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MARKETING AND DISTRIBUTION AGREEMENT
This Agreement is made as of April 24, 2006, to be effective as of the
Effective Date, as defined below, between CirTran Corporation, a Nevada
corporation (referred to as "Licensor"), and Media Syndication Global, LLC, a
Delaware limited liability company ("Marketer").
WHEREAS, Licensor has been the exclusive manufacturer of the True
Ceramic Pro Bio-ionic hair styler (the "Product") designed by Advanced Beauty
Solutions, LLC ("ABS"). ABS also developed certain intellectual property related
to the Product as described below, including trademarks and infomercials.
Licensor is in the process of acquiring the rights to the Product and related
intellectual property from ABS's bankruptcy estate.
WHEREAS, Marketer is in the business of, among other things,
advertising, marketing and distributing products in various media, including
television, print, mail order international media and retail in all channels,
and North American retail in all channels.
WHEREAS, the parties wish to set forth in this Agreement their
understanding of the terms, and conditions upon which Licensor will grant to
Marketer certain rights to use, distribute, sell, advertise, promote and
otherwise exploit the Product.
NOW THEREFORE, in consideration of the premises and the mutual promises
and undertakings set forth herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Marketing and Distribution Rights.
Subject to satisfaction of the Purchase Condition, as defined below,
Licensor grants to Marketer the exclusive right to advertise, promote,
market, sell and otherwise distribute the Product throughout the world
(the "Territory"), by means of direct response television programming
however distributed and by all other means, media and channels of
distribution; including, but not limited to International TV and
retail, North American retail in all channels, radio, catalog,
Internet, Live Home Shopping, credit card stuffers, now existing or
hereafter developed.
Licensor grants Marketer the following rights:
1.1 Use of Materials. The right to use the trademarks and/or trade
names, artwork or promotional materials which Licensor may
own, control or have the right to use with respect to the
Products, including the trademarks and/or trade names listed
in the Schedule attached hereto.
1.2 Use of the Infomercial. The right to use and modify, in
accordance with Section 1.4, the television advertisements for
the Product of approximately one half hour in length (the
"Existing Infomercial") as well as the right to produce
additional television advertisements for the Product of
approximately one half hour in length and any shorter versions
as Marketer deems necessary by any means or media (the
"Additional Infomercials" or together with the Existing
Infomercial, the "Infomercials") as described in Section 2.
1.3 Names, Likenesses and Endorsements. In connection with the
exercise of the Marketing and Distribution Rights, the right
to use the names, likenesses (including, without limitation,
photographs, illustrations, films and videotapes),
endorsements and testimonials of all endorsers and other
persons that Licensor may own, control or have the right to
use with respect to the Product. All fees or royalties
associated with such rights, whether for the Infomercials or
otherwise, are the responsibility of Marketer.
1.4 Modifications. Marketer shall have the right to modify the
Existing Infomercial, including the right to edit the Existing
Infomercial into shorter forms. For the purpose of
distribution in languages other than English in the Territory,
Marketer has the right to duplicate and modify the Existing
Infomercial and Licensor's Artwork, including the right to
make insertions and deletions, dub foreign languages or
voiceovers, or to use time compression or expansion
techniques. Marketer shall have the right to translate, modify
and otherwise revise and edit product packaging and printed,
video or audio materials included with the Product and to
include such modified versions with the Product.
1.5 Product Packaging. The right to develop such groupings,
ensembles, configurations and packaging of the Product and
other ancillary goods as Marketer may determine with
Licensor's approval, not to be unreasonably withheld.
1.6 Subdistributors. Marketer shall have the right to utilize
outside parties with regard to distribution into other
channels of distribution within the Territory, including but
not limited to, retail, catalog, credit card syndication,
print, and Internet.
2. The Purchase Condition.
2.1 As used herein, the "Purchase Condition" shall mean that
Licensor has all rights to the Product, the Existing
Infomercial and related intellectual property from ABS's
bankruptcy estate on terms acceptable to Licensor. As of the
date of this Agreement, Licensor has submitted a bid to the
bankruptcy estate which it believes is the highest qualified
bid. If Licensor's bid is confirmed, Licensor anticipates that
it will be required to negotiate in good faith with Tri-Star
Products or other potential distributors for the grant of
distribution rights to Tri-Star or such other distributor. The
Purchase Condition will be satisfied when and if Licensor
notifies Marketer that (i) the Bankruptcy Court has approved
the sale to Licensor (whether on the terms set forth in
Licensor's bid or other terms acceptable to Licensor), (ii)
Licensor's purchase has been completed, and (iii) Licensor's
negotiations with Tri-Star or other distributors concluded
without the grant of distribution rights to Tri-Star or such
other distributor. The date that the Purchase Condition is
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satisfied is referred to as the "Effective Date". If the
Effective Date has not occurred by July 31, 2006, this
Agreement shall terminate with no liability of either party to
the other.
