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EXHIBIT 10.3
Essertier & Xxxxxxxxx
AGREEMENT
We are pleased to set forth the terms of an agreement under which Essertier &
Xxxxxxxxx, Inc. (E&B) will provide advertising, marketing and related creative
and media service as Agency of Record to NatureWell, Inc. (NAWL) effective
June 20, 2001.
I. Appointment and Authorization of Essertier & Xxxxxxxxx:
Essertier & Xxxxxxxxx is hereby retained and appointed to represent NatureWell,
Inc. in carrying out its trade and consumer communications program for
NatureWell MigraSpray, MigraDaily and any other related products. E& B is
authorized to enter into contracts with third parties to carry out the purposes
of this Agreement, and E&B shall be liable to such parties for all payments.
E&B shall use its best efforts to prevent any loss to NAWL from the failure of
proper performance by any third party.
II. Services:
E & B's services to NAWL shall include the following:
A. Marketing counsel and creative strategy development.
1. Identifying advertising, promotion, collateral and merchandising issues
and opportunities relative to NatureWell MigraSpray, MigraDaily and any other
NatureWell products.
2. Developing and recommending creative strategies and techniques to address
those issues and opportunities.
B. Advertising and promotion services.
1. Creating advertising, promotions, and other marketing concepts which
properly position NAWL and its products and services in its various market
areas, and presenting them to NAWL management in a timely manner.
2. Executing those concepts, which are approved by NAWL in a manner
consistent with agreed creative strategy, and consistent with the desired image
of NAWL.
3. Producing required materials for promotion, media advertising, direct
marketing, merchandising, web site and sales support.
4. Planning various media against agreed to media objectives.
C. Other services.
1. Meeting and consulting with NAWL sales force and brokers on a timely
basis.
2. Negotiate, arrange and contract for any special talent required and for
all photography, models, special effects, layouts and art work and for all
printing, including any required engravings, electrotypes, typography and any
other necessary technical material including video for use in the marketing
program, when directed to do so by NAWL.
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3. Purchase and place media when directed to do so by NAWL.
4. Auditing, paying and rebilling of vendor and supplier charges incurred on
behalf of NAWL, supervising the activities of suppliers of materials, and
making timely payments for all persons or firms supplying goods or services in
connection with the marketing programs and assignments.
III. Compensation:
E&B will be compensated for its consulting, management, creative, execution,
media and production services as follows:
A. All media buying and placement will be invoiced at net agency cost plus 5%
for all paid media. This will include all print advertising, outdoor, radio,
television and other as they should occur,
B. Compensation for client contact, consulting, management, presentation and
input, strategy, creative concepts and media planning and placement will be
paid to E&B as a monthly fee of $18,750.00. This fee will include concepts,
initial layouts, copy writing, planning and administration and all management
fees and agency time for supervision of finished layouts, finished artwork,
promotion fulfillment and implementation as required and supervision of
production of materials such as photography, illustration, typesetting,
photostats, film and video production, web site production and print
production. Monthly fees to be invoiced at the beginning of each month.
C. All mechanical artwork, illustrations, comprehensives, print production
expenses and media production expenses incurred out-of-pocket on behalf of
NAWL, including typesetting, photostats, photography, film processing, talent
and modeling costs, color separations, video and audio production expenses, web
site production expenses and printing production expenses such as mechanicals,
plate making, gravure cylinders, assembly, stripping, press preparation and
printing will be invoiced to NAWL at net agency cost plus 5%.
All other out-of-pocket expenses incurred on behalf of NAWL and approved by
NAWL in advance, such as travel and related expenses, postage, messenger and
freight services, will be invoiced to NAWL at net agency cost.
IV. Advertising Costs and Expenditures:
A. All E&B invoices to NatureWell, Inc. will be paid by NAWL within 30 days
of the date listed on the invoice unless otherwise agreed to by E&B and NAWL.
X. XXXX shall reimburse E&B for all costs incurred and expenditures made on
its behalf for approved advertising, except as specifically provided in this
Agreement.
X. XXXX shall pay E&B for its direct costs of mailing, packaging, shipping,
taxes (except for E & B's federal, state and local Income taxes) and duties and
telephone calls and telegrams incurred by E&B in connection with the
performance of this Agreement.
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X. XXXX shall pay all of E & B's costs for any necessary traveling done on
behalf of NAWL and when approved in advance by NAWL.
E. If media or other charges increase or decline after E&B has submitted an
estimate, NAWL shall pay for such increase or be given a credit for such
reduction, as the case may be. If the amount of space or time or other
advertising services actually used are less than those previously contracted
for, NAWL shall pay for any increased rate charged by the media due to loss of
volume discount or because of higher scheduled rates. It additional space or
time or services are so used, thereby resulting in a lower rate; NAWL shall
make payments at such lower rate.
