Exhibit 99.8
Consultant Agreement
BLACK DOG COMMUNICATIONS GROUP, INC..
Xxx Xxxxxx
CEO
Bravo Foods International Corp.
00000 X.X. Xxxxxxx 0, Xxxxx 000
Xxxxx Xxxx Xxxxx, Xx 00000
Dear Xxx:
This letter agreement ("Agreement") sets forth the terms and
conditions under which Black Dog Communications Group, Inc.,10430 Rio
Lindo, Xxxxxx Xxxxx, XX 00000 ("Agency") agrees to provide marketing
communications, public and investor relations and related consulting
services to Bravo Foods International Corp. ("Client"), effective as of
March 12, 2004 (the "Effective Date").
1. Services. Agency shall act as agent of Client to provide a broad
range of marketing communications, investor relations, public relations
and/or advertising services to Client as set forth in Attachment A. In
addition, Agency is prepared to provide a variety of special services to
Client through Agency's own facilities or those of companies affiliated
with Agency. Compensation and other material terms and conditions for these
special services will be agreed upon in advance and in writing.
2. Compensation And Expenses.
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For our services and outlays on your behalf, you agree to pay us
compensation as follows:
a. Retainer Fee. Client shall pay Agency an initial retainer
fee (the "Fee") of $4,500 upon execution of this Agreement with work
to commence thereafter. After the execution of said agreement, Client
shall pay Agency a monthly retainer of $5,500 per month in
immediately transferable/redeemable stock for a period of two months
with said payments due at the end of the initial term. Upon the
conclusion of the initial three month period, both parties will meet
to assess progress and if agreed, the services shall be renewed at
the prevailing rate for an agreed upon time to be outlined in writing
as an addendum to this contract.
b. Hourly Fee. For any additional work over and above what is
contracted for in Attachment A, Client shall pay Agency its standard
hourly time charge incurred by Agency on Client's behalf. The
standard hourly rate of $250 per hour will apply and a written
estimate of hours will be supplied to the Client prior to the
commencement of any additional work
c. Expenses. Client shall reimburse Agency for all Agency's
reasonable, actual outofpocket expenditures upon Client's receipt of
itemization thereof, including but not limited to media luncheons,
travel, media wire service postings and media list research,
trademark search reports and related outside vendor charges, sales
tax, freight shipping, printing, mail, telephone, facsimiles,
messenger and courier services. Any major expenditures (i.e.: video,
print production, broadcast) or single expense in excess of $500 will
require Client's prior approval and be billed directly to Client by
the vendor.
3. Billing
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a. Agency shall xxxx Client for the Fee and any hourly time
charges that exceed the Fee, the reimbursable expenses incurred by Agency
during the previous and/or prior months, and any current outside vendor
estimated or reconciliation amounts. Payment is due upon receipt. In the
event payment is not timely received, Agency reserves the right to charge
Client simple interest on any past due amounts computed at 1 1/2% over the
prime rate of interest in effect at Citibank, N.A., in New York City until
such payment is received. Client agrees to reimburse Agency for any costs
incurred (including reasonable attorneys' fees and court costs) in
connection with Agency's attempts to collect any sums that are over thirty
(30) days past due. In the event of a disputed charge, Client shall notify
Agency in writing of the disputed amount within ten (10) days of the
receipt, specifically identify the reason for the dispute, and pay all
undisputed amounts owed while the dispute is under negotiation.
b. When applicable, media will be pre-billed and Client's payments
must be received by Agency prior to or at the time the media commitment is
made, regardless of when the release of funds to broadcast stations and
print publications is due and owing, unless Client has established a credit
line in excess of the total media buy. Original media billing will be based
on the cost of the media time or space ordered by Agency on Client's behalf
and will be adjusted to actual amounts once the station/publication
invoices have been received and processed.
4. Termination
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a. This Agreement is effective as of the Effective Date first
stated above. This Agreement, will continue in full force and effect from
the Effective Date for a period of three months. Upon the conclusion of the
initial three month period, both parties will meet to assess progress and
if agreed, the services shall be renewed at the prevailing rate for an
agreed upon time to be outlined in writing as an addendum to this contract.
b. Upon termination, any materials or services Agency has
committed to purchase for Client shall be paid for by Client and Agency
shall receive applicable compensation as outlined herein. Agency shall
transfer, assign and make available to Client or Client's representative
all property and materials in Agency's possession or control belonging to
and paid for by Client, provided that there is no overdue indebtedness then
owing by Client to Agency.
