INDEPENDENT CONTRACTOR/REFERRAL AGREEMENT
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0Xxxxxxxxx.xxx Extreme Sports Division - (Xxxx Xxxxxx)
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Independent Contractor/Referral Agreement ("Agreement") dated as of July 14,
2000, between 0Xxxxxxxxx.xxx, a California corporation ("3D"), and Xxxx Xxxxxx,
an individual who resides in the State of California ("Xxxxxx), in connection
with Xxxxxx'x assistance and participation in the development, promotion and
marketing (the "Services") of 3DXSports, a new division of 3D (the "Division").
3D and Xxxxxx are hereinafter referred to collectively as the "Parties".
3D, a developer and distributor of 3-D Internet e-commerce display technology
("3D's Business"), is the owner of certain proprietary software, virtual
rotations, panoramas, certain detail enhancers and interactive technology
(collectively, "Proprietary Technology") that is utilized and displayed on its
Web sites on the World Wide Web ("WWW") portion of the Internet; and Xxxxxx is a
feature film director and referrer of business to 3D.
NOW, THEREFORE, in consideration of the promises and covenants recited below, it
is hereby agreed by and between 3D and Xxxxxx as follows:
1. DEFINITIONS:
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(a) " Marketing/Promotion Gross Sales" means the revenues billed and
actually collected from third parties such as, sponsors, advertisers,
participants and the like (other than in connection with retail sales
or as otherwise covered by Paragraphs 1.(b) - (d) below), by 3D for the
Division, net of all applicable discounts, returns and credits in the
ordinary course of business, collection costs, and sales, use or other
similar taxes.
(b) "3DXSports Gross Sales" means the revenues billed and actually
collected from sales generated by 3DXSports", net of all applicable
discounts, returns and credits in the ordinary course of business,
collection costs, and sales, use or other similar taxes.
(c) "Truth Soul Armor Gross Sales" means the revenues billed and actually
collected from sales generated by the Truth Soul Parties' (as defined
below) web site, net of all applicable discounts, returns and credits
in the ordinary course of business, collection costs, and sales, use or
other similar taxes.
(d) "Christian Youth Database Gross Sales" means the revenues billed and
actually collected from sales generated by the Parties web site, net of
all applicable discounts, returns and credits in the ordinary course of
business, collection costs, and sales, use or other similar taxes.
(e) "3D Works" means any 3D Proprietary Works or other materials or
information or portions thereof provided by 3D to Xxxxxx in furtherance
of the development of Division or any trademark or trade name of 3D or
any related entity.
(f) 3D Proprietary Works" means any 3D Works, including but not limited to
the Proprietary Technology, any design for the Division, trademarks and
trade names.
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(g) "Term" means the term of the Agreement which shall begin on the date
hereof and continue on an as long as the Division derives revenue from
Xxxxxx Referrals.
(h) "Territory" shall mean the world.
(i) "Xxxxxx Referrals" means the potential or actual revenue-producing
persons or entities referred to 3D by Xxxxxx hereunder.
2. INDEPENDENT CONTRACTOR/NO PARTNERSHIP OR AGENCY: Xxxxxx is an independent
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contractor and not 3D's employee or agent. Xxxxxx will not have (nor will he
hold himself out as having) any authority to: make any agreements or
representations on 3D's behalf, or to hold himself out to be 3D's employee,
agent, or servant. Xxxxxx is not entitled to any compensation for his Services
except as provided herein. Xxxxxx, and not 3D, will be responsible for, among
other things, payment of his workers' compensation, disability benefits, and
unemployment insurance, and for withholding income taxes and social security.
Xxxxxx will not be entitled to receive any benefits provided by 3D. Nothing
contained herein will be construed to constitute the parties as partners or
joint venturers or constitute either party as agent of the other, nor will any
similar relationship be deemed to exist between them.
3. RESPONSIBILITIES: Xxxxxx shall use his best efforts to develop a marketing
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alliance between Truth Soul Armor, LLC ("Soul Armor"), a Michigan limited
liability company, Truth Builders, LLC ("Truth"), a Michigan limited liability
company (collectively referred to as the "Truth Soul Parties"), and the Division
for marketing and promoting the feature film "Extreme Days" on the Division's
web site. Specifically, Xxxxxx shall: (i) provide 3D access to exploit and
participate in any and all of the Truth Parties actual and potential Film
marketing initiatives and strategies in order to translate or modify them for
exploitation on the WWW; (ii) provide 3D with unlimited access to the Truth
Parties Christian youth database; and (iii) provide 3D with behind-the-scenes
footage ("BTS Footage") together with all exploitation rights thereto, as
follows: three 20-30 second BTS Footage promotional clips for each of the five
extreme sports categories (for a total of 15 clips). A copy of the signed Deal
Memo dated as of May 16, 2000, between 3D and the Truth Soul Parties is attached
hereto as Exhibit "B".