F. If NAWL, after having approved any planned advertising, cancels all or any
part of thereof, NAWL shall pay for all costs incurred therefore to the date of
cancellation and any unavoidable costs incurred thereafter, including any non-
cancelable commitments for time or space. E&B shall receive its net plus 5%
payment on all such costs actually incurred, as specified in paragraph III A
above.
V. Commitments and Payments:
A. E&B shall not incur any obligations or provide any services for NAWL
account without first obtaining written approval from NAWL's Director of
Marketing or any other person or persons duly designated by NAWL in writing. In
order to obtain NAWL's approval, E&B shall submit written proposals to NAWL
containing full descriptions of the proposed advertisements and estimates of
the cost of the obligations or services involved, including media cost, cost of
preparation of the advertisements, cost of production and any additional costs,
such as travel, mailing, postage and similar items. E&B shall not be
responsible for missed deadlines, closing dates or insertions caused by NAWL's
delay in approving the advertising proposals.
B. E&B will submit estimates for all production of materials, and obtain
prior written authorization from NAWL before making any commitment with a value
of $200.00 or more on NAWL's behalf.
C. E&B shall xxxx XXXX on E & B's standard forms in conformity with the
standards recommended by the American Association of Advertising Agencies. E&B
shall provide substantiation of performance; i.e. space agreements and tear
sheets, vendor invoices for services, bills of lading, freight costs, etc.
D. E&B shall xxxx XXXX from time to time as necessary to take advantage of
cash discounts provided by the media or suppliers. Bills estimating the costs
involved may be preliminarily used, but final, detailed bills, supported by
invoices of charges and showing all adjustments and credits, shall be submitted
to NAWL as soon as possible.
E. Cash discounts allowed by vendors for prompt payment will be credited to
NAWL provided payment is made in accordance with the cash discount terms stated
on the vendor's invoice. E&B may submit copies of vendor invoices as
substantiation for out-of-pocket costs along with E&B invoices.
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F. For projects under this Agreement which require a longer period of time to
complete (more than 60 days), vendor charges and staff time may be billed as
they occur, rather than at the completion of the project, provided
substantiation of services to date of invoice are submitted.X. XXXX shall pay
bills not later than thirty days after receipt of invoice, except when earlier
payment is agreed to by NAWL.X. XXXX shall be entitled to proof of payment by
E&B of all sums expended on NAWL's behalf. NAWL or its duly authorized
representative shall have the right to examine E & B's books and records in
regards to NAWL's account at all reasonable xxxx.XX. Duration and
Termination:A. This Agreement shall become effective June 20, 2001 and shall
continue in force for one year unless sooner terminated as provided herein.B.
Either party may terminate this Agreement by giving the other party written
notice at least 60 days prior to the effective date of the termination. Upon
receipt of notice of termination, E&B shall not commence work on any, new
advertisement, nor complete any assignment without prior written approval from
NAWL. All other rights and duties of the parties shall continue during such
notice period and NAWL shall be responsible to E&B for the payment of any
contract obligation incurred with third parties during this period. If either
NAWL or E&B desires to terminate work in progress commenced before receipt of
notice of termination, it may do so only upon the parties' mutual consent and
the determination and payment of the compensation to be received by E&B for
partially completed work.
G. Upon termination, E&B shall turn over all advertising plans, promotion
plans, web site plans, media plans, artwork and advertising records and
correspondence to NAWL in a prompt and orderly fashion, and will notify all
suppliers, vendors and media of the terminations. Upon termination, all out of-
pocket costs incurred on NAWL's behalf will be payable to E&B immediately upon
submission of valid invoices, provided all prior artwork and artwork in
progress, including but not limited to all mechanicals, has been turned over to
NAWL.D. Upon termination of this Agreement, E&B shall assign to NAWL all of its
right in contracts, agreements, arrangements or other transactions made with
third parties for NAWL's account, effective on the date of termination or on
such other date as may be agreed upon by the parties. NAWL shall assume all
obligations and indemnify and hold E&B harmless from all liability thereunder.
If any contract is non-assignable and consent to assignment is refused, or E&B
cannot obtain a release from its obligations, E&B shall continue performance
and NAWL shall meet its obligations as to the unassigned or unreleased
contracts only to E&B as though this Agreement had not been terminated.E.
Nothing herein shall preclude either party from terminating this Agreement at
any time, on 30 days written notice, in the event the other party commits a
material breach of this Agreement.
