EXHIBIT 10.4
June 12, 2000
COLLEGE TELEVISION NETWORK
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
The following agreement provides the terms of the contract between US Concepts,
Inc., a New York corporation, (hereinafter referred to as "USC") and CTN Media
Group, Inc., a Delaware corporation (hereinafter referred to as "CTN") for the
Politically Incorrect On Campus (hereinafter referred to as "PIOC") College
Television Network Promotion outlined below in Section I. The parties agree as
follows:
I. SCOPE OF ASSIGNMENT
USC will manage and execute for CTN, the "Politically Incorrect College
Television Network Promotion" ("the Promotion"). The services provided by USC in
order for USC to manage and execute the Promotion under this Agreement include,
but are not limited to, general development and management, event
implementation, personnel management, training, management/logistics, venue
sell-in/coordination, client communication, budget management, shipping and
fulfillment (the "Services"). The Promotion will take place for a duration of 2
months within the time frame of September 1, 2000 through October 31, 2000
consisting of a total of 10 events.
Each event will consist of a live production of Politically Incorrect starring
▇▇▇▇ ▇▇▇▇▇, a high-profile comedian and three (3) other participants to be
selected based on approvals of CTN and PIOC.
USC will execute the Promotion in accordance with the terms and provisions of
this Agreement and Attachments A and B, which are annexed hereto and
incorporated into the Agreement by reference and are made a part hereof. The
term of this Agreement shall begin on February 24, 2000 and terminate upon
completion of Services to be provided herein, but in no event shall such
termination date be later than October 31, 2000.
II. SERVICES TO BE PROVIDED BY USC
USC shall produce, supervise, manage and implement all aspects of the Promotion
as outlined within and shall report Promotion status and results to CTN on a
timely basis as directed by CTN.
USC shall carry out its obligations in accordance with the Budget annexed hereto
as Attachment A. Any deviation therefrom shall require CTN's prior written
consent. USC shall be responsible for delivering all elements of the Services,
as detailed in Section II. of this Agreement and as detailed in the Attachments
and will use its best efforts to manage vendors, personnel and resources to
deliver same for CTN.
1. THE PROMOTION MARKETS
USC shall schedule, contract and execute events to take place at universities to
be approved by both CTN and PIOC.
2. THE EVENTS:
USC shall coordinate local market and on-site logistics with selected schools
and shall execute contracts with each school so that each participating school
shall provide:
a) Appropriate show venue with minimum of 1,500 seats - where available
b) All required production elements: sound, lights, green room, etc.
c) Minimum of two (4) one-half page school newspaper ads and on-campus
flyer distribution to promote the show
d) Rights and approvals to display 100 posters in high traffic locations
to promote the show
e) Post event reception (light refreshments) for 40 people - 20 school/20
CTN
f) Rights for CTN / PIOC / USC/ABC to tape each show and release to any
rights for broadcast or sale
The events will be executed as follows:
o Per the Budget outlined on Attachment A
o Per the Agreement outlined on Attachment C
3. BUDGET ESTIMATES
All asterisked (*) line items in Attachment A are estimates only. CTN will be
billed at actual costs for asterisked (*) line items based on actual post
promotion reconciliation.
USC will make every effort to minimize expenditures
for asterisked (*) line items and shall notify CTN of the actual costs
immediately upon determining such costs.
Billing for all non-asterisked (*) line items in Attachment A shall be for the
amounts indicated on each line item unless otherwise agreed to in writing by
both parties or as otherwise provided for in this Agreement.
4. MATERIALS
USC shall design and produce all program materials as detailed on Atachment A
and approved by CTN and PIOC.
USC represents and warrants that (a) Materials, as detailed in Attachment A,
shall be managed to ensure integrity, safekeeping and security; (b) it shall
hold Materials in safekeeping until such time as they are distributed hereunder
and that no Materials shall be sold or utilized or used for any purposes other
than in connection with this Promotion as detailed herein; and (c) at the
conclusion of the promotion, USC shall, at CTN's direction and expense, either
return, dispose of, or ship as directed any remaining items.
