EXHIBIT 10.1
INDEPENDENT CONSULTANT AGREEMENT
This Independent Consultant Agreement is entered into between People's
Liberation, Inc. (the "Company"), and the party or parties listed below as of
the date specified below. The agreement among the parties consists of the two
(2) pages hereof, the Terms and Conditions attached hereto, the Attachments
listed below, if any, and all addenda and change orders executed by the parties
hereto after the date of this Agreement (collectively referred to as the
"Agreement"). ANY TERMS OR CONDITIONS APPEARING ON CONSULTANT'S PURCHASE ORDER,
INVOICE OR ACKNOWLEDGMENT OR IN ANY OTHER WRITING RECEIVED FROM CONSULTANT WHICH
ARE DIFFERENT FROM OR IN ADDITION TO THE TERMS AND CONDITIONS CONTAINED HEREIN
ARE NULL AND VOID AND SHALL HAVE NO FORCE OR EFFECT WHATSOEVER.
Date: Effective as of April 1, 2009 (the "Effective Date")
Parties: Consultant: Innovatine Brand Solutions LLC, DBA Whitespeed
Address:
[X] If Consultant is a corporation, firm or other entity and the Services
are only to be performed by a specified individual, check this box and
name the person below:
Person: ▇▇▇▇▇ ▇▇▇▇▇
Address:
Capacity:
Project: (If Consultant is retained in connection with a specific Company
project, identify the project below):
Consultant is retained to perform the Services described below in
connection with that certain Letter Agreement dated December 16, 2008 by and
among ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Holding, Inc. and its wholly-owned subsidiary, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Merchandising, Inc. (collectively "▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇") and the Company and
the Company's wholly-owned subsidiary, Versatile Entertainment, Inc.
("Versatile"), pursuant to which Versatile agreed to exclusively sell to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ People's Liberation branded apparel, apparel accessories,
eyewear, jewelry, watches, cosmetics and fragrances, and to provide ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ with marketing and branding support for People's Liberation branded
apparel and apparel accessories (the "Letter Agreement").
Services:
o Marketing and branding support for People's Liberation branded apparel
and apparel accessories in connection with the Project.
Term of Engagement:
o 12 Months from the Effective Date, terminating on April 1, 2010. The
Agreement may be renewed only upon an agreement in writing between the
Company and Consultant.
Company Representative:
o ▇▇▇▇▇ ▇▇▇▇ - CEO
Materials: (List Materials, if any, to be delivered pursuant to this Agreement
and the time for delivery):
o To Be Determined
Compensation:
o $10,000 per month, payable on the 15th day of each month.
o This Agreement contains the entire contract between the parties hereto
with regard to any and all compensation payable, or alleged to be
payable, by the Company and/or any of its affiliates to Consultant or
any of its affiliates relating to the Company's negotiation, execution
and performance of the Letter Agreement, and by Consultant's acceptance
of the first payment hereunder, Consultant acknowledges and agrees that
Consultant is not entitled to any other compensation whatsoever for any
services performed in connection with the Company's negotiation,
execution and performance of the Letter Agreement.
Expense and Cost Caps:
Maximum Expenses: $100
----
Maximum Cost: $100
----
Insurance: (Check box if Consultant is required to maintain general
liability and comprehensive automobile liability insurance):
[ -- ]
Attachments: The following attachments constitute part of this Agreement:
[_] Delivery of Materials
[_] Penalty
[_] Other
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date specified above intending to be bound thereby.
PEOPLE'S LIBERATION, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Its: CEO
------------------------------------
CONSULTANT
(If a Corporation)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Its: CEO/President
------------------------------------
---------------------------------------------
(Taxpayer Identification Number)
2
PEOPLE'S LIBERATION, INC.
