([******] Denotes Confidential Treatment)
Exhibit 10.19
SERVICES FOR HIRE AGREEMENT
The Parties, Thane International, Inc. ("THANE"), a Delaware
corporation with offices located in La Quinta, California, and Beau Show, Inc.,
a California corporation , with offices in Ojai, CA, on behalf of Xxxx Xxxxx, an
individual (collectively "HOST") enter into this Agreement effective April 9,
2001, with reference to the following facts.
WHEREAS THANE is a marketing company that develops and produces
consumer videos, infomercials and television commercials to promote products
throughout the world. THANE is presently marketing a product known as "Le
Presse" (the "Product") and desires to employ the personal services of Xxxx
Xxxxx to moderate and host an infomercial for the Product (collectively
"Infomercial") on a work for hire basis.
WHEREAS HOST desires to provide his personal services for the
Infomercial on a work for hire basis.
NOW THEREFORE, THANE and HOST 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 HOST. HOST warrants, promises, and covenants that he: (i) has the
present right, power and authority to enter into this Agreement; and, (ii) will
use his best efforts to provide his 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 HOST's personal
services as the host of the Infomercial, including but not limited to, HOST's
personal services in the form of rehearsing, on-camera appearances, photo shots
(for internal use only), testimonials, pick- ups, consultation and other
statements by HOST.
2.2 Work For Hire Basis. HOST acknowledges and agrees that he provides
his services on a work for hire basis whereby he 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 HOST's services and employment as set forth in
this Agreement.
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2.3 Independent Contractor. HOST acknowledges and agrees that he will
provide his services as an independent contractor. HOST agrees to assume full
responsibility for any and all of his tax obligations, social security payments,
dues, pension and welfare fees, and any other deductions and fees for all
federal, state and local agencies. HOST 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 any unpaid employment taxes,
payroll deductions, or any and all dues, fees and payments regarding the
compensation given to HOST by this Agreement.
3. Grant of Rights. HOST agrees that THANE shall be the sole and exclusive
owner, in perpetuity, throughout the World of all rights granted to THANE in
this Agreement, in connection with the marketing of the Product, including:
(a) The right, but not the obligation, to film, videotape, and
photograph the HOST, and record the voice of HOST;
(b) The right to use, and to edit, HOST's name, likeness, and voice,
for use in the Infomercial and instructional video for the purpose of
advertising, sale, publicity and promotion of the Infomercial, the Product, the
instructional video, or ancillary products sold with the Product;
(c) All rights, title and interest HOST may have in all film,
videotape, and audiotape of HOST;
(d) All rights to give, sell, transfer, and exhibit all originals,
copies or reproductions of all such film, videotape, and audiotape of HOST to
any individual, business, network, studio, or publication, or to any of their
assignees, in any manner in connection with the marketing of the Product
throughout the world; and
(e) Ownership of all rights, including but not limited to copyrights,
trademark rights, and publication rights, to use all originals, copies or
reproductions of all film, videotape, and audiotape of HOST, and of the location
produced, and/or recorded in connection with the marketing of the Product,
forever and throughout the world.
4. Assignment of Rights. THANE's 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 HOST of
any such assignment. THANE agrees to remain liable for its obligations to HOST
as set forth in this Agreement, unless the assignee assumes such obligations and
HOST accepts such assumption.
5. Compensation.
5.1 Regular Compensation/Agency Fee. If HOST provides the services and
fulfills the duties and obligations by rehearsing and hosting the Infomercial
according to the terms and conditions of this Agreement, THANE agrees to pay
HOST [******] dollars
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**** Confidential Treatment Requested
($ [******] ), payable on the last shoot day. THANE shall pay all reasonable
travel expenses of HOST.
5.2 Royalty Compensation. If HOST provides the services and fulfills
the duties and obligations according to the terms and conditions of this
Agreement, THANE agrees to pay HOST Royalty Compensation equal to [******]
percent ([*****]%) of Thane Revenue (Defined in Section 5.3). Royalty
Compensation will be accrued during each calendar quarter and be due and payable
on the last day of the month following the quarter end.