4. 3D TRADEMARKS/SERVICE MARKS: This Agreement is specifically conditioned upon
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Xxxxxx'x full observance and performance of 3D's instructions regarding 3D's
trademark/service xxxx protection.
5. CONFIDENTIALITY: Xxxxxx will sign a Non-Disclosure Agreement in 3D's
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usual form attached hereto as Exhibit "A".
6. CASH COMPENSATION/EXPENSE REIMBURSEMENT:
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(a) Advance on Commissions: Xxxxxx shall immediately receive an advance
against future Commission of $30,000 ("Advance"). To the extent any
portion of the Advance exceeds Xxxxxx'x Commissions earned in any given
period, such excess amounts shall be perpetually credited against all
Xxxxxx'x future Commissions until such Commissions earned are sufficient
to cover the Advance.
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(b) Commission:
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a. Rate: During the Term of this Agreement, in connection with
revenues to the Division of 3D directly resulting from
Xxxxxx'x business efforts, 3D shall pay Xxxxxx the following sales
commissions ("Commissions"):
1. 5% of Marketing/Promotion Gross Sales as defined in
Paragraph 1. (a);
2. 2% of 3DXSports Gross Sales as defined in Paragraph 1. (b);
3. 2% of Christian Youth Gross Sales as defined in Paragraph 1.
(c); and
4. 1% of Truth Soul Armor Gross Sales as defined in Paragraph
1. (d).
The applicable sales revenues shall be credited to Xxxxxx'x
account for Commission purposes in the same manner in which such
sales are accounted for by 3D (i.e., Xxxxxx shall be entitled to
the Commission rate corresponding to the particular account which
is credited by 3D as having earned the relevant revenues).
b. Statements: 3D will compute Xxxxxx'x Commission, if any, at least
four (4) times per year, at the end of each calendar quarter (at
3D's election, it may opt to provide Commission Statement(s) to
Xxxxxx on a monthly basis). Within thirty (30) days after the last
day of a calendar quarter (or month, as applicable), 3D will
provide Xxxxxx with a statement ("Commission Statement")
indicating the Commissions due Xxxxxx, if any, less: (i) any
amounts 3D sets off based upon the Advance amounts paid by 3D to
Xxxxxx hereunder; and (ii) any amounts 3D sets off based upon an
obligation or liability of Xxxxxx to 3D arising under this
Agreement or any other agreement between the Parties. 3D shall be
relieved of its obligations under this Paragraph if Xxxxxx is in
material breach of any of its obligations under this Agreement.
c. During the term of the Agreement, after reasonable prior notice to
3D and not more often than once annually, Xxxxxx shall have the
right, through his representatives and accountants, at his own
cost, during normal business hours of 3D, to audit the books and
accounts of the Division as those books and accounts relate to
sales generated by Xxxxxx hereunder.
7. WARRANTIES AND REPRESENTATIONS:
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(a) Xxxxxx: Xxxxxx warrants and represents to 3D that: (i) he has the
right, power and authority to enter into this Agreement, and to fully
perform all of its obligations hereunder, including, without
limitation, the Services; (ii) he has not entered into any separate
agreement or arrangement with any third party that is inconsistent with
any of the rights herein granted to 3D; and (iii) he will not, during
the Term of this Agreement or at any time thereafter, attack, dispute,
or contest, directly or indirectly, 3D's exclusive right and title to
the 3D Proprietary Works or the 3D Works or the validity of 3D's
trademarks, service marks or patents, nor will Xxxxxx assist or aid
others to do so.
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(b) 3D: 3D warrants and represents to Xxxxxx that 3D has the right and
authority to enter into and perform -- its obligations under this
Agreement.
8. INDEMNIFICATION:
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(a) By 3D: 3D shall indemnify, defend and hold Xxxxxx harmless from any
claims, demands, liabilities, losses, damages, judgments or
settlements, including all reasonable costs and expenses related
thereto including attorneys' fees, directly or indirectly resulting
from any claimed breach of warranty, 3D Works malfunction or defect, or
infringement or violation of any patent or other intellectual property
right with respect to the 3D Works, so long as the 3D Works are used in
accordance with the documentation and specifications provided by 3D,
and Xxxxxx has adhered to its obligations under this Agreement.
(b) By Xxxxxx: Xxxxxx shall indemnify, defend and hold harmless 3D and its
owners, proprietors, officers, shareholders, directors, agents,
employees, affiliates and subsidiaries, and successors in interest
thereto, from and against any action, claim, demand or liability,
including reasonable attorney's fees and costs, arising from or
relating to: (i) Xxxxxx'x breach of this Agreement; (ii) the negligence
or willful misconduct of Xxxxxx; and (iii) any claimed breach of
warranty hereunder.
