FUEGO ENTERTAINMENT Letter of Agreement
Exhibit
10.1
xxx.xxxxxxxxxxxxxxxxxx.xxx
FUEGO ENTERTAINMENT
Letter
of Agreement
AGREEMENT
MADE this 25 day of October, 2006 between FUEGO ENTERTAINMENT INC,
from hereon known as Fuego Entertainment with its principal
place of
business at 0000 XX 000 Xxxx, Xxxxx Xxxxx, Xxxxxxx, 00000 and Xxxx X.
Xxxxxx from hereon known as The Producer
RECITALS
WHEREAS,
The Producer is the rightful owner or licensee of all right, title and
interest in the film; Zafiros Locura Azul
WHEREAS,
The Producer desires to grant the exclusive rights of distribution,
marketing promotion and commercial exploitation of the film; Zafiros Locura
Azul
to Fuego Entertainment, Inc..
WHEREAS,
Fuego Entertainment Inc, herein accepts the exclusive rights granted by The
Producer on the terms and conditions set forth in this agreement.
NOW
THEREFORE, the Parties hereto agree as follows:
That
The
Producer. hereby grants Fuego Entertainment, Inc an exclusive rights , to market
, promote , sell, distribute, sub license to other the feature film Zafiros
Locura Azul.
The
rights to use all promotional artwork, negatives, photographs, DVD covers and
textual materials including all materials related to the film or the name of
the
artist or participant feature in the film.All biographical information
concerning the Producer, Director and production house of the film and those
artists whose performances are embodied on the film or any portion
thereof.
In
exchange for granting all the rights herein enclosed, The producer will receive
25% of the NET revenues generated by the sale, distribution, licensing rights
of
the film for entire duration of this agreement.
A
quarterly distribution statement will be supplied to the producer. All net
proceeds will be paid to the producer each quarter.
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TERMS
The
term
of this agreement will be for a period of five (10)years automatically renewable
at the end of the five year term unless otherwise express in writing by any
of
the parties. If there are no net proceeds after (1) year all rights return
to
the producer.
TERRITORY
The
World.
REPRESENTATIONS
AND WARRANTIES.
The
producer hereby represents and warrants to Fuego Entertainment. all of the
following : (a) The producer is duly organized and validly existing under the
laws of its state of incorporation, or has full corporate power and authority
to
enter into this Agreement and to carry out the provisions hereof; (b) The
Producer is duly authorized to execute and deliver this Agreement and to perform
its obligations hereunder, and any person executing this Agreement on its behalf
has been duly authorized to do so by all requisite corporate action; (c) This
Agreement is legally binding upon the producer and enforceable in accordance
with its terms, subject to the effects of bankruptcy, insolvency or other laws
of general application affecting the enforcement of creditor rights and judicial
principles affecting the availability of specific performance and general
principles of equity whether enforceability is considered a proceeding at law
or
equity.
(d)
The
producer owns and has full right in and to the film and all intellectual
property rights thereto, or if licensed by the producer, all necessary rights
and licenses to grant the licenses and rights granted to Fuego Entertainment
under this Agreement; (e) The Film is delivered free and clear from all liens
and encumbrances; (f) The Film are commercially and technically satisfactory;
(g) The Film do not infringe or misappropriate any patent, trademark, copyright,
trade secret know-how, moral rights or other intellectual property rights of
any
third party;(h)As of the Effective Date of this Agreement, there is no pending
or threatened claim or liability against the producer arising out of or relating
to the film or its master or claim that the Masters infringe or misappropriate
any patent, trademark, copyright, trade secret know- how, moral rights or other
intellectual property rights of any third party; (i)
There
is no notice or consent requirement in connection with the execution and
delivery of this Agreement by the Producer and/or the consummation or
performance of any of the transactions contemplated in this Agreement
.
(j)There
are no contracts which prohibit Producer from granting the rights herein to
Fuego Entertainment.
Fuego
Entertainment hereby represents and warrants to the producer all of the
following:
(a)
Fuego
Entertainment is duly organized and validly existing under the laws of its
state
of incorporation, and has full corporate power and authority to enter into
this
Agreement and to carry out the provisions hereof.
(b)
Fuego
Entertainment is authorized to execute and deliver this Agreement and to perform
its obligations hereunder, and any person executing this Agreement on its behalf
has been duly authorized to do so by all requisite corporate
action.