3. Infomercials.
3.1 Delivery of Existing Infomercial. As soon as practicable after
the Effective Date, Licensor shall deliver to Marketer a
master copy of the Existing Infomercial on broadcast quality
videotape, together with such additional raw footage as may be
available to Licensor. Except for the limited rights granted
herein to Marketer, all Existing Infomercial footage,
including but not limited to, both audio and video shall at
all times remain the property of Licensor.
3.2 Production of the Additional Infomercials. Marketer may, at
its own cost and expense, produce the Additional Infomercials.
Prior to the first use of any Additional Infomercial, Marketer
shall provide a copy to Licensor for review, and Marketer
agrees to modify any Additional Infomercial to which Licensor
objects as being offensive, misleading, illegal or otherwise
disparaging or degrading the image of the Product. Except with
Licensor's express written consent, the Additional
Infomercials shall not advertise or promote any product which
is competitive with the Product. With the exception of any
footage provided by Licensor, all Infomercial footage,
including but not limited to, both audio and video shall at
all times remain the property of Marketer.
4. Exclusivity. During the term of this Agreement, unless terminated by
either party under the terms of this agreement, Marketer agrees that it
will purchase from Licensor 100% of the requirements of Marketer for
the Product and any other product substantially similar to the Product
("Similar Product"). The parties acknowledge that non-electric hair
care products are not Similar Products. Accordingly, Marketer will not
purchase, manufacture, or cause any third party to manufacture, any
Product during the term of this Agreement or at any time thereafter,
except from Licensor. Marketer will not purchase, manufacture, or cause
any third party to manufacture, any Similar Product during the term of
this agreement and for a period of one (1) year thereafter, except from
Licensor.
5. Test Marketing.
5.1 Within sixty (60) days following the Effective Date, Marketer
shall conduct test marketing, which may take the form of
Infomercial (30-minute paid program) media buying, print,
insert, on-page, or any combination thereof of the Product in
selected markets in the United States utilizing the Existing
Infomercial, which may be modified by Marketer ("Test
Marketing"). Marketer will inform Licensor in advance of
proposed infomercial media purchases (including the times of
day and markets in which the infomercial will be aired) and
Marketer will revise any such proposed airings to which
Licensor reasonably objects. The Test Marketing shall continue
until Marketer has obtained sufficient data to decide whether
wide-scale airing of the Infomercials and wide scale marketing
of the Product is justified, but in any event the Test
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Marketing will end no later than ninety (90) days after the
Effective Date, and the Marketer will spend a minimum of
$25,000 in overall media (not less than 50% of which is for
broadcast or cable television) during this period. During the
period of the Test Marketing, Marketer may purchase minimum
quantities and distribute the Product to the channels stated
in this Agreement, but Marketer shall not make any binding
commitments to distribute Product beyond the Test Marketing
(other than remaining inventory from the required purchase of
the Minimum Initial Quantity) unless Marketer has notified
Licensor that the Test Marketing was a success.
5.2 Upon the conclusion of the Test Marketing, Marketer will
notify Licensor whether wide scale airing of the Infomercials
and wide scale marketing of the Product ("Roll-out") is
justified. Roll-out will be conclusively presumed to be
justified if the [sales to media ratio] exceeds 2:1. If
Roll-out is justified, Marketer will use its commercially
reasonable efforts to market the Product in accordance with
this Agreement. If Marketer notifies Licensor that Roll-out is
not justified then, at Licensor's option, either (i) the
parties will attempt to negotiate such modifications to this
Agreement as shall be acceptable to the parties and will
thereby justify wide scale marketing, or (ii) if Licensor so
elects, or if the parties are unable to negotiate acceptable
modifications within a reasonable time after the end of Test
Marketing, this Agreement shall terminate. If the Agreement is
terminated pursuant to this Section 5.2, Marketer shall
nevertheless remain liable to purchase and pay for the Minimum
Initial Quantity described in Section 6 and Marketer shall
have the right to use the Intellectual Property to liquidate
the Minimum Initial Quantity over a one year period from the
date of termination; provided that Marketer uses its best
efforts to maintain the integrity of the Product image, by
maximizing the wholesale price points to the marketplace.
