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Exhibit 10.21
SERVICES FOR HIRE AGREEMENT
The Parties, Thane International, Inc. ("THANE"), a Delaware
corporation with offices located in La Quinta, California, and Xxx Xxxxxx
Fitness, Inc., a Georgia corporation with offices located in resides in Canton,
Georgia, enter into this Agreement effective August 24, 2000 ("EFFECTIVE DATE"),
with reference to the following facts.
WHEREAS THANE is a marketing company that develops and produces
consumer products and produces infomercials and television commercials to
promote products throughout the world.
WHEREAS THANE and Xxx Xxxxxx Fitness, Inc. desire to employ the
personal services of Xxx Xxxxxx (collectively "SPOKESPERSON") to appear as a
presenter for a Product known as "AB DOER " ("PRODUCT") on QVC on a work for
hire basis.
WHEREAS SPOKESPERSON desires to provide her personal services for the
Product on a work for hire basis.
NOW THEREFORE, THANE and SPOKESPERSON agree to the following terms and
conditions in exchange for the mutual promises and covenants set forth in this
Agreement.
1. WARRANTIES & COVENANTS.
1.1 THANE. THANE warrants, promises, and covenants that it: (i) has
the complete right, power and authority to enter into this Agreement.
1.2 SPOKESPERSON. SPOKESPERSON warrants, promises, and covenants that
she: (i) has the present right, power and authority to enter into this
Agreement; and, (ii) will use her best efforts to provide her personal services
as set forth in this Agreement.
2. PERSONAL SERVICES ON WORK FOR HIRE BASIS.
2.1 PERSONAL SERVICES. In exchange for the compensation and other
consideration set forth in this Agreement, THANE engages SPOKESPERSON's
services, and SPOKESPERSON agrees THANE may utilize SPOKESPERSON's personal
services in the form of personal appearances by SPOKESPERSON on QVC as a
presenter of the Product. SPOKESPERSON will supply marketing expertise as well
as aid, on an as needed basis, in presenting the Product to merchandising staff
and the legal department at QVC. SPOKESPERSON shall work in conjunction with
THANE and QVC to prepare Product presentation, coordinate presentation with QVC
production staff, and present Product on
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air as approved and to the best of her ability. SPOKESPERSON shall only make
Product claims that are pre-approved and supplied by THANE.
2.2 FUTURE SERVICES. If SPOKESPERSON is successful in marketing the
Product on QVC, then at THANE's request, SPOKESPERSON agrees to provide
additional future services and make future appearances on QVC to promote the
Product, subject to the same terms is this Agreement. If THANE uses
SPOKESPERSON's additional services, THANE shall reimburse SPOKESPERSON for
reasonable travel and lodging expense incurred (travel expense over $125.00
should be pre-approved by THANE), payable within ten working days of submission
of receipts for same to THANE's accounting department. THANE shall book airline
and hotel for SPOKESPERSON. QVC, THANE and SPOKESPERSON will determine the time,
place and manner of such future services by mutual agreement.
2.3 NON-COMPETITION. During the Term of this Agreement and for 6
months thereafter SPOKESPERSON shall not act as the talent, the presenter, nor
be a sales representative for any same-type, competitive products on any
shopping channel. During the Term of this Agreement, and for 6 months after
termination of this Agreement, SPOKESPERSON shall not appear in an information
or spot with a competitive product.
2.4 EXPANDED PRODUCT LINE. QVC and THANE may expand the Product line
and SPOKESPERSON shall be paid for such additional product line items sold on
the same basis as the initial Product pursuant to Section 6 herein.
2.5 WORK FOR HIRE BASIS. SPOKESPERSON acknowledges and agrees that she
provides her services on a work for hire basis whereby she has no claim of any
ownership rights and that THANE shall own, from inception, all right, title and
interest in the results and proceeds of SPOKESPERSON's services and employment
as set forth in this Agreement.
2.6 TERM. The Term of this Agreement shall be three (3) years or may
be longer so long as SPOKESPERSON continues to be successful at marketing the
Product pursuant to Section 2.2 above, or may terminate sooner if THANE does not
utilize SPOKESPERSON's services for a period longer than 120 days.
3. INDEPENDENT CONTRACTOR. SPOKESPERSON acknowledges and agrees that she will
provide her services as an independent contractor. SPOKESPERSON agrees to assume
full responsibility for any and all of her tax obligations, social security
payments, dues, pension and welfare fees, and any other deductions and fees for
all federal, state and local agencies. SPOKESPERSON agrees to hold THANE, its
successors, assigns, licensees, agents, associates, directors and employees
harmless from any and all claims, damages, costs and expenses, attorney's fees,
recoveries, and settlements which arises from, or may arise out of any unpaid
employment taxes, payroll deductions, or any and all dues, fees and payments
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regarding the compensation given to SPOKESPERSON by this Agreement.