(c) Conditions: Notwithstanding the foregoing, the indemnifying party is
under no obligation to indemnify ---------- and hold the other party
harmless unless: (i) the indemnifying party shall have been promptly
notified of the suit or claim by the indemnified party and furnished by
the indemnified party with a copy of each communication, notice or
other action relating to said claim; (ii) the indemnifying party shall
have the right to assume sole authority to conduct the trial or
settlement of such claim or any negotiations related thereto at the
party's own expense; and (iii) the indemnified party shall provide
reasonable information and assistance requested by the indemnifying
party in connection with such claim or suit.
9. FORCE MAJEURE: Neither party will be liable for any delay or failure to
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perform under this Agreement if and to the extent such failure is reasonably
beyond the control and without the fault or negligence of the party claiming
excusable delay. The party claiming excusable delay must promptly notify the
other party of such delay. If the delay continues for more than thirty (30) days
and involves a material obligation, the party not claiming excusable delay may
terminate this Agreement by giving fourteen (14) calendar days written notice to
the other party; provided that the Agreement will not terminate if the party
claiming excusable delay substantially performs the obligation which has been
delayed within fourteen (14) days after receipt of notice of such termination.
10. NOTICES/PAYMENTS: All notices will be in writing and will be delivered
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personally or sent by confirmed facsimile transmission, overnight letter or
United States certified mail, proper postage prepaid. Notices and payments
hereunder shall be directed as follows:
To 3D: To Xxxxxx:
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0Xxxxxxxxx.xxx Xxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxxxxx 00000 Xxxxxxx
Xxxxxx xxx Xxx, XX 00000 Xxxxxxx Xxxx, XX 00000
Attn: Legal Department (Notices) SS# ###-##-####
Finance Department (Payments)
Fax: (000) 000-0000 Fax: (000) 0000000
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11. CHOICE OF LAW: This Agreement has been entered into in the State of
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California and will be governed by those laws thereof without regard to conflict
of laws principles. Any disputes which arise under this Agreement, even after
the termination of this Agreement, that cannot be resolved through good faith
discussions, will be heard only in the State or Federal courts located in the
City of Los Angeles, State of California, and Xxxxxx expressly agrees to submit
itself to the jurisdiction of the foregoing courts.
12. WAIVER: A failure of either party to exercise any right provided for
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herein shall not be deemed to be awaiver of any right hereunder.
13. SEVERABILITY: Whenever possible, each provision of this Agreement shall be
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interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement. Any unenforceable provision will
be replaced by a mutually acceptable provision which comes closest to the
intention of the Parties at the time the original provision was agreed upon.
14. ACTIONS/RECOVERY OF COSTS: In the event of the bringing of any action
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arising out of or relating to this Agreement, then the party in whose favor the
final judgment or award shall be entered shall be entitled to have and recover
from the other party the costs and expenses incurred in connection therewith, in
addition to its reasonable attorneys' fees, at all trial and appellate levels.
15. SURVIVAL: The following Paragraphs shall survive termination of this
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Agreement: 3., 5., 8., 9, and 11-17.
16. CESSATION OF USE: Upon the termination or expiration of this Agreement for
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any reason, Xxxxxx will immediately discontinue the use of the 3D Works and will
not again use them in any manner whatsoever or hold out to others that it has
the rights therein granted hereunder. Xxxxxx acknowledges that its failure to
act or refrain from acting in accordance with this paragraph will result in
immediate irreparable damage to 3D and to the rights of any subsequent licensee,
that there is no adequate remedy at law for such failure and that 3D or any
subsequent licensee will be entitled to equitable relief by way of injunction,
in addition to such further relief a court may deem just and proper.
17. ASSIGNMENT: This Agreement is personal to Xxxxxx and is not assignable by
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Xxxxxx without the express written consent of 3D. Any attempted unauthorized
assignment by Xxxxxx will be null and void and 3D will have the right to
immediately terminate this Agreement in addition to all other rights and
remedies it may obtain due to Xxxxxx'x breach. 3D may assign this entire
Agreement to a subsidiary or affiliate of 3D, provided 3D shall continue to
remain primarily responsible for its obligations under this Agreement. This
Agreement will inure to the benefit of and be binding upon the parties, their
successors and assigns.
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18. ENTIRE AGREEMENT: This Agreement, together with Exhibits "A" and "B"
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attached hereto and by this reference made a part hereof, sets forth the entire
agreement between the Parties in connection with the subject matter hereof and
incorporates, replaces, and supersedes all prior oral or written agreements,
promises, proposals, representations, understandings and negotiations between
the Parties. No modification, amendment, supplement to or waiver of any
provision of this Agreement shall be binding upon the Parties hereto unless made
in writing and duly signed by both Parties.
ACCEPTED AND AGREED:
0XXXXXXXXX.XXX ("3D") XXXX XXXXXX ("XXXXXX")
By ____________________________ By_________________________
Xxxxx X. Xxxxxxx Xxxx Xxxxxx
Title: Chief Executive Officer
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