6. Minimum Order Requirements.
6.1 Minimum Initial Quantity. Subject only to satisfaction of the
Purchase Condition, Marketer shall purchase a minimum of
10,000 units (the "Minimum Initial Quantity") of the Product
from Licensor, unless waived by mutual consent of both
parties. Marketer's obligation to purchase the Minimum Initial
Quantity shall survive any termination of this Agreement,
including termination pursuant to Section 5.2, other than
termination due to failure of the Purchase Condition. Licensor
shall treat any termination prior to purchase of the Minimum
Initial Quantity as a binding purchase order from Marketer for
any portion of the Minimum Initial Quantity not previously
purchased (the "Shortfall"); provided that Licensor will not
be obligated to ship any of the Shortfall until the Shortfall
is paid for in full.
6.2 Roll-out Volume. Following completion of the Test Marketing
and commencement of the Roll-out, Licensor may, upon 30 days'
prior written notice to Marketer, terminate this Agreement (i)
if Marketer fails to purchase from Licensor at least 50,000
units of Product in any three month period (pro-rated in the
case of the quarter than includes commencement of the
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Roll-out), or (ii) if Marketer fails to purchase at least
400,000 units of Product in each 12 month period consisting of
four calendar or fiscal quarters following the Roll-out.
7. Supply of Products. Unless otherwise agreed by parties, all order for
the Product purchased from Licensor will be subject to the following
terms and conditions:
7.1 Purchase Orders. All orders will be placed pursuant to written
purchase orders issued by Marketer. Licensor will sell, or its
designated vendor shall sell, to Marketer at prices specified
in the Schedule such quantities of the Product as Marketer
shall order; provided that a minimum of one container load
must be purchased for delivery to a given destination unless
the entire order can be filled from inventory located in the
destination country. Licensor shall hold the Schedule price
firm for firm confirmed purchase orders placed within 12
months commencing from the Effective Date. Following the
twelve month moratorium on price increases, Licensor may from
time to time adjust the pricing by written notice to Marketer
based on changes in the U.S. Dollar costs of Licensor's
materials, labor and contracted manufacturing. Any increase in
pricing shall be effective forty-five (45) days after the date
of such written notice.
7.2 Description of Goods. All risk of damage and loss to the
Product which is the subject of a shipment transfers to
Marketer upon such acceptance, in merchantable condition
unless such damage is caused by Licensor's gross negligence or
willful misconduct in connection with Licensor's
manufacturing, packaging, shipping or warehousing of Product
shall be borne by Marketer.
7.3 Defective Products. In the event that Marketer determines that
any Product delivered to it hereunder does not conform to
Licensor's warranty, it shall request an RMA number from
Licensor and upon receipt of such number shall return to
Licensor a reasonable number of randomly selected samples
thereof for review and analysis by Licensor. If Licensor
confirms that the Product is defective, Licensor shall,
subject to its rights described below, reimburse Marketer for
its freight costs (ground shipping) to return the Product and
either issue Marketer a credit memo for replacement Product
or, at Licensor's option, replace such defective Product as
promptly as possible. In either such event, Marketer shall, at
Licensor's option, either destroy all such defective Product
and so certify in writing to Licensor or return all such
defective Product to Licensor at Licensor's expense. If after
analyzing any Products alleged by Marketer to be
nonconforming, Licensor disagrees with Marketer's
determination with respect thereto, Marketer shall submit such
samples to an independent Control Lab approved by both
Parties, which shall make its own determination as to whether
or not such Product conforms with the Specifications, which
determination shall be final and binding upon the parties. If
the Control Lab agrees with Marketer's determination that the
Product is defective, then Licensor shall pay the cost of the
Control Lab and refund, credit or replace at Marketer's
option.