PROJECT CONSULTING
TERMS AND CONDITIONS
1. THE SERVICES People's Liberation, Inc., or one or more of its
subsidiary, related or affiliated companies (hereinafter collectively
the "Company") hereby engages Consultant to render the services (the
"Services") which Company may require in connection with the Company
project (the "Project") identified in the Agreement to which these Terms
and Conditions are attached (the "Attached Agreement"). In connection
therewith, Consultant shall report to, and perform the Services under
the supervision of the representative of Company identified on the face
hereof (the "Company Representative"), shall provide such reports of the
type and at the frequency reasonably requested by the Company
Representative during the term of its engagement, and shall deliver to
the Company Representative those materials (the "Materials"), if any,
specifically referred to on the Attached Agreement at the times
identified thereon or as otherwise reasonably requested by the Company
Representative. Consultant's services hereunder shall be non-exclusive,
but on a first priority, in person basis, during the term of
Consultant's engagement.
2. COMPENSATION AND REIMBURSEMENT
a. All compensation set forth on the Attached Agreement is
conditioned upon Consultant's complete performance of its
material obligations hereunder including, but not limited to,
the delivery of any Materials specified in the Attached
Agreement. Such compensation shall be deemed full compensation
for the Services, all equipment supplied by Consultant and all
rights granted to Company hereunder. It is expressly understood
that should Company for any reason whatsoever fail to make a
payment required hereunder, then Company shall not be deemed in
default hereunder unless and until following such failure
Consultant shall have given written notice demanding such
payment and Company shall have failed to make such payment
within 30 days of Company's receipt of such notice.
b. Company's liability for Consultant's expenses shall not exceed
the amount set forth under the caption "Maximum Expenses" on the
Attached Agreement, and Company's total liability for fees plus
expenses shall not exceed the amount set forth under the caption
"Maximum Cost" on the Attached Agreement.
c. Reimbursement of expenses shall be limited to such rights of
reimbursement (if any) which are expressly set forth on the
Attached Agreement. Unless otherwise provided thereon, no
expense shall be reimbursed unless approved in advance by the
Company Representative, which shall be in writing with respect
to all expenses in excess of $100.00. Company's obligation to
reimburse Consultant's expenses (if any) and shall be
conditioned upon Company's receipt of satisfactory original
documentation that Consultant incurred the expenses in
connection with performing the Services. Documentation shall be
in accordance with the Company's expense policies, as from time
to time in effect and provided to Consultant.
d. Consultant's fee shall include and Consultant shall be
responsible for the payment of all federal, state and local
taxes of any kind which are attributable to the compensation it
receives.
3. CONFIDENTIAL RELATIONSHIP. Company may from time to time communicate to
Consultant certain information to enable Consultant effectively to
perform the Services. Consultant shall treat all such information as
confidential, whether or not so identified, and shall not disclose any
part thereof without the prior written consent of Company. Consultant
shall limit the use and circulation of such information, even within
Consultant's own organization, to the extent necessary to perform the
Services. The foregoing obligation of this Paragraph 3, however, shall
not apply to any part of the information that (i) has been disclosed in
publicly available sources of information, (ii) is, through no fault of
Consultant, hereafter disclosed in publicly available sources of
information, (iii) is now in the possession of Consultant without any
obligation of confidentiality, or (iv) has been or is hereafter
rightfully disclosed to Consultant by a third party, but only to the
extent that the use or disclosure thereof has been or is rightfully
authorized by that third party. Consultant shall not disclose any
reports, recommendations, conclusions or other results of the Services
without the prior written consent of Company. In its performance
hereunder, Consultant shall comply with all legal obligations it may now
or hereafter have respecting the information or other property of any
other person, firm, or corporation.