(c)
This
Agreement is legally binding upon Fuego Entertainment and enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency
or
other laws of general application affecting the enforcement of creditor rights
and judicial principles affecting the availability of specific performance
and
general principles of equity whether enforceability is considered a
proceeding
at
law or
equity.
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INDEMNIFICATION.
(a)
The
producer hereby agrees to indemnify, defend, and hold harmless Fuego
Entertainment and its officers, directors, shareholders, employees, consultants
and agents from and against any and all damages, suits, claims, actions, or
demands, and any related liabilities, expenses and losses (including reasonable
attorneys’ fees and other costs of defense) (“The Producers Claims”) arising out
of
or in
connection with, or are in any way related to (i) any claim, which if true,
would result in a breach by The Producer of this Agreement ,and all third party
claims alleging that the Masters infringe any patent, copyright, trademark,
trade secret or other intellectual property rights of any such third
party.
(b)
Fuego
Entertainment hereby agrees to indemnify, defend, and hold harmless Licensor
and
its officers, directors, shareholders, employees, consultants and agents from
and against any and all damages, suits, claims, actions, or demands, and any
related liabilities, expenses and losses (including
reasonable attorneys’ fees and other costs of defense) (“Fuego Entertainment
Claims”) arising out of or
in
connection with, or are in any way related to any claim, which if true, would
result in a breach by Fuego Entertainment of this.
CONFIDENTIALITY.
Each
Party shall hold in confidence the financial terms of this Agreement and all
materials or information disclosed to it in confidence hereunder (“Confidential
Information”) which are marked as confidential or proprietary, or if disclosed
verbally, reduced to writing and marked confidential within thirty (30) days
after the date of disclosure. Each Party agrees to take precautions to prevent
any unauthorized disclosure or use of Confidential Information consistent with
precautions used to protect such Party’s own confidential information, but in no
event less than reasonable care. The obligations of the Parties hereunder shall
not apply to any materials or information which a party can demonstrate, through
documented evidence (a) i-s now, or hereafter becomes, through no act or failure
to act on the part of the receiving party, generally known or available; (b)
is
known by the receiving party at the time of receiving such information as
evidenced by its records; (c) is hereafter furnished to the receiving party
by a
third party, as a matter of right and without restriction on disclosure; (d)
is
independently developed by the receiving party without use of any Confidential
Information; or (e) is the subject of a written permission to disclose provided
by the disclosing party. Notwithstanding any other provision of this Agreement,
disclosure of Confidential Information shall not be precluded if such disclosure
is reasonably necessary in connection with regulatory filings (including filings
with the SEC) and complying with a court order, governmental regulations, or
any
applicable law; provided, however, that the responding Party shall first have
given notice to the other Party hereto in order that such other Party may obtain
a protective order requiring that the Confidential Information so disclosed
be
used only for which the order was issued and the responding Party uses
reasonable efforts to have such information be treated as confidential and
under
seal.
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TERMINATION.
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Termination.
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Either
Party may terminate this Agreement prior to the expiration of the
Term
or any Renewal Term upon the occurrence of any of the following: (1) upon or
after the bankruptcy, insolvency, dissolution or winding up of the other Party;
or (2) upon or after the breach of any material provision of this Agreement
by
the other Party if the breaching Party has not cured such breach within thirty
(30) days after written notice thereof by the non-breaching Party. The Parties
agree, however, that, in the case of any breach or threat of breach by the
Producer of any terms or conditions of this Agreement, Fuego Entertainment
may
take any appropriate legal action, including without limitation action for
injunctive relief, consisting of orders temporarily restraining and
preliminarily and permanently enjoining such actual or threatened
breach.
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Effect
of Expiration or Termination. Upon the expiration or termination
for
anyreason of this Agreement, all rights under the licenses granted
hereunder shall automatically terminate, provided however, that expiration
or termination of this Agreement shall not relieve the Parties of
any
obligation accruing prior to such expiration or termination. Within
thirty
(30) days following the expiration or termination of this Agreement,
except to the extent and for so long as a Party is entitled to retain
license rights under this Agreement, each Party shall deliver to
the other
Party any and all Confidential Information, and any copies thereof,
of the
other Party in its possession, except that the Party will be entitled
to
retain one (1) copy of all documents in its legal
archives for the sole purpose of monitoring its compliance with its
confidentiality obligations
hereunder.
