EXHIBIT 10.33
THE ROSE GROUP
PUBLIC RELATIONS
LETTER OF AGREEMENT
FOR
Brilliant Digital Entertainment, Inc.
July 30, 2001
9925 Jefferson Blvd., 2nd floor
Phone: ▇▇▇-▇▇▇-▇▇▇▇ o Fax: ▇▇▇-▇▇▇-▇▇▇▇
PUBLIC RELATIONS SERVICE AGREEMENT
This Service Agreement ("The Agreement"), dated July 30, 2001, is entered into
by and between The Rose Group and Brilliant Digital Entertainment, Inc.
(Brilliant Digital), with respect to the following:
1. SERVICES
The Rose Group is hereby retained on a non-exclusive basis to represent
Brilliant Digital by providing public relations services for and is authorized
to act on behalf of Brilliant Digital in this regard, subject to the terms and
conditions of The Agreement. The Rose Group will use its best judgement in the
performance of all services hereunder.
2. CONFIDENTIAL INFORMATION
Information materials provided by Brilliant Digital and its subsidiary firms to
The Rose Group on a confidential basis shall be held in confidence by The Rose
Group, and will not be disclosed unless such disclosure is authorized in writing
by Brilliant Digital, except as otherwise required by law. Brilliant Digital
documents held by The Rose Group remain the property of Brilliant Digital and
will be returned to Brilliant Digital upon request.
3. FEES AND COSTS
As full and complete compensation for The Rose Group's services, Brilliant
Digital shall pay The Rose Group a retainer fee of $6,500 per month (the
"Monthly Retainer"). The Monthly Retainer covers monthly Public Relations
services on behalf of Brilliant Digital. The Rose Group's reasonable
out-of-pocket expenses will be billed to Brilliant Digital separately with
information and receipts. All out-of-pocket expenses in excess of $200 shall be
approved in advance by Brilliant Digital.
The Monthly Retainer includes all services provided by The Rose Group, including
preparation of public relations strategy and game plan, press releases and
materials, writing, placement, The Rose Group staff time, follow-up, creative
development and meeting time.
4. GOALS
The goals of this public relations campaign are to:
o Message development and maintenance
o Press release development
o Media contact management and list creation
2
o Media monitoring and reporting
o Media relations
o Ongoing strategy and council
o Conference and tradeshow recommendations
o Conference speaker placement
Additional programs and priorities, including press tours, materials creation,
onsite support at conferences, reviews programs, customer relations, etc. will
be budgeted and agreed to in writing by both parties prior to the onset of such
work.
As a result of the achievement of these goals, Brilliant Digital expects to
position itself to gain further value and establish its credibility among the
entertainment, advertising and music industries and the press, driving awareness
and potential customers to the venture.
5. APPROVALS
After obtaining general approval of campaign and project plans, The Rose Group
will submit to Brilliant Digital for specific prior approval:
a. Draft press releases, articles
b. Copy, layouts, artwork and scripts
c. Estimates submitted by suppliers
Written approval (which shall include without limitation approval provided by
email or fax consistent with the Notice provision in Section 11 (d) of The
Agreement) by Brilliant Digital of drafts or proofs will be taken by The Rose
Group as authorization to proceed, and such approval will be taken as
authorization to enter into contracts with suppliers on the basis of estimates
submitted.
6. TERMS OF PAYMENT
The Monthly Retainer of $6,500.00 shall be invoiced at the beginning of each
month, payable within 30 days of receipt. Brilliant Digital agrees to make the
first payment at the onset of this signed Agreement by authorized signatories
for both parties, at the commencement of work on this project. An itemized
expense statement will be sent at the end of each billing period and is due upon
receipt. These expenses will include phone, fax, UPS, postage, messenger and all
other reasonable charges incidental to service the client's needs. Monthly
expenses are estimated to be approximately 5% of the retainer. All third party
expenses, such as graphic design, etc. are subject to industry standard Agency
fee ▇▇▇▇ up of 15%. The Rose Group shall not incur any such single expense in
excess of $200.00 without Brilliant Digital's specific prior consent in writing.
3
7. TERMS OF AGREEMENT
This Agreement shall take effect on July 30, 2001 and remain in effect and be
binding upon the parties through, January 30, 2002, with extension and
renegotiation at this time if mutually agreed upon by both parties in writing.
