THE PLUMBER'S SECRET LLC
00 Xxxx Xxxxx Xxxx
Xxxxx Xxxx, Xxx Xxxxxx 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
March 11, 1999
B.V.T.V. Inc.
I.D. # 00-0000000
f/s/o Xxx Xxxx
P.O. Box 749
Marstons Xxxxx, MA 02648
Gentlemen:
This letter, when executed by B.V.T.V., Inc. ("Supplier") and by The
Plumber's Secret LLC ("PS"), shall constitute a valid and binding agreement
between Supplier and PS with respect to Supplier's providing to PS the
services of Xxx Xxxx ("Artist") to advertise and promote The Plumber's Secret
("Products/Services") upon the terms and conditions hereinafter set forth.
1. TERM. The initial term of this agreement shall commence as
of the date hereof and continue for as long as Vila Enterprises is an owner of
PS (the "Term").
2. SERVICES
(a) Production of Advertising Materials. PS shall have the
right to utilize Artist's services, and Supplier shall cause Artist to render
said services in and in connection with the production of advertising
materials for PS.
(b) Professional Rendition of Services. Supplier agrees to
cause Artist to (i) attend and participate in the production sessions as
requested by PS, and (ii) render services in connection with the production of
the commercials in a first-class, competent and artistic manner as needed
and/or directed by PS subject to Artist's prior commitments. It is understood
that Artist shall not be required to narrate or deliver any copy that violates
Artist's professional status or that Artist believes is factually inaccurate.
3. OWNERSHIP, USE AND TERRITORY.
(a) Supplier acknowledges that neither Supplier nor Artist
will claim any right, title or interest in or to the Materials produced
hereunder, or any elements thereof, or in or to any of PS's trademarks,
service marks, trade names or copyrights. The name, likeness, etc. of Xxx
Xxxx shall remain the property of Supplier.
(b) PS shall have the full and complete right, during the
Term, to broadcast, use, reproduce, publish, copyright and/or exhibit the
Materials, and any versions or revisions thereof, in any and all forms of
audio-visual media, now in existence or hereafter devised, including but not
limited to national and spot television broadcasting, cable, closed circuit
television, industrial usage, electronic media and Internet, anywhere in the
world (the "Territory"), with such frequency and at such times as PC shall
elect.
4. COMPENSATION. In fully consideration for Supplier's and
Artist's performance of the provisions of this Agreement and for all of the
rights and options granted by Supplier and Artist hereunder, PS agrees to pay
and Supplier agrees to accept for the length of the Term:
(a) The sum of $100,000 payable upon execution.
(b) If travel is necessary, PS agrees to provide (i)
first-class round-trip airfare to and from the location where a session is
held for two (2) people, (ii) first-class hotel accommodations for two people,
single room (to include room and room tax only), (iii) local ground
transportation and (iv) actual expenses for two (2) people, which sums shall
not be credited against the fee.
5. USE OF NAME, LIKENESS AND TESTIMONIAL.
(a) During the Term hereof, PS shall have the right to use
and permit the use of Artist's name, likeness, performance, photograph, voice,
biography and/or endorsement in the Products/Services and for purposes of
advertising, promotion and publicity.
(b) Artist warrants and represents that Artist is now and
shall remain a user of Client's Products/Services and that the statements
Artist has made or will make during the Term concerning the Products/Services
reflect Artist's true and honest opinion of and experience with the
Products/Services.
6. RIGHT TO ENTER AGREEMENT. Supplier and Artist have fully
power and authority to enter into this Agreement and to perform all of the
obligations hereunder without violating the legal or equitable rights of any
third party.
7. CITIZENSHIP AND IMMIGRATION. Artist is legally permitted to
perform the services provided hereunder and PS's use of such services shall
not violate any laws or regulations pertaining to the employment of
individuals. At PS's request, Supplier shall provide PS with all necessary
work permits or certification or proof of citizenship.
8. EXECUTION OF SUPPLEMENTAL AGREEMENT. Supplier shall cause
Artist to execute and deliver to PS the inducement letter attached hereto as
Exhibit A and this Agreement shall have no force and effect unless such
inducement letter is signed and delivered by Artist.
9. PAY OR PLAY. PS shall be under no obligation to cause the
Materials produced hereunder to be used or broadcast or to use Artist's
services, it being understood that the sole obligation of PS and Client is to
make the payments required by this Agreement.
10. INDEMNITY.
(a) PS shall defend, indemnify and hold Supplier and Artist
harmless from and against any liability, loss, damage or expense (including
reasonable legal fees and disbursements) arising out of the breach by PS of
this Agreement or as a result of any representation, warranty, information or
materials prepared or supplied by PS concerning advertising or use of PS's
products and/or services or out ofthe production or exhibition of the same, or
any product liability actions brought against Supplier and/or Artist or for any
other claim arising out of the Products/Services produced hereunder.