7.4 Shipment of Goods. Licensor will ship all goods in accordance
with Marketer's purchase order or, if differently instructed
by Marketer's traffic department, in accordance with such
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instructions. Licensor will indicate Marketer's purchase order
number on all invoices, packages and other communications
relating to purchase orders. Licensor will notify Marketer
immediately if Licensor is unable to ship or cause shipment of
all or any portion of the goods covered by a purchase order by
the specified shipping date. If Licensor is unable to ship or
cause shipment of all or any portion of the goods covered by a
purchase order, Licensor shall provide Marketer with a
detailed packing list indicating the exact times and
quantities that are available for shipment.
7.5 Freight Terms. As used on the Schedule "F.O.B. Port" means
that the Product will be shipped FOB Los Angeles or other west
coast port selected by Licensor. Product shipped F.O.B. Port
includes the cost of freight, insurance, tariffs and other
shipping expenses up to the point of delivery at the port, but
import duties or customs and the costs of any storage,
demurrage, shipping, insurance or freight from that point will
be the responsibility of Marketer. As used in the Schedule
"F.O.B. Factory" means that the Product will be shipped FOB
Licensor's or its subcontractor's manufacturing plant in Asia.
All customs, tariffs, freight, insurance and other shipping
expenses from the F.O.B. point will be paid by Marketer.
7.6 Payment Terms. Ten percent (10%) of the cost of the Products
(exclusive of shipping) is due and payable by wire transfer of
immediately available U.S. funds to an account specified by
Licensor on the date Marketer places the purchase order. The
invoice for the remaining balance will be due and payable (i)
in the case of F.O.B. Port Products, upon arrival of the
shipment in the U.S. port (or loss in transit if applicable)
and prior to release of the original xxxx of lading, (ii) in
the case of F.O.B. Factory Products, upon release of the
Product to Marketer's carrier at the factory. Invoices not
paid when due shall bear interest at 1.5% per month, or the
maximum legal interest rate, whichever is lower, until paid.
Licensor will consider in good faith proposals from Marketer
for alternative financing which provide Licensor with equal or
greater security for payment, but Licensor shall have sole
discretion to accept or reject any such proposal.
7.7 Periodic Reports. Marketer shall provide on or before the
tenth of each calendar quarter a report (the "Quarterly
Report") to Licensor summarizing the number of Products sold,
stated separately for the DRTV and retail channels and for
domestic and international sales, as well as statements of
Marketers inventory. Licensor and its representatives may, on
reasonable notice, examine Marketer's books records used to
produce the Quarterly Report during normal business hours at
the offices of Marketer on five business days' notice.
Marketer shall provide on or before the tenth of each calendar
month a report to Licensor containing a non-binding good faith
estimate of demand for the following six months. Marketer
shall provide to Licensor on a weekly basis such reports as
Licensor may reasonably request which are customarily
available from participants in the DRTV distribution channel,
including media reports, telemarketing sales and analysis, and
fulfillment reports.
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8. Regulatory Approvals. Licensor shall cooperate with Marketer in
securing all regulatory and other approvals.
9. Intellectual Property Rights
9.1 Licensor's Intellectual Property. Subject to the rights
granted to Marketer under this Agreement, Marketer shall not
acquire any right, title or interest in or to Licensor's
design and packaging of the Products, Licensor trademarks, or
Licensor's artwork (the "Intellectual Property").
9.2 Enforcement of Rights. Licensor shall have the right, but
shall not be required, at its expense to enforce its rights in
the Intellectual Property against infringement thereof. In the
event that Licensor declines to do so, Marketer shall have the
right to enforce any such rights in the Territory in
Licensor's name at Marketer's sole cost and expense. Marketer
shall fully inform Licensor of the status of any such
enforcement efforts.
9.3 Marketer's Intellectual Property. Licensor acknowledges and
agrees that it shall acquire no right, title or interest in or
to any trademarks, trade names or other intellectual property
owned by Marketer.
10. Licenser's Representations, Warranties and Covenants.
10.1 Licensor represents, warrants and covenants that during the
term hereof (including any renewal term) no other entity, or
individual, has or will have the right to market, license or
otherwise exploit the Product in the distribution channels
herein contemplated. Further, Licensor covenants and agrees
that it will not itself during the term hereof (including any
renewal term) market the Product in the distribution channels.
10.2 Licensor represents and warrants that it is not a party to or
bound by any other contractual or other obligations that would
adversely affect or impair the rights granted to Marketer
herein.
10.3 As of the Effective Date, Licensor represents and warrants
that there is no litigation, arbitration proceeding,
governmental or other regulatory proceeding or any other claim
pending or threatened against Licensor which may adversely
affect the rights granted to Media Solution Services under
this Agreement.