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VII. General Terms:A. Cancellation: NAWL shall have the sole and exclusive
right to modify, reject or cancel any work which previously had NAWL's
approval. NAWL will be responsible for all out-of-pocket costs incurred on such
work to date.B. Independent Contractors: E&B shall be considered an independent
contractor and in no event shall E&B, its employees, agents, or representative
be considered employees of NAWL. In conjunction with this Agreement, E&B shall
comply with all federal, state, county and local laws and regulations regarding
an independent contractor and corporate employer.C. Audits and Inspection: E&B
shall retain all accounts, records and other documents relating to the services
provided hereunder which shall be open to NAWL's audit or inspection at all
reasonable times during the term of the Agreement and for a period of two years
thereafter.D. Ownership of Inventions: E&B agrees that all ideas, inventions,
discoveries, writings, materials, designs and improvements ("ideas") arising
out of the services provided hereunder, whether or not patentable, conceived or
reduced to practice by any officer, employee, agent or subcontractor, or other
representative of E&B, either individually or with others, or in collaboration
with NAWL shall be hereafter, as between NAWL and E&B, the sole and exclusive
property of NAWL, its successors and assigns without any obligation to pay E&B
compensation other than that which E&B is entitled to receive thereunder.E.
Confidentiality: E&B shall not directly or indirectly disclose or use, either
during the term of this Agreement or thereafter, any secret or confidential
information, materials and knowledge acquired from NAWL pursuant to this
Agreement. In addition, any knowledge obtained regarding NAWL's products,
designs or business plans shall be maintained in confidence. The obligations of
this paragraph do not apply to information which:1. at the time of disclosure
was in the public domain in the same format;2. subsequent to the time of
disclosure, becomes part of the public domain through no fault of E&B;
3. is obtained from a third party not under obligation to NAWL: or NAWL, in
writing, authorizes to be releasedF. On Goinq Contract: It is agreed that NAWL
and E&B will negotiate in good faith a new contract based on NAWL and E&B needs
(TBD) prior to the expiration of this Agreement.G. Indemnification: E&B shall
indemnify and hold NAWL harmless from and against (a) any and all claims
arising from contracts between E&B and third parties made pursuant to this
Agreement.
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1. E&B shall be responsible for obtaining the necessary contracts and
releases with or from all parties whose names,likenesses, scripts, musical
compositions or similar materials or rights are used in NAWL's advertising,
promotional, publicity or other materials prepared and produced by E&B under
this Agreement, except where NAWL undertakes to be responsible for obtaining
the same.2. E&B agrees to indemnify NAWL against any and all losses, damages,
liabilities, claims, demands, suits and expenses (including reasonable
attorney's fees) NAWL may incur or be liable for as a result of any claim, suit
or proceeding made or brought against NAWL based upon or arising out of any
advertising, promotional, publicity or other materials created and furnished by
E&B for NAWL alleging slander, defamation, invasion of privacy, plagiarism,
idea misappropriation, infringement of common law copyright or property right,
or other risks.3. NAWL shall be responsible for the accuracy, completeness and
propriety of information concerning its organization, products, services and
industry which NAWL furnishes to E&B. It will be NAWL's responsibility to
review all advertising, promotional, publicity and other materials prepared by
E&B under this Agreement to confirm that representations, direct or implied,
with respect to NAWL's organization, products, services and industry are
accurate and supportable by competent and reliable tests or other objective
data then possessed by NAWL, as well as to confirm the accuracy and legality of
the descriptions of NAWL's organization, products, services and industry and
competitive products and services.4. Accordingly, NAWL shall indemnify and hold
E&B harmless from and against any and all losses, damages, liabilities, claims,
demands, suits and expenses (including reasonable attorney's fees) which E&B
may incur or be liable for as a result of any claim, suit or proceeding made or
brought against NAWL based upon or arising out of the preparation or
presentation of promotions, marketing programs or advertising which NAWL has
reviewed including health claims under paragraph F-3 (above).H. Insurance: E&B
shall, at its own expense, during the term of this Agreement, provide
certificates of insurance and continuously maintain in force an Advertiser's
liability policy covering advertising errors and omissions for the benefit of
NAWL in amount of $2,000,000.00. E&B shall also provide and keep current
certificates of insurance showing evidence that E&B is insured for workers
compensation and general liability.I. Warranty: E&B warrants that it is tree to
enter into this Agreement.J. Governing Law: This Agreement shall in all
respects, be construed, interpreted and governed by the laws of the State of
Connecticut.
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K. Entire Agreement: This Agreement contains the entire Agreement between the
parties concerning the project and is a complete and exclusive statement of the
terms thereof, and may not be modified or altered in any manner except by an
instrument in writing signed by or on behalf of the party to be charged by its
duly authorized representative. The waiver by either party of any provision of
this Agreement shall not be deemed to constitute a waiver of any other
provision. The invalidity of any provision of this Agreement shall not impair
the validity of any other provision.L. Assignment and Delegation: Neither party
shall assign any rights or delegate any duties hereunder without the other's
express prior written xxxxxxx.XX WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their duly authorized officers as of the date first
written above.
E&B NAWL
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxxx Xxxxxx
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Xxxxx X.Xxxxxxxxx Xxxxxxx X. Xxxxxx
President CO-CEO
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