Exhibit
10.1
ADVERTISING & MARKETING
AGREEMENT
This AGREEMENT
is made and entered into this 30 th day of
July, 2009 by and between Zurvita, Inc. a Delaware
Corporation, with offices at 200 W. Columbine Avenue,
Suite I-2, Santa Ana, CA 92707 (“Zurvita”) and
OmniReliant Holdings, Inc., a Nevada Corporation, with offices at
14375 Myerlake Circle, Clearwater, FL 33760
(“Advertiser”) Red Sun Mining, Inc. (“Red
Sun”), the parent of Zurvita.
WHEREAS, ZURVITA was founded to be a marketer
and seller of healthcare-related products through the use of
independent sales representatives;
WHEREAS, Advertiser is the seller of certain
products (the “Products”).
WHEREAS, ZURVITA and Advertiser desire to enter
into an agreement under which Advertiser will place advertisements
on ZURVITA’s websites, and those websites controlled by
ZURVITA (the “Websites”) and ZURVITA’S
independent marketing representatives will market and sell the
Products.
NOW THEREFORE, in consideration of the mutual
covenants and agreements of the parties herein contained and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as
follows:
I
ADVERTISING & MARKETING
1.01 Services of
ZURVITA : ZURVITA will provide placement of advertising,
banners and/or video (“Ads”) of Advertiser on
ZURVITA’s Websites. Ads will be maintained during the Term of
this Agreement, as defined herein. Advertiser will work with
ZURVITA’s website administrator and ZURVITA’s sales
representatives to maximize sales of Advertiser’s products in
return for ZURVITA receiving a commission on retail
sales less any returns or refunds. Furthermore,
Zurvita’s independent marketing representatives will actively
market and sell the Products during the Term. Advertiser
will provide the Products to ZURVITA sales representatives on a
revenue sharing basis.
1.02
Advertiser’s Services: Advertiser will provide ZURVITA
with certain marketing services, including the production of
infomercials, video production services, managing call centers,
media buying and fulfillment services. In addition,
ZURVITA will have access to Advertiser’s production studio at
cost plus 10%. In consideration for the foregoing,
Advertiser will receive 3,800,000 shares of Red Sun’s common
stock.
II.
ADVERTISER’S OBLIGATIONS
2.01
The Advertiser warrants and
represents to ZURVITA that:
(a)
it has the right to publish the contents of
the advertisement(s), without infringement of any rights of any
third party including, without limitation, intellectual property
rights;
(b)
it has complied with the codes of practice issued
by the Advertising Standards Authority in respect of electronic and
on-line advertising and all other relevant industry codes of
practice
(c)
it will be fully responsible for the terms
(including, without limitation, product description, price and
compliance with all applicable laws and regulations) of any
contract for the sale of the Products to customers who have seen
the advertisement displayed by ZURVITA on the Websites,
2.02 Advertiser
further represents and warrants that it is the owner of all patent.
copyright, mask work. trademark, service mark, and any and all
other proprietary rights and interests related to the
advertisements and the advertising campaign. Advertiser hereby
grants ZURVITA and its designees the right to communicate such
works to the public, perform and display the content (in whole or
in part) worldwide and/or to incorporate it in other works in any
form, media, or technology now known or later developed, for the
full term of this Agreement for the purpose of posting the
advertising as described in this Agreement. Advertiser also permits
any ‘user” of the Websites to access, display, view,
store and reproduce such content. Subject to the foregoing, the
owner of such content placed on the Websites retains any and all
rights that ‘nay exist in such content.
2.03
Indemnification : (a) The Advertiser agrees to indemnify
ZURVITA forthwith on demand and hold ZURVITA harmless against any
and all expenses, damages and losses of any kind (including
reasonable legal fees and costs) incurred by ZURVITA in
connection with any claims, actual or threatened, of
any kind (including, without limitation, breach of contract, any
claim of trademark or copyright infringement, libel, defamation,
breach of confidentiality, false or misleading advertising or sates
practices) arising from the advertisement and/or any material of
the Advertiser to which users are subjected too and any
other contract entered into for the purchase of the advertised
goods or services,
(b)
ZURVITA agrees to indemnify the Advertiser forthwith on
demand and hold the Advertiser harmless against any and all
expenses, damages and losses of any kind (including reasonable
legal fees and costs) incurred by the Advertiser in
connection with any claims, actual or threatened, of any kind
(including, without limitation, breach of contract, any claim of
trademark or copyright infringement, libel, defamation, breach of
confidentiality, false or misleading advertising or sates
practices) arising from the advertisement and/or any material of
the Advertiser to which users are subjected too and any
other contract entered into for the purchase of the advertised
goods or services
(c)
The Advertiser will defend or settle at its own
expense any action or other proceedings brought against ZURVITA
that relates to the advertisements and/or any material of the
Advertiser to which users are exposed.. ZURVITA shall notify the
Advertiser promptly of any such claim and shall permit the
Advertiser to assume and control the defense of such
action with Counsel chosen by the Advertiser (who shall be
reasonably acceptable to ZURVITA) and shall not enter into any
settlement or compromise of any such claim without
ZURVITA prior written consent. The Advertiser shall pay
any and all proper costs, damages and expenses (including but not
limited to reasonable legal fees and costs) awarded against or
incurred by ZURVITA in any such action or proceedings.
2.04 Insurance :
Advertiser shall carry at all times during the time that the
Products are offered and sold, Commercial General Liability
Insurance with a minimum of $2,000,000 per occurrence for bodily
injury and/or property damage liability, said insurance to
cover, liability arising from personal
injury/advertising injury, products liability and/or contractual
liability. All insurance policies shall be issued by insurance
carriers licensed to do business in New York. and which have an AM.
Best rating of A VIII or better. ZURVITA shall be named as
additional insured on all insurance policies listed above and
required hereunder. Insurance policies which are secured by
Advertiser pursuant to this Agreement shall be
“occurrence” type policies and shall not be
‘claims made” policies. All Certificates of insurance
shall provide evidence of the type of policies being provided. Such
insurance policies shall also provide that they may not be canceled
or non-renewed without the insurance carrier endeav