III. SERVICES TO BE PROVIDED BY CTN:
CTN will provide the following services and materials relevant to the execution
of this Promotion as outlined on Attachments A and C, as follows:
a) CTN shall be responsible for gaining necessary approvals from any and all
CTN sponsors, its agencies, advertisers, parent companies, trademark
owners, patent owners, talent and others that are necessary for
production/scheduling of elements such as, but not limited to logos,
trade/service marks, artwork, creative, programming and video footage and
talent appearances
b) CTN is also responsible for any and all costs to provide these materials in
a finished, ready format to be utilized by equipment/processes as approved
by CTN
c) USC shall notify CTN of its requirements regarding materials for approval
d) CTN shall be responsible for designing, registering, bonding and in all
ways administering any sweepstakes or games of chance or skill that are
included in the Promotion
e) Providing advertisement space in the September issue of LINK magazine
IV. COMPENSATION
In full consideration for the services to be provided herein, and all costs and
expenses to be incurred herewith, CTN shall pay USC the amounts specified in
"Attachment A" in accordance with the payment schedule described in "Attachment
B" and the Budget Estimate terms agreed to herein (Section II). USC shall not be
reimbursed for any
additional costs or fees by CTN unless USC has received CTN's
prior written approval or as otherwise provided for in this Agreement.
V. CHANGES TO THE AGREEMENT
Any changes or alterations to this Agreement shall take effect only if agreed to
in writing by both parties.
VI. INDEMNIFICATION
The parties agree that each party is responsible for the acts and omissions of
its respective personnel.
CTN and USC specifically agree not to solicit or hire any employees of the other
party's organization without prior written approval from the other party during
the term of this Agreement and for a period of 18 months from the termination
date of this Agreement.
USC shall indemnify CTN and its respective parents, subsidiaries and affiliates,
and their officers, directors, employees and permitted assignees from and
against any claim, cost, loss, damage, expense or liability, including without
limitation reasonable attorney's fees, disbursements and court costs, arising
out of or relating to any infringement of any trademark, copyright or other
proprietary interest arising from the use of artwork, writing, or other creative
materials produced by USC hereunder to the extent that such infringement is
known by USC or with exercise of reasonable care should have been known, or
relating to a breach by USC of any of its representations, warranties,
covenants, and agreements set forth in this Agreement.
CTN agrees to indemnify, defend, and hold harmless USC, PIOC, and ABC its
parents, subsidiaries and affiliates, and their officers, directors and
employees from and against any claims asserted by a third party against USC
arising out of or in connection with any matter related to materials, equipment,
vehicles, and/or artwork that CTN supplies to USC, if used by USC in accordance
with CTN instructions.
Each party shall provide written notice to the indemnifying party of any claim
for which that party has indemnification obligations under this Section VI,
promptly upon receipt of notice thereof. The indemnifying party shall have the
sole authority to conduct the defense of settlement or compromise of such claim
or any action or proceeding based upon such claim; provided that each party
shall notify the other of the status, including settlement or compromise, of any
such claim, action or proceeding relating to this Agreement.
VII. INSURANCE
USC shall provide a Certificate of General Liability Insurance, of at least Five
Million Dollars ($5,000,000), per occurrence, per event, naming CTN as the
additional insured on the liability insurance only. Such General Liability
Insurance shall not be written on a "claims made" form.
USC shall also procure and maintain Worker's Compensation Insurance in
accordance with relevant state statutory limits, Employer's Liability Insurance
with a limit of not less than $100,000 per occurrence, and Automobile Liability
Insurance covering all owned, hired and non-owned automobile equipment with
limits of not less than $1,000,000 bodily injury and property damage, combined
with Single limit. The Automobile Liability Insurance provides $1,000,000 base
coverage which is supplemented for claims over $1,000,000 by the General
Liability Insurance.
The Indemnification and Insurance paragraphs shall survive the termination of
this Agreement.
VIII. TRADEMARKS
CTN, hereby grants USC permission to use the CTN brand names, trademarks and
logo types ("the Marks") solely to fulfill its obligations under this Agreement.
All such use shall be subject to CTN prior review and written approval. USC
acknowledges that (i) "the Marks" are and shall remain the sole and exclusive
property of CTN; (ii) that this Agreement does not confer upon USC any right or
interest whatsoever in "the Marks" except as specifically provided herein; and,
(iii) USC shall not now or in the future contest the validity of "the Marks".
IX. TERMINATION
Notwithstanding Section I Paragraph 2 herein, this Agreement may be terminated
by written notice to USC for convenience, or if CTN alleges that USC is in
breach of any provision of the Agreement. Within ten (10) days after the
expiration or termination of this Agreement (whichever occurs first), USC shall
deliver to CTN all undistributed Materials in its possession (at CTN's expense).
Within 45 business days from termination of this Agreement, USC shall provide to
CTN a full accounting of all monies expended during the program, including a
full accounting of the number of event days, and shall immediately refund all
sums to CTN which were advanced but not expended minus the Termination Liability
as defined herein in accordance with Attachment A. Upon termination of this
Agreement, USC shall immediately cease to use "the Marks".
TERMINATION LIABILITY
In the case of early termination, for convenience but not for breach by USC, CTN
shall owe a Termination Liability to USC to be calculated as follows: (a) If
written notification of termination is received by USC prior to April 1, 2000,
50% of the USC Administration Fee as detailed in Attachment A will be the agreed
to fee amount; (b) If written notification of termination is received by USC on
or after April 1, 2000 but prior to June 1, 2000, 75% of the USC Administration
Fee detailed in Attachment A will be the agreed to fee amount; (c) If written
notification of termination is received by USC on or after June 1, 2000, 100% of
the USC Administration Fee detailed in Attachment A will be the agreed to fee
amount.
In the case of termination due to alleged breach of Agreement, USC's
Administration Fee, as detailed in Attachment A, will be paid pro-rata up to the
date written notice of termination is received by USC provided, however that CTN
and USC shall have all of its remedies, in law and in equity.
X. CONFIDENTIALITY
USC acknowledges that all information about CTN and their respective parents,
subsidiaries and affiliates, and their officers, directors and employees, its
business, pricing and marketing strategy, advertising, network, rate and pricing
databases, hardware and software systems, operation and customers that USC
and/or its employees, agents and/or subcontractors learn in any way and from any
source as a result of this Promotion or this Agreement are CTN trade secrets and
are confidential and proprietary information of CTN. USC shall receive such
trade secrets and/or confidential or proprietary information in confidence,
shall hold the same in trust, shall not disclose or furnish the same to any
third party without CTN's prior written consent, and shall not use the same for
any purpose other than the performance of its obligations under this Agreement
or otherwise in direct connection with the operation of this Agreement. USC
agrees to use its best efforts and take all lawful measures to ensure its
employees, agents, subcontractors and other representatives fully comply with
the terms of this paragraph, and USC agrees to be responsible for any breaches
of this Confidentiality provision of this Agreement by its employees, agents,
subcontractors and other representatives.
Upon the termination or expiration of this Agreement, USC shall return or, at
the discretion of CTN, destroy all CTN or trade secrets and/or confidential and
proprietary material in USC's care, custody or control. Notwithstanding the
foregoing, this paragraph shall not apply to information that is or becomes
publicly available through no fault of USC, was already in the possession of USC
at the time of disclosure by CTN, is independently developed by USC, or is
legitimately and lawfully obtained by USC from third parties not under
obligations or confidentiality to CTN.
The Confidentiality obligations hereunder shall survive the termination or
expiration of this Agreement.
XI. WARRANTY
USC represents and warrants that it has the full right, power and authority to
enter in this Agreement and to perform its obligations described herein. USC
further warrants that it has the expertise in the development and implementation
of consumer promotions, and that the services it is required to perform will be
performed in strict compliance with all federal, state and local laws and
regulations.
USC warrants that Services to be provided hereunder will be performed in a
professional and workmanlike manner in accordance with the highest applicable
professional standards.
