NETTALK.COM, INC. (A Development Stage Enterprise)
XXXXXXX.XXX,
INC.
(A
Development Stage Enterprise)
EXHIBIT
10.01
Marketing
and Distribution Agreement between XxxXxxx.xxx, Inc. and OmniReliant Holdings
Inc. dated March 13, 2009.
OmniResponse,
Inc.
This
Agreement by and between OmniReliant, Inc., its successors or assigns. (“ORI”)
and XxxXxxx.xxx, Inc. Its successors or assigns (“NetTalk”) is made effective
this 13th day of March, 2009. The Parties each agree to the terms of this
Agreement which expression includes the following Terms and Conditions and the
attached Term Sheets and Schedules
PART 1:
TERM SHEET
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PARTIES
CONTACT
INFO:
LICENSOR
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OmniReliant,
Inc. (“ORI”), its successors or assigns
14375
Myerlake Circle
Clearwater,
FL 00000
000-000-0000
Fax: 000-000-0000
Contact Xxxx
Xxxxxxxx, President xxxxxxxxx@xxxxxxxxxxx.xxx
XxxXxxx.xxx,
Inc.
0000
XX 000xx Xx
Xxxxx
0
X.
Xxxxx Xxxxx, XX 00000
305-621-1200
Alt. 000-000-0000 Fax. 000-000-0000
Email: xxxx@xxxxxxx.xxx
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PRODUCTS
&
DESCRIPTION
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A
suite of global internet telephone plans and products currently marketed
under the name of NetTalk (“Products”) as more fully described in the
attached Schedule in addition, various items that are upsell products are
to be determined and shall be listed in the attached Schedule designated
as Upsell Products. These Upsell Products may be changed from time to time
based upon availability or other factors and the Schedule will be
amended.
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TERRITORY
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United
States – excluding leads from XxxXxxx.xxx
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DISTRIBUTION
CHANNELS
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ORI
shall market and distribute the Products through direct response
television commercials, including an infomercial of approximately 28.5
minutes in length and shorter derivative versions of 30 seconds. 1 minute
and 2 minutes (collectively referred to as “Commercials”).
NetTalk
reserves the right to market and distribute the Products through its own
channels, including direct marketing and media marketing other than
infomercials – NetTalk will pay directly for the
advertisements.
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FINANCIAL
TERMS
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NetTalk
shall fund the production costs for the commercials for a Production Fee
payable to ORI of $100,000, and other valuable consideration. The
Production Fee shall be payable upon execution of the Agreement. NetTalk
shall pay all other costs in connection with the marketing and
distribution of the Products except that ORI shall pay for media costs to
air the Commercials. All revenues from the sale of Products shall be
collected in a mutually satisfactory bank lockbox. ORI shall submit an
accounting of each weekly media spend for the Commercials, and within 5
dates of receipt of said accounting an amount equal to 110% of each weekly
media spend shall be remitted to ORI from the bank lockbox as the first
funds out. In addition NetTalk shall pay to ORI an additional amount in
accordance with the provisions in the Schedule designated as “Compensation
Payable by NetTalk to ORI for Performer’s Royalty” for the purpose of
paying the Performer that appears in the Commercials as per ORI’s ongoing
obligations to said Performer.
Media
cost is subject to prior review and approval from NetTalk.
Media
invoices will be reimbursed at 110% net of all trade discounts given to
OMNI.
Payment
of $100,000 includes payment due to Xxxx Xxxxx Direct, Inc. of
$10,000.
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TERM
OF AGREEMENT
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Commencing
on Effective Date and continuing on an exclusinve basis provided ORI is
actively marketing the Products.
The
agreement shall be for one year term and renewable
thereafter.
After
initial year, agreement may be cancelled by either party upon written
request 30 days prior to termination.
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ORI /s/
Xxxx
Xxxxxxxx NetTalk /s/
Xxxxxxxxxx
Xxxxxxxxxx
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1
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SPECIAL
TERMS AND
CONDITIONS
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1
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ORI
shall purchase and manage the media to air the Commercials and shall
provide weekly reports of planned media spends and weekly reports of media
that actually aired.
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2
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Upon
execution of this agreement NetTalk shall issue to ORI or its designee
1,000,000 shares of common stock of XxxXxxx.xxx, Inc. in a manner that
complies with all federal and state securities laws and
regulations.
