EXHIBIT 4.3
ADVERTISING SERVICES AGREEMENT WITH
CREATIVE IMPACT COMMUNICATIONS, INC.
DATED OCTOBER 4, 2000
ADVERTISING SERVICES AGREEMENT
THIS AGREEMENT, MADE AND ENTERED INTO THIS 4TH Day of October, 2000 by
and between CREATIVE IMPACT COMMUNICATIONS, INC. (hereinafter referred to as
"Creative"), and CeleXx Corporation (hereinafter referred to as "Client").
W I T N E S S E T H:
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WHEREAS, Creative and the Client desire to enter into an agreement
regarding the services of Creative to advertise the Client's services or
products.
IT IS THEREFORE agreed as follows:
1. ADVERTISING SERVICES. Creative shall act as Client's exclusive
agent and perform, upon prior authorization by Client as provided herein, on
behalf of the Client for the Client's account, any or all of the following
services to the extent necessary to meet Client's needs:
(a) Develop a advertising and marketing concept and
program designed to meet Client's needs and budgetary limitations;
(b) Develop a website for Client;
(c) Develop a direct marketing campaign for Client;
(d) Develop a public relations or investor relations
campaign for Client;
(e) Contract with the advertising media and with others for
space or time to carry out the advertising program at competitive terms and
rates subject to Client's approved estimates;
(f) Facilitate vendor services on behalf of Client pursuant to
development of advertising campaign, including the issuance of necessary
purchase orders, based on Client's approved estimates;
(g) Negotiate, arrange, and contract on behalf of the Client
for any special talent required and for all photography, models, special
effects, layouts, and artwork, and for all printing, including any required
engravings, electrotypes, typography, and any other necessary technical services
for use in the advertising program;
(h) Review all tear sheets and/or affidavits and/or invoices
and make timely payment to all persons or firms supplying services in connection
with the advertising program on behalf of Client;
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(i) Permit Client to review and approve all plans, ideas
and advertising concepts in various stages of development;
(j) Render periodic electronic reports regarding the status
and progress of the advertising program; and
(k) Advise and bill Client for all remittances made by
Creative on behalf of Client and maintain complete and accurate books and
records in this regard.
2. PRIOR APPROVAL OF CLIENT. Creative shall not incur any obligations
or provide any services herein for Client's account in an amount more than two
thousand dollars ($2,000) without first obtaining written approval from Client.
In order to obtain Client's approval, Creative shall submit written proposals to
Client, containing full descriptions of the proposed advertisements and
estimates of the cost of the obligations or services involved, including media
costs, cost of preparation of the advertisements, cost of production of
advertising services, and any additional costs, such as mailing, postage, and
similar items. Client may provide Creative with approval of written proposals,
estimates or proposed advertising services, in writing via telefax, electronic
mail or US mail. Creative shall not be responsible for missed deadlines or
closing dates caused by the delay of Client in approving the advertising
proposals and estimates.
3. ADVERTISING COSTS AND EXPENDITURES.
(A) ADVERTISING EXPENDITURES. Client shall reimburse Creative
for all out-of-pocket costs incurred and expenditures made on behalf of Client
for services provided outside Creative, including, but not limited to, costs for
typography, engravings, electrotypes, printing, photographs, art work and
comprehensive layouts, and television and radio commercial production costs
including but not limited to talent, props, scenery, sound and lighting effects,
rights, license fees, and producers' fees. Creative shall present Client with an
estimate of such costs to be approved by Client prior to initiating work.
(B) SHIPPING. Client shall pay Creative for its direct cost of
mailing, packaging, shipping, taxes, and duties, incurred by Creative in
connection with the performance of the advertising services on behalf of Client
as provided in this Agreement.
(C) TAXES. Client shall be liable for all taxes, excises, and
other governmental charges required to be paid or collected by Creative under
any federal, state, or other law, applicable to production, processing,
transportation, storage or delivery of any and all advertising materials or
services delivered to Client hereunder.
(D) CANCELLATIONS. In the event Client, after having approved
any planned advertising services, market strategy or other advertising strategy,
cancels all or any part thereof, Client shall pay for all costs and time
incurred by Creative through the date of cancellation and any unavoidable costs
incurred thereafter, including any non-cancelable commitments for time or space.
4. CREATIVE'S COMPENSATION.
(A) FEE FOR SERVICES. The Client agrees to pay a monthly
retainer fee for the services by Creative pursuant to this Agreement. The amount
of the fee shall be $15,000.00 [fifteen thousand dollars, US$]for service and
contact and will be invoiced on the 15th day of each month and become due ten
calendar days post invoice date. Creative will invoice separately for each
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project undertaken on behalf of Client, subject to the prior approval by Client
as provided in paragraph 2 hereinabove.
(B) COMMISSION. Creative shall be entitled to media
commissions where provided by the media outlet equal to fifteen percent [15%]of
the gross charges for all time and space media placed by Creative on behalf of
Client. Client agrees to pay one hundred percent (100%) of the approved media
charges at the time the insertion order is rendered or fifty percent [50%] of
the approved media plan as requested by the agency.
(C) PRODUCTION. With respect to mechanical art and
out-of-pocket costs (including, without limitation, typography, engravings,
electrotypes, printing, photographs, art work and comprehensive layouts) and
television and radio commercial production costs (including, without limitation,
talent, props, scenery, sound and lighting effects, rights, license fees and
producer's fees) for services provided outside of Creative's organization,
Creative shall bill all out-of-pocket costs to Client. Client also agrees to pay
fifty percent (50%) of the estimated production charges in advance, if requested
by Creative.
