EXHIBIT 10.6
Agreement for Marketing Services
THIS AGREEMENT, effective as of August 27, 1999 between AIM Energy, Inc., a
corporation organized and existing under the laws of the State of Delaware
having its principal place of business at 000 Xxxx X Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000 ("Client") and National Marketing Associates, a marketing
company having its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 ("Agency").
W I T N E S S E T H :
WHEREAS, the Agency is engaged in the business of providing marketing and
creative services and employs personnel with expertise in the rendering of such
services, and
WHEREAS, The Agency desires to provide trade and consumer marketing
services to Client, and
WHEREAS, Client desires to establish and promote the sale of AIM products
(the "Products"), utilizing the marketing and creative services of the Agency,
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein, the parties agree as follows:
I. Services. From time to time, Client and the Agency will consult with
each other and identify suitable methods of marketing and promoting
the Products and the potential clients to which such marketing and
promotion will be targeted ("Project"). It is anticipated that Agency
Services shall include but not be limited to the following services:
(a) Create, preview, select, formulate, develop and submit to Client
for consideration ideas and plans for coordinated, economical and
effective trade and consumer marketing programs for the Products;
(b) Prepare and maintain analyses of the existing and potential
markets for the Products and features thereof;
(c) Prepare, write, illustrate, design and otherwise prepare
marketing brochures and other marketing material.
(d) Plan, prepare, and supervise the distribution of news
announcements, feature and explanatory material pertaining to AIM
products specifically and the consequences of excessive harmonics
in general for possible publication in consumer and trade press;
(e) Purchase or otherwise acquire reproduction and other necessary
rights in jurisdictions designated by the Client's Director of
Marketing for stories, pictures, photographs and other written
and pictorial works;
(f) At Client's request, plan, prepare and produce collateral
promotional materials;
(g) Review and pay all correct invoices submitted to the Agency for
services utilized on behalf of Client; and
(h) In connection with Agency Services: arrange for timely delivery
and performance of all services.
II. Budgets; Client Approval.
(a) With respect to each Project identified by Client and the Agency,
or any other Services requested by Client from time to time, the
Agency shall receive Client approval and if any Project requested
by Client would cause the Agency to exceed the total compensation
of fees and expenses agreed to for the time period of this
agreement, the Agency and the Client must jointly agree for the
Agency to proceed with the project.
(b) Client shall review and approve all materials prepared by the
Agency, including but not limited to news and explanatory
stories, brochures and other marketing material.
(c) In the event that it becomes apparent to the Agency that the
total compensation it receives for fees and expenses will be
exceeded if a project requested by Client is undertaken, the
Agency shall submit the estimated additional cost to the Client
who must approve the project in writing in advance.
III. Compensation for Agency Services.
(a) The Agency agrees to accept as full compensation for its services
and expenses, commencing August 27, 1999 and concluding on July
31, 2000, a grant of (i) 50,000 restricted shares of Tri-Lite
Inc. common stock and (ii) five-year options to purchase 375,000
restricted shares of Tri-Lite Inc. common stock at $2 per share.
(b) Tri-Lite Inc. agrees to register the above-described restricted
shares and the shares underlying the options by whatever means
available (including on
Form S-8) as soon as practical; and the Agency agrees and
warrants that Xxxx Xxxx is the person providing substantially all
of the services hereunder to Client and that all of the abovesaid
shares and shares underlying the options are to be issued to Xxxx
Xxxx.
(c) Expenses incurred by the Agency in behalf of Client are the sole
responsibility of the Agency.
IV. Term.
(a) Term. The initial term of this Agreement shall commence on August
27, 1999, and shall continue until July 31, 2000.
(b) Right Upon Termination. Upon termination of this Agreement,
Client shall have no obligations to the Agency, provided,
however, any non-cancelable contracts made on Client's behalf or
uncompleted work which cannot be assigned by the Agency to Client
shall, at the discretion of Client, be completed by the Agency at
Client's expense, and provided further that all indemnity
obligations of Client shall survive the termination of this
Agreement. Upon termination of this Agreement, the Agency shall
deliver to Client all Client property and materials in the
Agency's possession and all information regarding Client's
advertising. The Agency shall cooperate in the transfer of all
contracts and agreements with other parties for marketing
materials and all rights and claims thereto. All unused marketing
plans, ideas and materials prepared by the Agency for Client, but
not accepted by
Client prior to the date of termination, shall remain Client's
property and shall be returned to Client.
V. Changes, Termination or Suspension of Work.
Client may request revisions, suspension or termination of any
services provided by the Agency pursuant to this Agreement. Upon receipt of
instructions from Client to modify, suspend or terminate any services, the
Agency shall make every effort to eliminate or decrease any expense in
excess of its stated total compensation, and act as rapidly as possible to
modify, suspend or terminate said services as soon as possible or
practicable.