5. Third Party Contracts. Client authorizes Agency, subject to Client's
prior written consent, to enter into contracts with third parties in the
event it is determined that such contracts are necessary to properly
perform services on Client's behalf. Client assumes full liability and
responsibility for any expenditures resulting from contracts with such
third parties. While Agency shall endeavor to guard against any loss to
Client resulting from the failure or proper performance by any third party,
Agency shall not be liable or responsible for any such failure or loss. In
addition, Client agrees to indemnify and hold Agency harmless for any
expenses, costs, attorneys fees or related items incurred by Agency as a
result of Client's failure to pay any and all amounts owed to third parties
or any claims raised by third parties against Agency related to such
contracts.
6. Default in Payment. Client understands and acknowledges that Agency
shall have the option not to begin work or continue to perform services on
behalf of client if any payments due under the terms of this agreement are
not paid in full on date on which payment is due. In the event Agency
elects to cease performing services on behalf of Client due to Client's
failure to pay, Agency will provide Client with written notice of its
election and Client will have three (3) days to cure any default. In the
event payment in full is not received within the three (3) day period,
Agency shall have the right to immediately terminate its agreement with
Client. In the event of a termination due to Client's failure to pay,
Client will remain solely liable for outstanding obligations incurred
pursuant to
this Agreement, including any non-cancelable or nontransferable third party
contract(s), all obligations to reimburse Agency and/or third parties, and
Client hereby agrees to indemnify Agency and to hold Agency harmless with
respect to any and all such obligations as provided in Paragraph 5 above.
7. Confidentiality. Agency shall take reasonable steps to ensure that
information or materials Client specifically identifies as proprietary or
confidential information ("Confidential Information") supplied by Client to
Agency is not disclosed to any third party. Confidential Information does
not include information known to Agency prior to disclosure by Client,
information that is publicly known or information available from or
disclosed by a third party not bound in a confidential relationship with
Client. Agency shall inform Client of all requests for or inquiries into
Client's Confidential Information by third parties and shall only provide
same when legally obliged to do so after notice to Client. In the course of
performing the services required of Agency hereunder, Agency may disclose
Confidential Information as Client shall have approved for disclosure.
8. Ownership; Use Of Materials. Subject to any third party rights in
licensed elements, Client shall be sole owner of all rights in and to
materials developed and produced by Agency on Client's behalf, provided
Client has paid all invoices due and owing to Agency pursuant to this
Agreement. Client understands and agrees that its rights in any third party
materials or any services including, without limitation, stock photos,
licensed materials or talent and talent residuals, are subject to any terms
and conditions set forth in any applicable agreement. Agency may use
Client's name and any non-confidential materials produced hereunder in
Agency's portfolio, on Agency's web site, intranet, and for internal and
trade purposes. Agency will be required to obtain Client's advance approval
to utilize Client's trademarks or any Client materials or information to be
in press releases, Agency brochures, or submission for awards.
9. Non-Solicitation. During the Term hereof and for a six-month period
thereafter, Client shall not solicit, employ, or attempt to employ (whether
as employee, consultant or otherwise) any employee of Agency without
Agency's prior written consent. If Client engages the services of an
employee of Agency during the Term hereof or six months thereafter, Client
agrees to pay Agency a fee calculated as twenty (20%) of that person's
annual salary and any other compensation.
10. Client Obligations. Client shall be responsible for the accuracy,
completeness and propriety of: (a) information concerning Client's
organization, products, services and competitors' products and services;
(b) any ideas or directions provided to Agency; (c) compliance with all
securities laws and regulations and/or all other Client industry laws and
regulations; (d) rights, licenses and permissions to use materials
furnished to Agency by Client or on Client's behalf in the performance of
this Agreement; and (e) the content of any press releases or other
disseminated statements approved by Client.