10.4 Licensor represents and warrants that, as of the Effective
Date, it will have sufficient rights to grant the rights and
licenses to Marketer hereunder, and that Licensor will not be
bound by any contract in contravention of this Agreement.
11. Indemnification.
11.1 By Licensor. Licensor shall indemnify and hold harmless
Marketer and its subsidiaries, affiliates, sub-distributors
and sub-licensees and their respective officers, directors,
shareholders, employees, licensees, agents, successors and
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assigns from and against any and all liabilities and expenses
whatsoever, including without limitation, claims, damages,
judgments, awards, settlements, investigations, costs and
reasonable legal fees ("Claims"), which any of them may incur
or become obligated to pay as a result of (i) the use of any
of Licensor's trademarks or Licensor's artwork, or (ii) the
breach by Licensor of its representations, warranties,
covenants or obligations under this Agreement. Licensor is not
aware of any claims that the Product infringes on the patent
rights of others, but due to the Product rights having been
purchased out of the Bankruptcy Court, no indemnity is
provided for any such claims that may arise in the future.
11.2 By Marketer. Marketer shall defend, indemnify and hold
harmless Licensor and its officers, directors, shareholders,
employees, licenses, agents, successors and assigns from and
against any and all Claims which any of them may incur or
become obligated to pay arising out of or resulting from the
breach by Marketer of any of its representations, warranties,
covenants or obligations under this Agreement.
11.3 Procedure. Promptly after learning of the occurrence of any
event which may give rise to its rights under the provisions
of this Section 11, any party seeking to enforce such right (a
"Claiming Person") shall give written notice of such matter to
the party against whom enforcement of such rights is sought
(the "Indemnifying Party"). The Claiming Person shall
cooperate with the Indemnifying Party in the negotiation,
compromise and defense of any such matter. The Indemnifying
Party shall be in charge of and control such negotiations,
compromise and defense and shall have the right to select
counsel with respect thereto, provided the Indemnifying Party
shall promptly notify the Claiming Person of all material
developments in the matter. In no event shall the Indemnifying
Party compromise or settle any such matter without the prior
consent of the Claiming Person, which shall not be bound by
any such compromise or settlement absent its prior consent.
12. Term. Unless sooner terminated in accordance with the provisions of
Section 6 or 13, this Agreement shall remain in full force and effect
for an "Initial Term," commencing as of the Effective Date and expiring
three years thereafter. If Marketer has purchased the minimum
quantities required by Section 6.2, then the Agreement will renew for
successive terms of one (1) year each.
13. Termination.
13.1 Upon Breach. Either party may terminate this Agreement upon 45
days notice to the other party upon the breach by the other
party of any of its material representations, warranties,
covenants or obligations under this Agreement. Upon the
expiration of such notice period, this Agreement shall
terminate without the need for further action by either party,
provided, however, that if the breach upon which such notice
of termination is based shall have been fully cured to the
reasonable satisfaction of the non-breaching party within such
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30-day notice period, then such notice of termination shall be
deemed rescinded. Such right of termination shall be in
addition to such other rights and remedies as the terminating
party may have under applicable law.
14. Rights and Duties Upon Termination. For a period of one year following
the expiration or termination of this Agreement under Sections 12 or 13
(other than a termination by Licensor due to Marketer's material
breach), Marketer shall retain the rights to sell its inventory of
Products on hand at termination by doing the following: (i) accept and
process orders for the Products that were placed prior to the effective
date of termination, (ii) accept and process those orders from
customers with whom Marketer was negotiating or whom Marketer had
solicited prior to the effective date of termination, (iii) solicit and
fill reorders from prior customers, (iv) advertise and promote the
Products by means of any media purchased or committed to prior to the
effective date of termination and accept and process all orders for the
Products which it receives pursuant to such advertisement and
promotion, and (v) use Licensor's Intellectual Property in connection
with the exercise of the foregoing rights. Marketer shall notify
Licensor of any inventory of the Products remaining in Marketer's hands
after the exercise of the foregoing rights, and if Licensor does not
elect to promptly repurchase such inventory from Marketer at Marketer's
cost, then Marketer shall have the right to dispose of such inventory
in such manner as Marketer may determine. Termination of this Agreement
will not affect rights accrued prior to termination, including
obligations to pay any amounts owed to the other party and
responsibility for returns. The provisions of Sections 4, 11 and 15
shall survive termination.