5. BILLING AND PAYMENT. All Creative invoices are due upon receipt by
Client. Where payment is not received within thirty (30) days from the date of
the invoice, interest on the unpaid amount will accrue at the rate of one and
one-half percent (1 1/2%) per month; provided, however, that in no event shall
interest accrue at a rate higher than that permitted by law.
6. DURATION AND TERMINATION. This Agreement shall become effective as
of the date first written above and shall continue in force until October 15,
2001. Either party may terminate this Agreement by giving the other party
written notice at least ninety (90) days prior to the effective date of
termination. Upon receipt of notice of termination, Creative shall not commence
work on any new advertising services, but it shall complete and place all
advertisements previously approved by Client. All the rights and duties of the
parties shall continue during such notice period and Client shall be responsible
to Creative for the payment of any contract obligation incurred with third
parties on behalf of Client during this period. Should the client be acquired by
another entity, or merge with another entity, or otherwise cease doing business
as CeleXx Corporation and wish to terminate services based on said operational
change, this contract will be bought out by client for an amount equal to 90
days service or the monthly value of the remainder of the contract, whichever is
the larger amount.
7. DISPOSITION OF PROPERTY AND MATERIALS.
(A) COPYRIGHTED MATERIALS. In the event that any intellectual
materials are developed or produced by Creative on behalf of Client, and such
materials are copyrightable subject matter, and/or work made for hire, the
copyright for such materials shall be the property of the Client. Materials not
selected by Client from multiple concepts, including but not limited to plans,
preliminary outlines, sketches, copy materials made or produced on behalf of
Client as an incidental part of rendering the advertising services, whether or
not copyrightable, remain the property of Creative and shall be conveyed to
Creative upon request. Those materials made for hire (selected concepts) become
the property of Client only after payment of all fees, including any applicable
interest.
(B) MATERIALS. Creative shall take reasonable care of all
documents, materials, and information entrusted to it by Client and shall return
them to Client upon expiration of this Agreement.
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8. INDEMNIFICATION. Client hereby indemnifies and defends Creative, its
employees, subcontractors, and representatives against any suits, claims, or
proceedings brought against Client and/or its partners, officers, directors,
including attorneys' fees and costs incurred at any trial, appellate,
bankruptcy, or any administrative proceedings, based upon publication, or
placement of an advertising concept or scheme by Creative after approval by
Client.
9. CONFIDENTIAL INFORMATION. Creative is under a duty not to
disseminate, or use for its own purposes, both during the term of this Agreement
and after termination of this Agreement, any "confidential information" given to
Creative by Client. For purposes of this Agreement, "confidential information"
shall mean any information given to Creative by Client in writing and
specifically designated on the face thereof or by attachment as "confidential
information" and which is not already known to (i) the public, (ii) the industry
of the Client, or has not already been disclosed to Creative through other
parties not under an obligation to keep such information confidential.
10. ASSIGNMENT; BINDING EFFECT. Neither party hereto may assign any
rights or delegate any duties hereunder without the express prior written
consent of the other party; provided, however, that this Agreement shall bind
and inure to the benefit of and be binding upon the successors in interest to
either of the parties hereto, including without limitation any successor in
interest by way of merger, consolidation, reorganization, liquidation, or sale
of all or substantially all of a party's assets, and such successor in interest
shall be bound by and agree to carry out and perform the terms and conditions
for the term of this Agreement.
11. WAIVER OF BREACH. The failure of either party to this Agreement to
object to or take affirmative action with respect to any conduct of the other
which is in violation of the terms of this Agreement shall not be construed as a
waiver of the violation or breach, or any future violation, breach, or wrongful
conduct.
12. ATTORNEYS' FEES. In the event an attorney is employed to enforce
the provisions of this Agreement, or in the event of litigation arising out of
or connected with this Agreement, the prevailing party shall be entitled to
attorneys' fees and costs incurred at both the trial level and appeals level.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification, or discharge is sought.
14. GOVERNING LAW. This Agreement shall be governed in accordance
with the laws of the State of Florida, County of Duval.
15. NOTICE. Any legal notice required or permitted to be given
under this Agreement shall be sufficient if in writing and if sent by certified
or registered mail, first class, return receipt requested, to the parties at
the following addresses:
To Creative: 220 East Forsyth Street
Jacksonville, Fl 3220
To Client: 7251 W. Palmetto park Rd., Suite 208
Boca Raton, FL 33433
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IN WITNESS WHEREOF, the parties hereto are authorized to execute this
document and have set their hands and seals the day and year first above
written.
"Creative"
CREATIVEIMPACT
COMMUNICATIONS, INC.
By /s/ Richard J. Clark
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Richard J. Clark
Its: Vice President
"Client"
CeleXx Corporation
By: /s/ Doug Forde
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Doug Forde
Its: Chairman
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ADDENDUM TO ADVERTISING AGREEMENT
OF OCTOBER 4, 2000
As an incentive to commence the services of Creative Impact
Communications, Inc to client, as described in the ADVERTISING AGREEMENT of
October 4, 2000 entered into between Creative and Celexx Corporation
("client"), Creative, and /or its authorized representative, is entitled to
receive 150,000 shares of freely tradable common stock of Celexx. These shares
are to be registered under a Form S-8 .
For Creative Impact Communications, Inc.
/s/ Michael Kreinest
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By Michael Kreinest
For CeleXx Corporation
/s/ Douglas H. Forde
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By Douglas H Forde
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