8. TERMINATION OF AGREEMENT
Either party may terminate this agreement at any time by giving the other party
30 days written notice. In the event this agreement is terminated by either
party, a 30 day written notice will be given and Brilliant Digital shall, within
30 days, pay in full all outstanding fees and costs previously incurred.
9. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS
The Rose Group represents and warrants all of the following: (i) The Rose Group
is authorized to enter into this Agreement; (ii) The Rose Group's services shall
not defame any person or entity or infringe the rights of others, including,
without limitation, any trade name, trademark or copyright and shall not invade
or violate any right of privacy, publicity, personal or proprietary right, or
other common law of statutory right; and (iii) The Rose Group shall not use
Brilliant Digital's Trademarks, Brilliant Digital's service marks, or any
portion thereof, except as specifically permitted herein. In furtherance of the
foregoing, The Rose Group shall indemnify, defend and hold harmless Brilliant
Digital, its affiliates, officers, directors, employees, consultants and agents
from and against any and all claims, actions, losses, damages, liabilities,
costs and expenses (including reasonable, outside attorneys' fees) resulting
from or arising out of or in connection with any breach of the foregoing
representations and warranties or any breach of The Agreement or any portion
thereof.
Excepting any matters which are subject to indemnification by The Rose Group, as
set forth above, or arising out of The Rose Group's grossly negligent acts or
omissions, Brilliant Digital agrees to indemnify and hold harmless The Rose
Group from any and all actions, claims, losses, damages and other costs and
expenses, including, without limitation, reasonable outside attorneys' fees and
costs arising out of Brilliant Digital's obligations hereunder.
10. REMEDIES
The Rose Group expressly understands and agrees that in the event it is
ultimately determined by a court of law that Brilliant Digital has a committed a
material breach of this Agreement, the damage, if any, caused thereby would not
be irreparable or otherwise sufficient to entitle The Rose Group to injunctive
or other equitable relief. The Rose Group hereby acknowledges that The Rose
Group's rights and remedies in any such event shall be strictly limited to the
right, if any, to recover money damages in an action at law, and The Rose Group
shall not have either the right to rescind this Agreement or any of Brilliant
Digital's rights hereunder or the right to enjoin any use by Brilliant Digital
of any materials created
4
by The Rose Group in connection with The Agreement. In the case of any material
breach by The Rose Group, Brilliant Digital shall have the right to pursue all
appropriate remedies at law or in equity therefore.
11. GENERAL
a) PUBLICITY. Neither of the parties hereto shall issue a press release
or public announcement or otherwise make any disclosure concerning
The Agreement or the terms hereof, without prior written approval by
the other party. Notwithstanding the foregoing, either party may
announce the existence of relationship between The Rose Group and
Brilliant Digital.
b) ASSIGNMENT. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that either party may assign this
Agreement (i) in connection with a sale of all or substantially all
of such party's assets (ii) to a subsidiary or affiliate or (iii) as
part of a merger, consolidation or reorganization.
c) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of Company.
The parties hereto agree that the exclusive forum for the resolution
of disputes hereunder shall be the State or Federal Courts located in
Los Angeles County, California and waive any objection thereto on the
basis of personal jurisdiction or venue.
d) NOTICE. All notices required to be given hereunder shall be deemed to
have been given: (i) five (5) days after deposit in the U.S. mails,
postage prepaid for first-class mail, return receipt requested; (ii)
one (1) day after deposit with Federal Express or another nationally
recognized overnight delivery service, next-business day delivery
charges prepaid; or (iii) upon the date of receipt of written
confirmation that the notice was transmitted by electronic facsimile
device ("Fax"), as set forth below:
If to Brilliant Digital:
Brilliant Digital Entertainment, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
5
If to The Rose Group:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
FAX: _______________________________
e) NO AGENCY. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint
venture.
f) SEVERABILITY. In the event that any of the provisions of this
Agreement are held to be unenforceable under any applicable law or be
so held by an applicable court decision, the remaining portions of
the Agreement will remain in full force and effect.
g) MODIFICATIONS AND WAIVERS. Unless otherwise specified, any amendment,
supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement and any consent to any
departure by the parties from the terms of this Agreement, shall be
effective only if it is made or given in writing and signed by both
parties. No failure or delay on the part of either party in
exercising any right, power or remedy under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise or
the exercise of any other right, power or remedy.
h) ENTIRE AGREEMENT. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to
be executed as of the Date signed below.
By: /S/ ▇▇▇▇ ▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇ Date
Partner, The Rose Group
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Date
Brilliant Digital Entertainment, Inc.
6