VI. Ownership of Materials.
All Products ideas, concepts, themes and other intellectual property
rights or marketing materials created by the Agency on Client's behalf
shall be and will remain the property of Client.
VII. Storage and Preservation.
The Agency shall properly store all tapes, files or other materials
developed by or transferred to the Agency by Client. The Agency shall
ensure that all materials be preserved by copying whenever necessary.
VIII. Exclusivity.
Nothing in this Agreement shall be construed as requiring Client to
assign all or any specific portion of its marketing work exclusively to the
Agency for the terms of this Agreement. The Agency shall not solicit or
perform marketing or related services in connection with any other harmonic
mitigation products without the prior written consent of Client.
IX. Indemnification.
The Agency shall indemnify and hold harmless Client, its affiliates,
agents and employees from and against any and all claims, losses, actions,
damages, expenses and all other liabilities, including but not limited to
reasonable attorneys' fees, arising out of services performed by the Agency
for Client. Client shall give prompt notice to the Agency of any such
claim, loss, action, damage, expense or other liability, and shall fully
cooperate in the defense of any such action.
X. Legal Review.
The Agency shall provide, at its own expense, legal review and
approval of all work and services provided hereunder prior to publication
of any marketing material.
XI. Authorizations.
The Agency shall obtain releases, licenses, permits or other necessary
authorization to use photographs, copyrighted materials, artwork or any
other property or rights belonging to third parties obtained by the Agency
for use in performing Agency Services and shall hold Client harmless from
all claims, demands, expenses including reasonable attorneys' fees),
liabilities, suits and proceedings arising out of such use brought before
any court, administrative body, arbitration panel or other tribunal. Client
shall obtain releases, licenses, permits or other necessary authorization
for any property or rights obtained by Client which are used by the Agency
in performing Agency Services, and shall hold the Agency harmless from all
claims, demands, expenses (including reasonable attorneys' fees),
liabilities, suits and proceedings arising out of such use.
XII. Independent Contractor.
All persons employed by the Agency in performance of services
hereunder shall be under the sole and exclusive direction and control of
the Agency, and shall not be considered the employees of Client for any
purpose whatsoever. The Agency shall remain at all times an independent
contractor.
XIII. Safeguarding Information.
The Agency shall not, during the period of this Agreement and
extensions thereto or at any time thereafter, reveal or otherwise make
available to any other person, or use for any purpose other than to benefit
Client, any information or trade secrets regarding Client's Products,
services, business, customers, or methods of operation learned by the
Agency while providing services hereunder. Any specifications, drawings,
sketches, models, samples, tools, computer programs, technical or business
information or data, written, oral, in graphic form or otherwise
("Information") furnished to the Agency hereunder or in contemplation
hereof shall remain the property of Client. The provisions of this Section
shall apply to all Agency subcontractors. The Agency shall be responsible
for informing subcontractors of any Information included in any work
subcontracted hereunder, and shall ensure that all subcontractors are in
compliance with this Section.
XIV. Use of Client Name.
The Agency shall not use Client's name, or the name of any affiliate
of Client, as a reference without prior written approval of Client or such
affiliate, provided, however, the Agency may list Client as one of its
clients when furnishing proposals to provide marketing services to
prospective clients. Approval will not be given in any case in which an
endorsement might be inferred. The provisions of this Section shall apply
to Agency Affiliates and to all subcontractors of the Agency.
XV. Assignment.
The Agency may not assign this Agreement or any part thereof to any
Agency Affiliate or any other entity without the prior written consent of
Client.
XVI. Insolvency.
Either party may terminate this Agreement if the other party is
insolvent or makes an assignment for the benefit of creditors.
XVII. Notices.
All notices which may be given by either party to the other shall be
deemed to have been duly given when made in writing and delivered in person
or deposited in the United States mail, postage prepaid, and addressed to
such party at such party's address set forth at the beginning of this
Agreement (or to such other address as such party may designate by written
notice delivered hereunder).
XVIII. Waiver.
Failure to enforce any provision hereof shall not constitute a waiver
of that or any other provision in any other circumstances.
XIX. Entire Agreement.
This Agreement shall constitute the entire Agreement between the
parties with respect to the subject matter and supersedes all previous
agreements and understandings between Client and the Agency relating to the
subject matter hereof.
XX. Governing Law.
This Agreement shall be governed by the laws of the State of
California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
AIM Energy, Inc.
Signature
Print Name and Title
Tri-Lite Inc.
Signature:
Print Name and Title:
National Marketing Associates
Signature:
Print Name and Title: