Consulting Agreement

This advertising and consultant agreement (this Agreement) is made and entered this day of , 20 , by and between ,

(Name of Company)

a corporation organized and existing under the laws of the state of ,

(Name of State)

with its principal office located at , referred to herein as the Company, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as the Agency.

(Name of Advertising Agent) / (Name of State) / (Street Address, City, County, State, Zip Code)

Whereas, Agency is in the business of providing advertising agency services for a fee; and

Whereas, Company desires to engage Agency to render, and Agency desires to render to Company, certain advertising agency and consulting services, as set forth in this Agreement;

Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows:

1. Engagement of Agency. Company hereby engages Agency to render, and Agency hereby agrees to render to Company, certain services in connection with Company's planning, preparing and placing of advertising for certain products and services of Company, said services of Agency to consist of the following:

A. Analyzing the current and proposed products and services of Company and present and potential markets for Company;

B. Create, prepare and submit to Company, for its prior approval, advertising ideas and programs;

C. Prepare and submit to Company, for its prior approval, estimates of costs and expenses associated with proposed advertising ideas and programs;

D. Design and prepare, or arrange for the design and preparation of, advertisements;

E. Perform such other services as Company may request from time to time, such as, but not limited to, direct mail advertising preparation, speech writing, publicity and public relations work, and market research and analysis;

F. Order advertising space, time, or other means to be used for publication of the advertisements of Company, at all times endeavoring to secure the most efficient and advantageous rates available.

G. Proof of accuracy and completeness of insertions, displays, broadcasts, or other forms of advertisements; and

H. Audit invoices for space, time, material preparation, and charges.

2. Products and Services. Agency's engagement shall relate to the following products and services of Company:

3. Exclusivity. Agency shall be the exclusive advertising agency in the United States for Company with respect to the products and services described in Section 2 above.

4. Compensation.

A. Agency shall receive an amount equal to percent of the gross charges levied by media for advertising placed therewith by Agency pursuant to this Agreement; and percent after volume discount, of the charges of suppliers of services or properties, such as finished art, comprehensive layouts, type composition, photostats, engravings, printing, radio and television programs, talent, literary, dramatic and musical works, records and exhibits, purchased by Agency on the authorization of the Company during the term of this Agreement; provided that:

1. No percentage will be added to Agency charges for packing, shipping, express, postage, telephone, telex, fax, travel expenses and other out of pocket expenses of Agency personnel; and

2. Agency's commission for outdoor advertising will be the standard rate allowed advertising agencies when such rate is less than .

B. For those items where Agency is not compensated on a commission basis, Company shall pay Agency on an hourly basis for services provided hereunder. The rate will be determined by the type of services provided and the person or persons providing such services, but in no event shall the rate exceed $ per hour. Company may elect in advance to be charged on this hourly rate basis. If Company fails to notify Agency of its choice, it shall be presumed that Company elected to be charged on an hourly rate basis.

C. In the event that Agency undertakes, at Company's request subject to Company's prior approval, special projects such as those described in Section 1 (F) above, Agency shall prepare an estimate of total charges for any such special project, including any charges for materials or services purchased from outside sources. In the event that Company elects to proceed with the special project based upon Agency's estimated cost, Agency shall perform the services with respect to such special project at its estimated cost, subject to modification as mutually agreed by the parties.

D. For any special project or other services provided by Agency pursuant to this Agreement upon which the parties have not agreed as to charges, Company shall pay Agency at its regular hourly rate, not to exceed $ per hour.

E. Company shall not be obligated to reimburse Agency for any travel or other out-of-pocket expenses incurred in the performance of services pursuant to this Agreement unless expressly agreed by Company in advance.

5. Billing.

A. Agency shall invoice Company for all media costs, where possible, in advance of Agency's payment date to allow for prepayment by the Company so that Company may receive the benefit of any available prepayment or similar discount. For any media purchase or service for which Agency is not entitled to a commission, Agency shall ensure that the charges to Company are net of all agency commissions and discounts.

B. Charges for production materials and services shall be billed by Agency upon completion of the production job or, if cash discounts are available, upon receipt of the supplier's invoice.

C. On all outside purchases other than for media, Agency shall attach to the invoice proof of the supplier's charges.

D. All cash discounts on Agency's purchases including, but not limited to, media, art, printing and mechanical work, shall be available to Company, provided that Company meets Agency's requisite billing terms and there is no outstanding indebtedness of Company to Agency at the time of the payment to the supplier.