4. GRANT OF RIGHTS. SPOKESPERSON agrees that THANE shall be the sole and
exclusive owner, in perpetuity, throughout the World of all rights granted to
THANE in this Agreement, including:
(a) the exclusive right to all results and proceeds from
SPOKESPERSON's personal services, appearances and performances in relation to
the Product;
(b) the exclusive right to film, videotape, and record SPOKESPERSON's
voice, and all, or any part, of SPOKESPERSON's services, appearances and
performances for industry publicity purposes; and
(c) the right to use copy of the QVC reel if any, for industry
publicity purposes.
5. ASSIGNMENT OF RIGHTS. THANE shall have the complete power, right and
authority to assign any and all rights granted under this Agreement to any
person, entity or company. THANE agrees to notify SPOKESPERSON of any such
assignment. THANE agrees to remain liable for its obligations to SPOKESPERSON as
set forth in this Agreement, unless the assignee assumes such obligations and
SPOKESPERSON accepts such assumption. SPOKESPERSON may not assign her
obligations without the prior written consent of THANE.
6. COMPENSATION.
6.1 REGULAR COMPENSATION. If SPOKESPERSON provides the services and
fulfills the duties and obligations according to the terms and conditions of
this Agreement, THANE agrees to pay SPOKESPERSON [*****] percent ([*****])% of
Net Revenue from the sale of the all Product generated from SPOKESPERSON's
appearance on QVC as contemplated herein ("ROYALTY".) "NET REVENUE" is defined
as all revenue received by THANE from the sale of the Produce generated by
SPOKESPERSON, including buy anytime, and sell through, on QVC, minus refunds,
actual returns, and [*****]% rolling return reserve. SPOKESPERSON shall be paid
30 days from the end of month that THANE receives payment from QVC accompanied
by accurate accounting statements setting forth all sales, returns, reserves,
and Royalty for each monthly period in accordance with Attachment "A".
Compensation shall be payable to Xxx Xxxxxx of Xxx Xxxxxx Fitness, Inc., and
mailed to her agent c/o Xxxx Xxxxxxx, at the address of 0000 Xxxxxx Xxx,
Xxxxxxxxxxxx, Xxxxxxx 00000. Xxx Xxxxxx Fitness, Inc.'s corporate ID# is
00-0000000.
6.2 EXPENSE REIMBURSEMENT. THANE shall reimburse SPOKESPERSON for
reasonable travel and lodging expense incurred (travel expense over $125.00
should be pre-approved by THANE), payable within ten working days of submission
of receipts for same to THANE's accounting department. THANE shall book airline
and hotel for SPOKESPERSON.
6.3 NO ADDITIONAL COMPENSATION. SPOKESPERSON agrees that she is not
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eligible for, nor will she receive from THANE, any additional compensation.
7. CONFIDENTIALITY. SPOKESPERSON agrees that all information regarding the
Product, and sale and presentation of the Product, shall be treated as
confidential and shall not be disclosed by her to any third parties without
THANE's prior written approval.
8. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
THANE and SPOKESPERSON that supersedes any prior agreements, written or oral,
respecting the subject matter of this Agreement.
9. CONTROLLING LAW. The laws of the State of California will govern the
interpretation of this Agreement, and the rights and obligations of the parties
to it. A court will consider the terms and conditions of this Agreement to be
severable so that any of its terms, conditions, or clauses shall not invalidate,
or render unenforceable the entire agreement.
10. COST OF ENFORCEMENT. If any party to this Agreement retains the services of
an attorney, or files a lawsuit, to enforce the terms and conditions of this
Agreement, a court may award the prevailing party costs and expenses, including
attorney's fees.
11. NOTICES. Any notice given under this Agreement shall be in writing and
shall only be deemed proper notice if served personally, or by registered or
certified first class mail with return receipt requested, and addressed to the
party to whom the notice is intended at the following addresses. Any change of
address must be in writing and properly delivered to the other Party pursuant to
the requirements of notice set forth in this paragraph.
a) SPOKESPERSON: Xxx Xxxxxx Fitness, Inc.
c/o Xxxx Xxxxxxx
0000 Xxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000 Cell Phone
(000) 000-0000 Fax
b) THANE: Thane International, Inc.
00000 Xxxxx Xxxxxxx, Xxxxx 000
Xx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, with a copy to
The Legal Department
IN WITNESS HEREOF, the parties hereto have executed this Agreement as
of the Effective Date herein.
Xxx Xxxxxx Fitness, Inc.: THANE INTERNATIONAL, INC.
/s/ Xxx Xxxxxx /s/ Xxxxxx Xxxxx
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Signature of Xxx Xxxxxx, Signature of Xxxxxx Xxxxx,
President President of Thane Distribution
Group, a division of Thane
International, Inc.
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ATTACHMENT "A"
ELECTRONIC RETAILING TALENT ROYALTY CALCULATION
RETURN ALLOWANCE CALCULATION FORMULA
Revenue $
(Returns) $
(Return Reserve Allowance) $
Net Revenue $
Talent Royalty Percentage $
Thane will work with a [*****]% return reserve on new products. This will roll
over every 90 days.
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