3
4. PROPRIETARY RIGHTS The results and proceeds of Consultant's Services
hereunder, together with all ideas, designs, drawings, preliminary work,
drafts, revisions, versions, polishing, refinements, all copyrights,
trademarks, patents and other intellectual property and all other
tangible expressions thereof of whatever kind or nature, including
without limitation, software, computer programs and the like
(hereinafter collectively referred to as "the Work") shall be deemed a
work-made-for hire specially ordered or commissioned by Company. Company
shall be deemed the author of the Work and shall own all right, title,
and interest throughout the universe in perpetuity in and to said Work,
including without limitation the copyrights, patents, or trademarks and
other intellectual property therein and all renewals or extensions
thereof, and the right to use, adapt and change said Work and to prepare
derivative works therefrom. In addition, Company shall have the right,
throughout the world and in perpetuity, to use and reproduce, and
license others to use and reproduce, Consultant's name, likeness and
biographical data relating to Consultant in connection with the Project
and the advertising or exploitation thereof. Should the Work or any part
thereof ever be deemed not a work made for hire, Consultant hereby
assigns to Company in perpetuity throughout the universe, all right,
title, and interest, including without limitation all copyrights,
patents and trademarks and all renewals and extensions thereof, all
rights under worldwide copyright or trademark laws or treaties, in and
to the Work and all components thereof whether heretofore or hereafter
created. Consultant waives all rights of "droit moral" or "moral rights
of authors or creators" and/or any similar rights or principles of law
which the Consultant may now or hereafter have in the Work. Company
shall have exclusive access in perpetuity to any materials derived from
the Services performed hereunder. All employees and subcontractors of
Consultant performing Services hereunder (if any) shall assign to
Company the same rights to their results and proceeds as are set forth
in this section. Company is not obligated to use the Services of
Consultant or to use the results or proceeds of Consultant's Services in
any manner whatsoever.
5. TERM Unless otherwise expressly set forth on the Attached Agreement, the
term of Consultant's engagement shall commence on the date of this
Agreement and shall continue until completion of all of the Services to
be rendered by Consultant which Company may require. Company may in its
sole discretion terminate this Agreement in whole or in part at any time
and for any reason by written notice to Consultant. In the event of
termination or upon expiration of this Agreement, Consultant shall
return to Company any and all equipment, documents, or materials, and
all copies made thereof which Consultant received from Company for the
purposes of this Agreement. If Company elects to terminate this
Agreement for any reason other than Consultant's default, Company shall
pay to Consultant any and all sums which are due and payable up to the
date of termination and shall reimburse Consultant for expenses incurred
in accordance with the terms and conditions of this Agreement through
the date of such termination. Company shall have no other obligation
hereunder from and after the date of termination. Termination for any
reason shall not affect the rights granted to Company by Consultant
hereunder.
6. CONSULTANT'S WARRANTIES. Consultant warrants that it is free to enter
into this Agreement and will not do or permit any act which will
interfere with or derogate from the full performance of Consultant's
Services or the exercise of Company' rights granted herein. Consultant
further represents that with respect to any Materials supplied by
Consultant hereunder, such Materials shall be Consultant's (or
Consultant's employees) original creation (except for material in the
public domain and/or material furnished by or included at Company's
direction); such Materials do not and will not infringe upon, or violate
the rights of any kind, including any copyright, patent, trade ▇▇▇▇,
trade secret of any person or defame or violate any right of privacy of
any person; and such Materials are not the subject of any litigation or
claim that might give rights to litigation. Consultant further
represents and warrants that (i) material furnished will be new,
merchantable, free from defects in design, material and workmanship and
will conform to and perform in accordance with all specifications
drawings and samples; and (ii) all Services will be performed by
Consultant using its best efforts, and shall further be performed in a
first class, professional manner. Consultant represents and warrants
that if Consultant is a corporation, firm or other entity, (i)
Consultant is in good standing under the laws of the state of its
incorporation and is qualified to do business in the State in which the
Services are to be provided; (ii) Consultant has a written contract with
the person or persons performing the Services on behalf of Consultant
entitling Consultant to furnish such person's or persons' services
pursuant to the provisions hereof, (iii) Consultant is not now and will
not during the full term hereof be in breach of or in default under said
contract with such person or persons, and (iv) Consultant will fully
discharge all of its obligations to the person or persons performing the
4
Services. Further, if Consultant is a corporation, firm or other entity
and if Consultant or its successors should be dissolved or should
otherwise cease to exist, or for any reason should fail, refuse, or
neglect to perform, observe or comply with the terms, covenants, and
conditions of this Agreement the person or persons who are to perform
the Services hereunder shall at Company's election be deemed to be
engaged directly by Company for the balance of the term of Consultant's
engagement hereunder upon the terms, covenants and conditions set forth
herein.