(b) Supplier and Artist shall defend, indemnify and hold PS
and Client and their respective directors, officers, employees, licensees,
agents and assigns harmless from and against any liability, loss, damage or
expense (including reasonable legal fees and disbursements) arising out of any
breach by Supplier or Artist of any of Supplier's or Artist's representations,
warranties or obligations hereunder.
(c) Each indemnification is conditioned upon prompt notice
to the indemnifying party of any claim, suit or proceeding made or brought
against the indemnified party which the indemnified party believes to be
within the coverage of this paragraph. The indemnifying party shall have the
right to defend such claim, suit or proceeding at its expense with counsel of
its own (or its insurer's) choosing. The parties shall cooperate with each
other in the defense of such claim, suit or proceeding. The provisions of
this paragraph shall survive the termination or expiration of the Term of this
Agreement.
11. INDEPENDENT CONTRACTOR. Supplier's and Artist's respective
status hereunder is that of independent contractors and not employees of PS.
Supplier and Artist shall not be entitled to any benefits from PS including,
without limitation, worker's compensation, disability benefits, health,
medical or life insurance programs, pension, profit sharing or other
employer-benefit plans or programs maintained by PS. Supplier shall discharge
all of Supplier's obligations imposed by any federal state or local law,
regulation or order now or hereafter in force, including but not limited to
the filing of all returns and reports required and the payment of assessments,
taxes, contributions and other sums required by Supplier, and the Supplier
agrees to and does hereby indemnify and hold PS harmless from and against all
claims and demands resulting from Supplier's failure to comply with the
provisions of this paragraph.
12. NO WAIVER. Failure by either party to exercise rights
granted to it herein upon the occurrence of any of the contingencies set forth
in this Agreement shall not in any event constitute a waiver of such rights
upon the recurrence of such contingencies.
13. NOTICES. Service of any notice under this Agreement shall
be deemed to have been sufficiently given if in writing and delivered
personally or mailed by certified mail or registered mail or transmitted by
facsimile to Supplier at the address stated above (facsimile number
508-428-3179) with a copy concurrently to Xxxxxx X. Xxxxxx P.C. (facsimile
number 212-755-0431); and if notice is to be given to PS, then by Supplier
forwarding same in the manner herein set forth to P.S. at the address and fax
number stated above. Any notice so delivered, mailed or transmitted shall be
deemed to have been given on the day it is delivered personally, mailed or
transmitted. Either party, by like notice, may designate a different address
to which notices shall thereafter be sent.
14. CAPTIONS. The captions in this Agreement are inserted
solely for purposes of facilitation easy reference and shall not be construed
in any way as a part of the text, or as altering the substantive provisions
of this Agreement.
15. CHOICE OF LAW. This Agreement shall be construed in
accordance with the substantive laws of the State of New York, excluding its
conflicts of laws rules. Suppliers agrees and consents that jurisdiction and
venue of all matters relating to this Agreement shall be vested exclusively in
the federal, state and local courts within the State of New York unless
otherwise superseded by the arbitration provisions contained in any applicable
collective bargaining agreement to which PS is a signatory.
16. SEVERABILITY. If any provision of this Agreement is
determined to be invalid by a court of competent jurisdiction, such
determination shall in no way affect the validity or enforceability of any
other provision herein.
17. USE OF COUNSEL. Supplier represents that Supplier and
Artist have consulted with legal counsel of their own choosing in connection
with the negotiation and execution of this Agreement or have knowingly chosen
not to do so.
18. ENTIRE UNDERSTANDING. This Agreement constitutes the entire
understanding between Supplier and PS with respect to the subject matter of
this Agreement and supersedes all prior agreements. No waiver, modification
or addition to this Agreement shall be valid unless in writing and signed by
the parties hereto.
Supplier's signature at the end hereof, together with PS's shall
constitute this a binding agreement between the parties hereto.
Very truly yours,
THE PLUMBER'S SECRET LLC
/s/ Xxxxx Xxx
By: ________________________
Xxxxx Xxx
Member
Title: _______________________
3/16/99
Date: _______________________
AGREED AND ACCEPTED;
B.V.T.V. INC.
ID#00-0000000
/s/ Xxxxxx Xxxx
By: ______________________
President
Title: ____________________
March 24, 1999
Date: ____________________
As of ___________________
The Plumber's Secret LLP
00 Xxxx Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Gentlemen/Ladies:
Reference is made to an agreement dated as of March 11, between
B.V.T.V. Inc. and The Plumber's Secret LLC ("PS") for the services of Xxx
Xxxx (the "Agreement").
In order to induce PS to enter into said Agreement with B.V.T.V.
Inc. and in order to induce the execution thereof, I hereby warrant and
represent that I have read said Agreement ant that I agree to perform all of
the obligations and undertakings required of me thereunder and to abide by all
the restrictions contained therein as they are applicable to me, regardless of
whether B.V.T.V. continues to be my employer in connection with such services.
I acknowledge that payments by PS to B.V.T.V. Inc. as set forth in
said Agreement shall fully discharge PS's obligations to me.
Very truly yours,
/s/ Xxxxxx Xxxx
______________________________
Xxx Xxxx