E. Rate or billing adjustments shall be credited or charged to Company on the next following regular invoice date or as soon as otherwise practical.

F. Invoices shall be submitted in an itemized format and shall be paid by Company within thirty (30) days of the invoice date.

6. Competitors. During the term of this Agreement, Agency may not accept employment from, render services to, represent or otherwise be affiliated with any person, firm, corporation or entity in connection with any product or service directly or indirectly competitive with or similar to any product or service of Company with respect to which the Agency is providing any service pursuant to this Agreement.

7. Cost Estimates. Agency shall not commence work on any project pursuant to this Agreement without first estimating costs for preparation, including copy, service, layout, art, engraving, typography, processing, paste up and production. After determining the estimated cost, completion of the work shall be subject to prior approval of Company.

8. Audit Rights. Agency agrees that following reasonable prior notice any and all contracts, agreements, correspondence, books, accounts and other information relating to the business of Company or this Agreement shall be available for inspection by Company and Company's outside accountants, at Company's expense.

9. Ownership and Use.

A. Agency shall insure, to the fullest extent possible under law, that Company shall own any and all right, title and interest in and to, including copyrights, trade secret, patent and other intellectual property rights, with respect to any copy, photograph, advertisement, music, lyrics, or other work or thing created by Agency or at Agency's direction for Company pursuant to this Agreement and utilized by Company.

B. Upon termination, Company agrees that any advertising, merchandising, package, plan or idea prepared by Agency and submitted to Company (whether submitted separately or in conjunction with or as a part of other material) which Company has elected not to utilize, shall remain the property of Agency, unless Company has paid Agency for its services in preparing such item. Company agrees to return to Agency any copy, artwork, plates or other physical embodiment of such creative work relating to any such idea or plan which may be in Company's possession at termination or expiration of this Agreement.

C. Materials and advertisements created by Agency pursuant to this Agreement may be used by Company outside the United States without additional compensation, provided that Company shall be responsible for any additional expense associated with such use, such as charges for translation and amounts due talent.

10. Indemnification and Insurance.

A. Agency shall indemnify and hold Company harmless with respect to any claims, loss, suit, liability or judgment suffered by Company, including reasonable attorney's fees and costs, based upon or related to any item prepared by Agency or at Agency's direction, including, but not limited to, any claim of libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright or other intellectual property interest, except where any such claim arises out of material supplied by Company and incorporated into any materials or advertisement prepared by Agency. Agency agrees to procure and maintain in force during the term of this Agreement, at Agency's expense, an advertising agency liability policy or policies having a minimum limit of at least $, naming Company as an additional insured and loss payee under such policy or policies.

B. Company agrees to indemnify and hold Agency harmless with respect to any claims, loss, liability, damage or judgment suffered by Agency, including reasonable attorney's fees and court costs, which results from the use by Agency of any material furnished by Company or where material created by Agency or at the direction of Agency subject to the indemnification in Subsection A above is materially changed by Company. Information or data obtained by Agency from Company to substantiate claims made in advertising shall be deemed to be "material furnished by Company to Agency".

C. In the event of any proceeding, litigation or suit against Company by any regulatory agency or in the event of any court action or other proceeding challenging any advertising prepared by Agency, Agency shall assist in the preparation of the defense of such action or proceeding and cooperate with Company and Company's attorneys.

11. Term. The term of this Agreement shall commence on and shall continue in full force and effect until terminated by either party upon at least ninety (90) days prior written notice, provided that in no event (except breach) may this Agreement be terminated prior to . The rights, duties and obligations of the parties shall continue in full force during or following the period of the termination notice until termination, including the ordering and billing of advertising in media whose closing dates follow then such period.

12. Rights upon Termination.

A. Upon termination of the Agreement, Agency shall transfer, assign and make available to Company all property and materials in Agency's possession or subject to Agency's control that are the property of Company, subject to payment in full of amounts due pursuant to this Agreement

B. Upon termination, Agency agrees to provide reasonable cooperation in arranging for the transfer or approval of third party's interest in all contracts, agreements and other arrangements with advertising media, suppliers, talent and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein.

13. Default. In the event of any default of any material obligation by or owed by a party pursuant to this Agreement, then the other party may provide written notice of such default and if such default is not cured within ten (10) days of the written notice, then the non-defaulting party may terminate this Agreement.

14. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

15. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

(Name of State)

16. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

17. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

19. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.