15. Confidentiality. All customer lists, price lists, written and unwritten
marketing plans, techniques, methods and data, sales and transaction
data, and other information designated or deemed either by Marketer or
Licensor as being confidential or a trade secret, shall constitute
confidential information of Marketer or Licensor, respectively
("Confidential Information"). Marketer and Licensor shall hold all
Confidential Information in the strictest confidence and shall protect
all Confidential Information with the same degree of care that Marketer
and Licensor exercises with respect to its own proprietary information.
Without the prior written consent of the other, Marketer or Licensor
shall not use, disclose, divulge or otherwise disseminate any
Confidential Information of the other party to any person or entity,
except for each party's attorneys and such other professionals as a
party may retain in order for it to enforce the provisions of this
Agreement. Notwithstanding the foregoing Marketer and Licensor shall
have no obligation with respect to any Confidential Information which
(i) is or becomes within the public domain through no act of Marketer
or Licensor in breach of this Agreement, (ii) was lawfully in the
possession of Marketer or Licensor without any restriction on use or
disclosure prior to its disclosure hereunder, (iii) is lawfully
received from another source subsequent to the date of this Agreement
without any restriction on use or disclosure, (iv) is required to be
disclosed pursuant to rule or regulations promulgated under federal or
state securities laws and applicable to the proposed discloser, or (v)
is required to be disclosed by order of any court of competent
jurisdiction or other government authority (provided in such latter
case, however, that each party shall timely inform the other of all
such legal or governmental proceedings so that the party may attempt by
appropriate legal means to limit such disclosure, and Marketer and
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Licensor shall further use their best efforts to limit the disclosure
and maintain confidentiality to the maximum extent possible).
16. Product Warranty. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR
DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
SATISFACTORY QUALITY.
17. Product Liability Insurance. For the life of the Products sold by
Licensor to Marketer, or any third party on Licensor's behalf, Licensor
will maintain and keep in force product liability insurance with an
insurer approved by Marketer in the amounts not less than $2,000,000
per occurrence and $3,000,000 in the aggregate covering all Products
purchased by Marketer from Licensor. Marketer (and upon Marketer's
request any of its subsidiaries, affiliates or sub-licensees who are
involved with the marketing and distribution of the Products) shall be
named as additional insureds on all such insurance policies, each of
which shall be endorsed so as to provide at least 30 days notice to
Marketer of its cancellation, termination or non-renewal. At Marketer's
request, Licensor shall deliver to Marketer evidence of such insurance.
18. Limitation on Liability. EXCEPT FOR THE EXPRESS WARRANTIES CREATED
UNDER THIS AGREEMENT AND EXCEPT AS SET FORTH OTHERWISE IN THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND
OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SALE OF PRODUCTS,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT
(INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR
OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY
SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS
AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
19. Miscellaneous.
19.1 Notices. All notices, requests, instructions, consents and
other communications to be given pursuant to this Agreement
shall be in writing and shall be deemed received (i) on the
same day if delivered in person, by same-day courier or by
telegraph, telex or facsimile transmission, (ii) on the next
day if delivered by overnight mail or courier, or (iii) on the
date indicated on the return receipt, or if there is no such
receipt, on the third calendar day (excluding Sundays) after
being sent by certified or registered mail, postage prepaid,
to the party for whom intended to the following addresses:
If to Licensor: If to Marketer:
CirTran Corporation Media Syndication Global, LLC
0000 Xxxxx 0000 Xxxx 000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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Each party may by written notice given to the other in accordance with
this Agreement change the address to which notices to such party are to
be delivered.
19.2 Entire Agreement: Amendment. This Agreement (including the
Schedule) contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes all
prior agreements and understandings between them. Each party
has executed this Agreement without reliance upon any promise,
representation or warranty other than those expressly set
forth herein. No amendment of this Agreement shall be
effective unless written and signed by both parties.
19.3 Waiver of Breach. The failure of any party hereto at any time
to enforce any of the provisions of this Agreement shall not
be deemed or construed to be a waiver of any such provisions,
or in any way affect the validity of this Agreement or the
right of any party to thereafter enforce its provisions.
19.4 Assignability. Neither party may assign this Agreement or any
rights under it to any person or entity without the prior
written consent of the other party, which consent shall not be
unreasonably withheld. Any attempted assignment without such
consent shall be void.