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PART 2:
TERMS AND CONDITIONS
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1
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Marketing
and Distribution Rights
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NetTalk
grants to ORI the exclusive right to use the Commercials and other footage
it may have in connection with te Products to advertise, promote, market,
sell and otherwise distribute the Products, including all derivatives,
line extensions and identified Upsell Products or component parts,
described in the Schedule attached hereto and incorporated xxxxx in the
Distribution Channels as defined in the Term Sheet. NetTalk shall provide
copies of all licenses and other agreements and instruments relating to
the Products and NetTalk’s Intellectual Property. NetTalk represents,
warrants and covenants that it has all necessary power and authority to
grant to ORI the rights in this Agreement, and neither the granting of the
rights nor the exercise of them by ORI will infringe or violate the
intellectual property or other proprietary or intangible rights of any
other person or entity.
Upsell
Products need to be define in Schedule - missing
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2
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Non-Competition In
any part of the territory where ORI has exclusive marketing and
distribution rights, NetTalk shall not, either alone or in participation
with another person or entity market, distribute or license the Products
or any Products so similar in design, composition, content or function to
the Products as to compete directly with the Products for sale (‘Competing
Products’), or use any of the Trademarks, the Infomercial or by any means
or medium, without ORI’s prior written
consent.
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3
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Termination. Either
party may terminate this Agreement upon 30 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. ORI shall have
the right at any time to terminate this Agreement upon 30 days written
notice to NetTalk. Notwithstanding any termination of this Agreement, ORI
and NetTalk shall perform as though this Agreement were still in effect
until all payments due to ORI by NetTalk have been satisfactorily
paid.
The
agreement shall be for one year term and renewable
thereafter.
After
initial year agreement may be cancelled by either party upon written
request 30 days prior to termination.
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ORI /s/
Xxxx
Xxxxxxxx NetTalk /s/
Xxxxxxxxxx
Xxxxxxxxxx
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2
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4
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Miscellaneous
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4.1
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Entire
Agreement Amendment This Agreement
(including the Schedule) contains the entire understanding of the parties
with respect to the subject matter nereof 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. Schedules missing.
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4.2
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Indemnification NetTalk
shall indemnify and hold harmless ORI and its subsidiaries affiliates
sub-distributors and sub-licensees and their respective officers,
directors, shareholders, employees, licensees, agents, successors and
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 legality of the state of the Products and the claims and
representations of NetTalk in connection with the Products that have been
approved by NetTalk for inclusion in the Commercials (ii) the use of
Trademarks, NetTalk’s Artwork or other intellectual property, or (iii) the
breach by NetTalk of any of its representations, warranties covenants or
obligations under this Agreement.
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4.3
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Governing
Law, Jurisdiction This Agreement shall be
deemed to have been executed in the State of New York and shall be
interpreted, construed and enforced according to and governed by the laws
of the State of New York without giving effect to any conflict of laws
provisions.
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Signed
for and on behalf of
OmniReliant
Holdings, Inc.
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Signed for and on behalf of
XxxXxxx.xxx, Inc.
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||
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By
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/s/ Xxxx Xxxxxxxx |
By
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/s/ Xxxxxxxxxx Xxxxxxxxxx |
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Xxxx
Xxxxxxxx, President
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Xxxxxxxxxx
Xxxxxxxxxx, President
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Date
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March
13, 2009
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Date
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March
13, 2009
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ORI /s/
Xxxx
Xxxxxxxx NetTalk /s/
Xxxxxxxxxx Xxxxxxxxxx
3
SCHEDULE
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Main
Offer of Products and Plans (TBD)
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Upsell
Products (TBD)
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Compensation
Payable by NetTalk to ORI for Performer’s Royalty
ORI shall
be paid a Royalty equal to One (1%) percent of all Adjusted Gross Revenues,
which is defined as NetTalk’s gross revenues generated by the Commercials for
the Products, less shipping & handling charges, transportation fees,
returns, bad debt and chargebacks, credit card fees and declines, as well as
sales, excise, use, and any other taxes payable with respect to sales, which
Adjusted Gross Revenues are generated by the Commercials in which Performer
appears and for sales generated in any other channel of distribution if
Performer’s Endorsement, voice or likeness are used in connection with the
packaging, promotion, marketing and distribution of the Products by NetTalk. At
such time as Performer has been paid a total Royalty of $50,000, then the
Royalty amount shall be reduced from one (1%) percent to one-half (1/2%) percent
on all additional Adjusted Gross Revenues. All Royalties shall be paid within 15
days of the end of each calendar month in which Adjusted Gross Revenues
generated by the Products are received by NetTalk. NetTalk will assume all
talent agreements. If we use them, agreement will be subject to direct
negotiations with NetTalk.
Agreement
with Xxxx Xxxxx Direct, Inc. is excluded and will be signed by OMNI. NetTalk is
not responsible for any payments due to Xxxx Xxxxx Direct, Inc.
ORI /s/
Xxxx
Xxxxxxxx NetTalk /s/
Xxxxxxxxxx Xxxxxxxxxx
4