7. INDEPENDENT CONTRACTOR; DAMAGES; THIRD PARTY AGREEMENTS; TAXES.
Consultant is and shall be deemed to be an independent contractor of
Company and nothing contained herein shall be deemed to constitute a
partnership between or a joint venture by the parties hereto, or
constitute either party the employee or agent of the other. Company
shall not be responsible for any damage to or loss of any equipment
belonging to Consultant which may occur in the course of the performance
of the Services. Consultant acknowledges that nothing in this Agreement
gives Consultant the right to bind or commit Company to any agreements
with any third parties. This Agreement is not for the benefit of any
third party and shall not be deemed to give any right or remedy to any
such party whether referred to herein or not. Furthermore, Consultant
warrants and represents that Consultant is solely liable for and shall
pay all applicable federal, state and/or local taxes on all amounts
earned pursuant to this Agreement. Consultant further agrees to
indemnify, defend (with counsel acceptable to Company) and hold harmless
Company, and its licensees, employees, agents, successors and assigns
from and against any and all liability (including attorneys' fees) which
it or they may incur regarding the payment of taxes for Consultant's
services. Consultant will indemnify and hold Company, its licensees,
employees, agents, successors and assigns from and against any and all
claims, actions, losses, damages and expenses (including attorneys'
fees) arising out of or caused by a breach or threatened breach of any
of Consultant's representations, warranties, undertakings or agreements
hereunder.
8. CONSULTANT'S EMPLOYEES OR OBLIGATIONS. If Consultant is a corporation,
firm or other entity, Consultant shall discharge all obligations of an
employer to its employees providing Services hereunder including, but
not limited to, the payment to its employees of not less than minimum
compensation under any applicable law, guild or union agreement, the
payment of pension, health and welfare contributions required under any
applicable guild or union agreement, the withholding and reporting of
contributions, insurance deductions and applicable taxes required by
law, including payroll taxes and unemployment insurance and providing
workers compensation insurance.
9. COVENANT NOT TO SOLICIT. Consultant covenants and agrees that during the
term of this Agreement and for one year thereafter, Consultant shall not
hire, solicit or cause to be solicited for employment by Consultant or
by any third party any person who is as of the date of such solicitation
or who was within the 12-month period prior to the date of such
solicitation an employee of Company or any subsidiary or affiliate of
Company.
10. USE OF NAME; TRADEMARKS. Consultant shall have no right to use Company's
names, trademarks, tradenames, or logos other than as required in
connection with the performance of the Services without the prior
express written consent of Company. Consultant is not and in no way
shall hold itself out as an agent or employee of Company.
11. TOOLS AND EQUIPMENT. Unless otherwise specifically provided in this
Agreement, Consultant shall provide all labor, tools, materials,
software, computer hardware and equipment (the "tools") for performance
of this Agreement. Should Consultant actually use any tools owned or
rented by Company or its customers or affiliates, Consultant
acknowledges that Consultant accepts the tools as is, where is, that
neither Company, its customers or its affiliates has responsibility for
the condition or state of repair of the tools and that Consultant shall
have risk of loss and damage to such tools. Consultant agrees not to
remove the tools from Company's or its customers' or affiliates'
premises and to return the tools to Company or its customer or affiliate
upon completion of use, or at such earlier time as Company may request,
in the same condition as when received by Consultant, reasonable wear
and tear excepted.