19.5 Right to Audit. Both parties and their representatives may, on
reasonable notice, examine each other's books and records as
they relate to this Agreement during normal business hours on
five business days' notice. Such examination shall be at the
audit requesting party's expense unless the examination
reveals a discrepancy of more than 3% at which time the audit
will be paid for by the audited party.
19.6 Force Majeure. In the event of war, fire, flood, labor
troubles, strike, riot, act of governmental authority, acts of
God, or other similar contingencies beyond the reasonable
control of either of the parties interfering with the
performance of the obligations of such party, the obligations
so affected shall be deferred or eliminated to the extent
necessitated by such event or contingency without liability,
but this Agreement shall otherwise remain unaffected. Notice
with full details of any circumstances referenced herein shall
be given by the affected party to the other party within ten
days after its occurrence. The affected party shall use due
diligence, where practicable, to minimize the effects of or
end any such events.
19.7 Further Actions. The parties agree to execute such additional
documents and to perform such other and further acts as may be
necessary or desirable to carry out the purposes and intents
of this Agreement.
19.8 Severability. All of the provisions of this Agreement are
intended to be distinct and severable. If any provision of
this Agreement is or is declared to be invalid or
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unenforceable in any jurisdiction, it shall be ineffective in
such jurisdiction only to the extent of such invalidity or
unenforceability, and the parties shall with best efforts
attempt to replace any such invalid or unenforceable
provisions with one that comes reasonably close to the
original intent and that is valid and enforceable. Such
invalidity or unenforceability shall not affect either the
balance of such provision, to the extent it is not invalid or
unenforceable, or the remaining provisions hereof, or render
invalid or unenforceable such provision in any other
jurisdiction.
19.9 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be deemed to be an original,
and all of which together shall constitute one and the same
Agreement.
19.10 Independent Contractor. No party is an employee or agent of
the other party. Each party is and shall at all times remain
an independent contractor.
19.11 Conflict with Schedule. In the event of a conflict between
this Agreement and the Schedule, the terms and conditions of
the Schedule shall prevail.
19.12 Currency. All dollar amounts set forth in this Agreement and
the Schedule shall refer to U.S. Dollars.
19.13 Governing Law, Dispute Resolution. This Agreement shall be
governed by and construed by the laws of the State of Utah,
disregarding the conflicts of laws provisions thereof. Any
claim, dispute or controversy arising out of, or relating to
any section of this Agreement or the making, performance, or
interpretation of the rights and obligations explicitly set
forth in this Agreement shall, upon the election by written
notice of either party, be settled on an expedited basis by
binding arbitration before a single arbitrator mutually
agreeable to the parties, or if no agreement is reached,
before a single arbitrator from the American Arbitration
Association selected in accordance with its rules then in
effect, which arbitration shall be conducted in accordance
with such rules, and judgment on the arbitration award may be
entered in any court having jurisdiction over the subject
matter of controversy. The location of such arbitration shall
be in Salt Lake City, Utah.
IN WITNESS WHEREOF, the parties have caused this Agreement and Schedule to be
duly executed on the date first written above.
MEDIA SYNDICATION GLOBAL, LLC CIRTRAN CORPORATION
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
----------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxxx
Title: President Title: President
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SCHEDULE
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1. Product: The Product is available in four variations:
DRTV Product: TCP Flat Iron styler plus instructional DVD and
travel kit (wallet, comb, brush and 6 hair clips) packaged in plain
white or black box.
Basic Retail Product: TCP Flat Iron Styler plus instructional
DVD boxed for retail.
Deluxe Retail Product: Same as DRTV Product but boxed for
retail.
International Product: Same as DRTV Product but intended for
sale outside of the United States or Canada.
Product and pricing does not include any shampoo, conditioner or
similar products ("wet goods").
2. Pricing and Freight Terms The pricing and freight terms for each
variation as of the date of this Agreement is as follows:
DRTV Product: $24.00 F.O.B. Port.
------------
Basic Retail Product: $28.00 F.O.B. Port.
--------------------
Deluxe Retail Product: $30.00 F.O.B. Port.
---------------------
International Product: $22.00 F.O.B. Factory.
---------------------
3. Trademarks:
TCP
Flat-Iron
True Ceramic Pro
Bio-ionic styler
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