5.3 Definition of Thane Revenue. "Thane Revenue" shall mean THANE'S
actual revenue received from the sale of any and all Product as shown in the
Infomercial and as generated from airing the Infomercial, worldwide (excluding
shipping and handling charges, sales and similar taxes, and refunds and
returns). HOST shall have the ability and right to inspect and audit all books
and records concerning the Product, including unit sales, returns, taxes, and
Thane Revenue from the sale of Infomercial Product through airing the
Infomercial. HOST, or its duly appointed representative, will conduct the
inspection only during normal business hours upon a written request submitted to
THANE at least ten (10) business days prior to the day of the inspection.
HOST shall have the ability and right to inspect and audit all books
and records concerning the Product, including unit sales, returns, taxes, and
Thane Revenue from the sale of Infomercial Product through airing the
Infomercial. HOST, or its duly appointed representative, will conduct the
inspection only during normal business hours upon a written request submitted to
THANE at least ten (10) business days prior to the day of the inspection.
6. Non-Competition/Confidentiality. While the Infomercial is airing and for 3
months after the last air date, HOST agrees not to endorse or accept a
consulting and performing assignment from any company for any same-type, vacuum
sealing device without THANE's prior written consent. HOST agrees not to
disclose to any third party, either directly or indirectly, "Confidential
Information", which is not known outside THANE, or readily ascertainable,
relating to THANE's business or the Product, including, but not limited to,
technical information, design drawings, concept, ideas, sketches, wordings,
marketing strategies, production of the Infomercial, media buying strategies,
and business practices of THANE, and agrees that he will exercise due care and
prudence to safeguard and protect, and prevent unauthorized disclosure of, all
Confidential Information. HOST will not use or disclose Confidential Information
during or after the term of services hereunder, except as necessary in the
performance of HOST's duties for THANE or pursuant to THANE policies and
directives. HOST also agrees not to communicate any information about this
Infomercial to any outside organizations (particularly the media or the
infomercial industry) without THANE's prior written consent.
7. Miscellaneous Provisions.
a. Indemnification. THANE agrees to hold HOST harmless from any and
all claims, damages, costs and expenses, attorney's fees, recoveries, and
settlements which arises from, or may arise out of HOST appearance due to the
design, manufacture, and marketing of the Product.
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***** Confidential Treatment Requested
b. Entire Agreement. This Agreement contains the entire understanding
between THANE and HOST that supersedes any prior agreements, written or oral,
respecting the subject matter of this Agreement.
c. 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
d. Cost of Enforcement. If any party to this Agreement retains the
services of an attorney, or files a law suit, to enforce the terms and
conditions of this Agreement, a court may award the prevailing party costs and
expenses, including attorney's fees.
e. 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) HOST: Xxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx
Xxxx, XX 00000
Tel: 000 000-0000
Fax: 000 000-0000
b) THANE: Thane International, Inc.
00000 Xxxxx Xxxxxxx, Xxxxx 000
Xx Xxxxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Tel: 000 000-0000
Fax: 000 000-0000
8. Laws Governing Contract/Arbitration. This Agreement shall be governed by
the laws of the State of California and of the United States as they are applied
to agreements made and wholly to be performed in California. Any dispute between
the parties hereto shall be resolved by binding arbitration in Los Angeles,
California pursuant to the then-existing arbitration rules of the American
Arbitration Association. The parties agree that the courts of Los Angeles County
and Riverside County, California shall have jurisdiction to enforce the
arbitrator's award, and the parties agree to submit to the jurisdiction of such
courts for the purposes of any such enforcement action or any action in aid of
the arbitrator's authority. The parties hereby stipulate that they shall have a
right to discovery on reasonable terms and conditions (as determined by the
arbitrator in the event the parties
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cannot decide), as provided in Section 1283.05 of the California Code of Civil
Procedure, but such discovery shall be conducted promptly and without
unreasonably delaying the hearing of the dispute. In any arbitration or
enforcement action, the prevailing party shall be entitled to its reasonable
attorneys' and accountants' fees and costs. Service of any claim, arbitration or
litigation hereunder may be made against a party hereto by service according to
the same procedure set forth herein for service of notice to such party.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as
of the Effective Date herein.
/s/ Xxxx Xxxxx 5/5/2001
----------------------------
Signature of Xxxx Xxxxx, on behalf of
Beau Show, Inc.
Fed ID# 00-0000000
/s/ Xxxxx Xxx Xxxxx
----------------------------
Signature of Xxxxx Xxx Xxxxx,
On behalf of Thane International, Inc.
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