USC warrants that it shall, operate and maintain properly all equipment and
other items utilized to perform the Services contemplated in this Agreement
together with:
1. All necessary spare parts, tools, and equipment for proper
equipment operation and maintenance; and
2. Sufficient licensed and skilled personnel, who shall be employees,
agents, or third party suppliers to USC, to perform required maintenance and
operation of the equipment.
This section shall survive the expiration or termination of this Agreement.
XII. OWNERSHIP OF WORK
All material developed by USC for use by USC and/or CTN and/or PIOC pursuant to
this Agreement shall be deemed "work made for hire" under U.S. copyright law. In
the event any Materials shall not qualify as "work made for hire" within the
meaning of the Copyright Act, USC agrees to assign and hereby does irrevocably
assign its copyrights related to these Materials to CTN in perpetuity, and
shall, without additional charge to CTN and at CTN's request, give CTN such
information and execute any documents required to vest all such copyrights in
CTN. CTN shall have sole ownership and exclusive use of all Materials developed
by USC for USC's and/or CTN's use pursuant to this Agreement.
CTN and its assigns shall have the full, sole and continuing right (without
any payments or liabilities to any person) to use, publish, perform,
reproduce, and distribute throughout the world any or all portions of the
Materials, either as a complete unit or in segments, in any way CTN sees fit,
and for any purpose whatsoever.
XIII. STATUS
USC's status hereunder is that of an independent contractor. USC has no
authority to hire any person on behalf of CTN and neither USC's principals nor
any other person engaged in performing services hereunder shall be employees of
CTN. USC shall comply with all requirements of federal, state and local laws and
regulations regarding an independent contractor and employer. No agency,
partnership, joint venture or employment relationship shall be created or
inferred by the existence or performance of this Agreement, and neither party
shall have any authority to bind the other party in any respect whatsoever.
XIV. EXCLUSIVITY
This Agreement and the assignment provided for herein shall in no way be deemed
exclusive to USC. CTN retains the right to work with any third parties on this
subject matter both during and after the termination of the term of the
Agreement.
No commitment is made either directly or by implication regarding new or
additional assignments from CTN following the completion of the term of this
Agreement.
XV. NON-DISCRIMINATION
This Agreement shall be implemented in strict compliance with all Federal and
State laws regarding discrimination in employment. Specifically, the parties
agree that they will not discriminate by reason of race, color, creed, national
origin, age or sex.
XVI. COMPLETE AGREEMENT
This Agreement sets forth the entire Agreement between the parties concerning
the promotions, superseding all prior verbal or written communications with
respect to the terms hereof and may not be altered, modified or changed in any
way by either party without the prior written consent of the other. This
Agreement may not be assigned by either party, by operation of the law, or
otherwise.
XVII. GOVERNING LAW
This Agreement shall be deemed to have been made in the State of New York
governed by the laws of the State of New York, except for the provisions
governing conflicts of law.
XVIII. UNUSUAL CIRCUMSTANCES
If, for any reason not under the control of either party, including, without
limitation, strikes, enforcement of government laws or regulations, unusual
weather conditions, fire or similar unforeseen calamity, either party cannot
perform its obligations pursuant to this Agreement, then, in such an event, the
terms of this Agreement, and the duties and obligations of the parties
thereunder, shall be suspended for such a time as may be reasonable under
circumstances. All parties shall, in such an event, put best efforts forward to
perform its obligations pursuant to this Agreement.
If the foregoing is in accordance with your understanding and is acceptable to
you, please so indicate by signing all copies of the enclosed Agreement and
returning two of them to USC.
AGREED AND ACCEPTED:
DATE: 6/12/00 BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------- ---------------------------------
CTN Media Group, Inc.
DATE: 6/12/00 BY: /s/
---------------------- ---------------------------------
US Concepts, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTACHMENT "B"
PAYMENT SCHEDULE
Due on March 15, 2000 $ 75,000
Due on June 1, 2000 $ 75,000
Due on August 1, 2000 $ 100,000
Due on September 1, 2000 $ 100,000
Due on October 31, 2000 $ 34,750*
TOTAL PAYMENTS $ 384,750*
*Final reconciliation will follow of all asterisked line items on Attachment A
with incremental billing or refund to CTN