, shall be held invalid, the remainder of this Agreement,
or the application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby.
16. Waiver
Waiver by any party of one or more terms, conditions or defaults, of
this Agreement, shall not constitute a waiver of the remaining terms
and conditions of any future defaults of this Agreement.
17. Notices
All notices and other communications required or permitted under this
Agreement shall be validly given, made, or served if in writing and
delivered personally or sent by registered mail, to the other party,
at the address listed in the preamble. Each party may, by notice to
the other as provided herein, designate a different address.
18. Survival of Certain Provisions
WCFC's rights and obligations and --------' rights and obligations, as
the provided in Sections 3, 4D, 4F, 5, 6, 8,10, 11, 14, 15, 19, 21,
22, 23 and 26, will survive the termination, for any reason, of this
Agreement.
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19. Governing Law; Jurisdiction
This Agreement and the rights and obligations of the parties herein, shall
be construed in accordance with the laws of the State of Washington and
applicable federal law. ------------ hereby consents to the jurisdiction
and venue of the courts of the State of Washington or any federal court
located in such state.
20. Assignment
---------- shall not assign its interest in this Agreement, without the
express written consent of WCFC.
21. Attorneys Fees
The prevailing party in disputes relating to this Agreement shall be
entitled to the award of reasonable attorney fees, necessary expenses and
costs of collection and enforcement, whether or not litigation is
commenced.
22. Independent Agreement
The benefits provided hereunder are independent and unrelated to any
payments, benefits, rights or interest of ------------ in any other
agreements or arrangements between WCFC and -----------. The existence of
any claim or cause of action by ----------- against WCFC shall not
constitute a defense to the enforcement of this Agreement or excuse
performance of the obligations assumed by -------------. The provisions of
this Agreement shall not be construed as limiting any rights or remedies
that WCFC may otherwise have under applicable law.
23. Arbitration
A. All disputes arising out of or under this Agreement, which cannot be
settled by agreement of the parties, shall be submitted to the
American Arbitration Association (AAA), to be heard in King County,
Washington, under the rules then in force, or such other rules or
venue agreed upon by the parties. The prevailing party in any dispute
shall be reimbursed all of its reasonable costs, including reasonable
attorney's fees by the other party.
B. The aggrieved person can initiate arbitration by sending written
notice of an intention to arbitrate by registered or certified mail to
all parties and to AAA. The notice must contain a description of the
dispute, the amount involved (if any) and the remedy sought. If and
when a demand for arbitration is made by any party, the parties agree
to execute a Submission Agreement, provided by AAA, setting forth the
rights of the parties if the case is arbitrated, and the rules and
procedures to be followed at the arbitration hearing. The parties
shall agree on a jurist from the AAA panel. If they are unable to
agree, AAA will provide a list of three available panel members and
each party may strike one. The remaining judge will serve as the
arbitrator.
C. Prior to the arbitration hearing, the parties to the dispute shall
mediate any dispute before a mediator of their mutual choosing or as
selected by the arbitrator form the AAA panel.
D. The arbitrator may, at a minimum, hear summary motions, make such
procedural rulings as he or she may deem appropriate, and resolve all
questions of fact or
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law. The arbitrator may make monetary awards consistent with the terms
of this Agreement and award commercially reasonable interest thereon.
The arbitrator has the authority to award reasonable attorneys' fees,
arbitrators' fees, costs and other reasonable expenses, to the
prevailing party in the dispute, provided each party to the dispute
must pay its own witness fees.
24. Further Action
The parties hereto shall execute and deliver documents, provide all
information and take or forbear from all such action as may be necessary or
appropriate to achieve the purposes of the Agreement.
25. Counterparts
This Agreement may be executed in several counterparts and all so executed,
shall constitute one Agreement, binding on all the parties hereto even
though, all the parties are not signatories to the original or the same
counterpart.
26. Parties in Interest
Nothing herein shall be construed to benefit any third party, nor is it
intended that any provision shall be for the benefit of any third party.
IN WITNESS WHEREOF, the parties have entered into this Agreement by their duly
authorized representatives, as of the Effective Date written above.
XXXX XXXX FINANCIAL CORPORATION
By: --------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Counsel
By: --------------------------------------
Name: -----------------------------
Title: Speaker
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EXHIBIT A
AUTHORIZED SPEAKERS
1.
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EXHIBIT B
XXXX XXXX FINANCIAL CORPORATION PRODUCTS
Products to be sold and promoted by -------------, shall include, but not be
limited to:
1. Wall Street Workshop Seminars
2. Semper Financial Convention
3. Zero to Zillion Tape Set
4. Financial Clinic Seminars
5. Next Step Seminars
6. Real Estate Workshop Seminars
7. Financial Fortress Tape Set
8. Xxxx University
9. Wealth Information Network
10. The Support Package
11. Fortify Your Income
12. Executive Retreat
13. Wealth Academy
Seminars to be taught by Authorized Speaker, shall include, but not be limited
to:
1. Financial Clinic
2. Wall Street Workshop Seminars
3. Fortify Your Income
4. Semper Financial Convention
5. The Support Package
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EXHIBIT C
SPEAKER WORK ORDER
The following is a request for Services to be provided by -------------. All
services provided under this Work Order shall be in compliance with the Terms
and Conditions of the Speaker Agreement currently in effect between ----------
and Xxxx Xxxx Financial Corporation.
1. Name of WCFC Subsidiary Requesting Services:
2. Name of Event:
3. Date of Event:
4. Location of Event:
5. Contact Person:
6. Services to be Provided:
7. Primary Speaker Compensation:
--- Base Compensation of six percent (6%) of gross sales
--- Travel - one percent (1%) of gross sales
--- Additional Compensation
--- Video taping this event - one percent (1%) of gross sales
--- Content and Testing - one percent (1%) of gross sales
Total Compensation for this Event is ---- percent of gross sales
Conditions accepted by:
----------------------------------------
Authorized Speaker
Dated: ---------------------------------
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