5
12. WORK DONE BY OTHERS. If any part of the Services is dependent upon work
done by others, Consultant shall inspect and promptly report to
Company's Representative any defect that renders such other work
unsuitable for Consultant's proper performance. Consultant's silence
shall constitute approval of such other work as fit, proper and suitable
for Consultant's performance of the Services.
13. NOTICES. All notices and ▇▇▇▇▇▇▇▇ shall be in writing and sent to the
addresses of the parties set forth on the Attached Agreement.
14. GENERAL
a. CONSULTANT'S INSURANCE. If the parties have checked the box
denoted "Insurance" on the Attached Agreement, Consultant shall
maintain such comprehensive general liability and comprehensive
automobile liability insurance with a combined single limit for
bodily injury and property damage of at least one million
dollars. Consultant shall provide Company with copies of the
policies evidencing such insurance.
b. INJUNCTIVE RELIEF. Consultant agrees that in the event of any
breach by Consultant of any of the covenants and agreements set
forth in this Agreement, including, without limitation, the
covenants and agreements set forth in Paragraphs 3, 4, 9 and 11
hereof, Company would encounter extreme difficulty in attempting
to prove the actual amount of damages suffered by it as a result
of such breach and would not have adequate remedy at law in such
event. Consultant therefore agrees that, in addition to any
other remedy available at law or in equity, in the event of such
breach, Company shall be entitled to seek and receive specific
performance and temporary, preliminary and permanent injunctive
relief from violation of any of said covenants and agreements
from any court of competent jurisdiction without necessity of
proving the amount of any actual damage to Company resulting
from such breach.
c. ATTORNEYS' FEES. The prevailing party in any litigation
instituted under this Agreement shall, in addition to other
remedies, be entitled to be reimbursed by the other party for
all expenses of such litigation, including reasonable attorneys'
fees.
d. NOTIFICATION OF SUBSEQUENT EMPLOYER OR CLIENT. Company may,
without notifying Consultant, notify any subsequent employer or
Client of Consultant of the rights and obligations of Consultant
under this Agreement.
e. INSPECTION OF PROPERTY. Consultant acknowledges and agrees that
any property situated on Company's premises, including disks and
other storage devices, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time without
notice.
f. TIME IS OF THE ESSENCE. Time is of the essence in the
performance by Consultant of each of Consultants obligations
under this Agreement.
g. GENERAL. This Agreement contemplates the performance of
professional services by Consultant and may not be delegated or
assigned by Consultant in any manner. The benefits hereunder
with respect to the rights of Company may be assigned by
Company. The provisions of this Agreement shall be construed in
accordance with the laws of the State of California as applied
to residents of that State entering into contracts to be
performed solely within such state. If any provision of this
Agreement is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction such provision shall be deemed
amended to conform to the applicable laws of such jurisdiction
so as to be valid and enforceable or, if it cannot be so amended
without materially altering the intention of the parties, it
will be stricken, but the validity, legality and enforceability
of such provision shall not in any way be affected or impaired
thereby in any other jurisdiction and the remainder of this
Agreement shall remain in full force and effect. Waiver by
either of the parties of any breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
prior or subsequent breach of the same or any other provision
hereof. The obligations of Consultant hereunder shall survive
the termination of this Agreement regardless of the reason or
cause for such termination. Consultant shall execute such
documents and do such other acts and deeds as may be reasonably
required by Company or its assignees or licensees to further
evidence or effectuate Company's rights hereunder. If Consultant
fails to do so, Company may execute such documents as
Consultant's attorney in fact, which appointment will be
6
irrevocable and coupled with an interest. This instrument
contains the entire contract between the parties hereto with
regard to the subject matter hereof and supersedes any other
agreements, representations or understandings (whether oral or
written and whether express or implied) that relate to the
subject matter hereof, including, without limitation, any and
all prior compensation arrangements between the Company and/or
any of its affiliates and Consultant relating to the Company's
negotiation and entry into the Letter Agreement (as defined in
the Attached Agreement).
7