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Fuego
Entertainment will not license, without fee, any broadcast or other
distribution, without express written consent from the
Producer.
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PUBLICITY.
Licensor
and Fuego Entertainment will not issue a press release or release publicly
any
information relating to this
Agreement or the underlying transaction, except with Fuego Entertainment ’s
prior written consent.
MISCELLANEOUS.
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Governing
Law and Jurisdiction. This Agreement shall be governed andconstrued
in
accordance with the laws of the State of Florida without regard to
its
conflicts of laws provisions and without applying the United Nations
Convention on Contracts for the International Sale of Goods. The
sole
jurisdiction and venue for actions related to the subject matter
of this
Agreement shall the state and federal courts located in Dade County,
Florida USA; provided, however, that either Party may seek injunctive
relief and to enforce judgments in any court of competent jurisdiction.
Both Parties consent to the exclusive personal and subject matter
jurisdiction of such courts and each agree that process may be served
in
the manner provided herein for giving notices or otherwise as allowed
state or U.S. federal law. In any action or proceeding to enforce
rights
under this Agreement, the prevailing party shall be entitled to recover
costs and attorneys’ fees.
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Successors
and Assigns. The rights and obligations of the Parties under this
Agreement shall be binding upon and inure to the benefit of the successors
and permitted assigns of the
Parties.
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Force
Majeure. Neither Party shall be held liable or responsible to the
other
Party nor be deemed to have defaulted under or breached this Agreement
for
failure or delay in fulfilling or performing any term of this Agreement
(other than non-payment) when such failure or delay is caused by
or
results from causes beyond the reasonable control of the affected
Party,
including, but not limited to, fire, floods, embargoes, war, acts
of war
(whether war be declared or not), insurrections, riots, civil commotions,
strikes, lockouts or other labor disturbances, acts of God or acts,
omissions or delays in acting by any governmental authority or the
other
Party.
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Severability.
In case any provision of this Agreement shall be invalid, illegal
or
unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain
in
full force and effect and
enforceable.
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Notice.
All notices and other communications provided for hereunder shall
be in
writing and shall be delivered personally or by first class mail,
addressed as follows:
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Addressed
to:
Fuego
Entertainment Inc,
0000
XX
000 Xxxx
Xxxxx
Xxxxx, Xxxxxxx, 00000
Attn:
Xxxx Xxxxxx
Either
Party may by like notice specify or change an address to which notices and
communications shall thereafter be sent. Notices sent by mail shall be effective
upon receipt. Notices given personally shall be effective when
delivered.
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Independent
Contractors. It is expressly agreed that Fuego Entertainment and
the
Producer shall be independent contractors. Neither the entering into,
nor
the performance of this Agreement, shall create any partnership,
joint
venture, agency, or employer-employee relationship between the Parties.
Neither Party has the authority to make any statement, representations
or
commitments of any kind on behalf of the other, or to take any action
that
is binding on the other Party, without the prior written consent
of the
other Party.
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Entire
Agreement; Amendment. This Agreement (including all exhibits attached
hereto) sets forth all of the covenants, promises, agreements, warranties,
representations, conditions and understandings between the Parties
hereto
with respect to the subject matter hereof and supersedes and terminates
all prior agreements and understandings between the Parties. No subsequent
alteration, amendment, change or addition to this Agreement shall
be
binding upon the Parties hereto unless reduced to writing and signed
by
the respective authorized officers of the
Parties.
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Headings.
The captions to the several sections hereof are not a part of this
Agreement, but are merely guides or labels to assist in locating
and
reading the several sections
hereof.
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Waiver.
Except as specifically provided for herein, the waiver from time
to time
by
either of the Parties of any of their rights or their failure to
exercise
any remedy shall not operate or be construed as a continuing waiver
of
same or of any other of such Party’s rights or remedies provided in this
Agreement.
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Counterparts.
This Agreement may be executed by counterparts, of which shall be
deemed
to be originals but both of which shall constitute one and the same
Agreement. Facsimile signatures shall be deemed to have the same
effect as their originals.
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Fuego
Entertainment Inc.
By:
Date:______________________
Its:
_________________________________
THE
PRODUCER
By:
Date:______________________
Its:
_________________________________
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