MARKETING AND PROMOTION AGREEMENT
THIS MARKETING AND PROMOTION AGREEMENT (this “
Agreement ”), is made and entered into as of
August 4, 2005 (the “ Effective Date ”),
by and between Who’s Your Daddy, Inc., a Nevada corporation
(“ WYD ”) , with its principal
place of business located at 3131 Camino Del Rio North, Suite 1650,
San Diego, CA 92108, and Rich Entertainment, Inc., a California
corporation (“ RE ”), f/s/o Percy Miller,
with its principal place of business located at 9720 Wilshire
Blvd., Suite 700, Beverly Hills, CA 90212.
WHEREAS, RE and/or its officers, including Percy Miller, aka
the recording artist known as Master P (“
Artist ”), are of celebrity status and are
currently engaged in the entertainment industry, as well as other
industries relating to the marketing and distribution of
trademarked and branded merchandise.
WHEREAS, WYD owns certain proprietary rights relating to the
trademark and trade name “Who’s Your Daddy” (the
“ Marks ”) and sells certain products
labeled and/or branded with the Marks (the “
Products ”).
WHEREAS, WYD and RE desire to enter into this Agreement to
market and distribute certain Products through distribution
channels and media access available to RE, on the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
|
|
Services. RE shall assist WYD in the promotion, marketing,
advertising and distribution of the Promoted Products (defined
below in Section 2) by providing the following services (the
“ Services ”) with respect to the
Promoted Products:
|
|
|
|
|
|
|
Product Placement
. RE will assist WYD in entering
into agreements with stores and retail chains, including, without
limitation, K-Mart, Wal-Mart, Target, and Payless Shoe Stores
(“ Retail Stores ”) for the placement of
Promoted Products for sale in the Retail Stores.
WYD shall have control over the contract process with Retail
Stores, including, without limitation, negotiations with Retail
Stores regarding prices, terms and conditions; provided, that RE
shall cooperate in good faith with such efforts by WYD if requested
by WYD.
|
|
|
|
|
|
|
|
Personal
Appearances . Subject to
his reasonable availability, Artist shall make personal appearances
for WYD.]
|
|
|
|
|
|
|
|
RE
Identification . Subject
to RE approval, RE grants WYD the right to use the RE
Identification (defined below) for advertising and promotions for
the Promoted Products in all media now known or as may be hereafter
developed, including, without limitation, print, broadcast,
electronic and wireless media, including, without limitation,
television, radio, newspapers, magazines, free standing inserts,
direct mail, trade organizers, outdoor advertising, point-of-sale
advertising, in-house publications and internal (not for broadcast
or public distribution), as well as all other reasonable forms of
advertising and labeling, whether now
|
|
|
|
known or developed, or developed
hereafter. "RE Identification" means Artist’s name,
signature, approved photograph, voice or other sound effects,
approved likeness, personality, endorsement, biography, all as
approved and provided by RE to WYD specifically for use in
connection with Promoted Products, and any distinctive elements,
lettering style or color used in connection therewith.
RE shall have the right to
approve of such uses of the RE Identification, with such approval
not to be unreasonably withheld or delayed.
|
|
|
|
|
|
|
|
[ Links
. The parties agree to coordinate efforts as necessary to establish
hotlinks between [WYD WEBSITE] and [MASTER P WEBSITE].]
|
|
|
|
|
|
|
Product
Approval Process .
RE shall have the right to approve of the Products with respect to
which it will render Services (the “ Promoted Products
”), with such approval not to be unreasonably withheld. RE
must give reasonable reasons for not approving a Product. The
parties agree to attend and participate in a reasonable number of
business meetings each year during the Term relating to the
Services and the promotion, advertising, marketing and distribution
of the Products. At such meetings, among other things, the parties
shall discuss and identify which Products will be Promoted
Products. RE shall promote , subject to his schedule, different
Promoted Products during the Term. For the avoidance of doubt, no
approval of RE will be required for WYD to market or distribute any
Products without the use of the Services, or RE
identification.
|
|
|
|
|
|
Performance
of Services . RE shall
use commercially reasonable efforts to perform the Services, shall
actively promote and procure offers from Retail Stores on a
continuing basis to enter into agreements with WYD to place the
Promoted Products for sale in such Retail Stores, and shall comply
with good business practices and all applicable laws and
regulations. RE shall make no false or misleading representations
to Retail Stores, Key Decision-Makers or other persons with regard
to the Promoted Products or WYD. RE will not add to, delete from or
modify any sales or marketing documentation or forms provided by
WYD, except with the prior written consent of WYD.