11. Indemnification. Client shall defend, indemnify and hold Agency
harmless from and against any loss, damage, liability, claim, demand,
action, cost and expense (including reasonable attorneys' fees and costs)
(collectively "Loss") resulting from claims made against Agency by any
third party, including any governmental entity, which arises out of or in
connection with Client's obligations under Paragraph 10 above; information
or materials supplied by Client or a third party authorized by Client to
Agency; as a result of any governmental investigation, proceeding or
administrative hearing regarding the Services; including any issue of
safety, product liability or nature or use of or performance of Client's
products, services or premiums. Client's indemnity obligations shall
include, without limitation, payment to Agency for any and all personnel
time incurred in connections with any such claim, suit, proceeding or
subpoena based upon Agency's then-current hourly rates.
12. Limitation Of Liability. In no event whatsoever shall either party be
liable to the other hereunder for any incidental, indirect, special,
consequential or punitive damages or lost profits under any tort, contract,
strict liability or other legal or equitable theory arising out of or
pertaining to the subject matter of this Agreement, even if said party has
been advised of the possibility of or could have foreseen such damages.
13. Use of Materials By Third Parties. After material has been issued by
Agency to the news media or to another third party, its use is no longer
under Agency's control. Agency cannot assure the use of news material by
any news organization. Similarly, Agency cannot control the form or manner
of use by the news media or others of the material, including, but not
limited to, the accurate presentation of information supplied by Agency. It
is understood and agreed that Agency does not stipulate or guarantee
specific or overall results or returns from public relations, publicity,
research or any other activity performed by Agency.
14. Modification of Plans. In the event Client modifies or cancels any
plans or work in process, Client agrees to assume Agency's liability for
all authorized commitments, to reimburse Agency for all expenses incurred
relating thereto, to pay Agency any related service charges in accordance
with the provisions of this Agreement relating thereto, and to indemnify
Agency for all claims and actions by third parties for damages and expenses
that result from carrying out Client's instructions.
15. Force Majeure. Agency shall not be liable for any delay or failure to
carry or make continuously available the Services if such delay or failure
is due to any cause beyond the control of Agency, including without
limitation restrictions of law or regulations, labor disputes, acts of God,
acts of terrorism or war, telecommunications, network or power failures or
interruptions, or mechanical or electronic breakdowns.
16. Arbitration And Governing Law. Any controversy or claim arising out
of or related to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under its
Commercial Arbitration Rules. The controversy or claim shall be settled by
a single arbitrator, and all hearings shall be held in the city in which
Agency is located. Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction. In rendering the award, the
arbitrator shall interpret this Agreement in accordance with the
substantive laws of the city in which the Agency is located, without regard
to its conflict of law rules.
17. Waiver. No waiver of any provision or of any breach of this Agreement
shall constitute a waiver of any other provisions or any other or further
breach, and no such waiver shall be effective unless made in writing and
signed by an authorized representative of the party to be charged with such
a waiver. Nor shall a onetime waiver of a single provision constitute a
permanent waiver of that party's rights under said provision.
18. Entire Agreement; Severability. This Agreement constitutes the
parties' entire understanding of the matters set forth herein and
supersedes any prior understanding or agreement concerning the subject
matter hereof. This Agreement may only be modified in a writing signed by
the parties hereto. In the event that any provision of this Agreement shall
be illegal or otherwise unenforceable, such provision shall be severed, and
the balance of the Agreement shall continue in full force and effect.
19. Affiliated Entities. When applicable, we shall submit a statement
concerning the business and operations of those entities affiliated with
the Agency, which might be utilized by Agency in performing services on
Client's behalf. Client may, at its option, determine whether or not to use
the services of the affiliated entities. Estimates will be submitted for
written approval before
agreed upon work proceeds. Unless otherwise agreed to by the parties, the
terms and conditions of this Agreement shall govern Client's relationship
with any of Agency's affiliated entities.
If the above meets with your approval, kindly indicate your consent by
signing both enclosed originals of this letter where indicated, return one
to us and retain the other for your files.
Very truly yours, ACCEPTED & AGREED
Xxxxxxx X. Xxxxxxx, President CLIENT
Black Dog Communications Group, Inc.,.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxx X. Xxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxx Printed Name: Xxx X. Xxxxxx
Title: President Title: CEO
Date: 4/17/04 Date: 4/17/04