|
|
|
|
|
|
Guarantee . Artist hereby irrevocably and unconditionally
guarantees the timely performance in full of any and all of
RE’s material obligations under this Agreement.
|
|
|
|
|
|
Other
Channels . Nothing in
this Agreement shall be construed as limiting in any manner
WYD’s efforts to enter into agreements with Retail Stores
with which RE has not introduced WYD to Key Decision-Makers, or to
otherwise market and distribute its Products.
|
|
|
|
|
|
Ownership;
Trademark Protection.
|
|
|
|
|
|
|
Usage
Guidelines . RE shall use
the Marks at all times in accordance with sound trademark and trade
name usage principles and in accordance with all applicable laws
and regulations as necessary to maintain the validity and
enforceability of the Marks. Neither party will use the Marks in a
manner that injures, devalues or demeans the other , its Marks or
Products, or knowingly portrays the other, its Marks or Products in
a false, competitively adverse or poor light. Any printed or
acceptable written materials regarding the Products distributed by
RE in the performance of the Services shall state that the Marks
are owned by WYD in a form reasonably acceptable to WYD.
|
|
|
|
No
Alteration by RE . RE
shall not alter the appearance of the Marks on the Products, or in
any publicly distributed materials, from the appearance of the
Marks on Products or materials provided to RE by WYD. WYD may, in
its sole discretion, change the style or appearance of its Marks
from time to time.
|
|
|
|
|
|
|
|
Ownership by
WYD . RE acknowledges
that the Marks and all rights therein and the goodwill pertaining
thereto belong exclusively to WYD. RE’s use of the Marks
shall inure to the benefit of WYD for all purposes, including
trademark registration. Without limiting the generality of the
foregoing, RE shall not challenge the validity of WYD’s
ownership of the Marks or any registration or application for
registration thereof.
|
|
|
|
|
|
|
|
Registration . WYD shall have the right to prosecute and
maintain registrations of the Marks. RE agrees not to register, or
attempt to register, the Marks or any confusingly similar
intellectual property in its own name or any other name anywhere in
the world, or to use the Marks in commerce other than as provided
herein.
|
|
|
|
|
|
|
|
Third Party
Infringement.
|
|
|
|
|
|
|
|
Control by
WYD . In the event that
RE learns of any infringement or unauthorized use of the Marks in
connection with the Products, it shall promptly notify WYD. WYD
shall have the sole initial right to bring infringement actions or
other similar proceedings against third parties in order to protect
the Marks. If requested to do so, RE shall reasonably cooperate
with WYD in any such action, including but not limited to joining
the action as a party if necessary to maintain standing, at
WYD’s expense. Any award, or portion of an award, recovered
by WYD in any such action or proceeding commenced by WYD shall be
shared equally between WYD and RE after recovery by both parties of
their respective, actual out-of-pocket costs and reasonable
attorneys’ fees incurred in connection with such action or
proceeding.
|
|
|
|
|
|
|
|
Control by
RE . If WYD determines
not to take any such action within forty-five (45) days after
receipt of the notice specified in Section 6.5(a), then RE may take
such action in its own name at its own expense; provided that it
first obtains the consent of WYD and keeps WYD informed of the
status of, and its respective activities regarding such action and
any proposed settlement or other resolutions thereof. WYD may
cooperate with RE or join such action at its sole discretion, at
WYD’s expense. Any award recovered by RE in any action or
proceeding commenced by RE as permitted herein shall be shared
equally between WYD and RE, after recovery by both parties of their
respective, actual out-of-pocket costs and reasonable
attorneys’ fees incurred in connection with such action or
proceeding.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term .
The initial term of this Agreement shall commence on the Effective
Date and shall continue, unless sooner terminated as provided
herein, for a period of twelve (12) months (the "Initial Term").
Upon the mutual agreement of both parties hereto, this Agreement
shall renew for a successive period of twelve(12) months (the
"Renewal Term", and, together with the Initial Term, the
“Term”)
|
|
|
|
Termination . This Agreement may be terminated:
|
|
|
|
|
|
|
|
By either party
if the other party defaults in the performance of any material term
or condition of this Agreement and such default continues without
cure for a period of thirty (30) days after the delivery of written
notice thereof by the terminating part
|
|
